' MUHAMMAD SIDDIQ, J.-The brief facts of the case as disclosed in the dying declaration (Exh. P. F) are that on 18-8-1970 at about 8 a.m. Niamat deceased was weeding out grass from his paddy field. Hazara and Muhammad Ali appellants appeared at the scene and told the deceased to get ready. It is alleged that thereafter Hazara appellant fired a shot whicn hit the deceased at his abdomen. Muhammad All appellant also is alleged to have tired a shot, but it did not hit the deceased. At this stage Siraj (acquitted co-accused) also reached the spot and raised a lalkara that the deceased should not be spared. The occurrence is said to be witnessed by Ditta, Saki Jan Muhammad Kamboh and Shafi Kamboh who were also weeding out grass from their fields situated nearby. Niamat injured was carried on a cot to the Civil Hospital, Qasur where they reached at about 10 a.m. The injured was medically examined by Lady Doctor Miss Shamim Zafar P.
W. Sub-Inspector Shabbir Hussain Shah also reached the hospital who recorded the dying declaration (Exh. P. F.) at 11-15 a.m. On the same day. This document is also signed by the said Lady Doctor. The deceased, however, died on the same day in the hospital at about 3 p.m. The Police Officer then sent the statement of Niamat injured to the Police Station where formal F. I. R. (Exh. P.
F/I) was registered at 11-40 a.m. He recorded the statements of the witnesses under section 161, Cr.
P. C. He then left for the place of occurrence and reached there at about 4-30 p.m. He secured blood-stained earth from the spot and made it into a sealed parcel vide Memo. Exh. P. A. On 21-8- 1970 he arrested Muhammad All appellant. He had a .12 bore single barrelled gun (Ed). P. 3) in his right hand. On his personal search 6 live cartridges (Exh. P. 4/1-6) were secured from his right dab which were taken into possession and sealed into a parcel vide Memo. Exh. P. C. Since Muhammad Ali had no valid licence for the said gun, the police officer sent a ruqqa to the police station for registration of a separate case under the Arms Ordinance, 1965. Hazara appellant and Siraj (acquitted co-accused) were also arrested on 21-8-1970. The Investigating Officer got prepared site plan (Exh. P. E.) from the Patwari. On 31-8-1970 Hazara appellant while in police custody got recovered single barrelled gun (Exh. P. 5) from underneath an iron box and the same was taken into possession vide Memo. Exh. P. D, Since Hazara appellant failed to produce any valid licence for the said gun (Exh. P. 5), a separate case under the Arms Ordinance, 1965 was also registered against him. A. S. I. Mian Muhammad P. W. On 18-8-1970 at 10-45 a.m. Received a telephonic message from Yusuf Dispenser of Civil Hospital, Qasur regarding the injuries of Niamat deceased.
He then received the dying declaration (Exh. P. F.) from S. I. Shabbir Hussain Shah whereupon he drafted the formal F. I. R. (Exh. P. F./1) under section 307/34, P. P. C. On the same day, at about 3-20 p.m. A. S. I. Mian Muhammad received telephonic intimation about the death of Niamat. He then reached the hospital, prepared the inquest report (Exh. P. W. 13/A) of the dead body of the deceased and injury statement (Exh. P. W. 13/8) of the deceased. He then despatched the dead body to the mortuary for post-mortem examination. After the usual investigation, the police challaned the present appellants as well as Siraj Din under section 302/34, P. P. C. They were tried by the Additional Sessions Judge, Qasur, who vide the impugned judgment dated 31-5-1973 acquitted Siraj Din co-accused, but found guilty the present two appellants. Hazara appellant was convicted under section 302, P. P. C. For the murder of Niamat and was sentenced to death subject to confirmation by this Court. He was further sentenced to pay a fine of Rs, 2,000.10 or in default to undergo further rigorous imprisonment for one year. Out of the fine, if realised, half was ordered to be paid to the heirs of the deceased. Muhammad All appellant was convicted under section 307, P.
P. C. And sentenced to undergo rigorous imprisonment for seven years. He was also sentenced to pay a fine of Rs, 1,000.0 in default of which he was ordered to undergo further rigorous imprisonment for six months. Out of the fine, if realised, half was to be paid to the heirs of the deceased. Hazara appellant was also convicted and sentenced to one year's rigorous imprisonment under section 13 of the Arms Ordinance, 1965. Muhammad Ali appellant was also convicted and sentenced to six months' rigorous imprisonment under section )3 of the Arms Ordinance, 1965. The sentences under the Arms Ordinance of both the appellants were, however, ordered to run concurrently with their sentences in the main case. The appellants have challenged their convictions and sentences through Criminal Appeal No, 390 of 1973. Muhammad Ali appellant has also challenged his conviction and sentence under the Arms Ordinance through Criminal Appeal No, 412 of 1973. Similarly, Hazara appellant has challenged his conviction and sentence under the Arms Ordinance through Criminal Appeal No, 418 of 1973. Qutub Din complainant also filed Criminal Revision No, 955 of 1973 praying that Muhammad Ali appellant be sentenced under section 302, P. P. C. And Siraj Din (acquitted co-accused) be also convicted and sentenced to death. This revision petition was ordered to be heard along with the main Criminal Appeal. The case is also before us under section 374, Cr. P. C. For confirmation of the death sentence awarded to Hazara appellant. This judgment will dispose of all the three Criminal Appeals, the revision petition and the Murder Reference.
2. Dr. Miss Shamim Zafar on 18-8-1970 at 10-20 a.m. Medically examined Niamat and found the following injuries on his person :-
(1) A roughly circular wound with inverted and irregular margins on the front of abdomen, 3" below and to the left of umbilicus, size 4" going into abdominal cavity.
(2) A roughly circular wound size 1" x I" with inverted margins placed on the front of abdomen 3' below and to the right of umbilicus. The wound had travelled through the muscles and abdominal wall and right hip bone near the iliac crest and had an exit on the right side of the hip region 3' behind and below the right interior superior iliac spine, in the form of a wound 4 x 4" with everted and irregular margins. The direction of the wound was towards the right and backwards.
(3) A roughly circular wound on the right inguinal region 14" below the right interior superior iliac spine. Its size was x margins inverted. The wound was directed to the right and backward and travelling through the substance of thigh had an exit in the form of wound 4' x 4' with reverted margins placed 2' below the exit opening on injury No, 2.
3. After the death of Niamat the post-mortem examination was performed by Dr. Nasim Ahmad Qureshi on 18-8-1970 at 6-30 p.m. Who found the following injuries on the dead body :-
(I) A roughly circular wound 4' x 4' in size with inverted and irregular margins on the front of abdomen 3' below and to the left of umbilicus. The wound was directed backwards, downwards and to the right piercing through the abdominal wall, small intestines at 7 places through and through. Mesentery and was entering the inner side of the right pelvic wall at its lower part and through this the wound extended upon the depth of right hip muscles, from where a pallet lodged was recovered.
(2) A roughly circular wound 3/4' x 3/4' with inverted margins on the front of abdomen 3' below and to the right of umbilicus. The wound had travelled through the muscles of abdominal wall, the right hip bone near the iliac crest and had an exit on the right side of the hip region 3' behind and below the right A. S.
1. Spine in the form of a wound 4' / 4' with everted and irregular margins. Direction of the wound was to the right and backwards.
(3) A roughly circular wound on the right inguinal region 14' below the right A. S. I. Spine size 3/4' x 3/4' margins inverted. The wound was directed to the right and backwards and travelling through the substance of the thigh had an exit in therefrom of a wound 4' x 4' with everted margins placed 2' below the exit opening of injury No, 2.
' Death in the opinion of the doctor was due to shock induced by injury No, 1 which was sufficient in the ordinary course of nature to cause death. The injuries were caused by a firearm and were ante-mortem. Probable time between injuries and death was few hours and between death and postmortem examination was 3 hours and 10 minutes.
4. Hazara appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations.
The following questions and answers given by him are relevant for the purposes of this case :- "Q. There is evidence against you that you illegally occupied portion of the land of Qutub Din, P. W.
The father-in-law of deceased Niamat prior to this occurrence and you were ejected from the said land through the Revenue Department on the basis of an order issued by Tehsildar and on that account you became inimical towards Qutub Din and his family members. What do you say about it ?
' A. No, Qutub Din and his son Anwar wanted to oust me from the land belonging to me and osCupied by me.
' Q. Is it a fact that you damaged turmeric crop of Qutub Din P. W. And on the report of the said P. W. a case under section 44o, P. P. C. Was registered against you. What do you say about it ?
' A. No, A false case was registered against me by Anwar son of Qutub Din P. W. For damaging his turmeric crop.
' When asked why the P. Ws. Had deposed against him, he stated as under :- "Due to previous enmity and close relationship with Qutub Din P. W." When asked if he had anything else to say, he replied as under :- "I am innocent. I had no enmity with Niamat deceased. He did not reside in our village. On 18th August 1970 he was found lying injured outside the village in the early hours of the morning and due to previous enmity and suspicion I and my co-accused were falsely implicated in this case."
5. Muhammad Ali appellant also denied the prosecution allegations. When he was asked the following question, he replied as under :- "Q. Is it a fact that on 21st August 1970 the police arrested you and at the time of the arrest you were having guu P. 3 in your right hand which was taken into possession by the police and on search six live cartridges were also recovered from your right fold of your chadar by the police and do these articles belong to you ?
' A. I was not arrested-on 21st August 1970 as alleged by the prosecution. In fact, I joined the investigation on, 18th August 1970 but was taken into custody formally on 21st August 1970. The gun and the cartridges belong to my father who also holds a licence and were taken into possession from our house."
' When asked why the P. Ws. Had deposed against him, he stated as under :- "I have been falsely implicated at the instance of Jan Muhammad who had contested B. D.
Elections against my father and had lost. He agreed to become a witness in this case only on the assurance of Qutub Din to falsely involve me and my father in this case. Nazar Hussain P. W. Is the nephew of Jan Muhammad P. W. While Shafi is his partyinan."
' When asked if he had anything else to say he stated as follows :- "I am innocent. Shaft P. W. Is the brother-in-law of Jan Muhammad and is also inimical towards us."
Siraj Din (acquitted co-accused) also denied the prosecution allegations and relied upon the statement of his son Muhammad Ali. He further stated that Jan Muhammad P. W. Contested elections against him and was defeated and that he belonged to the party of Qutub Din P. W. And his son Anwar. The accused persons, however, produced no defence evidence.
6. In support of its case the prosecution relied upon the dying declaration made by the deceased (Exh. P. F.), the ocular evidence of Jan Muhammad, Muhammad Shafi and Qutub Din P. Ws., the motive, the medical evidence and recoveries. The trial Court acquitted Siraj Din co-accused but convicted and sentenced the present two appellants as mentioned above.
7. According to the prosecution, its main reliance is on the dying declaration (Exh. P. F.) of Niamat deceased. The injured person reached the Civil Hospital at Qasur at about 10 a.m. He was medically examined by Lady Doctor Miss Shamim Zafai' at 10-20 a.m. On 18-t5-1970. S. I. Shabbir Hussain Shah on reaching the hospital enquired from the Medical Officer through ruqqa (Exh. P. H.) whether Niamat injured was fit to make a statement. On the same ruqqa the Lady Doctor replied to the police officer that Niamat was fit to give his statement. Accordingly, the Investigating Officer at 11-15 a.m. Recorded the following dying declaration of Niamat deceased :- {{URDU TEXT}} ' This dying declaration was also signed by the Lady Doctor. A perusal of the above dying declaration shows that Hazara appellant fired a shot which hit the deceased at his abdomen.
Muhammad Ali appellant fired ineffective shot which did not hit anyone. Siraj (acquitted co- accused) reached the spot when both the appellants had already fired their shots. The part attributed to him was that he raised a lalkara that Niamat should be killed. No doubt, the dying declaration was recorded by the Investigating Officer himself, but it has also been signed by the Lady Doctor. It is not denied by the defence that generally great importance is attached to a dying declaration and in certain circumstances conviction can be based upon such dying declaration alone. However, as an abundant caution, the Courts before relying upon a dying declaration seek corroboration from some independent source. In the instant case, the Investigating Officer took the necessary precautions to enquire from the Medical Officer whether Niamat was fit to make a statement or not. It was after the reply of the doctor that the injured was fit to make a statement, that the dying declaration was recorded by the police officer, The learned defence counsel has tried to argue that looking at the nature and location of injuries on the body of the deceased, it should be inferred that he was not fit to make a statement. However, in the presence of positive evidence in the form of certificate by a competent doctor, the defence cannot rely upon mere inference. Further we observe that Niamat had no injury on his head and, therefore, the certificate of the doctor seems to be correct. However, as regards the other objection raised on behalf of the defence that before convicting the appellants on the basis of dying declaration independent corroboration is necessary, the learned counsel for the State and the complainant also agree to this legal proposition. Hence, we proceed to find out whether there is any independent corroborative piece of evidence to support the dying declaration or not.
8. The first corroborative piece of evidence relied upon by the prosecution is the motive against Hazara appellant. Niamat deceased was the son-in-law of Qutub Din P. W. Who has stated that his land was in an unauthorised occupation of Hazara appellant for which his son Anwar had initiated ejectment proceedings in the Court of the Tehsildar, Qasur. That case was ultimately decided against Hazara appellant and the land was taken from the possession of the appellant. It is also alleged by the prosecution that there were security proceedings under section 107/151, Cr. P. C.
Between the parties as a result of which Qutub Din, Shafi, Anwar son of Qutub Din, Jan Muhammad P. Ws. And Niamat deceased were bound down on one side and Hazara appellant, Khushi and Hassan on the other side. After that Hazara appellant also ploughed the standing turmeric crop cultivated by the complainant party for which a case under section 440, P. P. C. (Exh. P. W. 13/C) was got registered by Muhammad Anwar, son of Qutub Din P. W., against Hazara appellant, Khushi and Inay at. Hazara appellant in his statement under section 342, Cr. P. C. Has admitted that a case under section 440, P. P. C. Was registered by the complainant party, but it was false. He has, however, denied the prosecution allegation that he was ejected from the land by the complainant party. Confronted with these circumstances the learned defence counsel has half-heartedly admitted before us that so far as Hazara appellant is concerned, there was some dispute regarding land between him and Qutub Din complainant and, therefore, there could be some motive so far as he is concerned. However, as regards Muhammad Ali appellant, there was no motive. We will deal with the case of Muhammad All separately. After going through the relevant material we are convinced that the prosecution has established the motive against Hazara appellant only and, therefore, it can be used as corroboration.
9. Another corroborative piece of evidence relied upon by the prosecution in this case is the medical evidence. As mentioned earlier, the Lady Doctor Miss Shamim Zafar at the time of the medical examination of Niamat deceased and subsequently Dr. Nasim Al3mad Qureshi at the time of post-mortem examination found three injuries on the body of Niamat deceased. These injuries are on the front portion of the body and mainly on the abdomen. There is no dispute that all these injuries are caused by a firearm. The learned counsel for the appellants has, however, tried to argue that these injuries were caused by two shots and not by one as mentioned in the dying declaration. According to him, injury No, 3 was caused by an independent fire as the direction and location of its exit was different from the location and exit of injury No,
2. We have carefully scrutinized the location of these injuries. The exit of injury No, 3 is not on the front side of the body, but it is also on the back side about 2' below the exit of injury No, 2 which is on the right hip. After examining the nature and location of the injuries and hearing the arguments of the learned defence counsel we find that these injuries found by the doctor on the body of Niamat deceased duly corroborate the dying declaration.
10. Another corroborative piece of evidence relied upon by the prosecution is the recoveries. Gun (Exh. P. 5) was recovered at the instance of Hazara appellant vide Memo. Exh. P. D. The recovery of this gun is supported by Ranjha (P. W. 10 in addition to the Investigating Officer. This gun was recovered out of a box lying inside the house of Hazara appellant. The appellant could not produce any licence for this gun. After going through the statement of Ranjha P. W. And the Investigating Officer, we are inclined to believe the recovery of this gun at the instance of Hazara appellant. At the time of arrest of Muhammad Ali appellant, he is alleged to be armed with gun (Exh. P. 3). After his arrest this gun along with six live cartridges (Exh. P. 4/1-6) were taken into possession. This recovery is supported by Nazar Hussain (P. W. 11) and the Investigating Officer. He could not produce any licence for this gun. We are inclined to believe the recovery of this gun and the cartridges. Since no empty was recovered from the place of occurrence which could match with these guns, the mere recovery of such unlicensed guns may be an offence under the Arms Ordnance, 1965, but will have a little corroborative value to support the dying declaration. The learned State counsel, however, has argued that the recovery of these guns from the appellants supports the dying declatation to the extent that the appellants had fired the gun shots at the relevant time and the injuries found on the person of the deceased are also gunshot wounds. After going through the relevant material and hearing the arguments of the counsel for the parties, we are of the view that in the absence of the recovery of any empty it is unsafe to hold that these were the guns which were used by the appellants for committing the present offences.
11. Out of the ocular evidence, Qutub Din (P. W. 8) is the father-in-law of Niamat deceased and his enmity with Hazara appellant has been established on the record. He is, therefore, an interested and inimical witness, hence his testimony cannot be helpful to the prosecution as corroboration. In fact, the learned counsel for the State himself does not rely upon his statement. The position of Jan Muhammad (P. W. 6) is more or less the same as that of Qutub Din P. W. However, the prosecution has placed great reliance upon the testimony of Muhammad Shafi (P. W. 7) who according to the learned State counsel, is an independent and disinterested witness and was rightly believed by the trial Court. On the other hand, the learned counsel for the appellants has taken us through his statement and has contended that be is also an interested and inimical witness. Muhammad Shafi P. W. Has admitted that his wife is the sister of Jan Muhammad P. W. It is also not denied that he was a party in the security proceedings under section 107/151, Cr. P. C. And ne was on the side of Qutub Din complainant against Hazara appellant. Muhammad Shafi P. W. Has also admitted that he was a witness in a case under section 440, P. P. C. Filed by Anwar son of Qutub Din complainant against Hazara appellant. On the basis of these circumstances it is vehemently argued by the learned defence counsel that the position of Muhammad Shafi P. W. Is in no way better than Qutub Din and Jan Muhammad P. Ws. Further we find that there are certain discrepancies and contradictions in his statement as compared with his statement before the Committing Magistrate and before the police under section 161, Cr. P. C. His statement under section 164, Cr. P. C. Was also recorded by the Magistrate. After minutely going through his statement, we feel that it is not safe to treat him as an independent and disinterested witness. He more or less stands at par with the remaining two eye-witnesses namely, Qutub Din and Jan Muhammad P. Ws.
12. After hearing the lengthy arguments of the counsel for the parties and going through the relevant material available on the record, we have reached the conclusion that the dying declaration of Niamat deceased recorded by the investigating Officer (Exh. P. F.) in the presence of Lady Doctor Miss Shamim Zafar was a genuine and true one made voluntarily by the deceased without an tutoring from any quarter. The learned defence counsel has tried to point out certain discrepancies in the statements of the eye-witnesses regarding their presence near the dying man when his statement was recorded by the police officer. We have minutely scrutinized the dying declaration and the other surrounding circumstances and find that such discrepancies and contradictions are not material to discard the dying declaration. According to the medical evidence the deceased was in a fit condition to make that statement. We, therefore, do not attach much importance to these minor discrepancies and contradictions in the statements of these eye- witnesses regarding their presence. The trial Court has rightly believed the dying declaration and we also agree with him observed earlier, the dying declaration itself is not sufficient to maintaini the conviction unless the same is corroborated by independent evidence. We find that such corroboration is available so far as Hazara appellant is concerned. As discussed above, motive and medical evidence are two independent corroborative pieces of evidence against Hazara appellant.
The recovery of gun (Exh. P. 5) at the instance of Hazara appellant can be used only to this extent that the injuries found on the person of t deceased were the result of fire shots from a '12 bore gun.
Thus, after anxious consideration of the relevant material, we are clearly of the view that the prosecution has established its case against Hazara appellant beyond any doubt. The dying declaration (Exh. P. F.) of the deceased has been duly corroborated by the motive, the medical evidence and to some extent the recovery of gun (Exh. P. 5). Accordingly, we maintain his conviction under section 302, P. P. C. For the murder of Niamat. We find no mitigating circumstances available on the record to justify lesser penalty, Accordingly, we confirm the sentence of death awarded to Hazara appellant by the trial Court. We also maintain the sentence of fine imposed upon him by the trial Court. We further maintain his conviction and sentence under section 13 of the Arms Ordinance, 1965. The sentence of imprisonment under the Arms Ordinance will take effect only if the death sentence is not executed.
13. As regards Muhammad Ali appellant, although he is mentioned in the dying declaration, yet there is no corroboration available on the record against him. He has no direct motive against the deceased. Similarly, the medical evidence cannot be used against him as his fire did not hit anyone. Thus, both the corroborative pieces of evidence relied upon by the prosecution are missing against Muhammad Ali appellant. The result is that so far as he is concerned, there is no corroboration whatever available on the record to support the dying declaration. As observed earlier, it is not safe to maintain his conviction on the basis of mere dying declaration. The trial Court has already held that he had in common intention with Hazara appellant so far as killing of Niamat deceit is concerned. He was convicted under section 307, P. P. C. For firing ineffective shot.
In the absence of any independent corroboration it is not safe to convict this appellant on the kinesis of dying declaration alone. Thus, the case of the prosecution against Muhammad All appellant is doubtful. Accordingly, giving him the benefit of doubt, we set aside his conviction and sentence awarded to him by the trial Court under section 307, P. P. C. And acquit him. However, we have believed the recovery of gun (Exh. P. 3) from him. Accordingly, we maintain his conviction and sentence under section 13 of the Arms Ordinance, 1965. He was convicted by the trial Court on 31-5- 1973 and this sentence was ordered to run concurrently with the sentence of seven years awarded to him under section 307, P. P. C. He has, therefore, already undergone this imprisonment. The result is that he shall be set at liberty forthwith if not required in any other case.
14. Criminal Appeal No, 390 of 1973 stands disposed of in the above terms. Criminal Appeals Nos.
412 and 418 of 1973 are dismissed and the convictions and sentence awarded to the appellants under the. Arms Ordinance, 1965 are maintained. Criminal Revision No, 955 of 1973 is rejected.