1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment and order of a Division Bench of the former High Court of West Pakistan, Lahore seat, in Criminal Appeal No. 536 of 1965 and Murder Reference No. 149 of 1965.
2. Leave was granted in this case, because, the Division Bench, which heard the appeal and the reference, was divided in its opinion as to the value of the evidence. One of the learned Judges constituting the Division Bench was of the view that the accused persons should be acquitted, while the other was equally firm in. The view that the appeal should be rejected. In view of this difference of opinion, the matter was referred to a third learned Judge. He agreed with the view of the learned Judge who was in favour of acquittal. The order for acquittal was, accordingly, passed by the High Court. The complainant Waheeduddin then came to this Court for special leave to appeal and leave was granted to reconsider the evidence, in view of the difference of opinion in the High Court.
3. The first five respondents herein were put up on trial under sections 148, 302/149, 307/149 and 323/149, P. P. C. On the allegation that they had, at about 9 a.m. Of the 2nd of April 1963, constituted themselves into an unlawful assembly variously armed with deadly weapons like guns, pistol, hatchet, etc. And, in prosecution of the common object of that assembly, committed the murders of two persons, namely, Alla-ud-Din and his uncle Aman Ullah, made murderous assaults by firing gun shots on the complainant Waheeduddin and his relatives and caused simple injuries to one Jamadar Muhammad Sharif.
4. Except for the said Muhammad Sharif (P. W. 10), the complainant and his party as well as the accused persons and their party are residents of Chak No. 2/1-R. A. Situated at a distance of three miles from police station Renala Khurd, District Montgomery. The Chak, as a whole, is a Military grant, and the respondent Allah Ditta, who was a retired Colonel, was an influential resident of this Chak. He was at one time also the Chairman of the Fauji Zamindara Union. The rival party in this Chak was led by the complainant Waheeduddin, by whose efforts Col. Allah Ditta not only lost his Chairman--ship of the Zamindara Union but was also proceeded against for the recovery of various sums of money said to have been illegally drawn by him or by his relations from the funds of the Union. They were also in the elections in which one Sardar Bashir Ahmad sought election arrayed on opposite side.
5. Waheeduddin was also an influential person and his own brother was a D. S. P. Of the Police. Col. Allah Ditta had actually complained against the said D. S. P. To the Governor at one stage.
6. The immediate cause of the incident which resulted in these deaths is, however, the fact that Col. Allah Ditta had managed to get a new irrigation khal sanctioned by the. Executive Engineer, but the complainant Waheeduddin and his co-sharers and party men including Majid-ud-Din (P. W. 5) had lodged an appeal against this before the Superintending Engineer. The Superintending Engineer had decided to inspect the proposed khal before giving any decision and had fixed the 2nd of April 1963, for such inspection. Intimation of this fact was given to the parties concerned on the 1st of April 1963, through the patwari of the ilaqa. Accordingly Waheeduddin and his party including Zia-ud-Din and Khurshid (P. Ws.), Aman Ullah and Alla-ud---Din (deceased), Hidayat Ullah and Waryam, went to receive the Superintend--ing Engineer at the place where the pucca road ended. The Superintending Engineer reached there at 8 a.m. Accompanied by other canal officials and was received by the ziledar, the patwari and the complainant's party. He then proceeded to inspect the proposed khal as well as the old khal. After the inspection, when he was returning to the place where his car was parked and had reached the village pond, the respondent Abdul Ghani foully abused the complainant. This was resented by his younger brother Zia-ud-Din who it is alleged, gave a blow with a small cane on the forehead of Abdul Ghani. This created a stir, but due to the timely intervention of the ziledar, nothing untoward happened. But when the Superintending Engineer and his party reached the dhari of Col. Allah Ditta, the latter produced Abdul Ghani before him and apprised him of the incident. The Superintending Engineer did not intervene, although he found that Abdul Ghani had an injury on his right eye. He proceeded to his car where the complainant Waheeduddin and his companions saw him off.
7. Col. Allah Ditta and his companions did not, however, proceed beyond the dhari. They returned to the village from there.
8. It is alleged by the prosecution that later when the complainant party were returning to the village, after seeing off the Superintending Engineer and had reached a point near a manure heap in front of the house of Majid-ud-Din (P. W. 5) they could see down the lane leading to the bazar of the village. They saw the accused persons assembled there outside their houses variously armed. They apprehended danger and, therefore, started running towards the east where there is a graveyard and some kind of a garden inside. But, before they could reach the garden, the accused persons made a short cut and intercepted them from the front. Col. Allah Ditta allegedly Bred two shots in the air with his revolver and called upon his son Salim Akhtar, who was armed with a gun, to open fire at the complainant party. Salim Akhtar fired a shot which hit deceased Alla-ud-Din and the latter fell down. Then the respondent Abdul Ghani directed his sons Riaz Hussain and Sabir Hussain, who were armed with a gun and a kulhara respectively, to "kill the enemy". On this Riaz fired his gun hitting the deceased Aman Ullah who also fell down to the ground. Jamadar Muhammad Sharif, an uncle of Majid-ud-Din, who was visiting him at that time and had accom--panied him to receive the Superintending Engineer, then tried to snatch the gun from the hands of Salim Akhtar but Col. Allah Ditta and the respon--dent Abdul Ghani caught hold of him from behind while respondent Sabir gave him a kulhara blow from the blunt side on the shoulder. Col. Allah Ditta also hit him on the wrist with butt end of revolver. This made Jamadar Muhammad Sharif release the gun. The complainant party then ran further from the place, but the respondents fired four more shots to frighten them and ultimately left the place.
9. After the departure of the respondents, the villagers also reached the place, and Waheeduddin's party, who had scattered to take shelter, came back to the scene of the incident to find that Aman Ullah had breathed his last and Alla-ud-Din was lying in a precarious condition. Waheeduddin directed his companions to bring the dead body and the injured person to the police --station and himself proceeded to Renala Khurd police-station on a bicycle to lodge the first information report.
10. This was recorded at 9-45 a.m. By Khizar Hayat, S. H. O.
11. At this time, it is stated, Waheeduddin also produced before the S. H. O. Two empty cartridges (Exhs.
12. P. 1 and P. 2) which he claimed to have picked up from the spot and these were taken into possession.
13. By the time the first information report was recorded, the rest of the complainant's party carrying the deceased and the injured had also arrived at the police-station. The S. H. O., instead of sending the injured to the Municipal Hospital at Renala Khurd, sent for the Medical Officer of the Hospital, and after obtaining a certificate from him, proceeded to record the dying declaration of All-ud-Din (Exh. P. B./1). When this dying declaration was being recorded at the police-station, not only the doctor and three other persons, who had been called to attest the said dying declaration, namely, Lal Muhammad, Fazaluddin and Mirza Anwar A.I, were present, but also the complainant Waheeduddin was allowed to be present, although other persons of the complainant party were asked to go out of the police station. Waheeduddin himself, of course, denied this, but the police officer, who recorded the dying declaration, admitted that Waheeduddin was allowed to stay back.
14. This dying declaration, which is in a narrative form, gives the parentage of the persons present at the time of the inspection, the nature of the weapons carried by each of the accused party, the details of the actual shooting incident, and the names of the eye-witnesses. It concludes by saying that Aman Ullah died at the spot. Still it does not mention, about the earlier incident at the pond nor does it mention how Jamadar Sharif received injuries while trying to snatch the gun from the hands of Salim Akhtar, the son of Col. Allah Ditta.
15. After recording the dying declaration, Alla-ud-Din was sent to the Municipal Hospital where his wound was plugged and then he was sent to the Mayo Hospital on the same day. He was admitted in the Casualty Ward at Lahore at 3-05 p.m. And was operated upon by Dr. Fateh Khan Akhtar, but he succumbed to his injury at 7-30 a.m. Of the 4th of April 1963.
16. All, except Col. Allah Ditta, were arrested on the 3rd of April 1963. Col. Allah Ditta was declared to be an absconder. He ultimately surrender--ed himself on the 27th of April 1963, in the Sessions Court at Montgomery.
17. At the time of their arrest, the respondents Salim Akhtar and Riaz Hussain produced their respective licensed guns which were taken into posses--sion. A pistol (Exh. P. 15) was recovered from an arms dealer at Montgomery on the 27th of May 1964.
18. Apart from the two empties produced by Waheeduddin at the time of lodging the F. I. R., two more were recovered from the spot ; but none of these empties matched with any one of the guns recovered from the accused persons. No revolver or pistol empty was recovered, although it is alleged that Col. Allah Ditta fired two shots in the air. One of these bullets should have been ejected from the weapon, be it a revolver or a pistol.
19. The deceased Aman Ullah had one gun shot entrance wound 1 -- " diameter, 1 -- ` above the right nipple, on the right side of the front of the chest, and the deceased Alla-ud-Din had one gun shot wound 2" X 2 -- " in the posterior auxilary line involving the posterior ends of 5th, 6th and 7th ribs.
20. The edges of the injury of Aman Ullah were inverted, black and charred. In the case of Aman Ullah, it is not known as to what was the nature of the injuries, because, he was operated upon and the wounds were subsequently stitched up. The respondent Abdul Ghani had two abrasions, one on the right side of the forehead 3/4" above the right eye-brew obliquely and the other on the bridge of the upper part of the nose. Both the eyes of Abdul Ghani were also ecchymosed.
21. On the side of the complainant, the only other person injured was Jamadar Muhammad Sharif. He had three contusion marks and an abrasion. One of the contusions was on the top of the 'right shoulder joint obliquely, the other was on the posterior aspect of the right wrist joint obliquely and the third was at the root of the left thumb obliquely. Apart from this, he had an abrasion on the left side of the face 2 -- " from the outer angle of the left eye.
22. It will be noticed from the above that the injuries on both the deceased were from the front and not from behind. It cannot, therefore, be said that they had received the injuries while running away.
23. The other three eye-witnesses are Ziauddin, Jamadar Sharif and Khurshid Khan (P. W. 8). Jamadar Sharif is a maternal uncle of Majid-ud-Din (P. W. 5). He, as already stated, was on a visit to the house of his nephew and was not directly interested in the dispute between the two parties.
24. Muhammad Khursbid Khan (P. W. 8), through not related to Waheeduddin (P. W. 6), was also a co- sharer in the khala, and, it is alleged, belonged to the party of Waheeduddin. He denied this but, it appears, that in his state--ment before the police he had admitted that he belonged to the party of Waheeduddin and that their party had political differences with the party of Col. Allah Ditta, accused. He was duly confronted with his police statement wherein it appears that he actually stated that in each and every election they had been opposing the candidate of the other side and assisting their own party man.
25. Although Abdul Ghani and Allah Ditta are not related to each other, they belong to the same party.
26. The other accused are their respective sons. Salim Akhtar is the son of Col. Allah Ditta. Sabir and Riaz are the sons of Abdul Ghani.
27. Majiduddin (P. W. 5), though not related to Waheeduddin, is also alleged to belong to his party. He was also a co-sharer in the khala and a co-appellant with Waheeduddin against the proposed new water-course sought to be got sanctioned by Allah Ditta. He went to meet the Superin-- tending Engineer on horse-back but returned before the others of his party. He is a witness, accordingly, only with regard to the first part of the incident in which the accused Abdul Ghani was given a stick blow by Zia-ud-Din (P. W. 11), a brother of Waheeduddin (P. W. 6). Ziauddin admitted that Ito was provoked by the filthy abuses hurled at Waheeduddin by accused Abdul Ghani and gave him a stick blow near the eyes. It is, however, curious that he escaped and managed to reach his house without being injured although it is said that Riaz, one of the sons of Abdul Ghani, who was armed with a gun actually chased him.
28. The recoveries made in this case are of no use, because, neither the report of the Ballistics Expert with regard to the empties nor the memorandum of a test said to have been carried out with regard to the pair of shoes (Exh. P. 6), recovered from the site, were produced before the Court.
29. From this default, even the trial Court presumed that the results were in the negative.
30. No positive defence was set up by the accused persons other than Riaz who stated as follows "My father received injury at the hands of the members of the party of Waheeduddin and what happened afterwards was in the exercise of the right of private defence (torn) the (sic) of moment and without premeditation."
31. The trend of cross-examination, however, seemed to indicate that the defence wanted to set up a case that the party of Waheeduddin, being enraged at the conduct of Abdul Ghani, conspired to take revenge. They returned in strength and coming to the opening of the lane began abusing the inmates of the house of Col. Allah Ditta and Abdul Ghani. When one of their party came out to protest, he was sought to be attacked. The latter fired in self--defence.
32. This theory, however, cannot be accepted, as no blood-stained earth was seized from the lane or from the opening of the lane. The finding of the blood-stained earth from the place of the incident fixes its locality.
33. The attack on accused Abdul Ghani by Zia-ud-Din (P. W. 11) near the pond a little earlier was found to be corroborated by the injury on the person of Abdul Ghani, and hence it was accepted that the immediate motive for the attack on the complainant party was this earlier incident. The accused party, it was held, had returned earlier to the village abadi, armed themselves and awaited the return of the complainant party inside the lane. Hence, although neither Col. Allah Ditta nor Abdul Ghani nor Sabir were directly responsible for any attack on any of the complainant party, yet they were all held to be liable under section 149, P. P. C. For the shots that were fired by Salim Akhtar and Riaz. All were, accordingly, convicted under sections 302/149, 307/149, 323/149 and 148, P. P. C. Salim Akhtar and Riaz were sentenced to death in respect of the charge under section 302/149, P. P. C. But the others were given the lesser sentence of transportation for life. They were also fined Rs. 1,000 each or, in default, further rigorous, imprisonment for six months. The sentences under section 307/149, P. P. C. Were R. I. For seven years each and R.I. For one year each under sections 323/ 149 and 148, P. P. C. Respectively.
34. The majority of the Judges in the High Court considered the dying declaration to be unreliable, because, the possibility of prompting by Waheeduddin had not been excluded upon the evidence.
35. The ocular evidence was also considered to be of a partisan nature which was not corroborated by any independent circumstance. Apart from this, they also found that the prosecution witnesses had been guilty of making embellishments and improve--ments at every step in order to make their evidence fit in with the investi--gation ; so far so, they had even deliberately lied on material points. They also took the view that Col. Allah Ditta and Abdul Ghani had been falsely implicated.
36. The recoveries of the empties were not considered to be of any use, because, none of them had matched with the weapons recovered at the instance of the accused. The recovery of the pair of shoes was also dis--believed, as the identification of the shoes by Majid-ud-Din (P. W. 5) was not considered reliable.
37. Leave was granted in this case merely because of the difference of opinion amongst the learned Judges of the High Court.
38. Learned counsel appearing in support of the appeal has taken us through the entire evidence and has contended that in this case of double murder in broad daylight there was no reason to think that wholly innocent persons had been roped in leaving out the real culprits. The previous enmity, if any, was between Wahiduddin and Col. Allah Ditta. There is nothing to show, according to the learned counsel, that either Jamadar Muhammad Sharif or Khurshid or Majid-ud-Din were inimical to the accused persons. Whatever enmity there was, it was between Wahiduddin and Col. Allah Ditta. The presence of Jamadar Muhammad Sharif was furthermore confirmed by the injuries on his person, and it is not without significance that even the accused did not have the courage to deny that any incident of this kind at all took place. One of them tried to suggest that the incident took place at the pond as a result of the stick blow given by Zia-ud-Din to Abdul Ghani. The suggestions in cross-examination, however, sought to make out a totally different case that the complainant party, being angered at the abuses hurled -by Abdul Ghani on Wahiduddin, came to retaliate and began hurling abuses at Col. Allah Ditta and Abdul Ghani. When a member of their party tried to protest, he was sought to be assaulted and he fired in self-defence. No incident, however, took place in the lane, as no blood-stained earth was recovered from there, nor was any empty recovered from there. The place of the incident was fixed by the recovery of blood-stained earth and, therefore if there was a counter-version, they should have put forward some positive case. This, however, was not done. In the circumstances, there was no reason to reject the ocular testimony, even though there were some discre--pancies in that evidence. Such discrepancies were inevitable when witnesses were giving evidence after a long lapse of time.
39. Learned counsel contends that since the dying declaration was recorded in a narrative form and was a brief statement it satisfied all the conditions necessary for testing the veracity of a dying declaration. In support of this contention, reliance is also placed on a decision of the Dacca High Court in the case of Abdur Rahman v. The State (PLD 1971 Dacca 79) and a decision of the Peshawar High Court in the case of Zabta Khan v. The State (PLD 1963 Pesh. 66).
40. Learned counsel appearing for the respondents Nos. 2 to 5, on the other hand, points out that if the deceased Alla-ud-Din could have been carried to the police station and there was time to keep him there while someone was sent to fetch the doctor from the Municipal Hospital, then why was not Alfa-ud-Din taken straight to the Municipal Hospital and the services of a Magistrate secured for the recording of the dying declaration in the proper and usual form. A dying declaration recorded at a police station by the S. H. O. In the presence of prosecution witnesses is always suspect. This Court in the case of Ghulam Farid v. The State (PLD 1966 SC 264) observed :- "that a dying declaration made elsewhere than at a thana is more worthy of reliance than one made in the presence of the police, where also the relatives who have brought the injured man to the thana are generally present and usually cannot be prevented from putting a prepared case through the mouth of the deponent."
41. Learned counsel has further contended that a dying declaration has no greater sanctity attached to it than any other piece of evidence. Its veracity has to be judged on the basis of all the surrounding circumstances like that of any other evidence. These circumstances, according to learned counsel, seek to show that Allah Ditta and Abdul Ghani have been falsely roped in.
42. According to the investigating agency, Col. Allah Ditta had been shown in column No. 2 only and Abdul Ghani had been found to be not guilty. It is for this reason that Waheeduddin had also lodged a complaint in the Court of a Magistrate. The story given in this complaint much later than the first information report was the same as the story in the first information report ; but at the trial, the F. I. R. Story was radically departed from, as has been found by the two learned Judges of the High Court who have acquitted all the accused persons.
43. So far as Abdul Ghani is concerned, even according to the prosecution, he was unarmed and, therefore, it was preposterous to suggest that he would join in the alleged unlawful assembly even after being injured. The presence of Allah Ditta is extremely doubtful, because, it is a curious fact that, although two shots were said to have been fired by him in air with his pistol, no empties were at all ejected from the revolver or pistol, because, none had been recovered.
44. The ocular testimony was clearly of a partisan nature and of doubtful value because of the deliberate embellishments sought to be made by the witnesses in order to rope in innocent persons and to fill in the lacunae in the F. I. R. Story. Learned counsel contends that, in the face of these glaring embellishments, it cannot be said that the majority view of the High Court was in any way perverse or unreasonable and, therefore, this Court, having regard to its consistent practice of not interfering lightly with an acquittal, should dismiss this appeal.
45. Similarly, Jamadar Muhammad Sharif (P. W. 10), a maternal uncle of Majid-ud-Din (P. W. 5), another co-sharer of the old khala, had also in his " police statement referred to the party of Waheeduddin as our party", but at the trial tried to make out that he had accompanied the party of Wahiduddin only for "the sake of fun", as he, being a mere guest of his nephew, did not belong to any party in the village.
46. So far as Waheeduddin (P. W. 6) is concerned, there can be no manner of doubt that the relations between him and Col. Allah Ditta were strained for over a period of time. It was due to his efforts that Col. Allah Dittal was ousted from the president ship of the Zamindara Union. Similarly, Abdull Ghani was also removed from the directionship of the said Union at his instance. Not content with this, Waheeduddin actually pursued Col. Allah l for the recovery of various sums of money due from him in the book of account of the Union and himself became the pairokar of the cases that were started against Col. Allah Ditta, his brother Qurban A.I and his nephew Abdul Qayyum.
47. Wahiduddin was also arrayed on the opposite side at every election. Even at the last Assembly elections, held a year before the incident, Wahid--uddin opposed the candidature of Sardar Bashir who was supported by Col. Allah Ditta and Abdul Ghani. Again when Col. Allah Ditta was shown in column No. 2 in the challan and Abdul Ghani not challaned at all by the) police, Wahiduddin (P. W.
48. 6) promptly lodged a petition of complaint alleging dissatisfaction with the conduct of the investigation by the police.
49. It has also come in evidence that 4 or 5 months before the incident Col. Allah Ditta actually complained to the Governor against Ch. Badar-ud---Din, Deputy Superintendent of police, who is a brother of Wahiduddin (P. W. 6). The enmity, therefore, between Wahiduddin and his family members on the one side and Col. Allah Ditta and Abdul Ghani on the other, is clearly established.
50. It is not also possible for us to agree with the learned counsel for the appellant that Muhammad Khurshid (P. W. 8) and Jamadar Muhammad Sharif (P. W. 10) were wholly disinterested witnesses and that their testimony should have been relied upon, even without any corroboration.
51. So far as the corroboration of the ocular testimony is concerned, it is claimed that it was corroborated by the medical evidence and the dying declaration of Alla-ud-Din. This is not borne out by the record. The medical evidence actually gives the lie to the prosecution story that the shots killing Aman Ullah and Alla-ud-Dm were fired at them after a chase while the were running away. Both of them were found to have injuries on their chests. Such injuries could not have been caused to persons running away from the scene of the occurrence. Again, the blackening and charring found round the injuries of Aman Ullah do not support the oral testimony of Wahiduddin that the shots were fired from a distance of 4 to 5 karams. The medical evidence, therefore, gives no corroboration at all to the oral testimony.
52. The empties recovered did not also match the weapons taken from Salim Akhtar and Abdul Ghani.
53. It is for this reason that the prosecution witnesses actually tried to make out a case of tampering with the recoveries by suggest--ing that the recoveries produced or sent to the Expert were not the empties which were actually recovered from the place, as they do not bear their signatures. The story about signing the empties recovered was introduced at the trial stage for the first time, although it found no place in any one of the recovery memos nor was supported by the Investigating Officer.
54. All the prosecution witnesses have also been guilty of prevarication by trying to introduce new versions at the trial to fit in with the investigation. Thus, although in the first information report and in the police statements it is recorded that Col. Allah Ditta was armed with a revolver, at the trial each witness tried to substitute it with a pistol, because, it was later found that the Colonel held a licence for a pistol.
55. Again, although in the first information report and in the police state--ments it is stated that Col. Allah Ditta had fired in the air, attempt was made at the trial to suggest that the firing was not in the air but at the complainant party. This was clearly an improvement sought to be made to involve Col. Allah Ditta more directly.
56. Wahiduddin himself also departed in material respects from the story he gave out in the first information report and in the petition of complaint filed by him. There is nothing in these documents about the chase from the manure heap up to a distance of 100 karams before the alleged firings at the directions of Col. Allah Ditta and Abdul Ghani.
57. The presence of Jamadar Muhammad Sharif (P. W. 10) is also doubtful because, it (is not mentioned by Alla-ud-Din in his dying declaration, nor does it appear probable that at a time when people are being fired at with deadly weapons like guns, Jamadar Sharif would be so bold as to go and snatch the gun from one of them, and two more people from accused's side would have to intervene to disable him. The falsity of the story of Jamadar Muhammad Sharif was manifested not only by the Medical report regarding his injuries but also by the demonstration he attempted to give in the Court. He had no explanation for three out of the four injuries found on him by the doctor, nor could he satisfactorily explain how the hatchet blow on the shoulder could have been caused to him at a time when Abdul Ghani was holding him from behind.
58. As regards the presence of Zia-ud-Din, we find it difficult to accept that even though he was one of the persons who should have been picked out first to be killed, he was allowed to escape without even a scratch to his house.
59. It is said that Riaz, Who was armed with a gun, followed him right up to the house. If he did so then it is difficult to believe why he allowed him to escape unharmed without firing him.
60. As regards the dying declaration, we have to point out that there is con--siderable discrepancy between the story given in the dying declaration and the story subsequently unfolded by the witnesses in Court. There is nothing in the dying declaration about the incident near the pond, in the course of which Zia- ud-Din Struck Abdul Gliani on tile face, nor does the dying declaration say that the firing took place after the complainant party was chased for over a distance of 100 karasns. The dying declaration also does not mention that Jamadar Muhammad Sharif was present. In the circum--stances, we find it difficult to place implicit reliance on the dying declaration, particularly, since it was recorded at the police station at a time, when other persons including Wahiduddin were allowed to be present.
61. It is difficult to appreciate why Aila-ud-Din was not taken straight-away to the Hospital and a Magistrate called there for the recording of his state--ment after obtaining a certificate from the doctor as to his fitness to make a dying declaration. Instead, the Police Officer adopted a more time-c0nsum--ing process by first sending someone to the hospital to fetch a doctor to grant the certificate that Alla-ud-Din was in his senses and then recording the statement himself at the police station in the presence of the other witnesses. If there was time to send for a doctor then there was time also to send for a Magistrate to record the dying declaration. Why this was not done, it is difficult to say.
62. As this Court has said in the case of Ghulam Farid v. The State (PLD1966SC264) a dying declaration recorded at a police station, when the relatives who have brought the injured there are present, is always suspect and certainly less worthy of credence than one recorded by a Magistrate after excluding the relatives.
63. We see no reason to depart from this salutary principle, for, otherwise, the value to be attached to a dying declaration will be greatly diminished. In order to place implicit reliance on a dying declaration, one must be fully satisfied that it is a statement which has been made by the deceased voluntarily without any possibility of prompting, as to the cause of his death, and hay been correctly recorded by a responsible person.
64. We are also in entire agreement with the learned Judges holding the majority view that both Col. Allah Ditta and Abdul Ghani were falsely implicated in this case, and that the case as against the other accused has not been established beyond reasonable doubt.
65. Col. Allah Ditta had died during the pendency of the appeal. This appeal has abated as against him but, nevertheless, we confirm the finding of the High Court that he was falsely implicated. As regards tile others, we as we have already indicated in our short order dictated on the 3rd of April 1974, dismiss the appeal with the direction that the respondent Riaz Hussain, who was in jail, should be set at liberty forthwith and the others who were on bail should be discharged from their bail bonds.