' G. M. SHAH, J.-The appellants are brothers inter se. Ti-.Ey along with their third brother Dost Ali, who could not be arrested and was declared absconder, were tried by the learned Sessions Judge, Jacobabad, for the murder of one Ghulam Nabi, allegedly committed on 12-8-1975 at about 10 p.m,, by them in the house of complainant Ahmad Ali, in deh 'KundraniPut', at a distance of about 10 miles from Police Station Mauladad, Taluka Jacobadad, District Jacobabad. They were convicted by the Judgment dated October 6, 1976, and each one of them 'A as sentenced to death, as well as to pay a fine of Rs. 1,000. They have filed this appeal against the said Judgment of conviction. There is also a reference before us under section 374, Cr. P. C. Both, the reference, as well as, the appeal, will be disposed of by this judgment.
2. The facts of the prosecution case, briefly are, that the deceased Ghulam Nabi was uncle of the complainant Ahmad Ali and they alongwith Abdul Nabi, his cousin, and son of the deceased, lived together in their village. The appellants and their brother, absconding accused Dost Ali, also lived in the same village, and were known to the complainant. At about 10 p.m., when they were sitting in their house, a call was given from outside and in response, the deceased went towards the entrance. He was followed by the complainant Ahmad Ali, who took a torch with him. In order to find out, who the caller was, the complainant flashed his torch and on its light, he saw three persons pointing their guns at the deceased. They were identified as the two appellants and their brother Dost Ali, the absconding accused. All the three started firing at the deceased, who was hit, and he fell down on the ground, and they succeeded in escaping from there.
3. The motive for committing the crime was alleged to be a dispute between the appellants and the deceased over the Water Supply to their lands. The appellants had got annoyed and on that account had migrated from the village.
4. The deceased, on receipt of the injuries, had gone unconscious at that time. He was taken to Mauladad Police Station in a bullock cart, where a report was lodged on 13-8-1975 at 8-30 a.m. By the complainant Ahmed All which reads as under:- "Complaint is that I am Naib Master in primary school, Nawra. Last night at about 10 p.m., I was sitting with my paternal uncle Ghulam Nabi in the courtyard of his house under "donkey Punklia"
(Khaskhas fan run by the donkey), during hot days in summer. My cousin Abdul Nabi was also sitting with us. In the meanwhile Ghulam Nabi was called out from the entrance of the house and he went towards that direction. I flashed my torch towards the entrance and saw (1) Abdullah, (2)
Dost Ali and (3) Ali Nawaz, all the three sons- of Hazoor Bakhsh Rind residents of Kundan. All the three persons were armed with guns and they fired at Ghulam Nabi, who fell down. Then accused persons ran away, firing in the air. Accused persons have fired on my paternal uncle, Ghulam Nabi, because two years prior to this incident, they were living in our village and they had dispute with Ghulam Nabi over the water and after that dispute, they had migrated from our village. Accused having a backing of Akbar son of Ghulam Rind, had fired on my uncle, Ghulam Nabi, with the intention to kill. My uncle Ghulam Nabi is unconscious and he has been brought on bullock cart for report. Justice be done."
5. After recording the F. I. R. Lodged by the complainant Ahmad Ali at 8-30 a.m., the S. H.
0. Abdul Hamid (P. W. 8) prepared the Mashirnama of the injuries on the person of the deceased Ghulam Nabi. The deceased was rushed in the unconscious state to the Civil Hospital, Jacobabad, for examination and treatment. He regained consciousness on the same day, 13-8-1975. In view of the background of the case, and facts, disclosed in the F. I. R. The Police requested the Head Munshi and lInd Class Magistrate, Ja:-obabad (P. W. 10), to record the dying declaration, which he did on 13-8-1975 at 2-15 p.m. In presence of Dr. Manzoor Ahmad Khoso, Medical Officer, Civil Hospital, Jacobabad (P. W. 11) and it is in the following words:- "I was sitting in my house at about "Sanjhay" time last night. I was called out from the direction of the otag, from outside. I went out towards the side of the call. My nephew Ahmed Ali son of Sohbat and my son Abdul Nabi followed me and came out with me. At that time, Ahmed Ali flashed his torch and on the torch light, I saw Dost Ali, Abdullah and Nawazo, who all the three had guns in their hands. All the three persons fired at me, with their guns. First fire hit me in the abdomen, second fire in my left arm and the third fire on the back of my left arm. I went unconscious and fell down. They were living with us previously about two years ago. They had dispute with us over the water and they had migrated to `Kundan' and are living with "Jakhranies". There is no other reason."
' This dying declaration was certified by the doctor stating that the patient was in full senses and was able to give the statement.
6. Thereafter the complainant accompanied the S. H.
0. And showed him the vardat (place of occurrence) where Mashirnama Exh. 11 was prepared. The complainant had also produced before the Police the torch and the cells, which were secured under the Mashirnama Exh.
12. Immediately efforts were made by the police for the arrest of the accused but they could not be found, as they had run away. On 4-9-1975, appellant Nawaz Ali was arrested at 11-30 a.m. From Railway Station, Mauladad, in presence of the Mashirs. On 15-9-1975, at 6 p.m., appellant Abdullah was arrested from Garhi Yaseen by the A. S. I. P. Ghulam Hussain Shah, under the Mashirnama Exh.
16, in presence of the Mashirs Ghulam Hussain and. Mahboob Khan.
7. The case of the appellants, on the other hand, was of denial. Appellant Nawaz Ali denied having ever resided with the party of the complainant in the same village. He stated that he was arrested, from his house in his village, long before. He also deputed the authenticity of the =dying declaration, which he contended was a procured one. He further .Explained that the witnesses were deposing against them, because prior to the alleged incident, they had sold the land to the party of the complainant, who did not pay them the price. Hence the same land was sold to the other persons, over which the complainant party was annoyed. He also stated that Abdul Ali and Idrees, relatives of the complainant, were murdered before this incident and the party of the complainant had suspected them having a hand in those murders. Hence due to that enmity they had been falsely implicated in this case also. The appellant Abdullah also adopted the same statement of his brother appellant Nawaz Ali. They had led no defence.
8. The death of the deceased Ghulam Nabi is not denied, having died an unnatural death, due to the fire arm injuries received by him on 12-8-1975 at about 10 p.m. He was admitted in the Hospital on 13-8-1975 and died on 17-8-1975. The post-mortem on the dead body was performed at 9-55 a.m. And was finished at 10-50 a.m. On the same day. On external examination of the dead body, doctor Manzoor Ahmed found the following injuries:-
(1) A lacerated punctured type of wound 1/2" in diameter on lower part of the back of abdomen, just to the left of spine, with charring present (wound of entrance).
(2) A lacerated punctured type of wound 1/4' in diameter above the right illiac. (Wound of Exit).
(3) Four lacerated punctured type of wounds 1/4' in diameter each deep on front of abdomen below umblicus.
(4) A lacerated punctured type of wound 1/4" in diameter on upper part of back on left arm, with charring present. (Wound of entrance).
(5) A lacerated punctured type of wound 1/4' in diameter on front of left arm (Wound of Exit).
(6) A lacerated punctured type of wound 1/4" in diameter with charring present below injury No. 4, with fracture of humerous bone.
(7) A lacerated punctured type of wound 1/2" in diameter with charring present on left forearm in lower part. (Wound of entrance).
(8) A lacerated punctured type of wound 1/4" in diameter on front of left fore arm.
' On internal examination, the doctor found that the walls of the abdomen were punctured, peritonium lacerated and punctured, pancreas lacerated, small intestines punctured at various places, large intestines punctured at various places. Blood vessels were found injured on the side of the injury.
' From the external, as well as, the internal examination, of the dead body the doctor was of the opinion that the death was due to shock and haemorrhage and peritonitis, as a result of the above-mentioned injuries, which were caused from the discharge of a fire arm, such as a shot- gun. All the injuries were antimortem in nature. Injury No. 1 individually and all the other injuries collectively were sufficient in the ordinary course of nature to cause death. The doctor further certified that the injuries were received from shots fired from a distance of within 12 feet. The time between the injuries and the death, as given by the doctor, was within five days.
9. There is also evidence, in support of the death of the deceased, by the eye-witnesses Ahmad Ali complainant and Abdul Nabi.
10. We have heard the learned Advocate Mr. Mohammad Hayat Junejo appearing on behalf of the appellants, and Syed Nasiruddin for Advocate-General for the State. We have been taken through the evidence, particularly the eye-witnesses Ahmed Ali (P. W. 12) and Abdul Nabi (P. W. 13). It was argued by Mr. Mohammad Hayat that both of these witnesses had not appeared in the committal Court and they were, for the first time, examined in the Court of Session, where their statements were recorded. We find from the record that the evidence of 11 witnesses was recorded and after examining doctor Manzoor Ahmed (P. W. 11), the prosecution had closed its case on 4-8-1976. The case was, thereafter, adjourned to 31-8-1976, for statements of the accused and arguments. In the meantime, on 24-8-1976, an application Exh. 30 was moved in the trial Court by the complainant Ahmed Ali, as well as, Abdul Nabi stating that due to the fear of the accused persons, they had migrated from their original place of residence and therefore they could not be served with the summons issued by the Court, and the case has proceeded without recording their evidence. On coming to know of this position, they prayed in their application that they had appeared in person and they may be informed about the next date of hearing, when their evidence may be recorded in the interest of justice. In support of the application they had also sworn affidavits. The application was placed before the I/C Sessions Judge, Jacobabad, who by the order dated 24-8-1976 directed that the same may be put up before the Sessions Judge, on his return, which was accordingly done on 31-8-1976, when the learned Sessions Judge, was pleased to order the issue of the notices for 4- 9-1976. The learned Judge was further pleased, after hearing the parties, to pass the following order: "Two prosecution witnesses, namely, Ahmed Ali and Abdul Nabi had made this application for their examination in this Court. They had not been examined in the committal Court and even their attendance could not be procured in this Court. The prosecution therefore closed their side. Now they have made this application for their examination. They are material witnesses and they have turned up now. It is therefore in the interest of justice to examine them in this case. The learned defence counsel has no objection, to the examination of the above witnesses. The application is allowed. P. W. Ahmed Ali is present today. He should be bound down for his appearance and on behalf of Abdul Nabi, for the next date of hearing i.e. 9-9-1976."
11. We, therefore, find that the non-examination of the two eye-witnesses in the committal Court stands fully explained, for, they could not be examined there, as well as, in the trial Court, till they moved the application (Exh. 30) giving therein, the reasonable excuse. They were accordingly allowed by the learned Judge, and the witnesses were examined in the case. We find that cogent reasons were given for their non-appearance in the Enquiry Court and late appearance in the Court of Session. Merely because they were not examined in the Committal Court, their evidence cannot be excluded from consideration.
12. The learned counsel further argued that since the occurrence had taken place in the dark night, it was not possible to identify the culprits. About the torch, he argued that it was introduced later on, as an afterthought, to set up a theory in support of the identification. Nevertheless, he contested the point, that identification was not possible by means of a torch light. This argument, we find, has no force, as the injuries sustained by the deceased had charring on them, which shows that the firing had taken place from a close range of being within 12 feet, which could conveniently have facilitated the identification of the appellants. In addition to this, we find that on the same day, at the time of lodging of the report, the torch with cells, was simultaneously produced by the complainant before the police. It was on the strength of this torch, that when it was flashed, the accused persons, who were already known to both, the complainant and Abdul Nabi, as they were previously living in the same village, were identified on its light. Whether the torch was produced at the police station or at the vardat, would hardly make any difference.
13. It was also argued by the learned counsel that there was no blood found at the spot, where the deceased had fallen down, which suggested that the occurrence had taken place somewhere else. We find that there is nothing on the record to indicate that the deceased had received bleeding injuries. There is no clarification in this respect from the doctor who was not put any question, to clarify the position. It is possible that the injuries may not have bled at all, being by pellets, which were lacerated punctured types of wounds, on the lower part of the back of abdomen, just to the left of the spine, or the blood might have been soaked in the clothes.
14. The manner in which the facts had been narrated by both the eyewitnesses and from their lengthy cross-examination by the defence counsel, nothing substantial could be elicited to cause doubt on the truth of their asser ion. There is no reason to disbelieve their evidence on the point of identification. The complainant is the Naib Master in primary school of Nawra. He is an educated person from the education department. The narration and sequence of facts deposed to by him, are so convincing that it is difficult to disbelieve them. We further find that the eye-witnesses account, furnished by the two eye-witnesses, is sufficiently corroborated by the dying declaration and the medical evidence in respect of the injuries received by the deceased.
15. About the dying declaration, the learned counsel stressed that it was of a doubtful nature. He placed reliance on the case of Tawaib Khan and another v. The State (1). On the point of principle, we do agree with the contention of the learned counsel that though the dying declarations have sanctity under the law, but no rigid rule can be laid down that persons under immediate apprehension of death would tell nothing but truth. Dying declarations are to be treated as statements of interested witnesses which require close scrutiny. We had in this case minutely considered each aspect of the case and have scrutinised the dying declaration and have further found that it intrinsically rings true. The circumstances under which the dying declaration was referred to in the case cited above are different than the one in the instant case. The dying declaration of the deceased Ghulam Nabi was promptly recorded at the earliest moment by the Magistrate Qadir Bux (P. W. 10) which was certified by doctor Manzoor Ahmad that the deceased was conscious and had made the statement, which was recorded verbatim by the learned Magistrate, as was stated by the deceased. These two witnesses had no motive to subscribe to the false implication by the deceased. The narration of details given in the dying declaration, as well as, facts deposed to by the two eye-witnesses, in our mind, inspires confidence and we accept the dying declaration to have been truly made. We place reliance on its authenticity. This dying declaration, as is discussed above, is fully corroborated by the testimony of the two eye-witnesses, who in truth are further corroborated by the motive and the medical evidence. {{FOOT NOTE}}
(1) PLD 1970 SC 13 {{FOOT NOTE}}
16. It was finally argued that there was delay in lodging the F. I. R. It was also emphasised that why no independent witnesses, who had come subsequently at the vardat, were not examined and produced in the Court. The incident in this case had taken place at about 10 p.m. When a close relation is murdered, it is not easy to leave the dead body unattended and run to lodge the report.
It is different in cities, where it can conveniently be done, but it is rather difficult in far off villages.
Police Station Mauladad was about 10 miles away from the place of occurrence. In the instant case, the deceased had received fatal injuries but was alive and arrangements had to be made to remove him to the police station. It must have taken time to arrange for the bullock cart. After reaching the police station, it takes time to persuade the police officer to take down the report and refer the injured to the Hospital for examination and treatment. In the process, many precious lives are sometimes lost because of excess bleeding. However, in this case, particularly, we find that delay in lodging the F. I. R. Is explained and is not so much material to persuade us to discard the testimony of the eye-witnesses. The delay is also not fatal as to destroy the version of the prosecution case, as a whole, as it had been put forth by the prosecution. We are, in our mind, convinced that the delay was normal under the circumstances of the case. We further find that the dying declaration was true. There were no chances of its being tutored, and further that the testimony of the two eye-witnesses is convincing. They are reliable and trustworthy. Nothing has been brought in the cross-examination of these witnesse to shake their credibility or otherwise to induce them to falsely implicate the appellants. As regards the non-examination of witnesses, who had later on come to the place of occurrence, it would have merely provided the cor- roboration to the eye-witness account given by the complaintent Ahmad Ali and Abdul Nabi. Since we find the version as stated by them to be true, mere non-examination of those witnesses, would not discredit their version.
17. Consequently, we find, that the prosecution has proved the case beyond all reasonable doubt against the appellants and we find no reason to interfere with the Judgment of the learned Sessions Judge. We accordingly dismiss the appeal and confirm the sentence of death.