1. ' MUHAMMAD YAQUB Au, Actg. C. J.-Hussain Khan, appellant, of village Batagram, Distt, Peshawar, stands convicted under section 302 read with section 34, P. P. C. And sentenced to death for committing. The murder of his co-villager Farhad. Leave to appeal was granted to him as the trial Judge and the learned Judges in the High Court who confirmed the sentence of death had discarded ocular, evidence of the crime and relied solely on the dying declaration of the deceased which was recorded by the Investigating Officer and attested by two foot constables who accompanied him to the place of occurrence.
2. ' The facts briefly are that a young boy named Murtaza alias Shinai was a friend of Mir Rahman, elder brother of Farhad deceased. Shinai was a good looking boy. A few weeks before the occurrence he deserted Mir Rahman and became friendly with Said Karim (absconder). This resulted in bad blood between Mir Rahman and Said Karim. A patched-up compromise was reached through the good offices of one Haji Pordil and it was agreed that neither Mir Rahman, nor Said Karim will meet Shinai. As a parting gift Said Karim gave a pistol to Shinai, but it was taken away from him by Mir Rahman. This was resented by Said Karim.
3. ' As about 2 p.m. On 23rd July 1967, Farhad deceased happened to pass in front of the tobacco barn of Said Karim, when Abdullah, Gul Khan, Shah Jahan (acquitted accused), Hussain Khan, appellant and Said Karim (absconder), all friends inter se, forcibly lifted Farhad and took him inside the barn. He was confined there in a store room.
4. ' Habib Khan, P. W. 15 and Azam Din, P. W. 16, who happened to be nearby and had seen the occurrence left for the house of Alif Khan, P. W. 14 an uncle of Farhad to inform him about the incident. On the way, they heard gun reports at which Azam Din went away to his own house but Habib Khan reached the house of Alif Khan and informed him that Farhad had been lifted from the street forcibly and detained inside the tobacco barn of Said Karim (absconder). Gul Rahman, elder brother of Alif Khan was present. They both left immediately for the tobacco barn of Said Karim to rescue Farhad. Gul Rahman was ahead of Alif Khan. As they reached near the tobacco barn, Said Karim and Hussain Khan, appellant, came out in the street and fired one shot each which brought down Gul Rahman dead. Thereafter both the assailants entered the store room in which Farhad was confined. _ ' It is in evidence that after Gul Rahman was killed, reports of a number of gunshots were heard in the vicinity of Said Karim's tobacco barn. Presumably, the shots were fired by the partisans of Gul Rahman and Farhad. Five persons, on the side of the accused were injured as a result of the firing.
5. ' First information report about the incident was made at Police Station Batagram about a mile away from the place of occurrence by Mirza Khan, Lambardar, of the village. He was going to Bazar for making purchases when he learnt near the shop of Muhammad Afzal that Farhad had been forcibly abducted by Said Karim (absconder) and Hussain Khan, appellant, and confined in a kotha inside the tobacco barn. He saw Gul Rahman deceased making attempts to rescue Farhad when within his sight Said Khan and Hussain Khan fired a gunshot each which felled him dead in the street. He did not know what was the motive for the crime. He then beard reports of more gun shots and left for the Police Station to lodge the information. In pursuance to the report, Muhammad Tahir, A. S. P. W. 8, left for the spot accompanied by a Head Constable and 5 Foot Constables. As the party reached the village, they heard reports of more gunshots. Near the tobacco barn of Said Karim (absconder), the A. S. I., learnt that 5 injured persons were lying in the Hujra of Haji Pordil. He sent two of the constables to the Hujra while one constable was posted near the dead body of Gul Rahman.
6. ' The A. S. I., accompanied by P. W. 7 Amanullah, Head Constable and P. W. 13 Karim Khan, Foot Constable, went inside the kotha in which Farhad was confined. Hussain Khan appellant, Said Karim (absconder), and Shah Jahan (acquitted accused), were present in the kotha while Farhad lay on the floor injured seriously by gunshots. The A. S. I. Instead of placing the said three culprits under arrest, for reasons unknown asked them to go out while he recorded the dying declaration of Farhad. Thereafter he prepared his injury statement and made recoveries of 2 shot-guns empty shells and live cartridges from inside the kotha.
7. ' Farhad was sent in a tonga to the Civil Hospital under escort of P. W. 4 Shafiullah, Foot Constable, but he died on the way. His dead body was then taken to Charsadda mortuary where autopsy was performed by P. W. 19 Dr. Mahmood Ahmed Qureshi. He found following injuries on the person of the deceased :-
(1) An entrance fire-arm wound 1' x on the front of right side of abdomen in its lower part over the ilium region 44' below umbilicus.
(2) Six exit fire-arm wounds each being 1/2 x on the right buttock area covering an area of 6'x 6'.
8. The hip bone was fractured.
(3) A fire-arm wound 54' x 2'x on the front of right cheek adjoining right ear caused by grazing of fire-arm. The lower part of right ear was blown off.
(4) A fire-arm wound 34' x 4" on the front and outside of left leg 4 r' above ankle joint caused by grazing of fire-arm.
(5) 3 incised wounds being 1 1/2 x 1/2 x 4' x 4" and 1' x 1/2 x 1/2 res- pectively on the top of it.
9. ' The injuries suffered by the deceased indicated that 3 separate gunshots had hit him from a close range ; one shot hit the abdomen, the other on the right cheek and the third on the left leg. Pieces of wading were found within the abdominal cavity.
10. ' Both Hussain Khan, appellant, and Said Karim absconded after the occurrence and could not be traced in spite of proclamation made under sections 88 and 89, Cr. P. C. The latter is still at large while the appellant was arrested on 7-8-1969 after more than 2 years from the house of his brother in village Shabqadar Halimzai. The explanation given was that he ran away out of fear knowing that a false charge had been brought against him.
11. ' During the trial, Alif Khan P. W. 14, Habib Khan, P. W. 15 and Miraa Khan, P. W. 17 apeeared as eye- witnesses to the shooting of Gul Rahman by Hussain Khan, appellant and Said Karim, absconder, but the Additional Sessions Judge did not rely on them as they were interested and no independent evidence was led by the prosecution to corroborate their testimony. The appellants were on this finding acquitted of the charge for the murder of Gal Rahman. As no appeal was filed by the State from this order, it is unnecessary to go into the merits of the evidence furnished by P.
12. Ws. 15 to 17 in, regard to the murder of Gul Rahman. This however, does not mean that their evidence in relation to the murder of Farhad had also become irrelevant.
13. Habib P. W. 15 and Mirza Khan P. W. 17 had seen Hussain Khan, appellant, accompanied by Said Karim, absconder and Shah Jahan (acquitted) forcibly lifting Farhad deceased from the street and taking him inside the tobacco barn. Shortly after Farhad was found mortally wounded by gunshots in a room inside the barn. Blood-stained earth, two shot-guns, empty shells and live cartridges were recovered from that room. One of the guns was licensed in the name of the father of Said Karim, absconder.
14. ' According to the A. S. I., the Head Constable and the Foot Constable, who were the first to enter the room in which Farhad lay injured, Hussain Khan, appellant, Said Karim, absconder and Shah Jahan, acquitted accused, were present inside the store room but even if this part of their evidence is discarded on the ground that it was doubtful why the A. S. I. Should have, instead of placing them under arrest at once, allowed two of them to abscond the circumstances in which Farhad was found lying injured in the tobacco barn of Said Karim, soon after he was lifted from the street by the appellant and his co-accused, strongly corroborated the dying declaration made by the deceased that they were his assailants. The appellant, instead of giving an explanation for this incriminating circumstances, simply denied his presence at the spot. Thus besides the dying declaration, there was other direct and circumstantial evidence on which the prosecution relied in support of the charge against the appellant.
15. ' We may now look at the dying declaration. It reads :- "Statement of Farhad, son of Said Rahman, aged 15/16 years, resident of Batagram, states 'I have been injured with gunshots by my co-villagers Said Karim and Hussain Khan. I am a complainant against both."
16. In view of the 'grievous injuries suffered by Farhad, deceased, he could hardly be expected to give more details of the incident in which he was injured. In fact, it is likely that the above statement was made by him in reply to questions asked by the A. S. I. As the statement was attested by two of his subordinates, it was argued that it was not trustworthy as 400/500 persons had collected outside the tobacco barn but none was asked to be present when the dying declaration of Farhad was recorded. The argument has seemingly some weight, but we find that neither the A.S.I. Nor the two marginal witnesses were questioned by the defence on this point. We do not, therefore know why the course suggested by the learned counsel was not adopted. May be there was no one near enough as intermittent firing was going on in the vicinity and it was expedient to record the dying declaration without loss of time. We know that Farhad was seriously injured and his condition was so bad that shortly afterwards he died on his way to the hospital.
17. ' We further find that no one from the side of the complainant had access to Farhad before his dying declaration was recorded by the A. S. I. The possibility of prompting is therefore eliminated.
18. The defence did not even suggest any reason why Farhad had falsely charged the appellant and his co-accused as his assailants. There is also some intrinsic evidence of the truthfulness of the dying declaration inasmuch as Farhad did not mention any thing about the occurrence in which his uncle Gul Rahman had been murdered outside the tobacco barn. If the dying declaration was in fact fabricated it would have been much more elaborate than the actual statement.
19. We accordingly find no proper ground to discard the dying declaration of Farhad deceased on which the learned Judges in the High Court and the trial Judge have relied implicitly. When read in conjunction with the direct C and circumstantial evidence referred to above, it brings home the charge of murder to Hussain Khan, appellant, beyond any reasonable doubt.
20. ' In the above view, we find no merit in the appeal and dismiss it maintaining the conviction and sentence of death awarded to Hussain Khan, appellant, for the murder of Farhad deceased.