AtrrAH FARRUKH, J.-Bandoo Khan along with his three sons Abdul Gbani aged 26, Ramzan aged 23 and Ilyas aged 20, was tried by Mr. Muhammad Amjad Khan, Additional Sessions Judge II, Sahiwal, for the murder of Nazir Ahmad son of Ghulam Muhammad aged about 24 in an occurrence at degarwaila on the 13th July 1974, in the area of village Phullarwan Wazirke; while armed with guns with the exception of Ramzan, who was attributed a spear. They were charged under section 452/ 149, P. P. C., 302/149, P. P. C., 352, P. P. C. And 148, P. P. C. According to the supplementary statement Exh. D. G. The accused at the time of occurrence were also accompanied by Din Muhammad absconder, and another person whom Din Muhammad called as Muhammad Shah. Since Din Muhammad was absconder during the investigation, the person called by him as Muhammad Shafi has not been traced out.
Vide judgment dated 28th January 1977, the learned trial Judge has convicted Abdul Ghani under section 302, P. P. C. For the murder of Nazir Ahmad and sentenced him to death and a fine of Rs.
2,000 in default of payment whereof he has been directed to undergo one year's R. I. He has also been directed to pay a sum of Rs. 2,000 as compensation to the heirs of the deceased under section 544-A, Cr. P. C. And in default of this payment he has been directed to undergo one year's R.
1. Ramzan, Ilyas and Bandoo Khan have been convicted under section 452/34, P. P. C. And sentenced to one year's R. I. Each and a fine of Rs. 200 each. The defaulter has been directed to undergo two months' R. I. These thrbe have also been convicted under section 352/34, P. P. C. To three months' R. I. The sentences have been directed to run concurrently. All the four convicts have preferred an appeal in this Court. The operation of the sentences of Ramzan, Ilyas and Bandoo Khan has been suspended by this Court and they have been released on bail. Bashir Ahmad, brother of the deceased has filed Criminal Revision No. 279 of 1977, challenging the acquittal of Bandoo Khan, Ramzan and Ilyas under section 302/149, P. P. C. With a prayer for their being treated in accordance with law. The murder reference, the criminal appeal and the criminal revision are being disposed of together by this judgment.
2. According to the prosecution Mst. Rehmate had eloped with Bashir Ahmad, the petitioner in Criminal Revision, a brother of Nazir Ahmad deceased 12/13 years prior to the occurrence and married him. At about asarwela on the 13th of July 1974, the deceased Nazir Ahmad was present in the fields in the area of Dakhli Phullarwan in the jurisdiction of Police Station, Hujra Shah Muqeem which belonged to his maternal uncle when he heard alarm raised by P. W. Sher Muhammad to the effect that Mst. Rehmate P. W. 11, the wife of his brother Bashir was being forcibly carried away by the appellants, whereupon he rushed towards Chah Boharwala, which is located nearby and saw the appellants armed with guns with the exception of Ramzan who was armed with a spear, dragging Mss. Rehmate. The deceased and his companions resisted whereupon Ghani fired a shot hitting Nazir Abmad. The appellants, left Mst. Rehmate and ran away firing in the air. The motive teing sggested is that 45 acres of land stands I n the name of Mst. Rehmate who is a distant niece of Bandoo Khan appellant, and they wanted to carry her away for getting the aforesaid land.
Nazir Ahmad in an injured condition was carried to hospital at Hujra. Vide Ruqqa Exh. P. G. The Doctor sent information to the Police whereupon P. W. 4 Ghulam Mustafa Khan, Assistant Sub- Inspector of Police, Police Station Hujra Shah Muqeem reached the hospital and recorded statement Exh. P. K. Of Nazir Ahmad at 8-30 p.m. The same day. Whereupon formal F. I. R. Exh. PK/1 was recorded by P. W. 3 Abdul Aziz Head Constable at :0-00 p.m. The same night and this statement in law is now a dying declaration. Nazir Ahmad expired at 12-10, the same night.
Supplementary statement Exh. D. G. (appearing. At page 39 of the Paperbook) of Nazir Ahmad was also recorded in which he named one Din Muhammad and another person who was called as Muhammad Shafi by Din Muhammad at the time of incident, amongst the assailants, and stated them to be armed with guns at that time.
3. The case of the prosecution rests on Exh. P. K. The dying declaration of Nazir Ahmad, his supplementary statement Exh. D. G., testimony of the three eye-witnesses produced at trial, i.e. P. W.
9 Sher Muhammad, P. W. Mst. Rehmate and P. W. 13 Muhammad. Two other witnesses Jhangir and Sharif named in the F. I. R. Were given up as unnecessary. Out of the eye-witnesses produced, Mst.
Rehmate P. W. Is wife of complainant Bashir, a real brother of Nasir Ahmad deceased and P. W. 13 Muhammad is admittedly maternal uncle of the deceased, while Sher Muhammad is stated to be an independent witness.
4. All the four appellants were arrested by P. W. 14 Ghulam Mustafa Khan, A. S. 1. On 25th July 1974.
There is no incriminating recovery attributed to anyone of them.
5. The post-mottem disclosed only one injury on the person of Nazir Ahmad, which was by gunshot and of following description, according to P. W. 2: "(1) A fire-arm lacerated wound 2J" x 1 f" on the right side of the abdomen at the level of the umbilicus 3" away from it. The margins of the wound were inverted and charred. A portion of the intestines along with the mesentery was coming out of the wound. This was the wound of entry and this wound was dressed with bandage.
(2) Seven fire-arm lacerated wounds 1/2" x 1/4" each on the back on the right buttock. The margins of the wound were averted, and the wounds were dressed with bandage."
In;ury No. 1 is entry wound and injury No. 2 is exit wound "The pellets in one cluster after injury No. 1, went into the abdominal cavity injuring the large intestine along with its mesentery and then 7 pellets went out through injury No. 2 after fracturing the right iliac bone into pieces, one cork was found from the fractured pieces one pellet settled on the right buttock under the skin which was removed and sealed in a vial."
The medical evidence, therefore, corroborates the ocular testimony so far as the injury is alleged to be by a fire-arm. The deceased was examined by P. W. 1 Dr. Ehsanul Haque, while he was alive, and he bad noted blackening around the edges of the wound and also smell of the gun powder. This will indicate that the fire was shot from a close range.
5. The appellants have denied the allegations and their version is reproduced from the statement of Bandoo Khan appellant appearing in answer to question No. 2 and question No. 6 : "A. Mst. Rehmate is not widow of lewan Khan. The land of Jewan Khan was rightly mutated in my name. It is correct that Mst. Rehmate had filed a declaratory suit against me and Mst. Rehmate but this was based on false claim.
A. Mst. Rehmate is hostile towards me. P. W. Muhammad is the real maternal uncle of Nazir Ahmad deceased and Bashir Ahmad is a brother of the alleged husband of Mst. Rehmate. They want to grab the land which was owned by Jewan Khan with whom Mst. Rehmate had been living as his Mistress. She was later on abducted by Nazir with whom she was living at the time of occurrence.
Mst. Rebmate could not have legally married Jewan Khan as her sister Mst. Naseeri was already married to Jewan Khan who had become blind, nor could Mst. Rehmate inherit the land of Jewan Khan. I produce the Nikanama of Mst. Naseeri with Jewan Khan Exh. D. H. Mst. Rehmate was abducted by one Muhammad Khan who kept her with him at Kahna Nau for sometimes. Said Muhammad Khan is related to one Mauj Khan of Phullarwan Wazirke. Mst. Rehmate had sold her interest in the land which was wrongly mutated in her favour to one Faiz son of Gaman with the help of said Mauj Khan and Faiz Khan for getting the sale in favour of Faiz Khan declared null and void. I produce the attested copy of plaint filed by her which is Exh. D. J. I also produce an attested copy of Nikah Nama of Mst. Rehmate with Zordar Khan which is Exh. D. K. Nazir was killed by unknown persons Muhammad Shafi who was accompanying Din Muhammad son of I-lurniat Khan of Chak No. 40i Jagowala. Shafi could not be traced and I and my sons were falsely implicated due to previous enmity. The aforesaid Muhammad Khan was also arrested by the Police for this murder but eventually he was released on the intervention of Rao Muhammad Afzal etc.
6. The motive suggested by the prosecution is that Mst. Rehmate P. W..11 was previously married to Jewan Khan, an uncle of Bandoo Khan appellant. She had eloped with Bashir son of Nazir 10/12 years earlier and married him. She had inherited 45 acres of land of Jewan Khan and the appellants wanted to abduct her for getting back the aforesaid land. The case of the defence is that Mst. Rehmate was only a mistress of Jewan Khan and she could not have married him as Mst.
Naseeri, real sister of Mt. Rehmate was married, and was alive, at that time, therefore, their case further is that the claim of Mst. Rehmate to the estate of Jewan Khan deceased is fraudulent.
For the determination of the case in hand, it is not necessary for us to resolve the question whether Mst. Rehmate was lawfully married to Jewan Khan, suffice it to say that from the evidence on record, including documentary evidence, it is established that litigation was pending between Bandoo Khan and Mst. Rehmate, as a result of her claim to the estate of Jewan Khan in the capacity of a widow and the relations between the two were not cordial. This factor therefore, puts us on guard and to scrutinize her testimony and the case of her present husband's family with great caution. In this regard we have also to bear in mind that there is no immediate motive shown on record for this incident.
7. Out of the three eye-witnesses produced admittedly P. W. 13 Muhammad is the real maternal- uncle of the deceased and P. W. 11 Kist. Rebmate is married to the brother of the deceased. This fact alone, though in law, would not by itself be sufficient to discard the testimony of these two witnesses, yet by way of abundant caution, in the presence of the dying declaration corroborated by the testimony of P. W.
9. Sher Muhammad, an independent witness, we do not feel it necessary to give any serious consideration to the testimony of Mst. Rehmate or that of P. W. Muhammad. So far as P. W. 9 Sher Muhammad is concerned, he is an independent witness, not connected with either party and no motive has been shown or even suggested for his falsely deposing against the appellants. The only cross-examination relevant to this aspect ,does not lead us anywhere and is reproduced : "I am Merrasi by caste. Other persons of my caste do not own houses adjacent to the house of Mst.
Rehmate. It is incorrect to. Suggest that I am a Sapi (mueen) of village. It is incorrect to suggest that I have shown my profession as business so as to show myself as a man of status. - I sell and purchase - the cattle and also sell beef in village as and when there is any requirement. I do not own any licence for slaughtering the cattle. Volunteered, in villages, we never bother about the licences. P. Ws. Muhammad Shafi, Jahangir, Muhammad and the deceased bad come from Nawan Chah before the occurrence. I bad followed the accused because our neighbour Mst. Rehmate was being abducted."
Even if we were to assume for the sake of argument that Sher Muhammad P. W. Was a Sapi (mueen) of village, this will not indicate any particular connection with the complainant party or the reason for his falsely accusing the appellants. His testimony is further criticised by the defence on the basis of the confrontation with the statement under section 161, Cr. P. C. In regard to the reference to the involvement of one Din Muhammad and another person who was named by Din Muhammad as Muhammad Shafi. This criticism is made in regard to the testimony of all the three eyewitnesses as well as the dying declaration. To be preciseabout the reference, we would quote the supplementary statement of Nazir A'hmad in extenso, as it is brief : All the three eye-witnesses have disowned this portion appearing in their statements recorded under section 161, Cr. P. C. And according to the learned counsel for the State as well as the complainant, the Police in collusion with the appellants has of its own introduced and incorporated the same in the police diaries to help the accused by creating confusion. This argument is not devoid of force. It is also possib!e that on subsequent consideration and prompting, the complainant party may have thought of throwing the net more widely by implicating Din Muhammad or their other enemy. The reference to this aspect of the statements is not of any material help to the appellants before us, as their participation in the incident is throughout being asserted and these two names are mentioned in addition, as companions of the appellants.
There is no cross-examination on record which will raise doubt in our mind regarding the presence of this witness. The remaining crossexamination of Sher Muhammad is towards ascertaining the facts or suggestions regarding her elopements or other so-called marriages. In this view of the matter we have no hesitation in accepting the presence of Sher Muhammad, but this dogs not mean that we are accepting his testimony in toto.
9. The most important piece of evidence in this case is the dying declaration Exh. P. K. Made by Nazir Ahmad who breathed his last at 12.10 the same mid-night. The occurrence took place at Asarwvela on the 13th July 1974, at a distance of nearly 5 miles from the Civil Dispensary, Hujra/Police Station, Hujra Shah Muqeem. Giving a fair margin for attending to him, arranging conveyance and conveying him to the Civil Dispensary, on his arrival at the Civil Dispensary ruqqa Exh. P. D. Was despatched by P. W. 1 Dr. Ehsanul Haque at 8-10 p.m., whereupon P. W. 14 Ghulam Mustafa Khan, A. S. I. Promptly reached the hospital, obtained the fitness report Exh. PJ/1 from P. W. 1 Dr. Ehsanul Haquc, and thereafter he recorded the statement, Exh. P. K. Of Nazir Ahmad, who thumbmarked the same. At the trial P. W. 1 Dr. Ehsanul Haq has proved his report Exh. PJ/ 1 on the query Exh. P. G. Made by the Police to the effect that the injured was fit to make the statement. The defence has accepted the genuineness of the document Exh. P. K. By not challenging in crossexamination either the. Doctor or the Investigating Officer on this aspect. The only question put to P. W. 1 (Dr. Ehsanul Haque) in cross-examination, is "According to the medico-legal report, lahangir, brother of the injured was present at the - time of the examination of the injured". The implication of this question suggested is* that the statement Exh. P. K. Was prompted by Jahangir. If the question was put with the intention of arguing the same, then the question should have been suggested in clear terms to the Doctor or the Investigating Officer, who could have then apprised us of the facts, same has been avoided by the defence. We, therefore, have no hesitation in concluding that the factum of the recording of the statement Exh. P. K. Genuinely has been accepted by the accused. . Having reached the conclusion that the dying declaration Exh. P. K. Is a genuine document, does not mean that we have to accept, or reject, it in its entirety. The consensus of judicial opinion apparent from the cases Abdul Razik v. The State (PLD 1965 SC 151), All Asghar and another v. The State (PLD 1968 Pesh. 47), Ghulam Mani and 6 others v. The State (PLD 1970 Lah.73), Tawaib Khan and another v. The State (PLD 1970 SC 13), Had! Bux and another v. The State (PLD 1976 Kar. 4), Zarif Khan v. The State (PLD 1977 SC 612), Muhammad Aslam and another v. The State (PLD 1978 SC 298) and Latif v. The State (PLD 1978 S.C 1337), is that the dying declaration is no more regarded as sacrosanct. It is scrutinized like the statement of any other interested witness, and having not been tested by cross-examination is comparatively of a lesser value. The rule of the credibility of a witness being indivisible having not been endorsed by the superior Courts in Pakistan, the statements of the witnesses including the dying declarations, are subjected to an analysis on their owns inherent value or intrinsic worth, bearing in mind the particular facts ands surrounding circumstances of the case, and the principle of "sifting the chaff from the grain". We proceed to analyse the statement Exh. P: K: and the testimony of Sher Muhammad P. W. In the light of the judicial, consensus. The learned counsel wishes us to reject the statement Exh. P. K. As a whole against the appellants, as according to .Him the supplementary statement Exh. D. G. Mentions two other names. We have dealt with this aspect earlier in this judgment, dealing with the ocular testimony. We will merely repeat that the prosecution does not accept the statement Exh. D. G. As a genuine document. There is no fitness. Certificate by the Doctor in regard to statement Exh. D. G.
There is only one injury on the person of Nazir Ahmad which is specifically attributed to Abdul Ghani. The others, if present there, we do not see any reason why they should not have fired at the deceased, particularly when two of them were armed with guns and one with spear. If we were to assume that Abdul Ghani alone tackled Nazir Ahmad, the case of the prosecution, being that the witnesses cited in the F. I. R. And the deceased, they all intervened, then surely Ramzan, Ilyas and Bandon, Khan would have tackled them with their respective weapons. The presence of only one injury on only one person, i.e. The deceased puts us in doubt regarding the presence of Bandon Khan, Ilyas and Ramzan. We can also not be oblivious of the tendency of our people of throwing the net more widely in order to rope in those who are capable of defending the real accused or helping him in any manner. We can also not exclude the possibility of prompting by his brother Basbir Ahmad or other persons, who were present in the Hospital, before his statement Exh. P. K. Was recorded, for roping in the entire family, I.e. Ramzan, Ilyas and Bandoo Khan.
10. In this regard, the learned counsel has argued that the story of four persons, going in the village to the house of Mst. Rehmate and abducting her by show of force, is not believable as admittedly this is the case of prosecution that she raised alarm that some people were attracted. If that was so, the entire village would have been alerted, and they would have intervened, and the appellants could not have travelled for nearly 3/4 squares where they were ultimately intercepted by the deceased and his party. This submission is not altogether devoid of force. It is possible that Abdul Ghani alone armed with a weapon, found the girl outside the village, attempted to abduct her by show of force, Mst. Rehmate raised alarm, the complainant as well as the deceased were attracted and being primarily concerned with the matter they chased and intercepted at the scene of incident. However, both views being possible, the one favourable to the accused has to be accepted. In this view of the matter by way of abundant caution we will give the benefit of doubt to Ramzan, Ilyas and Bandon, Khan, and allowing their appeal acquit them. Consequently the revision filed by Bashir Ahmad complainant is hereby rejecteJ.
11. So far as the case of Abdul Ghani appellant is concerned, it is a broad-day occurrence at an open place, Nazir Ahmad had . Received the injury in front, the assailant too would be before him.
The fire bein from a very close distance, Nazir would have certainly been able t identify, and name the assailant. His statement Exh. P. K. In the circumstances, was recorded very promptly in which he named Abdul Gbani exclusively as the assailant. There is neither any occasion nor any reason shown for substituting Abdul Ghani for the assailant of .The single shot, which proved fatal. No evidence or circumstance has been brought on record for suggesting that Nazir Ahmad was not in a- fit condition to make a statement Exh. P. K. There being neither any suggestion nor a challenge in this regard, or the genuineness of the document Esh. P. K. This alone is sufficient by itself to establish the culpability of Abdul Ghana at least, without the need of any corroboration, whatsoever. So far as Abdul Ghani appellant is concerned, the case against him is established beyond any shadow of doubt. The learned counsel has not been able to show us any ground for not awarding the normal penalty of death, The case of the defence is that Mst. Rehmate was not a wife of Jewan Khan and that she could not have married him at all. In this view of the matter, we cannot consider her . Elopment with Bashir and subsequent marriage with him, and that too 10/12 years earlier, as a factor or consideration, for awarding lesser sentence in preference to the normal penalty of death. His death sentence is hereby confirmed, and his appeal dismissed.
For reasons recorded in our judgment of even date in Criminal Appeal No. 124 of 1977, this revision petition is dismissed.