' ABDUL JABBAR KHAN, J.-Aliah Bakhsh son of Karim Bakhsh (25), Aliah Yar son of Abdul Ghaffar (26).
Aliah Diwaya son of Khair Muhammad (40), Ghulam Rasul son of Khuda Bakhsh (70), Karim Bakhsh son of Din Muhammad (60), Ghulam Qadir son of Pic c3iskhsb (35), Fida Hussain son of Palya Shah (25), Ghulam Akbar son of Inayat Until (30) and Nur Muhammad son of Qadir Bakhsh (23), were tried by the learned Sessions Judge,, Bahawalpur, Ex-Officio Additional Sessions Judge, Muzaffargarh, under sections 302/323, 148/149, P. P. C. For causing the death of Ghulam Farid deceased and inflicting simple injuries on the person of Qadir Bakhsh P. W. Vide his judgment dated 17th June 1974, the learned trial Judge convicted all of them and sentenced them as follows !- ' Aliah Bakhsh accused to death under section 301/149, P. P. C. With a fine of Rs, 100 or in default to undergo one month's R. I. Ghulam Rasul, Aliah Diwaya, Karim Bakhsh and Aliah Yar accused, were sentenced to imprisonment for life each under section 302/149, P. P. C. With a fine of Rs, 100 or in default whereof to undergo further one month's R. I. Each. They were further ordered to pay 1,000 each to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C., or in default of payment of this amount to suffer further R. I. For one year each. Fida Hussain, Ghulam Qadir, Nur Muhammad and Ghulam Akbar were sentenced to six month's R. I. Each under section 323/34, P. P. C. With a fine of Rs, 100 each to be paid to Qadir Bakhsh P. W. As compensation under section 544-A, Cr. P. C. Or in default of payment of fine they were ordered to suffer further one month's R. I. Each. Ali the above-mentioned nine accused were sentenced to one year's R. I. Each under section 148, P. P. C.
' Aliah Bakhsh, Aliah Yar, Aliah Diwaya, Ghulam Rasul and Karim Bakhsh accused/convicts have filed an appeal (Criminal Appeal No, 457 of 1974) against their conviction and sentences through Mr. Mahmud Ali Kasuri and Mr. Mushtaq Raj, Advocates while Ghulam Akbar and Ghulam Qadir accused/convicts have filed a joint appeal (Criminal Appeal No, 479 of 1974) through Mr. D., M.
Arbey, Advocate, against their conviction and sentences. Out of the convicts Fida Hussain and Nur Muhammad accused have not preferred any appeal. There is also a Murder Reference (No, 122 of 1974) referred by the learned trial Court under section 374, Cr. P. C. For the confirmation of the death sentence awarded to Aliah Bakhsh accused/ appellant. We propose to dispose of both the two appeals as well as the Murder Reference by a single judgment.
2. The occurrence took place on 25th May 1972, at 11 a.m. Within the premises of District Courts, Musaffargarh in a plot lying between the Court of Sessions on the east and office of the Deputy Commissioner and Copying Agency on the west, situated at a distance of one furlong from Police Station Sadder, Muzaffargarh. F.
1. R. Exh. P. I,./1 was based on the Dyin Declaration of the deceased Ghulam Farid which was recorded by Mia Muhammad tqbal M. I. C., Muzaffargarh (P. W. 1) on the same day a 11-45 a.m. The formal F.
1. R. Exh. P. L./1 was registered at. Polio Station, Saddar Muzaffargarh at 12-15 p.m. By Ahmad Din S. La P. W. 1 initially under section 307/148/149, P. P. C. But after the death of the deceased which occurred on the same day at Multan in Nishtar Medical Hospital, the same was altered under section 302/148/149, P. P. C.
3, A number of motives have been set up by we prosecution against the appellants for the murder of Ghulam Farid deceased, which are as follows:- ' That one Ghulam Rasul, the brother of Aliah Bakhsh appellant contested B. D. Election against Mian Ghulam Murtaza, the brother of Ghulam Farid deceased, who was defeated in that election; (if) that a decree Exh. P. Q. Dated 29th December 1968, was passed by Ghulam Farid deceased in favour of one Ghulam Farid son of Ghulam Haider against Ghulam Rasul, the brother of Aliah Bakhsh appellant for the recovery of Rs, 500 ; (iii) that Mst. Zohran wife of Ali Muhammad who is the brother of Allah Bakhsh appellant, had filed a suit for the recovery of maintenance allowance against said Ali Muhammad in the Union Council of which Ghulam FaridSieceased was the Chairman. The appearance of Mst. Zohran against the brother of Aliah Bakhsh appellant was resented by Aliah Bakhsh ; (iv) 5/7 years prior to the occurrence Aliah Bakhsh appellant and his brother Ghulam Rasul were challaned in a case of abduction of a woman and it was suspected by them that Ghulam Farid deceased had sent a man to the relatives of the woman that the woman had been concealed by Aliah Bakhsh appellant in his house ; On that one Manzoor was involved in a civil litigation for the recovery of produce rent with Aliah Bakhsh appellant and his brother Ghulam Rasul and according to the prosecution ultimately both the parties were bound down under section 107, Cr. P. C. The above-mentioned Manzoor was able to get himself bailed out on a surety given by Muhammad Shafi, the driver of Ghulam Farid deceased. In consequence thereof it is alleged that Aliah Bakhsh appellant and Ghulam Rasul, his brother, extended threats of murder to Ghulam Farid deceased as he was helping their opponent; (vi) that one Mst. Azim Khatun wife of Karim Bakhsh appellant is stated to have been identified by Ghulam Farid deceased at the time when she mutated her property in favour of one Amir Bakhsh Ambreen. This action of Ghulam Farid was highly resented by Karim Bakhsh appellant who it is stated had filed a private complaint against Ghulam Farid deceased and Amir Bakhsh Ambreen to the effect that Mst. Azim Khatun had not sold her land and that Ghulam Farid deceased had wrongly identified her at the time of sanction of that mutation; (vii) that Abdul Rehman P. W. 7, the uncle of the deceased bad purchased some land from the cousin of Aliah Yar appellant. Whereupon Aliah Yar had filed a suit against the factum of said sale and was able to secure the decree for its cancellation. Abdul Rehman P. W. Went in appeal against that decree but the same was dismissed. Despite losing his legal title Abdul Rehman P.W. Did not deliver the possession of the land to Aliah Yar appellant. The motive against Ghulam Rasul and Aliah Diwaya appellants is stated to be that Ghulam Rasul appellant had abducted Mst. Sakina of Sakhiani caste and had kept her in his house. It is alleged that Mst. Sakina was got recovered by Ghulam Farid deceased and both the appellants under reference were challahed in that case.
4. The first picture of the incident has been revealed by the deceased "melt while making his statement Exh. P. L. Before a Magistrate First lass in the following manner : ' On the fateful day Ghulam Farid deceased went to District Courts to attend to some of his personal affairs. At 11 a.m. When he emerged from the office of the Deputy Commissioner he saw Aliah Diwaya, Aliah Bakhsh, Ghulam Rasul, Karim Bakhsh and Aliah Yar appellants alongwitb 5/6 other persons not known to the deceased, present under a jarnon tree. He was immediately fired at by Aliah Bakhsh appellant which hit the deceased on the right side of his abdomen. The other persons duly named and described by him caught hold of him and belaboured him with lathis.
According to the deceased one of the latht blows caused the fracture of his head. He in his statement held Jalil Haider Shah, Advocate and Ghulam Rasul son of Karim Bakhsh Makwal, resident Uttera Sandila, as the persons who had arranged this attack on his life. It was told by the deceased to the Magistrate that he was taken to the hospital by Nawab Asadullah Khan of Khan Garh accompanied by his brother-in-law Manzoor Ahmau and his driver Muhammad Shah.
5. Ahmad Din S. (P. W. 7) who was posted as an S. H.
0. At Police Station, Saddar, Muzatfargarh, at the relevant time, happened to be present in the office of the Superintendent of Police, Muzaffargarh in connection with some official duties on the day of occurrence. He received an information that firing had taken place in the district Courts and immediately left for the place of occurrence after the receipt of the information. When he reached the spot he gathered the information about the incident and was told that (-Mutate Farid deceased who bad fired upon, had already been taken to the hospital in an injured condition.
Realising the gravity of the situation regarding the physical condition of the deceased be went to the office of the Deputy Commissioner and filed an application Exh. P. L./2 without wasting any them, stating therein that arrangement for the recording of dying declaration or the deceased be made. The Deputy Commissioner acting in the capacity of District Magistrate, deputed Mien Muhammad lqbal M, I. C. (P. W. 1) for recording the dying declaration of the injured person. The S. I.
Apprised Mien Muhammad What of the Oistrict Magistrate's order who immediately left the hospital all alone by himself. The S. L also managed to reach the hospital following the Magistrate.
Mien Muhammad Iqbal P. W. I, recorded the statement of Ghulam Farid deceased whereupon the S. I. Obtained its copy from the Court of Midis Muhammad Iqbal P. W. For the purpose of registration of the case and thus be recorded F. I. R. Exh. P. L./1 on the basis of dying declaration Exh P. L. Leaving the injured under the care of the doctor he went to the Place of occurrence for the purpose of investigation. Irshad Hussain P. W. 11 had caught hold of Aliah Bakhsh appellant along-with the pistol while Nazir Ahmad (not produced) caught hold of Ghulam Qadir appellant. Nazir Ahmed also apprehended Aliah Yar appellant when he had handed over Ghulam Qadir appellant to an F. C.
Who had arrived at the spot in the meantime. Subsequently these accused were handed over to Ahmed Din S. I. At the spot who formally arrested them alongwitb Fide. Hussain accused. The remaining accused bad run away and could not in; apprehended. Ahmad Din S. I. P. W., arrested Karim Bakbsh, Aliah Diwaya and Ghulam Rasul appellants on 28th May 1972, while Ghulam Akbar appellant was arrested on 14th August 1972, by Nafeesud-Din P. W. 14, who was posted as S. H.
0. At Police Station, Kinjar, The Investigating Officer took into possession an unlicensed pistol P. 3, live cartridge P. 4 and empty cartridge P. 5 (from inside the pistol) recovered from Aliah Bakhsh appellant, vide memo. Exh. P. C., which was attested by Irshad Hussain P. W. 11 and Nazir Hussain (not produced) besides the Investigating Officer himself. He also took into possession sarya P. 1, produced by Nazir Hussain which he recovered from Ghulam Qadir appellant and clang P. 2 which Nazir Hussain had obtained from Aliah Yar appellant, vide memo. Exh. P. B. He took some blood- stained earth from the spot, into possession vide memo. Exh. P. N. He got prepared site plans Exh P.
A./1 j". A./2, from Khalil At mad Draftsman P. W.
6. Ijaz Ahmad P. W. 2 who was posted as an A. S. I. On 25th May 1972, at Police Post, Shish Mahal, Multan, received an information from Dr. Zubair regarding the death of Ghulam Farid deceased. He went to Nishtar Hospital, Multan. He examined the dead body of Ghulam Farid deceased ; prepared inquest report Exh. P. J. And injury statement Exh. P. H. In respect of it. After completing the formalities he had sent the dead body to the Anatomy department. Nishtar Hospital, Multan, for post-mortem examination through Samand Khan F. C. And Fateh Khan F. C. The inquest report Exte P. J was prepared by him on the information which he gathered from Abdul Rehman P. W. 7 and Taj P. W. 8 who were with the deceased at the time of his death and was also told by these persons that a case bad already been registered at P. S. Saddar, Muzaffargarh.
6. Dr. Muhammad Afzal P. W. 15, medically examined Ghulam Farid deceased on 25th May 1972, and found that he was pale, sweating and cold with weak pulse but all the same he found him conscious and informed the Magistrate to record his dying declaration. He found the following injuries on his person :-
(1) A lacerated gunshot wound of entry lr lr in the right hypocondrium. There was bleeding from the wound. Some of intra-abdominal contents in ruptured condition were protruding out of this wound.
Two big holes were also present on the right and front of maimed blood-stained chola, Smoke was smeared around the chola holes, A big hole was also present in the front part of right side of the bitnyan. Smoke was also present around this hole. There was no wound of exit but few hard foreign bodies could be felt under the skin near right kidney angle.
(2) A transverse lacerated wound x I" x scalp deep was present at the top of the head between the ears.
' According to the doctor Injury No, 1 was grievous and dangerous to. Life. Injury No, he was kept under observation. Both the injuries were quite fresh. Injury No, 1 was caused by a fire from the fire- arm, while injury No, 2 was caused by a blunt weapon. On the same day this doctor medically examined Qadir Bakhsh son of Khuda Bakhsh P. W. 12 and found the following injuries on his person :-
(1) A transverse lacerated wound 2' x 1' into scalp deep on the right side of back of the head, 3' above the right ear.
(2) A contusion mark 4+1-' x 4' in the middle of left upper arm.
(3) A transverse contusions mark 2'x r in the middle of right upper arm.
(4) A transverse, abraided contusion mark 4" le in the middle of lei calf.
(5) An oblique lacerated wound 3' x r x scalp deep on the right head 4" above the right ear.
' After the deceased had succumbed to his injuries post-mortem examination was conducted upon his body by Dr. Altai Hussain Gardezi P. W. 13, who found similar injuries on his person as given in the medical examination report of Dr. Muhammad Afzal P. W. 15 and besides this Dr. Altaf Hussain Gardezi P. W. Removed six big pellets from the back of right chest and wads of cartridge from the wound, which he handed over to the police in a sealed parcel. He found that plurea, peritonium, pancrease and mesentry, liver and right kidney were ruptured. In the opinion of the doctor the cause of death was shock and haemorrhage as a result of injury No,
1. This injury was antimortem and was sufficient to cause death in the ordinary course of nature, Injury No, 2 was caused by a blunt weapon and was simple in nature. The time between injuries and death was about six hours and between death and post-mortem was within 16 to 18 hours. During his cross-examination he stated that the edges of injury No, 1 were scorched which means burning. The burning according to him could be caused by the flame of the powder. The two wads, one of card board and the other of felt, were lying inside the wound. This could happen only if the weapon was fired from very close range or almost in contact with the body.
7. Aliah Bakbsh appellant when examined at the trial under section 342, Cr. P. C. Denied all the motives attributed against him and also denied the making of dying declaration by Ghulam Farid deceased before a Magistrate. When questioned that why the P. Ws. Had deposed against him, he replied that he had been falsely involved due to political rivalry with Minn Ebsan Karim, Advocate whose brother Ghulam Mustafa was opposed by him, his relations and party-men. He claimed himself to be a member of P. D. P. Of Nawab Zada Nasrullah Khan and had refused to oblige Mian Ghulam Mustafa and Mian Ehsan Karim, to cast vote in favour of Mian Ghulam Mustafa, He also challenged the veracity of Irshad Hussain P. W. For the reason that he was munshi of Mian Ehsan Karim. Be however, did not deny his presence on the day of occurrence in the District Courts premises where he had gone to get his Land Reform papers prepared from the Patwari. According to him after getting his Land Reform papers completed he left the Court premises and went to his house which was situated in Mohallah Sheikhupura in Muzaffargarh City. He claimed that he was arrested from his house and not from the spot as was the case of the prosecution.
' Aliah Diwaya appellant has professed his innocence and has attributed the case due to party faction with Misn Ehsan Karim, Advocate and has added that Ghulam Farid deceased was a notorious man and a number of persons including his cousin Aliah Bakbsh son of Mian Miran, had filed applications against him. Aliah Yar appellant has also denied his participation in the crime and has explained that Abdul Rehman has deposed against him for the reason that he had filed a suit against him in connection with the land which said Abdul Rehman had obtained illegally. He also attributed this case at the machination of Mian Ebsan Karim, Advocate whom he had refused to oblige to cast vote in favour of bis brother. He produced a copy of decree Exb. D. C. Dated 1st November 1971, in the civil suit titled Khuda Bakhsh and Aliahyar etc. v. Ibrahim etc. ' Ghulam Qadir, Ghulam Akbar, Noor Muhammad, Gbulam Rasul, Fida Hussain and Karim Bakhsh accused have similarly, claimed to be innocent and have attributed their involvements in the case due to party faction. Fida Hussain appellant has, however, claimed that he was a grocer by profession and bad come to Muzaffargarh city for the purpose of purchasing articles for his shop.
He was arrested by the police when he was purchasing articles at the shop in Muzaffargarh city.
8. The case of the prosecution rests on the following categories of evidence-
(I) the evidence of motive;
(ii) the Dying Declaration of Gheilam Fetid deceased;
(iii) the ocular testimony as provided by Irshad Hussain. P. W. 11 and Qadir Bakhsh P. W. 12 the injured witness;
(iv) the evidence of recovery of pistol P. 3 with crime empty P. 5 in its chamber alongwith one live cartridge P. 4 recovered from the person of Aliah Bakhsh appellant supported by the positive report of the Fire Arms Expert Exh. PR; and
(v) the medical evidence.
9. We have heard the learned counsel for the appellants as well as learned counsel for the State and have perused the entire record of the case with their assistance, very carefully. As far as the different motives given in the earlier part of the judgment set up by the prosecution in this case against various appellants are concerned, it may be pointed out that the learned trial Court has repelled all the motives except the two, one regarding the election contest between the brother of Aliah Bakhsh appellant and Mian Ghulam Murtaza, the brother of the deceased and a decree for the recovery of Rs, 500 against Ghulam Rasul, the brother of Aliah Bakhsh appellant, passed by the deceased at the instance of one Ghulam Farid son of Ghulam Haider. We have gone through the reasoning as given by the learned trial Court while declining to rely on other motive besides the two given above and find that it had good reasons to reject all these allegations which the prosecution failed to substantiate with cogent evidence so as to persuade a retinae' mind to accept these contentions. The outcome of all these averments by the prosecution at the most can only show that there did exist a bad blood and enmity between the deceased and the appellant Aliah Bakhsh. Undoubtedly both these events do not relate to a time either close or immediately prior to the occurrence yet it indicates towards unsavoury relations between the tre,o. Moreover it is settled law that the absence of motive or presence of weak motive does not provide reason for the Court to disbelieve direct evidence of the main incident if that evidence is otherwise worthy of credit and can form sound basis for conviction of the accused. In view of the matter we are of the considered opinion that Aliah Bakhsh appellant had no love lost for the deceased Ghulam Farid and his alleged action can emanate from a long standing rancor of certain past events.
10. The learned counsel for the appellant Aliah Bakhsh and Aliah Yar, Aliah Diwaya, Ghulam Rasul and Karim Bakhsh appellants, who have been sentenced to life imprisonment in this case has assailed the F. I. R. Which in fact is a Dying Declaration by Ghulam Farid deceased as being of doubtful nature for the reasons that it was not signed by the deceased himself and the promptitude with which it was recorded within a period of 45 minutes, reflects on its authenticity and indicates towards strong presumption that in fact it was recorded at some time later but the insertion of timings in it, has been manipulated by the prosecution in collusion with the Magistrate.
It has been further submitted that Qadir Bakhsh, the injured witness, who had come forward to support the version of the Prosecution, does not find mention in the F. I. R,, whereas persons mentioned in it . Like Nawab Asadullah Khan of Khan Garb, Manzoor, the brother-in law of the deceased and the deceased's driver, had not come forward to support his narration. Great stress has been laid on the absence of motive in this dying declaration which was within the knowledge of the deceased and would have gone a long way to establish animus of Aliah Bakhsh appellant and his other co-appellants. It has also been submitted that according to this dying declaration the deceased has claimed that he was beaten with lathis by Aliah Diwaya, Ghulam Rasul, Kyitn Bakhsh and Aliah Yar, accused, after he was tired upon by Aliah Bakash appellant. The learned counsel has pointed out that this part of narration of the deceased is against the medical evidence as according to that evidence there was only one injury on the head of the deceased which the P.
Ws have attributed to Ghulam Qadir appellant who was stated to be armed with a sarya which was recovered at his instance during the course of investigation in this case. Lastly he has closed the criticism of this document Exh. PL (the dying declaration) by saying that strangely enough Jalil Haider Shah, Advocate and Ghulam ;Rawl who were pin pointed by the deceased as the persons who were really responsible for this attack on his person, were never interrogated by the investigating agency either to affirm this allegation or to repel it.
' As regards the ocular testimony which only consists of two witnesses namely, Irshad Hussain P. W.
11 and Qadir Bakhsh P. W. 12, it has been submitted that this Irshad Hussain P. W. Happens to be a clerk of Mian hhsan Karim, Advocate, who according to the defence was pivot in the drama staged by the prosecution and had also not hesitated to play the role of a prosecutor on the side of the complainant party. With regard to Qadir Bakhsh P. W. It has been reiterated that he was a put up witness whose name was not mentioned in the F.
1. R. By the deceased and has been brought on the scene with self-suffered injuries so as to show that his presence at the spot could not be excluded because of the injuries on his person. In the same strain it has been contended that the two Foot Constables and one Nazir H ussain who were responsible for the apprehension, at the spot, of Fide Hussain, Aliah Bakhsh, Aliah Yar and Ghulam Qadir accused, were kept back by the prosecution without any cogent reasons whereas they would have been the natural witnesses to support the prosecution version. It has been the common argument with all the appellants in this case that Jalil Haider Shah, Advocate, was a Chairman of Pakistan People's Party at Muzaffargarh whereas the appellants were supporter of Nawabzada Nasrullah Khan, a leader of the Pakistan Democratic Party and thus the prosecution considered this Advocate of the Pakistan People's Party, sacrosanct and could not muster strength or courage to interrogate him despite the fact that he was named as conspirator and the moving spirit behind the murder of the deceased.
11. We have given our anxious thought to all the contentions raised by the learned counsel for the appellants and find that the dying declaration Exh. PL was a document recorded by Mian Muhammad iqbal P. W. 1, a First Class Magistrate, who fully satisfying himself that the person making the dying declaration was conscious and was in a fit condition to make a statement and took all possible care to see that there was nobody around him at the time he made a statement and also consulted the doctor by recording a statement that the deceased was fully capable of giving narration of the incident in which he was involved. Despite the lengthy cross-examination by a battery of lawyers, we do not find anything to show that the Magistrate either acted carelessly by not complying with the mandatory provisions under the law as laid down for the recording of dying declaration or acted dishonestly in collusion with the prosecution to set up a false case against Aliah Bakhsh appellant and others. We are of the firm opinion that wild allegations of collusion and dishonesty are nothing but fantasy on the part of the defence who out of frustration to gain anything from this witness have not hesitated to cast aspersion on the character of this Magistrate.
The mere fact that the deceased did not sign his statement after he had made it before the :Magistrate or that he did not give minute details either of motives or of the incident, does not in any way detract from the authenticity of his version on the salient points of this case. The short statement made by him rather goes in favour of the documents as being correct as a person who has received a fatal injury of the kind which this person had received, would not be expected to narrate the incident in a laborious manner and recollect the past which might have been the cause of it.
' The fact that the medical evidence did not reveal more than one blunt injury on his person although the same was attributed to the companions of Aliah Bakhsh appellant by the deceased in his dying declaration, can at the most show that after receiving such a close shot by a firearm of the dimension as recovered from the person of Aliah Bakhsh, would naturally send the deceased in a state of shock and anything after that would be nothing but a hazy recollection of events by the injured person who could make certain averments in that state of mind which may be the result of his conjecture. In the instant case there can be no dispute about the fact that when Aliah Bakhsh appellant opened fire on the deceased he was hale and hearty person and could not mistake his assailants in any manner whatsoever. Similarly before this attack was launched at his person he had also seen four other persons, whose names are mentioned in the dying declaration and thus it would be natural for him to presume that their presence alongwith Aliah Bakhsh appellant would be for ulterior motives and thus when he had received an injury by a blunt weapon on his head it would look reasonably probable to believe that he would attribute it to those whom he had seen earlier with the appellant Aliah Bakhsh at the spot. The later part of his statement may be result of a hallucination caused by the shock of the first injury received by him or his guess work against the other four who were seen by him at the spot, of which he retained some faint impression when he found himself in a fit condition to make a statement. Therefore we shall have to apply the principal of separating the chaff from grain to the statement of this witness who is to be treated at par with the status of an interested witness and would also seek for further corroboration to substantiate this latter part of his statement. In the circumstances of this case we do not find that the deceased received more than one injury with a blunt weapon on his head and the ocular evidence relating to this part of the account is also discrepant and does not lend support to his contention: From the ocular evidence there is definitely a corroboration of this statement of the deceased to the extent that Aliah Yar appellant gave a dang blow on the head of the deceased after he was fired at by Aliah Bakhsh appellant. As far as the other three appellants namely Ghularn Rasul, Aliah Diwaya and Karim Bakhsh mentioned by deceased in the dying declaration, where declared by the P. Ws.
As empty-handed. We will discuss the plausibility as well as the weight of ocular testimony regarding these three appellants at the proper stage when we discuss the veracity of ocular testimony in this case. For the time being it is sufficient to say that dying declaration made by the deceased positively connects Aliah Bakhsh appellant with the act of firing as well as Aliah Yar appellant with the infliction of injury on the head of the deceased, both from its own contents as well as from the testimony of two eye-witnesses. In case the defence had pointed out any malpractice, violation of mandatory rules or malice on the part of Mian Muhammad Iqbal P. W. 1, the Magistrate, Ist Class, from the record of the case then we would not give so much weight to this document as we have attached to it in the instant case. Therefore, we have no option but to place implicit reliance on the dying declaration vis-a-vis the guilt of Aliah Bakhsh and Aliah Yar appellants.
12. The ocular testimony in this case has been provided by Irshad Hussain P.W. 11 and Qadir Baksh P.
W.
12. Qadir Bakhsh P.W. Although not mentioned in the F. I. R. (dying declaration) received as many as five injuries. Out of which two were on the head, one being 2' x x into scalp deep on the right side of back of the head, above the right ear, besides the other three received on the arm and on the calf.
The defence did make a faint attempt by making a suggestion to Dr. Muhammad Afzal P. W. Is who had examined this witness that about the possibility of injuries being caused by a friendly hand or of self-inflicted nature but the same was positively rebutted by the doctor who stated in unequivocal terms that neither injury Nos. 2, 3 and 4 were caused by friendly hands on the person of Qadir Bakhsh P. W. Nor it was possible that injury Nos. 2, 3 and 4 could be self-inflicted. He also reasoned out by saying that size, appearance and location of the injuries were such that they could not be self-inflicted or self-suffered. It may be pointed out that learned counsel for the defence had not the courage to make similar suggestion regarding injury Nos. 1 and 5 because the seat of location of these injuries by itself would not encourage anybody to make suggestion of the nature. With this analysis of the injuries caused on the person of Ghulam Qadir P. W. 12, no room for doubt is left in our mind that this witness was present at the time of occurrence and no exception can, in any manner, be taken to his involvement in the aftermath of the attack on the person of the deceased. Both these witnesses have corroborated each other on all salient points and the defence has not been able to make out anything against them as to show either they had a motive to falsely implicate the appellants or they had any old friendship with the-complainant party so as to lend support to their case without any justification.
13. In order to assess the culpability of Ghulam Rasul, Aliah Diwaya and Karim Bakhsh appellant we have to weigh and assess the narration regarding their part played in this drama as given by them so as to see whether these three appellants did or could act in the manner as described by these two P. Ws. Qadir Bakhsh P. W. Has stated in this examination-in-chief that Aliah Diwaya, Karim Bakhsh and Ghulam Rasul appellant although empty-handed yet caught hold of the deceased before he was actually fired upon by Aliah Bakhsh appellant. It will be interesting to reiterate the narration of this witness as given by him in his cross-examination in paragraph No, 1 at page 67 of the Paper Book:- "Accused Karim Bakhsh had caught Ghulam Farid deceased from his right arm and had stood behind him while giving twist to the arm and while catching the same. Accused Aliah Diwaya had put his arm around the neck of Ghulam Rasul who had caught Ghulam Farid deceased from his legs by bending down and while standing on his left side."
' Qadir Bakhsh P. W. 12 stands corroborated by Irshad Hussain P. W. 11 on this detailed account of the part played by these three appellants. It is also in evidence of Irshad Hussain P. W. 11 that Ghulam Rasul was the oldest among the three, was 7 feet in height and was weighing about 4 maunds. If the statement of Irshad Hussain P. W. Is accepted about the height, age, breadth and the weight of Ghulam Rasul, then the story as given by these witnesses, becomes highly improbable as well as ridiculous. Firstly it is unimaginable that a man of 60 years, 7 feet in height with an extraordinary volume would be able to bend to the extent as to hold the knees of middle size person and if at all he could perform this impossible feat, then he would not cover that entire front of his victim. If the deceased was placed in a situation like this where he was being held from the back by two other individuals then it would not be possible for any person to shoot him without taking the risk of killing his own compatriots and friends. We consider this description as nothing but a wanton piece of exaggeration which the P. Ws. In their zeal to give some role to the empty-handed persons have come forward with this cock and bull story. We have no hesitation to reject this incredible and preposterous narration which makes a rational mind revolt to its very suggestion.
14. As far as the role of Ghulatu Qadir and Ghulam Akbar (appellants in Criminal Appeal No, 79 of 1974), is concerned, we have no hesitation to rely on the testimony of injured witness Qadir Bakhsh P. W. 12 who has fully implicated them as the persons who injured him with iota blow and the same has found support from the medical evidence on the record. We do not find any force in the criticism of the learned counsel for the appellants regarding the veracity of these two witnesses. If at all the defence thought that the whole case was being engineered at the instance of Mian Elisan Karim Advocate, then there was no bar from them to produce some evidence on the file to show the complicity of this Advocate in this matter. Mere allegation without any substance, however, loud they are proclaimed, cannot make the claim look as genuine. Similarly, if the defence felt that this was a case of political victimization there was nothing in their way to produce Nawab Asadullah Khan of Khan Garh or any other witness given up by the prosecution as unnecessary to produce in their defence or to make request to the Court to summon them as Court witnesses in order to prove its contention. The very fact that Jalil Haider Shah, Advocate. Against whom the deceased made complaint in his dying declaration that he was the person behind the attack launched by Aliah Bakhsh appellant and his companions belonged to Pakistan People's Party, goes to throw over board the defence version regarding their grievance that the appellants being P. D. P.
People were victimized for their political conviction. How one could possibly imagine that the appellants who claimed themselves to be P. D. P. Persons would act on the behest of Pakistan People's Party Chairman to commit the murder of his enemy.
15. Lastly the learned counsel for the appellants has argued that the case of the appellant does not merit the sentences as awarded to them by the learned trial Court for the reason that the dying declaration as well as the P. Ws. Are silent on this point as to what took place immediately before the occurrence which made Aliah Bakhsh appellant to attack the deceased without any provocation. According to the learned counsel for the defence this would be a redeeming feature in favour of the appellants for awarding them lesser penalty. We are hardly impressed with this argument. As referred earlier, Aliah Bakhsh bad definitely some cause of grievance which motivated him to take revenge and thus his dastardly act of violence does not entitle to any lenient treatment.
16. In the light of the above discussion we are of the considered opinion that Aliah Bakhsh appellant has been rightly convicted and sentenced alongwith Aliah Yar appellant, under section 302/34, P. P.
C. Relying on the dying declaration ; recoveries of weapon of offence from the two appellants, supported by the evidence of Firearms Expert and the medical evidence. The learned trial Judge also rightly convicted and sentenced Ghulam Qadir and Ghulam Akbar appellants. As far as Ghulam Rasul, Karim Bakhsh and Aliah Diwaya appellants are concerned, we are of the view that the learned trial Judge was not justified to convict and sentence them as they have not participated in the murder of the deceased.
' The result is that we maintain the conviction and sentences of Aliah Bakhsh and Aliah Yar appellants and appeal qua them is dismissed. Appeal with regard to Ghulam Rasul, Karim Bakhsb and Aliah Dlwaya is accepted. Their conviction and sentences are set aside and they are acquitted of all the charges. They should be set at liberty forthwith unless they are wanted in some other case. The conviction of Ghulam Qadir and Ghulam Akbar appellants is warranted regarding quantum of sentence visited upon Ghulam Qadir and Ghulam Akbar appellants, we alter their sentence to the extent of period already undergone by them. Since, they are on bail, they should be discharged of their bail bonds. However, the sentence of Rs, 100 or in default whereof to undergo further one month's R. I. Each is maintained.
17. The sentence of death awarded to appellant is confirmed.