1. GHULAM RASUL K. SHAIKH, J.-The appellants were convicted'. For an offence under section 302/34, P. P. C. And sentenced to transportation for life and pay a fine of Rs. 500 or in default to, undergo R. I.
2. For six months by the learned Additional Session Judge, Karachi.
3. The incident had taken place on 25th June 1966 at 8-20 p.m. On Tarachand Road in Butta village situated near Keamari. Abdul Qayum deceased was said to have been murdered by a guru shot fired by Pir Muhammad Khan appellant assisted by the other. Two appellants. The dying declaration of the deceased Exh.
40. Recorded at 10 p. m. In the hospital by Mr. Fateh Hyder A. S. I. P.
4. Jackson Police Station and was treated to be the first report.
5. The parties are related inter se and originally belong to the, same place in Hazara District.
6. Appellant Pir Muhammad is brother-in-law of appellant Muhammad Yaqoob and uncle of appellant Muhammad Ayub. They are related to the deceased. Anwar witness is brother of the deceased. Ghulam Hyder, Mohammad Yaqoob and Maroof are related inter se but they are not related to the parties. They too hail from the same place where the parties lived in Hazara District.
7. There was some dispute between Pir Muhammad appellant and the deceased while they were living in their home village and there was also some litigation. A further dispute arose between appellant Pir Muhammad and Anwar brother of the deceased over the quarter which belonged to Pir Muhammad and was let out to Anwar, in which Anwar was living since sometime while the deceased was still living in his native place. On 1-5-66 Anwar left with his family for his native place and delivered the key of the house to Farid Khan instructing him not to hand over the key to any one. He returned to Karachi on 28th May 1966 and demanded the key from Farid who told him that he had given the key to Sadiq from whom appellant Pir Muhammad had taken away the key. All the three approached Pir Muhammad but he refused to hand over the key. Muhammad Anwar there--fore lodged a report Exh. 28 at the police station. The S.H.O. After inquiry transferred the case to the Chairman Union Council. He sent for the parties who assembled on 25th June 1966 and the matter was decided on Holy Quran, in favour of Pir Muhammad as he took oath. However, at that time there was some altercation between the appellant Pir Muhammad and deceased who had come to Karachi about a week before this incident. At that time Anwar, Sadiq and Farid were present besides the deceased, appellant Pir Muhammad and appellant Ayub. Further trouble was averted on account of the interven--petition of Anwar, Sadiq and Farid.
8. On the same day i.e. 25th June 1966 at about 8-15 p.m. Muhammad Yaqoob and Maroof were going to take tea when Qayum deceased came out of the house of Anwar and on inquiry he told the other two persons that he was going to the house of Sadiq in order to sleep there. However, Maroof invited him to tea. So all the three proceeded to the hotel and when they were near the K. M.
9. C. Latrine the present three appellants suddenly appeared. Appellant Yaqoob and Ayub caught held of Qayum by the arms while appellant and Pir Muhammad fired the pistol at him. Qayum fell down bleeding and cried out to inform his brother Anwar that the accused had fired at him. The appellants then ran away. Ghulam Hyder, who was going home and was passing at the time, also witnessed the incident. A number of people including Nur Muhammad a shopkeeper and two police constables Abdul Rehman and Shafi Muhammad assembled. The deceased who was still in senses told them that Pir Muhammad had fired the shot at him and he requested them to call his brother. The two constables then put him in a rickshaw and took him to the police station and from there to the hospital. Thereafter both the constables left.
10. Mr. Fateh Hyder A. S. I at the time of the incident was on round duty and when at 8-30 p.m. He reached Badar Cinema he was informed that near K. M. C. Latrine a person was shot. He, therefore, went to the scene of offence and learnt that the injured had been removed to the hospital. He went there also and after meeting the doctor on duty recorded the statement of the deceased Exh.
40. It was signed by the deceased as well as by Dr. Javed Saeed and Fateh Hyder A. S. I. P. Thereafter Mr. Muhammad Rafique Shaikh S. H. O. Arrived at the hospital and the papers were handed over to him. From there he went to the police station and transcribed the dying declaration in the register of cognizable offence. He then proceeded to the scene of offence and visited it in the presence of two mashirs Malik Khwas Khan and Nouroz Khan. One fired shell of the bullet .32 bore was recovered from the scene of occurrence. There was blood on the ground but it was not secured.
11. Mashirnama Exh. 50 was prepared. The empty cartridge was sealed. He then recorded the statements of witnesses and arrested appellants Pir Muhammad and Ayub Khan from their house.
12. Pir Muhammad produced his licensed pistol and Mashirnama Exh. 25 was prepared. He also pro-- duced 5 live cartridges. The pistol and cartridges were sealed. Pir Muhammad also produced a licence and it was also secured. The S. H. O. Again went to the hospital and recorded further statement of the deceased who was still in senses. The clothes of the deceased were produced by Anwar brother of the deceased and Mashirnama Exh. 16 was prepared. On 26 June 1966 Yaqoob was arrested. The injured died on 1-7-66 and the inquest report was prepared. The clothes of the deceased were sent to the Chemical Analyser while the pistol and the fired shell were sent to the Ballistic Expert, who found that the empty shell was fired from the same pistol. The statements of Ghulam Hyder, Muhammad Maroof and Muhammad Yaqoob were recorded under section 164, Cr.
13. P. C. After further investigation the appellants were challaned.
14. The appellants proclaimed their innocence and pleaded enmity, one witness Ashfdque Hussain S. I.
15. Watch & Ward K. P. T. Was examined to prove the presence of Yaqoob witness on duty as a watchman in K. P. T. Premises.
16. The learned Additional Sessions Judge accepted the entire evidence led by the prosecution and found the appellants guilty of the offence with which they were charged.th So far the murder of Qayum is concerned it has been fully established by the medical evidence of Dr. M. S. Farooqui who had held the post-mortem examination. It seems that the doctor who had originally examined the injured when he was removed to the hospital has not been examined. Dr. M. S. Farooqui found the following injuries :-
(1) Gun shot wound left side front of chest below the costal margins measuring 1/3 x 1/3" x cavity deep. Margins of the wound are inverted. This is a wound of inlet.
(2) Upper Para median (surgical) incision was given by the surgeon 6' long. Plater light wound stitched.
(3) On opening the abdomen there was perforation on the lower margin of the liver --" x --" repaired, perforation in the anterior and the posterior parts of these stomachs and also perforation in the pancreas at the level of gastro juginal junction. All repaired by stitches.
(4) Wound of exit on the back 3" from the medium line at the level of 3rd and 4th lumber vertebrae on the right side. It is --" x --" in cavity deep.
17. According to the medical officer injuries Nos. 1 and 4 were caused by the gunshot while the other two injuries were caused on account of the operation which was performed when the injured was admitted in the hospital. According to him injury No. 1 was entrance of the bullet while injury No. 4 was the exit. The injuries, according to him were ante-mortem and the death was due to shock and haemorrhage as a result of the injuries caused by gunshot.
18. As regards the identity of the appellants with the crime the prosecution case is based on ocular testimony as well as circumstantial evidence. There are two sets of witnesses, one set is of three witnesses, namely, Ghulam Hyder, Muhammad Yaqoob and Maroof who had claimed to have witnessed the incident while the other set consists of three witnesses, namely, Nur Muhammad, Abdul Rehman Constable and Shafi Muhammad Constable who arrived at the scene immediately after the occurrence and the deceased told them that he was shot by Pir Muhammad and requested them to send for his brother. The brother of the deceased is Anwar who came later.
19. Taking up the first set of witnesses it has been found on the assessment of their evidence that the evidence is incredible and their presence at the scene of offence has not been established.
20. Ghulam Hyder stated that he was going to his house and when he reached Tarachand Road near Badar Cinema he saw the present appellants going ahead of him and when they reached K. M. C.
21. Latrine he found Qayum, Yakub and Maroof coming from the other direction and then Ayub and Yaqoob appellants caught hold of Qayum while Pir Muhammad shot at him and then they ran away. He then stated that the people including constables reached and the deceased cried out that Pir Muhammad had shot him and then the injured was removed by the police constables in a rickshaw and he himself went home and slept. His name does not appear in the dying declaration, Nor Yaqoob and Maroof stated in their evidence that he too was either present at the time of the incident or he had come soon after. The absence of the name of Ghulam Hyder in the dying declaration may be explained by the fact that the deceased may not have noticed his presence but so far Yaqoob and Maroof are concerned no such rule is applicable to them. Not only they are related to Ghulam Hyder but they lived together. He is also servant of Sadik who is related to the deceased. Even in the committal proceedings he admitted that up to 8 p.m. He was at the hotel situated at a distance of 1000 paces from the scene of occurrence. His conduct is not consistent with being an eye-witness. He did nothing to render any assistance to the deceased nor he cared to inform the brother of the deceased who was his next door neighbour. He also did not go to the hospital to see his condi--petition but instead he quietly went home and slept. He being a servant of a relation of the deceased and being a neighbour could not be expected to act in the manner in which he acted.
22. The next witness is Muhammad Yaqoob who also claimed that he was with the deceased when the murderous assault was made. His name appears in the dying declaration. But it has been established by the evidence of the defence witness Ashfaq Hussain S. I. That he could not be present at the scene of offence at that time but he was on duty far away from the scene of crime.
23. Ashfaque Hussain is S. L, Watch and Ward K. P. T. He stated that Muhammad Yaqoob witness was employed as a chowkidar in K. P. T. And according to the entries in the various registers he was on duty from 6 p.m. To 6 a.m. The witness has produced the entries in support of his evidence. The incident had taken place at 8-15 p.m. Far away from the place of his duty. The contention of Muhammad Yaqoob that he was not on duty from. 6 p.m. But he was on duty from 10 p.m. Cannot be accepted in view of the unassailable documentary proof furnished by Ashfaque Hussain, who is an independent witness and there was no reason for him to fabricate a false record. The learned Additional Sessions Judge rejected the evidence of Ashfaque Hussain and the documentary proof on the ground of fabrications but we are unable to bear with him. His conduct can also be stated on the same ground as has been the conduct of Ghulam Hyder. He further stated that after half an hour of the incident he was called by the police at the scene of offence and his statement was recorded and thereafter he left for his duty. This statement toot/ is false. The incident had taken place at about 8-15 p.m. And therefore, in view of his evidence he was called by the S. H. O. Before 9 p.m. But recalling the evidence of the S. H. O. It would be found that he had gone to the scene of offence at 10-30 p.m. Thus the witness could be available neither at the time when the incident took place nor at the time when the S. H. O. Had visited the scene of offence.
24. The third witness in this category is Maroof who is servant of Sadik. His name appears in the first report and he claimed that he was present at the time of incident. His evidence is equally unreliable. He left when the injured was taken away by the two constables and went home and slept. It is unthinkable that having such a close connection with the deceased he thought of going home and took no steps either to inform the brother of the deceased or to go to the hospital to see the condition of the deceased. He also denies his relationship with Mohd. Yaqoob and Ghulam Hyder although it was admitted by the other witnesses. The house of Sadiq whose servant he was situated hardly at a distance of 15 paces yet he did not approach him.
25. With regard to the evidence of these witnesses the learned Additional Sessions Judge observed that they had no grouse against the appellants and their evidence was substantially corroborated by circumstances and independent evidence and, therefore, they could not be disbelieved. We feel no hesita--petition in saying that the treatment of the evidence of the witnesses was rather artificial. Simply because the witness has enmity and appears to be independent, does not necessarily mean that what he states is not untrue. Indeed the absence of malice is a factor which assumes importance in assessing the credit of the witness and places him in a favourable position but by no means it is the sole criterion. The truth or falsity of the A statement of the witness largely depends upon the circumstance which provide the guideline. 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. Although the learned Additional Sessions Judge observed that the evidence was supported by the circumstances, yet no such circumstance was exposed by him. On the contrary we have considered the circumstances found in the reasons for their presence at the scene of offence and their conduct subsequent to the murderous assault and it has been found that their evidence is incredible. The learned Additional Sessions Judge did not appraise the evidence in the manner it deserved to be appraised and, therefore, erred in placing reliance upon it. However, he sought the corroboration of the evidence in the evidence of the two police constables who arrived at the scene soon after the crime and removed the victim to the hospital. Trying to seek the corroboration, reference to the police constables was apparently made in connection with the oral dying declaration and not with regard to the presence of the witnesses at the scene as the police constables never confirmed their presence. Their evidence was simply confined to what was told by the victim and the action they themselves took. Leaving aside the alleged dying declaration at this stage as it will be dealt with later, there is no support to the claim of the eye-witnesses having witnessed the actual occurrence, as was sought by the learned trial Court. The support to their presence must necessarily be independent of what the police constables had to say about the statement of the victim implicating one of the appellants. Simply because the com--plicity of the appellants in this crime was reflected by other evidence on record, did not proceed to confirm their presence. Moreover, it needs no emphasis that the evidence which is incredi--ble neither can lend support to the other evidence nor can receive any support to turn it into worthy of belief. It is only that evidence which is not otherwise tainted or discredited, can be used to ensure that purpose.
26. Thus the evidence of the three eye--witnesses has to be excluded from consideration for the reasons already stated while dealing with their evidence.
27. Now we take up the dying declaration, oral as well as written. The oral dying declaration is sought to be established by the evidence of Anwar, Noor Muhammad, Abdul Rehman and Shafi Muhammad.
28. Anwar is the brother of the deceased. He stated that after the matter was settled by the Chairman and there was altercation between his brother and Pir Muhammad appellant, he sent away his brother and thereafter the appellant left while he along with Sadiq and Inamul Haq went talking outside the office of the Chairman when a rickshaw arrived carrying his brother and two police constables and his brother cried out that he was shot by Pir Muhammad. Anwar has further stated that he discredited the police constables to proceed to the police station. He also accompanied them to the police station and then his brother was removed to the hospital. Thus according to his evidence he was still outside the office of the Chairman when the rickshaw arrived. The scene of offence is half a mile from there and a call's distance from the house of Anwar with whom the deceased was staying. The matter was decided by the Chairman at 7-15 a.m. While the incident took place at 8-20 a.m. The rickshaw reached the place where Anwar was found, at about 8-30 p.m. Looking to the time of the various events it is not possible to accept that Anwar still lagged behind and till then remained at the spot where ordinarily he could not be expected. Apart from the fact, that his version does not find corroboration from the evidence of the two constables, it is belied by his previous statement recorded under section 161, Cr. P. C. To which he was confronted.
29. He made no claim that he had met his brother in the rickshaw and talked to him, nor he stated that he accompanied his brother to the police station but he stated that he learnt afterwards that his brother was shot. He did not state that his brother told him about the incident and that Pir Muhammad shot him. There is nothing about his conversation with the deceased. Thus there is no escape from the conclusion that he had given false evidence and it must be rejected.
30. Then is the evidence of Noor Muhammad. He was running beetle shop situated at a distance of 50 or 60 paces from the scene of offence. He stated that he was going to his shop when he heard the gun shot. He first went to his shop and after the people gathered he also went there. The police was as already there. He found a man lying on the ground and saying that Pir Muhammad or Faqir Muhammad shot him and he wanted his brother to be called. We could not say whether the victim was naming Pir Muhammad or Faqir Muhammad. The arrival of this witness is not free from doubt.
31. Of course his shop was situated on the same road at a distance of 50 or 60 paces from the scene of offence where the incident took place but about his arrival he made three different statements at different stages of the case. In his police statement he stated that he was sitting at his shop when the shot was fired. In the committal proceedings he stated that he was in his house when he heard the shot. At the trial he stated that he was going to his shop and was near Toor Seth Hotel when he heard the shot. None of these three statements can be reconciled. It is difficult to believe that he was doubtful about his own presence if he had really heard the shot and had gone to the scene of offence. It appears that his shop was closed and he was not available near the scene of offence and, therefore, his arrival was out of question.
32. Lastly, is the evidence of the two police constables; Abdul Rehman and Shafi Mohd. They were separately on patrol duty and met on Tarachand Road, soon they heard the sound of a shot and proceeded to that side. They found man lying on the ground and several persons collected. The victim said that he was shot by Pir Muhammad and wanted that his brother be called. Both of them immediately requisitioned a rickshaw and removed him to the police station, from where he was taken to the hospital by Shafi Muhammad. The arrival of these two witnesses cannot be doubted but their evidence is assailed by the learned counsel, for the appellants by a document Exh. 32 which is a note in the station diary made by the head constable under his signature and also signed by Shafi Muhammad Constable, at the time when the victim was produced by the police station. The time noted therein is 8-30 p.m. In this although it was stated that Abdul Qayum had been injured with a bullet but neither the names of the assailants were disclosed nor any mention was made about the alleged dying declaration. This being the earliest record of what had happened, it was, not only, in fact the F. R. Of the crime but it assumed considerable importance as regards the alleged dying declaration and the complicity of the appellants in this crime. It was therefore, emphasized by the learned counsel that no declaration about the name of the appellant was made by the deceased not till then it was known who was the culprit who had fired the shot. It was further urged, that the deceased having received a serious wound was not in a position to make any statement and, therefore, there was the aforesaid omission. We have given our anxious thought to the document and the argu--ments raised before us and there is no doubt that the contentions of the learned counsel do not lack force but this document cannot be considered for the simple reason that neither the head constable who prepared the document was examined nor Shafi Muhammad who had signed it was confronted with it. This was brought on the record through the evidence of S. H. O. However, one important fact appearing in evidence cannot be ignored. Neither the A. S. I. P. Who recorded the dying declaration in the hospital nor Vie S. H. O. Who held the investigation examined either of the two constables on that night but their statements were recorded on the following day. No explanation for this is forthcoming. Thus by this delay the efficacy of the evidence of the constables is considerably weakened, though not wholly lost. At any rate the evidence cannot remain untainted with a lurking suspicion. Presuming that this feature is of the kind which to some extent may deprive the investigation of the lustre of efficiency and would not affect the utility of the evidence but, sill the important question as to the value to be attached to the declaration itself, remains to be answered. The evaluation of this declaration need not detain us as it will be considered along with the written dying declaration with which we propose to deal presently.
33. Passing to the written dying declaration, it would be found in the document Exh. 40 which was taken by Mr. Fateh Hyder A.S.I. In the hospital after 8-30 p.m. And it was signed by him as well as or Javeed Saeed and the deceased. It relates to the entire account of incident. This was subsequently transcribed in the register of cognizable offences maintained under section 154, Cr. P. C. And was treated as F. R. It reads as under :- ---I reside in the house of Muhammad Sadiq in Bhutta village, Kamela Road. I have come from my native place 3 days back. Muhammad Anwar is my real brother, whose dispute with Pir Muhammad Khan and Abdullah Khan over quarter was going on. The same was decided by the Union Council, Keamari today. Pir Muhammad Khan took on Holy Quran before Noor Din Khan, Chairman and the members and so Chairman Noor lain decided the case in favour of Pir Muhammad. Immediately after the decision I came out of the Union Committee and reached the house of my brother Muhammad Anwar and after taking my food etc., I along with Mohd.
34. Maroof and Muhammad Yaqoob was going to the house of Muhammad Sadiq to sleep. It was about 8-15 p.m. When I reached near Government latrine, I saw all the three Pir Muhammad Khan, Yakub Khan and Ayub Khan coming from Keamari side. Yaqub Khan and Ayub Khan both caught hold of me from my arms and Pir Muhammad Khan took out revolver fired at me which hit my last left rib and I received the injury and it started bleeding. Pir Muhammad Khan and his companions Yaqub Khan and Ayub Khan all the three ran away from there. Muhammad Maroof and Muhammad Yakub were with me. They have seen this incident. Several other passersby were also passing through there who have seen this incident. Yaqub Khan is brother-in-law (wife's brother) of Pir Muhammad Khan and Ayub Khan is nephew of Pir Muhammad Khan. Pir Muhammad Khan is my distant cousin. My complaint against Pir Muhammad Khan and his relations Yaqub Khan and Ayub Khan is for causing injury by firing bullet with intention to kill. Investigation may be made.--- Sanctity is attached to a dying declaration for it is generally considered to be a solemn declaration placed at par with the evidence taken on oath for the reason that it comes from the person with a sense of impending death, which impels him to speak the truth in those moments of his life, thereby he is not expected to involve an innocent person. So such a declaration, is not otherwise found to be tainted, has been held to be sufficient C to sustain a conviction and it does not stand in need of any corroboration. It is, therefore, imperative that before accepting the dying declaration in proof of the guilt of an accused person it must stand the normal test of reliability provided by the circumstances. The nature of the test to be applied to the declaration was laid down in the case of Taj Muhammad an others v. The State (PLD 1960 Lah. 723) as under :- ---If a dying declaration is found to be genuine and true, it can by itself form a satisfactory basis for conviction. Some of the main tests for determining the genuineness of a dying declaration are whether intrinsically it rings true, whether there is no chance of mistake on the part of the dying man in identifying or naming his assailants and whether it is free from prompting from any outside quarter and is not inconsistent with the other evidence and circumstances of the case. The value of a dying declaration in each case depends on its own facts and the circumstances in which the dying declaration was made in relation to those facts. If a dying declaration stands the normal test for judging its veracity it becomes a wholly reliable piece of evidence, but if it does not it is far worse than an ordinary statement of a witness because the maker of the dying declaration was not subjected to cross---examination and was not under an oath. If it is found that the dying man in his statement has indulged in telling lies even partially that would put the Courts on guard against accepting the rest of statement without any corroboration, and the result may will be that the whole of the statement is rejected.--- This was also considered in the case of Abdul Razik v. The State (PLD 1958 SC (Ind.) 203) at page 165. The relevant observation reads as under: --"The man who made these statements did not appear before the trial Judge. The usual side to belief or disbelief, namely, the appearance of the face of the witness as he makes a statement, the manner in which he receives a question, considers his reply and states it, the manner in which he faces cross---examination and meets objections affecting his veracity, and such other factors by which the human judgment is assisted, are all absent. There is only the bare record on paper of what he said to two persons in the brief time which elapsed between the firing and his death. Neither of the persons who recorded his statement was asked whether he thought the man was saying something which he had been prepared to say, some--thing which was artificial, or, on the contrary, judging by his expression and the way he spoke, that he was telling the simple truth. Yet, this being the only evidence available, it is the duty of the Courts to decide whether or not they can believe it. To accept it without considering the surrounding circumstances would be totally inconsistent with the safe dispensation of justice. To accept it on consideration of expressions of opinion regarding similar declarations in precedent cases, even if those opinions are accompanied by words indicating reliance on some principle of law, is no less dangerous. Only after the physical circumstances as they appear from the evidence, is it possible to decide whether it can be said with the degree of certainty which is made obligatory for reaching a conclusion of guilt, that the account given by the deceased of the manner in which he met his death is worthy of belief."
35. Similar pronouncement appears in the case of Khushal Rao v. State of Bombay (PLD 1958 SC (Ind.) 203). The relevant observation may be reproduced as under :- ---It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
36. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
37. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence.
38. A dying declaration recorded by a competent Magistrate in the proper manner stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character."
39. Applying the test laid down by the aforesaid authorities, the question which would engage our immediate attention pertains to the opportunities available to the deceased to identify the assailants at the time of shooting. There can be no doubt that the deceased when the shot was fired at him, had full view of the culprit who had fired the shot. The shot as it appears, was fired from close range and in view of the pattern of the shot the deceased and culprit were facing each other. Checking the degree of visibility at the time of shooting, it was long after sunset when naturally it would be complete dark, but there was electric pole fixed with tube light at a distance of 18 pacas throwing sufficient light at the spot of crime. It, therefore, cannot be conceived that the deceased would make any mistake in recog--nizing the culprit if h,- was already known to him.
40. There is no dispute that all the three appellants were known to the deceased. They were related and originally hailed from the same place. Pir Muhammad appellant was said to have fired the shot while the other two appellants had held the deceased by his arms, probably to ensure accurate shooing to prove fatal. So if the deceased had named the appellants or anyone of them, manifestly it would not present any inherent improbability.
41. Despite this notable feature, the dying declarations still need to be tested as regards their proof and reliability in the light of the evidence and surrounding circumstances. Naturally we cannot be fully convinced of the proof and truth of the declarations unless the evidence of the circumstances exclude every possibility of suspicion as to the utterances by the deceased and the credibility of those utterances. Proof and truth are co-extensive. In the absence of either of them it has no value.
42. In fact proof takes precedent. Unless it is established by credible evidence the consideration of the other does not arise.
43. Dealing with the oral dying declaration, it is plain that it is a brief utterance in these words, "Pir Muhammad has shot me, call my brother." It was said to have been made in quick succession to every one who either was present or arrived at the scene of offence. The proof of it was supplied by the evidence of four witnesses and that evidence was found to be tainted and suffering from serious infirmities. It is, therefore, unsafe to place any reliance upon that body of evidence and accord it the recognition of proof. Eliminating that evidence as it deserves to be, the prosecution is bereft of the whole foundation unscrupu--lously laid for the dying declaration. This result is inevitable. Moreover, pitching it with the recorded dying declaration which will be dealt with hereafter, integrity of the deceased in making these declarations is not free from doubt and difficulty. The veracity of the two declarations cannot be divisible as a natural conse--quence. If anything is said in one impairing the integrity of the maker, it is a matter for serious consideration whether the other can be treated on better footings. To extend preferential and favourable treatment to any one of them, there must be some strong grounds to eliminate every possibility of doubt. No such ground exits in the present case.
44. Adverting to the recorded dying declaration, it recites a detailed account, not only of the actual occurrence but also what had gone before on that evening with regard to the dispute about the house. It is, therefore, obvious that unless the deceased was fully in senses at the time of making the statement in the hospital where it was recorded, he could not be in a position to recall what had happened much less he could make such a detailed statement. Unfortunately, barring this statement, there is nothing on record to indicate the state of mind of the deceased. Mr. Fateh Hyder A. S. I. P. Who recorded the statement assumed complete silence with regard to the physical and mental fitness of the deceased. Mr. Javed Iqbal who was said to be present and had signed the dying declaration was not asked whether any such dying declaration was recorded or it was signed by him or what was the condition of the deceased and whether he was in a position to make any statement free from any confusion. Even he made no endorsement certifying that the deceased was physi--cally and mentally fit to make any statement. The brother of the deceased who claimed to be present, stated that the condition of his brother was grave but his mind was alert. This alertness of mind remained the exclusive pronouncement of 'this witness. None else was questioned.
45. The important feature in the dying declaration impairing the integrity of the maker is the implication of two more persons as abettors of the crime and the induction of two eye-witnesses.
46. Recalling the oral dying declaration, he had declared that Pir Muhammad had shot him and did not name the other two appellants either as accomplice or having held him before the shot was fired. Their part was no less significant or could be omitted. Not only, no such pronouncement was made at the scene of offence but even no such allegation was communicated to the police constables who took him to the police station or to the brother who pretended to have met him on the way. He named two witnesses; Mohd. Maroof and Muhammad Yaqoob, who were with him. It has already been found that they were never present at the scene of offence and had given false evidence. One of them, namely, Yaqoob, was present elsewhere far away from the scene of offence as established by the documentary proof. Thus the integrity of the deceased is not unimpeachable and the dying declaration does not have the necessary impress of truth. If that be so, it must have effect upon the question whether even the implication of Pir Muhammad appellant can be safely accepted. Indication is available that there was some prompting. His brother had reached the hospital and was with the deceased before the record of the dying declaration was prepared. It was in the dying declaration that after taking meals in the house of his brother he along with Maroof and Yaqoob, was going to the house of Sadiq to sleep when he was attacked. This statement is partly not true. According to the witnesses, they met the deceased on the way and invited him to tea. So they were going to the hotel when the assault was made.
47. Allegation was made, not without basis, that one dying declaration was recorded at the police station and when sub--sequently it was not found to be useful, another was prepared. Although this allegation was denied but it receives powerful confirmation from the evidence of Anwar brother of the deceased. He stated in unmistakable terms that the statement of his brother was recorded at the police station. It is not known what became of that dying declaration and what were its contents. This needed an explanation but no such explanation is forthcoming. Instead there is denial. However, it was admitted by Mr. Mohd. Rafique S. H. O. That he had also recorded further statement of the deceased in the hospital when be was still conscious but that statement has not been produced to enable us to test the veracity of the various statements. Unexpectedly such an important document was withheld.
48. Admittedly there was long standing enmity between the deceased and the appellants. Not only there was dispute over the house which was decided by the Chairman, Union Council but they were on daggers drawn while they were living in their native place, and some criminal cases were filed. This, in the circumstances of the present case sounds a note of caution against placing implicit reliance upon the dying declaration without corroboration. The immediate cause of the assault was said to be the disapproval displayed by the deceased over the settlement and consequent altercation between the deceased and Pir Mohammad appellant but significantly there is no mention of it in the dying declaration, although other evidence was examined to establish it. Thus there was a clear anxiety on the part of the prosecution to provide some fresh motive for the murderous assault. The witnesses produced in support of it were examined by the police on the following day, The prosecution also placed reliance upon the recovery of the empty cartridges from the scene of crime. It was subsequently sent to the Ballistic Expert and found to have been fired from the pistol produced by Pir Muhammad appellant and borne on his licence.
49. This recovery was not supported by either of the mashirs who were examined at the- trial. Apart from the recovery having been shadowed, a further doubt arises by another fact. It was a magazine pistol and several shots could be fired without reloading it. Ordinarily there is six chambered magazine used in a pistol. There being no automatic ejection of the fired cartridge, at least a little time was needed to take out the magazine in order to remove the cartridge. This in view of the place and time of attack could not be expected. There is a natural human instinct to escape as quickly as possible. So the culprits would not stay an instant longer than it was actually required. The arrival of the people was likely to endanger their safety. There was no hurry of doing away with that cartridge. This could be con--veniently done after they had successfully retreated.
50. Lastly, it may be mentioned that another link in the chain of the prosecution evidence has been found to be missing. According to the mashirnama there was blood on the ground mixed with earth but no such earth was secured. This needed an explanation but the prosecution attempted to offer no explanation for deviat--ing from the normal procedure followed by the police in the investigation of a case when a fatal injury has been caused. It is unfortunate that even the learned Public Prosecutor who conducted the case at the trial did not care to elicit reasons for not collecting the blood-stained earth.