1. [Lahore]Present: S.M. Zubair and falak sher, JJFARYAD ALI etcVersusTHE STATECriminal Appeal No. 86 of 1990 and Criminal Appeal No. 92 of 1990, decided on 1st August, 1994.(a) Pakistan Penal Code, 1860--S. 302/307/34~Delay in lodging of FIR-Held: Nor fatal especially when occurrence took place at a distance of 21 KM from the Police Station and the complainant himself injured in the occurrence.(Para 7)(b) Pakistan Penal Code, 1860--Ss. 302/307/34-Evidence-Evaluation of-Held: Presence of injured witnesses at the sport cannot be doubted-Besides being a day light incident no possibility of mistaken identification of the accused-Specific role of each accused mentioned in the FIR.(Para 9)(c) Pakistan Penal Code,-1860--Ss. 302/307/34-Motive-Evidence of the eyewitnesses sufficient to prove the motive.(Para 13)(d) Pakistan Penal Code, 1860--Ss.
2. 302/307/34-Held: Minor discrepancies too nice to he taken into consideration in incident in which so many persons took part armed with firearms thereby killing the person especially in the day time.(Para 13)For the Appellants: S.M. Latif Khan Khoso, Advocate.For the State: Najmul Hassan Gill, Advocate.Date of hearing: 31st July, 1994. .JUDGMENTS.M. ZUBAIR, J.- Criminal Appeal NO. 86 of 1990, filed jointly by Faryad Ali alias Faiz, Mannu Khan and Waris Ali, Criminal Appeal No. 92 of 1990 filed by Faryad Ali through Jail and Murder Reference No. 59 of 1991, for confirmation of death sentence of Faryad Ali, ari$e out of the following circumstances.2. Manzoor Ahmad P.W. 10 lodged FIR ExP.M.
3. Under sections 302/307/34 PPC at Police Station Uch Sharif, District Bahawalpur, on 21-1-1982 at 10.30 p.m. With regard to an occurrence which took place on the same day at 4.30 p.m. In which two persons, namely, Ghulam Muhammad and Ahmad Baldish lost their lives and the complainant Manzoor Ahmad and Abdul Ghafoor P.W. 11 received injuries, which was recorded by Muhammad Aslam ASI (PW.16). Manzoor Ahmad complainant stated that he was the resident of Jagir Sadiqabad, where he also cultivated his land. On 2-1-1982 at 9.00 a.m., he along with Ghulam Muhammad deceased, Hazur Pakhsh, Khandu, Mithal (not produced) and Abdul Ghafoor P.W.11 was present and Khurshid Ahmad Patwari (C.W.1) in the presence of Mannu Khan, Faryad Ali, Abdul Malik alias Cheeku (since dead) and Waris Ali accused, was conducting Had Barari of the land of Col. A.K. Khanzada. During these proceedings, hot words exchanged between the parties, but they were separated by the persons present there. However, Abdul Malik while leaving the place threatened the complainant party to take revenge of this insult. The complainant party did not attach much importance to this incident and went to their houses. The same day at 4.30 p.m.
4. Manzoor Ahmad P.W.10, his brother Abdul Ghafoor (P.W.11), Ghulam Muhammad and Ahmad Bakhsh deceased were making Wats of their field of wheat crop, Abdul Malik and Faryad Ali armed with guns, Mannu Khan and Waris Ali accused armed with pistols appeared at the scene. Abdul Malik raised a lalkara that they had come to take revenge of their insult and they would not spare them. Abdul Malik fired at Ghulam Muhammad with his gun which hit him and he fell down.
5. Manzoor Ahmad and Abdul Ghafoor P.Ws, and Ahmad Bakhsh deceased rushed towards Ghulam Muhammad deceased, whereupon all the for accused opened fire and injured them. Their outcries attracted Abbas Shah P.W.9, Mithal and Khandu (not produced) to the spot who were present nearby, and they saw the occurrence. Thereafter the accused decamped along with their respective weapons. Ghulam Muhammad died at the spot. The injured were brought to Police Station Uch Sharif, where Manzoor Ahmad P.W. 10 lodged the FIR Ex.PM at 10.30 p.m., which was recorded by Muhammad Aslam ASI P.W.16.3. ' After recording the F.I.R., Muhammad Aslam ASI prepared the injury statements of Manzoor Ahmad PW.10, Abdul Ghafoor P.W.11 and Ahmad Bakhsh, (who died on 7-1-1982) and sent them to Civil Hospital, Uch Sharif for medical examination. He recorded the statements of the injured P.Ws, and also that of Ahmad Bakhsh Ex.PU under section 161 Cr.P.C. Thereafter he went to the spot, prepared the injury statement Ex.PV and inquest report Ex.PQ of Ghulam Muhammad deceased, whose dead body was lying in a field. He sent the dead body of Ghulam Muhammad under the escort of Ahmad Khan FC(PW.6) to Civil Hospital Uch Sharif for post mortem examination. At the spot he recorded the statement of Ghulam Abbas P.W.9, Mithal and Khandu (not produced). He took into possession bloods-trained earth from the spot vide memo.
6. Ex.PG. He collectected six crime empties P.7/1-6 from the spot of 12 bore gun vide memo. Ex.PH in the presence of Qazi Muhammad Ismail P.W.8 and Ghulam Abbas P.W.9.On 3-1-1982, Muhammad Aslam ASI met Mannu Khan accused in Alipur, District Muzaffargarh and brought him to Uch Sharif.
7. He prepared his injury statement Ex.DD/1 and sent to the hospital for medical examination, through Ghulam Farid FC. Mannu Khan was admitted in the hospital and was arrested on 6-1-1982, on which date, the ASI also arrested on 6-1-1992, on which date, the ASI also arrested Waris Ali accused. After First Aid, Ahmad Bakhsh was sent to B.V. Hospital, Bahawalpur, for treatment who died in the hospital on 7-1-1982. The ASI reached the hospital, prepared the inquest report Ex.PB and sent the dead body to the mortuary for post-mortem examination under the escort of Muhammad Rafiq FC (TW.14).After the post-mortem examination of Ghulam Muhammad deceased,. Dr. Javed Hassan PW 12 handed over the last worn clothes of the deceased to Ahmad Khan FC PW.6, who delivered the same to Muhammad Aslam ASI which were taken into possession vide memo. Ex.PD.
8. Similarly, the last worn clothes of Ahmad Bakhsh deceased were handed over to Muhammad Rafiq FC P.W. 14, who too delivered the same to the Investigating Officer, which were taken into possession vide memo. Px.PJ. Muhammad Rafiq FC also produced the clothes of Ahmad Bakhsh which were worn by him at the time of admission in the hospital. These clothes were taken into possession vide memo. Ex.PK.On 19-1-1982, Waris Ali accused got recovered pistol P.5 which was taken into possession vide memo. Ex.PE. Mannu Khan got recovered 12 bore pistol P.6 on 19-1-1982 which was taken into possession vide memo.Ex.PF. Abdul Malik accused (since dead) was arrested on 20-1-1982. On 4-2-1982, he got recovered 12 bore gun P.5, which was taken into possession vide memo. Ex.PX.On 3-1-1982, Muhammad Aslam ASI handed over the sealed parcels of blood-stained earth and that of crime empties to Shah Jehan MHC (PW.13). On 19-1-1982, he also handed over the parcels of pistols to the M.H.C. On 4-2-1982 he handed over the parcel of gun to the M.H.C. The MHC in turn handed over these parcels to Ghulam Mustafa FC (PW5) on 3-3-1982, to the offices of the Chemical Examiner and Forensic Science Laboratory, Lahore. The report of the Chemical Examiner Ex.PAA and that of the Serologist Ex.PBB were in the positive. On 19-1-1982, Muhammad Aslam ASI got issued warrant of arrest against Faryad Ali from the Court of Sardar Ghulam Nabi Magistrate First Class, but it could not be served upon him. Thereafter, proclamation under sections 87/88 Cr.P.C, was got issued. On the transfer of Muhammad Aslam ASI, the investigation was taken over by Barkhurdar Ahmad Inspector P.W.15. He arrested Faryad Ali on 12-3-1983. Zia Feroze Inspector
(PWA) got prepared site plan Ex.PC and its copy Ex.PC/1 by Khurshid Ahmad Patwari (CW 1). He after completing legal formalities submitted the challan in the Court.2. On 2-1-1982, Dr. Javed Hassan (P.W.12) medically examined Ahmad Bakhsh who was then alive and noticed 11 circular wounds, one exit circular wound and one exit wound on his person, caused by fire-arm, and after giving first-and referred him to the BV Hospital for treatment. The same doctor also medically examined Manzoor Ahmad P.W.10 and found nine circular wounds on his person, apart from swelling of left elbow joint and bruise with swelling on rightupper arm. All the injuries were declared simple. The same doctor also examined Abdul Ghafoor P.W. 11 and found a lacerated wound on left side of skull on his person. There was swelling of left big toe and the injured also felt pain on right thigh. The doctor declared the injures as simple.On 3-1-1982 Dr. Javed Hassan P.W. 12 conducted post- mortem examination of the dead body of Ghulam Muhammad and found the following injury thereon:-"A circular wound with burnt edges on left side of forehead, above left eye brew, 1.7S c.m.
9. In dismeter and brain deep. Blood was coming out. It was entrance wound. The edges were inverted. The underlying muscles and tissues were burnt and black in colour."The doctor opined that cause of death was due to gunshot wound. The shot after piercing the skull bone entered the brain matter and caused * intra cranial haemorrhage to brain matter leading to shock and death.
10. The injury was sufficient to cause death in the ordinary course of nature and was ante-mortem.3.
11. The same'doctor on 3-1-1982, medically examined Mannu Khan accused and found the following injuries on his person:-(1) A lacerated wound on top of left side of skull, 7 x 1/2 cni. Depth of the wound could not be given because it was stitched and swelling was present around the wound.(2)
12. Feeling pain on left side of chest.(3) A lacerated wound on outer side of right arm with swelling measuring 1 x 1/2 x 1/2 c.m.(4) A lacerated wound on left forearm. Wound was stitched. Length was about 3 c.m. Underlying bone was fractured.(5) Feeling pain on back side of chest, but no injury and swelling was seen.(6) Feeling pain with swelling on top of left shoulder joint.VInjury No. 4 on clinical examination was declared as grievous. Injury No. 6 was simple and the rest were kept under observation and the injured was advised X-Ray.4. Dr. Muhammad Mazhar Iqbal PW. 3 conducted post-mortem examination on the dead body of Ahmad Bakhsh on 8-1-1982 and found 14 lacerated wounds thereon apart from a mid line incised wound on abdomen, 23 c.m. In length and stitched.
13. Probable time that elapsed between injuries and death was within.6/7 days and between death and post-mortem was within 20 hours. All the injuries were ante mortem. Injury Nos.4,5 and 6 (reproduced below), which were caused by firearm were collectively sufficient to cause death:-(4)
14. A lacerated wound on right side of abdpmen, 4 cm from mid line, 2 c.m. Below and medical to tip of 9th costal cartilage, 2x1 c.m.(5) A lacerated wound on left side of abdomen, 8 c.m. From mid line, 4 c.m. Below and medical to tip of 9th costal cartilage, 1x1 c.m.(6) 2 c.m. Below the 5th wound, there was a lacerated wound, 1/2 x 1/2c.m.5. The prosecution in support of its case examined 16 witnesses. Out of these witnesses, Ghulam Abbas P.W. 9, Manzoor Ahmad P.W. 10 and Abdul Ghafoor P.W.
11. Gave the ocular version of the incident. Dr. Muhammad Mazhar Iqbal P.W. 3 conducted post- mortem examination on the dead body of Ahmad Bakhsh deceased, whereas Dr. Javed Hassan P.W. 12, examined Manzoor Ahmad P.W. 10, Abdul Ghafoor P.W. 11 and Mannu Khan accused and also conducted post-mortem examination on the dead body of Ghulam Muhammad deceased. Muhammad Aslam ASI P.W. 16, Zia Feroze Inspector P.W. 4 and Barkhurdar Ahmad SHO (P.W. 15) partly investigated the case. Khurshid Ahmad Patwari was examined as C.W. 1.6. The accused in their statement under section 342 Cr.P.C., recorded on 5-4-1984, denied the prosecution allegations. Except Mannu Khan, the remaining three accused professed innocence and stated that they had been involved falsely. However, Mannu Khan accused made the following statement from the dock:-"Ahmad Bakhsh deceased had come to my house at about 430 p.m. And had induced me to go to the field on the protext of demarcation. Ahmad Bakhsh deceased and Ghulam Muhammad deceased along with Manzoor Ahmad and Abdul Ghafoor P.Ws. Etc. Attacked me causing seven grievous injuries. On my alarm Sale and Jamil were attracted. They fired at my assailants to save me from being killed. The remaining details of the occurrence is contained in my complaint, a copy of which has been exhibited as Ex.PY."Mannu Khan produced six witnesses in defence, namely, Noor Ahmad D.W. 1, Muhammad Usman DW 2, Dr. Mahmood-ul-Hassan DW3, Dr. Javed Ahmad Kamran D.W. 4, Muhammad Hussain F.C. DW 5 and Haji Muhammad Iqbal, Nursing Orderly Civil Hospital, Alipur PW.66. He also tendered in evidence certified copy Ex.DK of the statement of Dr. Bashir Ahmad, Arthopaedic Surgeon, Quaid-e-Azam Medical College, Bahawalpur, recorded in the complaint case filed by Mannu Khan against the complainant party and also the certified copy of registered sale deed dated 14-9-1981.7. The learned Sessions Judge, Bahawalpur, who tried the accused, by his judgment dated 26-8-1984, convicted them under section 302/34 PPC on two counts and sentenced them to suffer death on each count plus fine of Rs.5,000/- each or in default to suffer further R.I. For one year. He further convicted them under section 307/34 PPC on two counts and sentenced them to undergo R.I. For three years and fine of Rs.1,000/- or in default to undergo R.I. For three months under each count. It was directed that the amount of fine awarded under section 302/34 PPC if recovered by paid to the legal heirs of the deceased and the amount of fine imposed under section 307/34 PPC, if recovered be paid to Manzoor Ahmad and Abdul Ghafoor P.Ws, as compensation under section 544-A, Cr.P.C. The convicts challaned their convictions and sentences awarded to them by theCr.C. 495learned Sessions Judge, through Criminal Appeal No. 76 of 1984 and the learned Sessions Judge also referred the case to this Court (High Court) under section 374 Cr.P.C, for confirmation of death sentence. Both these matters along with the criminal revision filed by the complainant came up for hearing before a Division Bench of this Court on 3*11-1987 and the learned Judges of this Court accepted the appeal, set aside the convictions and sentences of the appellants and remanded the case to the learned trial Judge, with the following obseryations:-"** gjjj the dying declaration Ex.PU allegedly made by Ahmad Bakhsh deceased before Muhammad Aslam ASI PW. 16 has been believed and acted upon in convicting the appellants although their attention to this crucial piece of evidence was not drawn and no explanation thereof was sought from them at the time of their examination under section 342 Cr.P.C. It is, by now, well settled that an accused person has to be given an opportunity, under the law to explain the evidence on which his conviction is sought to be or going to be based. This is a mandatory requirement under section 342 Cr.P.C, which could not be ignored. It is wholly against the provision of Criminal Procedure Code and principle of natural justicd that a person/accused should be convicted on the basis of something of which he was not given notice and to which he was never required to give explanation. In the peculiar circumstances of the case, we are convinced that failure on the part of the Court to draw the attention of the accused/appellants to the dying declaration which has been used against them and has also been acted upon, has caused prejudice to them and has also resulted in miscarriage as well as failure of justice, and as such, it is a case of naked illegality."* The upshot of the above discussion is that there being no satisfactory basis to uphold the convictions and sentences of the appellants, the same are set aside and the case is remanded for re-trial from the stage of examination of the accused under section 342 Cr.P.C. ??*".8. After the remand, the trial was started by the learned Sessions Judge, Bahawalpur, who recorded the statements of the accused on 6-2-1988 under section 342 Cr.P.C.
15. The accused took up almost the same stance as was taken by them in their earlier statements dated 5-4-1984. However, with regard to the statement Ex.PU made by Ahmad Bakhsh deceased regarding the cause of his injuries to Muhammad Aslam ASI (PW.16) on 2-1-1982, Manriu Khan explained as under:-"In fact, Muhammad Aslam ASI had been heavily bribed by Ghulam Abbas PW and the complainant party. He had prepared a false document at a late stage to strengthen the prosecution case. No medical certificate about the stage of his consciousness and fitness had been obtained by Muhammad Aslam ASI before preparing that document. Ahmad Bakhsh had lived for a number of days and he did not make any effort to get any statement of Ahmad Bakhsh recorded through an officer of the Court."Thereafter, on the application moved by Manzoor Ahmad complainant before this Court, the case was transferred from the Court of learned Sessions Judge, Bahawalpur to the Court of Sessions Judge, Multan, vide order dated 6-3-1988.The. Defence evidence was thus recorded by the learned Sessions Judge, Multan, and the accused in their defence produced Dr. Javed Ahmad Kamran DW 1, Muhammad Aslam DW 2, Muhammad Aslam SI DW 3 and Muhammad Ayub DW 4. However, Noor Ahmad and Muhammad Usman, who appeared as DWs. 1 and 2 respectively, before the remand order of this Court, were not produced by the accused. However, before the judgment could be announced, one of the accused, namely, Abdul Malik died in Nishtar Hospital, Multan, on 29-11- 1989 and with respect to his death statement of Muhammad Anwar, Assistant Superintendent, District Jail, Multan, was recorded on 20-12-1989, who also produced the original death certificate of Abdul Malik, issued by the Incharge of Ward No. 12, Nishtar Hospital, Multan.
9. The learned Sessions Judge, Multan, after analysing the entire evidence, doubted the recovery of pistols and gun and also the crim empties, on the ground of inordinate delay in despatching it to the Forensic Science Laboratory. He also did not rely upon the evidence of absconsion of Faryad Ali accused. He also discarded the defence evidence and relying on the prosecution evidence, convicted Faryad Ali, Mannu Khan and Waris Ali under section 302/34 PPC on two counts. Faryad Ali was sentenced to suffer death on each count and fine of Rs.10,000/- on each count or in default to undergo R.I. For one year under each count; whereas Mannu Khan and Waris Ali were sentenced to imprisonment for life under section 302/34 PPC on two counts and fine of Rs.10,000/- on each count or in default to undergo R.I. For one year under each count. The fine, if recovered, was ordered to be paid to the legal heirs of two deceased, namely, Ghulam Muhammad and Ahmad Bakhsh in equal shares as compensation under section 544-A, Cr.P.C. The learned trial Judge further convicted the three accused, under section 307/34 PPC on two counts and sentenced them to undergo F.I.R, for three years under each count and also to fine of Rs.1,000/- each under each count, failing which to undergo R.I. For there months. The fine, if realised, was ordered to be paid to Manzoor Ahmad and Abdul Ghafoor P.Ws, in equal shares as compensation under section 544-A, Cr.P.C. Abdul Malik alias Cheeku died before the announcement of the judgment, so the casrte against him stood abated. This is vide judgment dated 16-5-1990.10. The three convicts filed Criminal Appeal No. 86 of 1990, jointly. Faryad Ali also challenged his convictions and sentences through jail, which was registered as Criminal Appeal No. 92 of 1990. The learned Sessions Judge has also referred the case to this Court under section 374 Cr.P.C, for the confirmation of death sentence of Faryad Ali alias Faiz, which was registered as Murder Reference No. 59 of 1991. We propose to dispose of all the three matters by this judgment.11. The learned counsel for the appellants contended that the FIR was lodged after inordinate delay and that too after preliminary investigation; hence no sanctity is attached to this dubious document; the motive, though alleged, yet has not been proved, which adversely affects the prosecution case as a whole and makes the case of doubtful character; the eye account was furnished by highly interested and inimical witnesses and the^ made material improvements in their statements before the Court; hence their statements cannot be believed, especially when their evidence is being negated by the medical evidence; the positive report of the Forensic Science Laboratory cannot be used as corroborative piece of evidence, as the crime empties were sent to the Forensic Science Laboratory after the recovery of alleged weapon by one parcel; hence it would not be safe to rely upon that piece of evidence.Learned counsel further urged that it is a case of two versions, one version has been given by the prosecution whereas the other version has been advanced by the defence and the latter version is more plausible and nearer to truth, as Mannu Khan appellant received injuries during the transaction which remained unexplained. Even if the prosecution story is accepted as gospel truth still no case under section 302 PPC is made out, at the most it may be case of individual liability and exceeding of right of self-defence. The injuries received by Ahmad Bakhsh, were not sufficient to cause death. On the contrary, he died due to the negligence of the doctor, who attended him in the hospital after his admission in the hospital. The statement of Ahmad Bakhsh Ex.PU which was recorded by Muhammad Aslam ASI (PW.16) cannot be treated as a dying declaration, as it does not fulfil the pre-requisite of the dying declaration; hence the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants and they are entitled to the acquittal.12. The learned counsel for the State has supported the judgment of conviction.13. We have examined the respective submissions of the learned counsel for the parties minutely and have carefully gone through the entire record with their able assistance.The sole ground on which the learned counsel tried to prove that the FIR was registered after considerable delay and preliminary investigation is that in the inquest report and injury statement of Ghulam Muhammad deceased, FIR number is not given. We have examined this aspect carefully and we find that negligence on the part of the Investigating Officer of non- mentioning of the FIR number in the inquest report would not be sufficient by itself to infer that the FIR was recorded after preliminary investigation. The delay of lodging the FIR. After six hours of the occurrence is not fatal to the prosecution case, especially when the occurrence took place at a distance of 21 K.M. From the Police Station; hence some time was consumed by the complainant to approach the Police Station for lodging the FIR, especially when he was himself injured in the occurrence. In the circumstances, the FIR seems to have been lodged with promptitude which excludes the possibility of deliberation and manipulation.13. Admittedly, it is a case of two versions, one version has been given by the prosecution, whereas the other version has been advanced by the defence, particularly Mannu Khan appellant who allegedly sustained injuries during the transaction.The salutary principle for the just decision of the case of two versions is that the Court has to put both the versions in juxta-position and then the Court has to see which version is more plausible and nearer to truth, subject, of course, with the condition that onus of proof always remained on the prosecution. Applying the aforesaid prinicple of law to the facts of this case, we find that the prosecution case is being supported by three eye-witnesses, namely, Ghulam Abbas P.W. 9, Manzoor Ahmad P.W. 10 andAbdul Ghafoor P.W. 11, out of whom the latter two are injured and.Their presence at the spot cannot be doubted^ Neither any question was put to the doctor who medically examined them nor any suggestion was made to them that the injuries sustained by them were self-suffered. As the occurrence took place in the day time, so there cannot be any possibility of mistaken identification of the accused. The FIR was lodged with great promptitude in which specific role of each accused was mentioned. Over and above this, due to the motive mentioned in the FTR, the appellants are vicariously liable for the act of the principal accused.There is no force in the submission of the learned counsel that the motive though alleged could not be proved, because it has been proved by the eyewitnesses, who were present at the spot in the morning time when private demarcation was being conducted by Khurshid Ahmad Patwari CW.l, in which after altercation, the accused party issued threats to the complainant party that they could take revenge of this insult. It is true that Khurshid Ahmad CW 1 has not supported the prosecution case on this count, but it is pertinent to note that the complainant Manzoor Ahmad moved an application against the said Patwari to the Anti-Corruption Department for taking disciplinary action against him and this may be the reason with Khurshid Ahmad Patwari not to support the pro&cution case. Anyhow, the evidence of the eye-witnesses is sufficient to prove the motive and we approve the finding of the learned trial Judge.The contention of the learned counsel for the appellants that the eyewitnesses made material improvements in their evidence before the trial Court is not tenable, because minor discrepancies do occur here and there in the evidence of most natural and truthful witnesses due to lapse of time and different perception by different persons.
16. The sole point on which the adifice of this contention stands is that Jandhara, an implement of the agriculturist, whereby the eye-witnesses were settling the Watt was not taken into possession by the investigating officer. The negligence on the part 6f the police officer would not make the evidence of the eye-witnesses uncredible. The other argument of the learned counsel is that Ahmad Bakhsh was facing towards the north while Ghulam Muhammad was facing towards the south when the attack was opened. We are afraid, these contradictions are too nice to be taken into consideration in an incident in which so many persons took part armed with firearm and thereby killed two persons especially in the day time. The trial Court rightly rejected theCr.C.
17. 499defence plea that Mannu Khan received injuries if the second transaction, because in the normal course of events if Mannu Khan was injured, he should have been taken to the Police Station, but instead he was taken to Alipur hospital Even after the remand of the case, the appellants did not examined Noor Ahmad and Muhammad Usman and only examined Dr Javed Ahmad Kamran DW 1, Muhammad Aslam DW 2, Muhammad Aslam SI DW 3 and Muhammad Ayub DW.4. These witnesses on the basis of documentary evidence tried to explain the injuries sustained by Mannu Khan. It is pertinent to note that Mannu Khan for the first time filed complaint Ex.PY on 19- 5-1982, for months after the occurrence two important witnesses Sale and Jamil who allegedly caused injuries to the two deceased and the injured witnesses were not examined before the trial Court. These infirmities, per se, are sufficient to make the defence version as fabricated and worthless. It is on the record that Mannu Khan got himself medically examined after 20/24 hours of the occurrence and there is no ostensible explanation on the record to show why he did not immediately approach the police or the doctor. On the contrary, there is evidence that Mannu Khan was arrested on the third day after the occurrence. No doubt, there is obliging statement of Muhammad Aslam ASI that he posted the guard on the first day. Even this witness could not explain that when he had posted the guard, then why he did not get him medically examined which is the requirement of law. Mannu Khan has not taken this defence plea at the earliest opportunity. In the presence of this material, the learned trial Judge rightly discarded the defence version. However, we find great force in the submission of the learned counsel for the appellants that statement Ex.PU of Ahmad Bakhsh deceased recorded on 2-1- 1982 by Muhammad Aslam ASI under section 161 Cr.P.C., does not fulfil the basic conditions laid down for treating a statement as dying declaration; hence we exclude that statement of Ahmad Bakhsh from consideration. Even if the statement Ex.PU of Ahmad Bakhsh is excluded, still the prosecution has proved its case against the appellants beyond reasonable doubt.14. We have given our anxious consideration to this aspect of the case, what offence the appellants actually committed in the transaction even if the prosecution case is believed. It is in evidence that the appellants were armed with pistols and guns and they opened attack on unarmed persons. After discarding the defence version, we are left with the prosecution version and there is no evidence on the record which would bring the case of the appellants within the exceptions of section 300 PPC. Thus, we find no force in the appeals of the appellants and the same are hereby dismissed. The sentence of death' of Faryad Ali alias Faiz is confirmed and the reference is answered in the affirmative. Waris Ali and Mannu Khan appellants are on bail. They should surrender to their bail bonds to serve out the remaining portion of their sentence. They shall be entitled to the befaefit of section 382-B, Cr.P.C.