1. ABDUL HAFBEZ MEMON, J.-Appellant Bachal son of Rustom has been convicted by the learned Additional Sessions Judge, Sukkur, for offences under sections 302 and 3,)7, P. P. C., both read with section 34, P. P. C., and sentenced to death and a fine of Rs. 1,000 or in default R. I. For 3 months and R. I. For 7 years and a fine of Rs. 200 or in default R.
1. For one month more, respectively: In addition, he has also been convicted and sentenced to R. I. For one year under section 13-D of the Arms Ordinance. All the substantive sentences of imprisonment have been ordered to run concurrently if death sentence is not confirmed. He has appealed against his convictions and sentences and the matter is also before us for confirmation of the sentence of death. By this judgment we propose to dispose of both the appeal as well as the reference.
2. The incident in which deceased Abdul Razak lost his life while his friend complainant Ghulam Shabbir sustained injuries, is alleged to have taken place in the hotel of one Ghulam A.I Burin near Rohri Cement Factory on 7-9-1973 at 6-30 p.m. F. I. R. Relating to the incident was lodged by com-- plainant Ghulam Shabbir at 7 p.m. The same evening at Rohri Police Station, 1 -- miles away and it reads as follows :- "Complaint is that I used to work as labourer in the quarry of my uncle Mohammad Bux and my friend Abdul Razak son of Hussain Bux by case Massan resident of Wadbi Patni works in cement factory. Today at about 6-30 p. m. I alongwith Abdul Razak was drinking tea in the cement factory in the hotel of Bureras, the P. Ws. Himath A.I son of Jado Shaikh and Malang son of Alam Dadban resident of Wadhi Patni were also sitting in that hotel. Then Bachal son of Rustam and Kaiser son of Rustam alongwith one Taimur's son whose name I do not know who was relative of Bachal and another who was Gabole by case whose name also I do not know came there, from them Bachal was armed with pistol while Kaisar was armed with '12 bore single-barrel gun. Four/five person came Gabole started giving abuses and Taimur's son instigated others to kill, where upon Bachal fired his pistol and Kaiser fired his gun at us. The gunshot fired by Kaiser hit Abdul Razak in the abdomen and his intestine protruded out and he fell down. I tried to pick up injured Abdul Razak then Kaiser fired second shot which hit me on my back as well as on my right arm and the head.
2. Then all the accused went away while giving abusing and firing in the air. This incident was also seen by Malang Dadan and Himath Shaik and others. None of them went near the accused due to fear, nor they chased them. Then I brought injured Abdul Razak to police station for lodging a report who was unconscious. The accused had fired at us because one Mirdad Sukhani, the relative of Bachal was murdered about 2 -- years ago, on that account on behalf of me Imam Bux was challaned in that case falsely. At present he is confined in Jail. On that account today accused had fired at us. At present I am coming for lodging a report."
3. About 15 minutes after the arrival of the complainant at the police station, some persons brought injured Abdul Razak to the police station in the state of unconsciousness. S. H. O. Ghulam Mohammad, who had earlier recorded the F. I. R., prepared mashirnama of injuries on the deceased as well as the complainant (Exh. 11) and also secured their blood-stained clothes under mashirnama (Exh. 12) and sent both of them to the hospital. The mashirnama of injuries showed that 4 out of 5 injuries on Abdul Razak had bled and a piece of intestine had also protruded out.
4. After sending both the injured to the hospital, S. H. O. Ghulam Mohammad went to the wardat where according to him he recorded the statement of P. W. Himmat A.I. On the next morning, he prepared mashirnama of wardat. As, however, no blood was visible at the wardat, he mentioned the fact in the rnashirnama Exh.
16. He recovered no other incriminating article such as crime empty etc. From the wardat nor did he find any mark of pellets on any wall or furniture lying in the hotel. He then recorded the statement of P. W. Malang and went to the Civil Hospital where be recorded statement of injured Abul Razak who was certified by Doctor Imam Bux Abbasi to be in senses This statement (Exh. 17) has been treated as a Dying Declaration of the deceased Abdul Razak who died in the hospital on 12-9-1973. As S. H. O. Ghulam Mohammad was transferred, he handed over the case to S. H, O. Bahadur Hasan Zaidi (P. W. 2) who arrested the appellant on 29-12- 1973 near Regent Cinema, Rohri vide mashir--nama Exh. 8 which showed that nothing incriminating was secured from him or at his instance It appears the other three accused named in the F. I. R., namely, Kaisar (brother of the appellant), Dino (their cousin) and Gabol (their friend) could not be arrested with the result that the appellant alone was challaned on 24-1-1974 while the other 3 accused were shown as absconders.
5. Dr. Imam Bux, Medical Officer, Civil Hospital, Sukkur conducted autopsy on the body of the deceased Abdul Razak and found the following injuries on his person :-
(1) Two lacerated wounds on the right side of the abdomen just below the Ribs each 1' x-- and skin deep. 2' x -- ' and skin deep.
(2) A lacerated wound of entry on the left side of the abdomen 1/6' X 1/6' and rounded shape.
6. This Doctor was however not examined 'at the trial and his deposition before the committing Magistrate was brought on record under section 509, Cr. P. C. Complainant Ghulam Shabbir was examined by Dr. Ghulam Mustafa Medical Officer, Rohri, who found 6 fire-arm injuries on his person, ail simple in nature.
7. The defence of the appellant was one of denial and false implication on account of enmity with the complainant Ghulam Shabbir. Explaining the nature of the alleged enmity he further stated as follows :--- "I have been falsely involved in this case by the complainant Ghulam whose brother Imam Bux is accused in murder case of my uncle Mirdad in which I was a. Prosecution witness. Moreover, the deceased was not figure,as accused in that case. I produce certified copy of challan of that case (Exh. 35). On the day of incident I was on duty from 4-00 p.m. To 12-00 mid night at Rohri Railway Station. Where I am working as luggage porter. I produce such certificate issued by Station Master (Exh. 35). Deceased was involved in so many cases and he was on inimical terms with so many people of different castes, I produce true copy of F. I. R. No. 99 of 1971 under section 382, P. P. C. In which the deceased was one of the accused (Exh. 37). I also produce certified copy of another F. I.
8. R. No. 106 of 1973 under section 307i34, P. P. C. In which also the deceased was figured as one of the accused."
9. To substantiate his defence the appellant produced a certified copy of the challan (Exh. 35) which showed that, on 6-8-1970, his father Rustom had filed a case under section 302, P. P. C. In which Imam Bux, real brother of complainant Ghulam Shabbir, was one of the two accused while appellant Bachal as well as his brother absconding accused Kaiser were eye-witnesses. The case was admittedly pending at the time of this incident.
10. The appellant also produced certified copies of F. I. Rs. Dated 5-8-1973 and 24-12-1971 (Exhs. 37 and 38) to show that deceased was a man of bad character and used to behave as a goonda and on that account had many enemies anyone of whom could have committed his murder and appellant and his relations were falsely involved by complainant Ghulam Shabbir on account of his own enmity. No witness was, however examined in defence.
11. At the trial the prosecution case against the appellant was sought to be proved on the basis of-
(a) ocular evidence of P. Ws. Ghulam Shabbir, Himmat A.I and Malang;
(b) dying declaration of deceased Abdul Razak (Exhs. 27); and
(c) the motive.
12. The learned trial Judge held that the prosecution had failed to establish the motive alleged by them, as shown by para. 19 of his judgment which reads as follows:- "The last piece of evidence against the accused is motive. The motive as alleged by the prosecution against the accused is that Mirdad the uncle of present accused Bachal was murdered 2-3 years prior to this incident and the accused were suspecting deceased Abdul Razak for having murdered him. This motive has been told by com--plainant Ghulam Shabbir only. The P.
13. W. Malang on the other hand stated that he did not know why deceased was murdered by the accused. The deceased Abdul Razak has also not stated so specifically in his dying declaration. He has stated that previously a person of these "Sakhanies", the accused are Sakhanies by case, was murdered and due to that murder complainant's brother is in jail and that on that account the accused had fired at them. The complainant has admitted that deceased Abdul Razak was not figured as accused in the murder case of deceased Mirdad. It is thus quite clear that the allegation of motive attributed to the accused cannot be relied upon and as such the prosecution has failed to establish the motive alleged by it. But the absence of the motive in the case would not weaken the prosecution case in any manner as the law is well-settled that in a criminal case if motive alleged is not established it does not have any adverse affect on the evidence of the prosecution as held in PLD 1965 Kar. 31 and PLD 1974 Kar. 393."
14. The learned trial Judge further found that eye-witnesses had exaggerated their testimony as can be seen from the following lines appearing in para. 13 of his judgment :-.--- "It is true that the eye-witnesses have improved upon their earlier state--ments in the manner as stated by the learned defence counsel. It is worth mentioning here that deceased Abdul Razak has also stated in his dying declaration (Exh. 27), which I will discuss in the later part of this judgment, that present accused fired with his pistol and absconding accused Kaisar fired with his gun but the gunshot fired by absconding accused Kaiser hit him. In the presence of such evidence on record I feel convinced in my mind that the eye--witnesses on this part of the story have exaggerated a little in order to obtain full implication of the present accused in this case."
15. He, however, held that "this little exaggeration by itself would not render all their evidence unworthy of credit". Relying on their evidence, therefore, as well as the Dying Declaration, the learned Judge convicted and sentenced the appellant as stated above.
16. Mr. Imdad A.I Agha, learned counsel for the State, conceded at the very outset that the alleged Dying Declaration, apart from being doubtful, was legally not proved and therefore, he would not rely thereon.
17. The alleged Dying Declaration was sought to be proved by the evidence of Dr. Imam Bux and S. H.
18. O. Ghularn Mohammad. Dr. Imam Bux was, how--ever, not examined at the trial and his deposition in the Court of Inquiry was brought on record under section 509, Cr. P. C. As Exh. 28 wherein he stated that the Dying Declaration was made by the deceased who was in his senses and the same was attested by him. The learned counsel for the appellant contended that the Doctor's evidence on this aspect of the case could not be brought on record under section 509, Cr. P. C. And in support relied upon the following observation in a Division Bench judgment of this Court reported as Muhahat v. State (1972 P Cr. L J 416), wherein in para. 15 at page 420 it was observed as follows :- -- "The third dying declaration is allegedly made by the deceased to Dr. Vijay Singh who in his deposition in the committal Court which was brought on record at the trial as Exh. 31 says that the dying declaration was made by the deceased but obviously his deposition pertaining to this part of the dying declaration cannot be treated as relevant under section 509, Cr. P. C. As his lower Court deposition has been brought on record of the trial Court because this evidence is not regarding his expert knowledge of the examination of the deceased and his treatment. Under section 509, Cr. P.
19. C. Under which the statement of this doctor was brought op record of the trial Court only that evidence would be admissible which refers to the medical opinion of the doctor and no other. If the prosecution wanted to lead evidence other than the medical expert opinion of the doctor it should have examined the doctor at the trial Court on oath. But this not having been done, the statement of the doctor regarding the dying declaration becomes inadmissible."
20. The above observations, made in identical situation, indeed support the learned counsel and their correctness is not disputed by the learnedl9 counsel for the State.
21. S. H. O. Ghulam Mohammad, who is the only other witness who has deposed to the Dying Declaration, stated in examination-in-chief that the same was recorded by him. However, in cross- examination he had to admit that it was not written in his own hand. He also could not name the person who had written it. He stated that one police constable had written it. He then stated that one police constable was with him but could not recollect his name. He did not even state that Dying Declaration was written by this constable. Thus, the writer of this document cannot be ascertained, and the S. H. O. Made a false assertion in his examination-in-chief that he himself recorded the statement of the injured. Moreover, even the S.H.O. Has not orally deposed to the contents of the 15ying Declaration which, even Mr. Imdad A.I Agha conceded, was necessary for proving the contents of the Dying Declaration. The S. H. O. Has also not excluded the possibility of B friends and relations of the deceased including complainant Ghulam Shabbir, who had already implicated the present appellant in the F. I. R., being there. He admitted that he did not remember who was sitting with injured Abdul Razak at that time. Then, admittedly, the injured Abdul Razak was alive and in senses on 12-9-1973 yet no attempt was made to have his Dying Declaration recorded by a Magistrate, although at Rohri a Magistrate could have been easily available. The Dying Declaration itself is recorded like 161, Cr. P. C. Statements of other witnesses and is in the same strain. A perusal thereof and the manner in which it is written also does not inspire confidence. We have therefore no hesitation in agreeing with Mr. Imdad A.I Agha, learned counsel for the State, that the Dying Declaration could not be used as evidence against the appellant.
22. Mr. Imdad A.I Agha has however relied on the ocular evidence and contended that this by itself was sufficient for conviction. He argued that P. W. Ghulam Shabbir who lodged the F. I. R. Had enmity with the appellant and P. W. Malang was related to him and, therefore, they being interested witnesses they may not be implicitly relied upon, but P. W. Himmat A.I was an independent witness and there was no reason as to why his evi--dence should not be believed.
23. The evidence on record, however, shows that even P. W. Himmat A.I is not free from the influence of the complainant party and even he cannot be relied upon implicitly. He is admittedly a friend of P.
24. W. Malang who is related to Ghularn Shabbir and had come with for having tea in the hotel of Ghulam A.I. Deceased Abdul Razak was known to him for the last 20-25 years and they were neighbours both residing in village Patni which is about 2 mile away from the scene of offence which was a hotel near the Cement Factory in the town of Rohri. It appears really strange that all the 3 eye--witnesses should come from this village and none of the witnesses from the locality, including the owner of the hotel, should have been even examined by the police. The scene of incident was in a hotel and the quarters of the Cement Factory were only 10-15 paces away. At 6 p.m. In the month of September, a lot of people would naturally be present in the hotel and, indeed, their presence is admitted as shown by the F. I. R. And the statements of the prosecution witnesses.
25. Yet, not a single witness has been examined to corroborate the alleged eye-witnesses not only regarding the number and identity of the assailants but even regarding the fact that the incident took place at the alleged time. This aspect of the case assumes importance in view of the contention of the defence that the scene of offence had been shifted in this case so as to provide ocular evidence of P. Ws. Himmat A.I and Malang on the false pretext that they saw the incident because they were having tea in this hotel.
26. The securing of blood-stained clothes of the deceased as well as the mashirnarna of injuries show that the injuries on person of the deceased had bled, yet there was not a drop of blood found at the alleged scene of offence. Further, although accused Kaiser alone is said to have fired about 4-6 shot, no crime empty was found at the wardat, nor was there any other evidence of firing such as pellet marks on the furniture or the walls of the hotel. All there facts coupled with the complete absence of any evidence of the hotel owner or residents of the locality would show that submission of the learned counsel for the appellant, that scene of offences had been shifted, is not without force. Even if it be assumed, for the sake of argument that P. W. Himmat A.I was in no way connected to the complainant that by itself would not be sufficient to place implicit reliance on his testimony which has to be considered on its own intrinsic merits for, as observed by their Lord-- ships of the Supreme Court in Bashir Ahmad v. Abdul Aziz and 3 others (PLD 1969 SC 469), the mere fact that witnesses "are not the relation witnesses it does not mean that they are witnesses of truth. Ultimately, the acid test of veracity of a witnesses is the inherent merit of his own statement'.'.
27. Reference may also be made here to a case reported as Pir Muhammad Khan v. The State (PLD 1970 Kar. 399), wherein a Division Bench of this Court observed as under :--- "To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief."
28. The evidence of the witnesses has, therefore, to be judged on its own merit with a view to see whether it inspires implicit confidence so as to be sufficient for convicting the appellant on a capital charge.
29. P. W. Himmat Al.: stated that he was sitting in the hotel of one Chango when at about 6 p.m. The four assailants came there. According to him appellant Bachal was armed with a revolver, accused Kaiser with a gun while the remaining two carried lathis. He was confronted with his lower Court deposition where he had stated that even Dino and Gabole were armed with guns (Exb. 23 page 39). Even as regard the weapon carried by the appellant, his evidence that he had a revolver is contradicted by the medical evidence as there was no bullet injuries on either the deceased or the injured com--plainant. Then, according to P. W. Himmat A.I, appellant Bachal "fired revolver shot at deceased Abdul Razak which bit him in his abodmen. The accused Kaiser fired his gun at deceased Abdul Razak which also hit him in the abodmen". The witness was, however, contradicted with his statement to the police under section 161, Cr. P. C. And the same was brought out through S. H. O. Ghulam Mohammad who admitted as follows:- "It is correct that complainant Ghulam Shabir has not stated in his F.I. R. That pistol shot fired by accused Bachal hit deceased Abdul Razak. The complainant has stated in the F. I R. That gunshot fired by Kaiser hit deceased Abul Razak."
30. This would show that, like the two interested witnesses, P. W. Himmat A.I had also improved on his police statement and fallen in line with them so as to implicate the appellant also for actually injuring the deceased. Even the learned trial Judge accepted this position that he had exaggerated, while dis--cussing in para. 13 of his judgment as follows :- "It is true that the eye-witnesses have improved upon their earlier state--ments in the manner as stated by the learned Defence counsel. It is worth mentioning here that deceased Abdul Razak has also stated in his dying declaration (Exh. 27), which I will discuss in the later part of this judgment, that present accused fired with his pistol and absconding accused Kaiser fired with his gun but the gun--shot fired by absconding accused Kaiser hit him. In the presence of such evidence on record I feel convinced in my mind that the eye--witnesses on this part of the story have exaggerated a little in order to obtain full implication of the present accused in this case. How--ever, this little exaggeration by itself would not render all their evidence unworthy of credit.
31. Even if we agree with the learned Judge that this exaggeration would not render the entire evidence worthless, the fact remains that even P. W. Himmat A.I had exaggerated like the other two interested witnesses to "obtain full implication" of the appellant. He even disowned his earlier police statement. There can, therefore, be no guarantee that he is not exaggerating in other respects, such as the number of assailants etc. After all, even according to F. I. R. And pre-trial statements of all the 3 eye-witnesses, the entire damage had been caused by absconding accused Kaiser and looking to the injuries the possibility cannot be ruled out that this was a work of one man. Where is then the guarantee that none of the other three accused has not been falsely implicated ? What is referred to above was. However, not the oily improvement made by P. W. Himat A.I. He stated that except the three others "no other persons were sitting at the hotel at that time". This was contrary to his police statement wherein he had admitted the presence of the other independent witnesses but he falsely denied having made even this statement which, how--ever, was proved through the S. H. O. That he had made that statement. Then, this witness went to the extent of saying that there was blood at the wardat although this was obviously a false statement in view of the evidence of Investi--gating Officer as well as the mashir and mashirnama of wardat. The question then arises as to why Himat A.I was so keen as to deny at the trial all the facts favourable to the accused, even though he had admitted the same in his earlier pre-trial statement and make false statements?
32. This only shows his interest in the prosecution case which he wanted to bolster up. Then, in his anxiety to favour the prosecution, P. W. Himat A.I went on further to say that after the departure of the assailants, Chungo, the owner of the hotel, and many other persons came there, but he did not mention the names of the assailants to any one of them and went away to his village immediately after the incident, and although his house was only one furlong away from that of deceased in the same village, he did not inform even the parents of the deceased that their son was injured. In fact he stated that "till the recording of my statement by the police I did not inform about this incident to any other person" and according to his own evidence his police statement was recorded 2-3 days after the incident. This would show that the witness did not disclose the incident to any person for 2-3 days. This conduct is most unnatural and this by itself is sufficient ground for discarding his testimony. We may refer here to the case reported as Jiwa v. The State (1973 P Cr. L J 1006), wherein it was observed that even though the eye-witnesses were impartial having no enmity with the accused, yet their conduct in quietly watching the incident and not informing any one about it would make their evidence doubtful.
33. It may further be mentioned that on this aspect of the case also, P. W. Himat A.I stands contradicted by his friend and co-worker Mallang who stated that both he and P. W. Himat A.I informed Hussain Bux, father of the deceased, about this incident. This contradiction would show that they were most probably not witnesses of the occurrence but their names were intro--duced by the complainant as eye-witnesses in the F. I. R. As he was confident that one being his relation and the other his friend they would stand by him and support the F. I. R., as contended by the learned counsel for the appellant. In this context, the fact that even according to P. W. Himat A.I he was examined by the police after 2-3 days assumes importance in that it falsifies the assertion of the S. H. O. Ghulam Mohammad that he examined him at the wardat the same evening. Such a contradiction has been held to he a material one which detracts from giving importance to the evidence of such a witness of late production by their Lordships of the Supreme Court in Sikandar v.
34. State (PLD 1963 SC 17), which was again referred to with approval in the well-known case of Sirajuddin v. Kala (PLD 1964 SC 26), wherein it was observed by Cornelius, C. J. At page 35 as follows :---- "It has to be borne in mind that the production of false witnesses is no more difficult in a city than it is in the villages. Indeed in a recent murder-case from this very area in Lahore City------ this Court, in a published judgment viz. Sikandar A.I v. The State PLD 1963 SC 17. Found it necessary to reject the evidence of a witnessby reason of patent doubt as to the time when he first appeared before the police."
35. Most of the infirmities in the evidence of P. W. Himat Ail are also present in the evidence of Ghulam Shabir and Mallang. Of course we are conscious of the fact that complainant Ghulam Shabir is an injured person and, therefore his presence cannot be doubted. This circumstance, however, could not be sufficient for placing implicit reliance on his evidence specially in view of the strong enmity between him and the appellant's family. P. W. Ghulam Sbabir admitted that his brother Imam Bux was one of the accused in the murder-case of Mirdad. It is also proved by documentary evidence that the appellant's father Rustom was the complainant in that case while the appellant himself as well as his brother absconding accused Qaiser were both witnesses against Ghulam Shabir's brother and the case was pending at the time of this incident. It is therefore inconceivable that the complainant could not be aware of this position but yet he tried to disown any knowledge about it.
36. This shows that the witness was all the time conscious that he should mould his evidence so as to fully implicate the appellant. This can also be seen from the fact that although in his F.I. R. He had attributed all the shots to have been fired by absconding accused Kaiser, he had no hesitation in stating at the trial that it was the appellant who first hit the deceased. What is more, he went to the extent of asserting that he had stated in his F. I. R. That pistol shots of the appellant hit deceased Abdul Razak, a statement which was obviously false, as a bare perusal of the F. I. R. Itself would show. Doctor Ghulam Mustafa who examined complainant Ghulam Shabir stated that he found six injuries on his person all simple in nature. The location of the injuries would show that complainant was fired at from behind from some considerable distance, most likely while he was trying to run away with his back towards the assailants. It is therefore likely that he may not have seen his assailants properly. The fact that he received only simple injuries, that also according to the F. I. R.
37. While he tried to pick up the deceased, which would show that the assailants had come to kill the deceased only and they had no reason even to hurt this witness. This however, is inconsistent with the prosecution case because on the evidence as it is, in this case, the appellant would have a much stronger motive to kill complainant Ghulam Shabir rather than the deceased. Be that as it may, in view of the established enmity between the accused and the complainant it would be highly unsafe to place implicit reliance on his testimony and this position was conceded even by the learned counsel for the State. As observed by their Lordships of the Supreme Court in Bagh A.I and others v. State (PLD 1973 SC 321); "The implication of as many as five persons closely related with each other-two brothers and three cousins-for the murder of two unarmed persons with gunshots also suggests false implication of several innocent members of 'the enemy family'. Indeed the whole case bristles with inherent improbabilities and apparent contradictions which render implicit reliance on oral testimony alone practically impossible and extremely hazardous.
38. As has been pointed out by this Court in the case of Thoba v. The State PLD 1953 SC 40 the appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."
39. No doubt the F. I. R. In this case is shown to have been lodged without delay at 7 p.m. The incident is said to have taken place at 6-30 p.m. The F.I. R. Is however not substantive evidence and at the trial all the eye-- witnesses including complainant Ghulam Shabir stated that the incident took place at 6 p.m. According to the prosecution the scene of offence islocated in the outskirts of the town of Rohri in a busy locality where conveyance could be 'easily available and the Police Station was only 1 -- miles away. What is more, it was admitted by P. W. 4, Hussain Bux in the Court of Inquiry that "the deceased was taken to the police station in the evening at about 5 or 6 p.m." According to the Investigating Officer it was about 15 minutes after the complainant had lodged his F. I. R. That the deceased was brought to him and then he referred him to the hospital. The timing shown in the F. I.
40. R. Does not therefore appear to be correct and even if for the sake of argument it were to be assumed that the F. I. R. Was lodged after one hour as asserted by the eye-witnesses, this circumstance would not be sufficient corroboration of the interested testimony of the complainant.
41. Somewhat similar situation arose before a Division Bench of the West Pakistan High Court in the case reported as Khurshid Ahmed v. Qabool Ahnurd (PLD 1964 Kar. 356), at p. 361 where their Lordships while considering contention of the F. I. R. Having been lodged within 15 minutes observed as follows :- "The learned counsel appearing on behalf of the applicant has submitted that this corroboration is to be found in the circumstances of the case itself, for example, in the number of assailants, in the fact that they are the most likely culprits in this case and in the fact that their names appear in the F. I. R. Lodged within fifteen minutes of the incident. But, these circumstances come from the very mouths of the interested prosecution witnesses themselves. They are not independent cir-- cumstances in the sense that they arise from other sources remote from and wholly unconnected with these interested witnesses. It is well established that corroborative evidence to be of any value must necessarily be independent corroborative evidence arising from sources distinct from and independent of the already tainted source. But, this is not the case here and hence, it seems to us, that these circumstances mentioned by Mr. Pirzada are not such as serve to support the case of the prosecution so as to place it beyond all reasonable doubt."
42. For the reasons given above it is impossible to place implicit reliance on the oral testimony of these three witnesses without some independent corroboration. There are admittedly no recoveries and even the evidence of motive has not been accepted by the trial Court. The only other evidence in the case namely the Dying Declaration of deceased is also doubtful and even Mr. Imdad A.I Agha, learned counsel for the State, very fairly conceded that he would not rely thereon. Be that as it may, even if, C for the sake of argument, this Dying Declaration is considered as evidence against the appellant it cannot add to the value of the prosecution evidence either, nor can it be treated as evidence of any higher worth, for, if the deceased had survived it would have been subjected to the same criticism, with equal justice, as that which applied to the prosecution witnesses.
43. "In the same line, there are the dying declarations of the deceased which have a degree of sanctity under the law, being the statements of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affair, he would not tell a lie and implicate innocent persons on false charges, But, I consider that in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in .The case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-hold habits and deep-rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty ? It is for this reason that a close scrutiny of the dying declaration like the statements of interested witnesses, becomes absolutely necessary."
44. These weighty observations were relied upon in a very recent judgment of the Supreme Court in which his Lordship Mr. Justice Dorab Patel summarised the entire law as to dying declaration in an elaborate and considered judgment that of Zarif Khan v. The State (PLD1977SC612), wherein the character of the deceased and the fact that he had involved a large number of accused in his dying declaration were considered to be relevant for the purpose of assessing the evidentiary value of a dying declaration. In the instant case also, as can be seen from Exhs. 37 and 38 (at page 68 to 75 of the paper book) the deceased was not a man of good character and would be having several enemies. Besides, in the dying declaration itself he has referred to enmity with the accused and has involved as many as 5 persons. The dying o declaration therefore cannot add to the evidentiary value of the ocular evidence. As observed by the Division Bench of the West Pakistan High Court in Ghulam Jilani and others v. The State (1970 P Cr. L J 619); "We are also of the opinion that the learned Additional Sessions Judge was not justified in placing reliance on the. Dying declaration Exh. P. D. Without considering the background of enmity that existed between the deceased and the accused party. He observed that the dying declaration was corroborated by the testimony of the three injured witnesses. The learned Judge, however, failed to appreciate that the multiplicity of interested testimony has not the effect of converting it into an unalloyed truth. He was impressed by the fact that the deceased-was expecting death and was in a precarious condition and it could not, therefore, be said that "he would speak a lie or be tutored by some one else to falsely implicate the accused persons or dictate a detailed story out of his own imagination". It is true that in some of the judgments, the Courts have observed that those who are in pain do not speak in vain and usually speak the truth (see Shahbaz and another v. The Crown PLD 1953 Lab. 566). But these observations apply to the peculiar facts of these cases. The question whether an inured person who has a feeling that he is crossing the frontier of life into the world hereafter, making a particular statement on account of fear of God or is motivated by malice for his enemies who may actually be innocent, relates essentially to his own inner feelings and can be determined by reference to the evidence on the record and the circumstances appearing in the case by a process of reasoning peculiar to the Courts of law. A dying declaration is not a piece of evidence at par with that given in Court where cross-examination can bring out the weak points of the witness and expose the falsity of his statement. The consideration for which some sanctity is attached to the dying declaration is that a man while he is preparing to face his Maker will not tell a lie and falsely involve any one. This, however, depends upon the sense of accountability of a person to his Maker and varies from man to man. There have been a number of cases in which dying declarations were found to be entirely false. Of course, there is no rule of law which says that no conviction can be based on a dying declaration without corroboration but a rule of prudence has been evolved by the Courts for safe dispensation of justice that ordinarily when a number of persons have been involved and there is a background of enmity between the persons making the dying declaration and the accused, the rule regarding seeking of corroboration should be invoked.
45. It was observed in Mian Khan v. The Crown PLD 1954 Lab. 646, that the weight to be attached to a statement of a dead person depends on the circumstances of each case and no hard and fast rule of general application can be laid down. Again, it was held in Khurshid Hussain Salihon Shah and others v. Emperor AIR 1947 Lab. 368, that where a large number of persons are implicated as accused there should be no conviction in the absence of corroboration. There is no denying that when a person is inimically disposed to a particular party, he is tempted to name a large number of persons. It was held in Bakhshish Singh alias Bakhshi and others v. Emperor AIR 1925 Lab. 549, that the inhabitants of the Punjab often in a dying declaration not only accuse the actual offender but also include the names of other enemies and it will not be, therefore, safe to base a conviction on the uncorroborated dying declaration of a deceased person. We cannot therefore place the dying declaration at a higher pedestal than the testimony of the interested witnesses in this case."
46. The view expressed in the above-cited case would gain further support from the authority of the Supreme Court referred to above, namely, Zarif Khan v. State.
47. Further, the appellant does not appear to have had any motive to commit the offence in broad day in a hotel in the town of Rohri where he would be seen by number of independent witnesses. In this connection P. W, Mallang who is admittedly a relation of the complainant Ghulam Shabir stated as follows;---- "I do not know why deceased was murdered by the accused. The complainant Ghulam Shabir is related to me. His brother imam Bux was involved in the murder-case of deceased Mirdad, the uncle of accused Bachal. At the time of this incident Imam Bux was in jail in that murder-case. It is correct that deceased Abdul Razak was Missan by case. He was not related to us. It is correct that deceased Abdul Razak had no concern with the murder of deceased Mirdad. There was no enmity between deceased Abdul Razak and accused Bachal. --It is correct that co-accused Kaiser is brother of accused Bachal while co-accused Duro is his cousin."
48. Lastly, as shown by Exhs. 37 and 38, the deceased was involved in criminal .Cases which were pending against him at that time and the allegations against hire would suggest that he was not a man of good character. That being so, the possibility cannot be ruled out, as was contended by the learned counsel for the appellant, that he might have been killed by any one or more of those unknown persons and the appellant was falsely involved by complainant Ghulam Shabir on account of enmity. In this context the fact that no independent witness of the locality was examined assumes importance and casts serious doubt on the veracity of the witnesses and raises an adverse inference against the prosecution, as pointed out by their Lordships of the Supreme Court in the cases reported as 1971 SCMR12and1972SCMR286.