P L D 1964 (W. P.) Pesh. 67

 
Before Shakirullah Jan, J
 
(On difference of opinion between Muhammad Daud
Khan, J and Faizullah
Khan,J)
 
ABDUR RAZIQ‑Appellant
 
Versus
 
THE STATE‑Respondent
 
Criminal Appeal No. 107 of 1963, decided on
11th November 1963.
 
(a) Evidence Act (I of 1872),
 
S. 32‑Dying declaration-- Conviction can
be based solely on, without independent
corrobo ration‑Given set of facts
giving rise to conclusions more than one‑Principle,
that conclusion
favourable to accused be accepted, not applicable in assessing veracity
of
dying declaration or statement of eye‑witnesses (per Muhammad Daud Khan
and
Shakirullah Jan, JJ; Faizullah Khan, J. contra)‑Case‑law
reviewed‑Penal Code (XLV of
1860), S. 302.
 
Taj Muhammad etc. v. State P L D 1960 Lah. 723
at p. 727; Chandrasekhara v. The
King 1937 A C 220; Muhammad Akbar v. State P L
D 1961 Lah. 348; In re:
Guruswami Tevar A I R 1940 Mad. 196; Muhammad Arif v.
Emperor A I R 1941 Pat.
409; Gulbarao Krishanjee v. Emperor A I R 1945 Nag.
153; R. v. Premanand 1925 C
876; Rang Ali and others v. The State P L D 1958
Lah. 242; Muhammad Faiz Bakhsh
v. The Queen P L D 1959 P C 24 and Ahwad Khan
and another v. The State P L D
1962 Lah. 390 ref.
 
(b) Evidence Act (I of 1872),
 
S. 32‑Dying declaration ---Cannot be accepted
as regards some and rejected as regards
rest of several accused‑Non‑filing
of appeal, by Government, against acquittal of
co‑accused mentioned in
dying declaration-- Renders such dying declaration false (per
Faizullah Khan,
J.; Muhammad Daud Khan and Shakirullah Jan, JJ, contra).
 
Muhammad Faiz Bakhsh v. The Queen P L D 1959 P
C 24; Ashraf and others v. The
Crown P L D 1956 F C 86; Rehmat and others v.
The State P L D 1959 S C (Pak.) 109;
Ahmad Khan and another v. State P L D 1962
Lah. 390; Lalu v. The State P L D 1959
S C (Pak.) 258; Khurshid Hussain Salihon
Shah and others v. Emperor A I R 1941
Lah. 368 and Moonda and others v. The
State P L D 1961 Lah. 333 ref.
 
(c) Witness‑
 
Veracity not divisible‑Testimony cannot
be accepted in respect of some and
disbelieved as regards rest of several
accused.
 
(d) Absconding
 
Mere absconding of accused‑ Conviction
cannot be based on.
 
Fazal Rahim v. Emperor A I R 1934 Pesh. 170 and
Nawab Khan v. Emperor A I R
1933 Pesh. 94 ref.
 
(e) Criminal Procedure Code (V of 1898),
 
Ss. 429 & 378 ---Difference of opinion
between Judges of Division Bench‑Third Judge
need not agree with findings
of either of two Judges‑Not bound to agree with Judge
giving finding of
acquitting accused.
 
Khtri Bewa v. State A I R 1952 Orissa 37;
Rajabali and another v. The Crown P L D
1954 Sind 49; Muhammadullah v. The
State P L D 1963 Pesh. 161; Muhammadullah
v. The State P L D 1963 Pesh. 77 and
Muhammad Khan and others v. The State P L D
1961 Lah. 936 ref.
 
Kazi Abdul Wahab Khan for Appellant.
 
S. Ghazanfar Ali Shah, Assistant A. G. for the
State.
 
Date of hearing: 26th June 1963.
 
 
 
JUDGMENT
 
MUHAMMAD DAUD KHAN, J.‑Abdur Raziq (27‑28),
son of Sharifullah, of village
Kalu Khan, situated within the jurisdiction of
the police station of the same name,
Tahsil Swabi, of Mardan District, was
sentenced to transportation for life and a fine of
Rs. 100, or in default
further six months rigorous imprison ment, under section 302/34,
P. P. C. by
Mr. Agha Khan Baba Khan, Additional Sessions Judge, Mardan, on the 9th
of April
1963. He has appealed. Sharifullah, his father, was also tried for an offence
under section 302/34, P. P. C. but he was acquitted.
 
2. The appellant was tried for the murder of
his co‑villager Yahya, son of Ilyas, of the
same village, committed by
him along with his two brothers, Abdul Khaliq and Abdul
Malik (now absconding)
in furtherance of their common intention by jointly firing at
him with
shotguns, in compliance with the order of their father, Sharifullah (the
acquitted accused) on the 22nd of December 1961, at 7‑15 p.m. in the
field of one Mir
Hawas, of the village, lying at a distance of 400/500 paces on
the west of the abadi of
the village., as a result of which the deceased
succumb ed to the injuries in the hospital
or, the same day at 10‑30 a.
m.
 
3. The report of the occurrence was lodged by
Yahya deceased himself in the police
station at 7‑50 a. m. on the same
day after he was carried there on a cot. The police
station is situated at a
distance of about a mile from the scene of the occurrence.
Muhammad Idris Khan
S. H. O. (P. W. 15) recorded this report. After having recorded
the report and
preparing his injury sheet, Muhammad Idris Khan despatched the
wounded to the
hospital at Swabi for medical examination and treatment. Dr. Abdullah
Jan,
Assistant Surgeon, Civil Hospital, Swabi (P. W. 10), examined him on the 22nd
of
December 1961, at 9 a. m. and found the following:‑
 
(1) Fourteen pellet entrance wounds on the back
in the lumbo sacral region and on the
back of the right buttock. Each wound was
" in diameter.
 
(2) Two pellet entrance wounds on the left
shoulder just above the clavicle.
 
(3) Seven pellet entrance wounds, " each
in diameter, on the postro lateral aspect of the
left leg.
 
(4) Twelve pellet entrance wounds on the back
of the left thigh. Each was 1/4` in
diameter.
 
(5) Two pellet wounds, one on the left scrotum
and one on the glans penis. Each was
1/4' in diameter.
 
(6) One pellet exit wound, " in diameter,
on front of the chest, in the middle.
 
The condition of the deceased was grave. His
dying declaration Exh. P. N. was got
recorded from Mr. Ghulam Rasool, Political
Naib‑Tehsildar, Swabi, between 10 and 11
a.m. and the deceased succumbed
to the injuries in the hospital at 10‑30 a.m.
 
4. Lady Doctor Miss Jamal Ara, Assistant
Surgeon, Zanana Hospital, Swabi, (P. W. 1),
conducted the autopsy on the 22nd
of December 1961, at 11‑40 hours, and found the
following on external
examination:‑
 
(1) Fourteen pellet wounds (entrance) in the
back in the lumbo sacral region, and on
the back of the right buttock. Each
wound was " in diameter.
 
(2) Two pellet entrance wounds on the left
shoulder, just above the clavicle.
 
(3) Seven pellet entrance wounds, " in
diameter, on the postro latral aspect of the left
leg.
 
(4) Twelve pellet entrance wounds on the back
of the left thigh. Each was " in
diameter.
 
(5) Two pellet wounds, one in the left scrotum,
and the other on the glans penis. Each
is " in diameter.
 
(6) One pellet exit wound, " in diameter,
on the front of the chest in the middle line.
 
(7) One pellet entrance wound, " in
diameter, in the back of the right thigh.
 
On internal examination, she found the
following:‑
 
The thorax sternum had got a hole. Pleura and
both lungs were normal. Heart was also
normal. Both sides of the heart were
full of blood. Four small pellets were removed
from the abdominal wall.
Peritoneum was also injured. Stomach was empty and
injured at two places. Small
intestines were injured at eight places. Sigmoid colon was
injured at two
places. Left kidney was punctured at several places. Main abdominal
vessels
(aorta and inferior vena‑cava) were injured. Abdominal cavity was full of
blood. Liver was punctured at two places. Spleen and right kidney were normal.
Urinary bladder was full of urine. Death was due to shock and haemorrhage on
account
of the injuries to the abdominal viscera and blood vessels.
Two pellets were removed from the inferior vena‑cava
blood vessels. Six pellets of
small size were handed over to the police. Since
the size of all the entrance wounds
was 1/4" in diameter, therefore, it
suggests that the injuries were caused by the pellets
of the same size.
Injuries Nos. 1, 2, 3, 4 and 7 were situated on the back portion of the
body of
the deceased which suggests that the deceased was fired at from the back side,
but injury No. 5 suggests, that he was fired at from the front or somewhat from
left
side. Injury No. 1 of course suggests that it was fired from the right
side back.
5. In the first information report, which also
serves as the dying declaration of the
deceased, he had stated (the English
translation) of which is as follows:
" Today morning, after having offered my
morning prayers, I had gone to the village
lands for easing myself. When I sat
down in the land of Mir Hawas for answering the
call of nature I saw
Sharifullah son of Naqibullah of village Kalu Khan standing
empty‑banded,
and exhorting that I should be killed. On this, Abdul Malik, Abdur
Raziq and
Abdul Khaliq sons of Sharifullah of the same village started firing at me. I
got hit with the pellets when I was answering the call of nature and dropped
down.
After having fell down on the ground, my brother, Zikriya, arrived. A
number of other
persons also collected there. In the lands I and other people
had been answering the
call of nature. I got wounded at different places as a
result of the shots.
The motive for the offence is that I am in
possession of a shamilat land of the village.
The house of Sharifullah is
situated in a part of that land, which he wanted to extend,
and I was not
allowing him to do so. Sharifullah, in order to extend his house, had cut a
palosa tree, from the land, in con sequence of which I lodged a complain for
security
proceedings. During the previous night I brought that complaint and
delivered it at the
police station. It was for this reason that they had fired
at me and wounded me. I
charge Sharifullah, Abdul Malik, Abdur Raziq and Abdul
Khaliq."
 
6. In the dying declaration Exh. P. N. recorded
by Ghulam Rasool Khan, Magistrate
Third Class, the deceased had declared in the
following words:
"I solemnly declare that today the 22nd of
December 1961, at morning time, I was
answering the call of nature in the
fields, when suddenly Abdur Raziq, Abdul Malik
and Abdul Khaliq, of three of them, opened fire at me,
in quick succession,
Sharifullah, the father of the three persons named above,
was also standing on the spot,
and they had fired at me at his instance. After
having fired the shots, all the three had
decamped from the spot."
 
7. It may be noted here that Yahya deceased
made a com plaint under section 107 of
the Criminal Procedure Code, in the
Court of the local Magistrate, Swabi, on the 20th
of December 1961, which was
given to him dasti to be delivered for inquiry to the S.
H. O. Police Station,
Kalu Khan, and he delivered it at police Station, Kalu Khan on
the 21st of
December 1961. The copy of this report is Exh. P. S. Halim Shah, brother of
Saidan Shah, who was one of the respondents in that application also lodged a
complaint under section 107 of the Criminal Procedure Code, on the 21st of
December
1961, in the Court of the local Magistrate, and this too was sent to
the S. H. O. for
inquiry. In this connection, the Sub‑Inspector had
visited the village on the night
preceding the morning of occurrence, but the
respondents of the complaint of Yahya
were not found, and therefore he returned
to the police station without taking any
action. On the 23rd of December 1961,
he, however, reported that Yahya was murdered
on the 22nd of December 1961, and
the charge was levelled against Sharifullah, Abdul
Malik, Abdul Khaliq and
Abdur Raziq, sons of Sharifullah.
 
8. When the Investigating Officer first came to
the spot, he recovered the following
articles from the spot Six small cardboard
pieces and one big wad Exh. P. 1. from point
C on the site plan and took them
into possession vide memo. Exh. P. E. He also
recovered ONE Empty shell of 12
bore, which he took into his possession, vide the
same memo. He took
bloodstained earth and packed and sealed it in a parcel, vide
memo. Exh. P. C.
He recovered a piece of palosa tree, freshly cut, vide memo. Exh. P.
H., from a
place near the house of Abdul Malik absconder, on the 23rd of December
1961.
 
9. Besides the clothes of the deceased, the lady
doctor sent six pellets Exh. P. 7 to the
police which the Investigating Officer
took in his possession, vide memo. Exh. P. F.
 
10. In this case Zikriya (P. W. 12) brother of
the deceased Muhammad Sher (P. W. 13),
a cousin of the deceased, and Amirzada (P.
W. 14), were produced to prove the actual
occur rence. Zikriya (P. W. 12),
brother of the deceased, stated that he was attracted to
the spot on the report
of the shots and found the appellant and the two absconders,
armed with shot guns,
leaving the spot, and on reaching the spot, he found his brother
lying wounded,
and on inquiry, he charged the three appellants for firing and wounding
him, at
the bidding of Sharif ullah, their father. Muhammad Sher (P. W. 13) also stated
the same at the trial. Amirzada (P. W. 14) appeared as an eye‑witness of
the
occurrence, and stated that he was easing himself in the field of one Tajai
when his
attention was attracted to the spot by hearing the report of the
shots, and that he saw
Abdur Raziq and the absconders firing at the deceased,
and their father standing at a
distance of 20/25 paces from them. He further
added that he saw Muhammad Sher
standing in front of his house and Allahyar
standing on the path. He too saw Zikriya P.
W. also having come to the spot
immediately after the occurrence.
 
11. The learned trial Judge disbelieved these
witnesses. He disbelieved Zikriya (P. W.
12) on the ground that according to
the Investigating Officer, his house was 11 to 2
furlongs from the scene of the
occurrence in the middle of the village, and therefore, it
was not possible
that the appellant and the absconders and the acquitted accused
should have
remained on the spot till he bad arrived. Muhammad Sher and Amirzada
were not
believed because their names were not specifically mentioned in the First
Information Report. Besides that, Muhammad Sher had admitted before the
committing Magistrate that the deceased was his cousin. Amirzada, who appeared
to
be a quite disinterested witness, had to admit at the trial that the grand‑daughter
of
Sharifullah, the acquitted accused, was married to one Pir Muhammad, who bad
grappled with his father, and had beaten him. The family of Sharifullah, the
acquitted
accused, therefore, could not be on normal terms with the family of
Amirzada P. W. on
account of this incident. He was also, therefore, not a dis interested
witness.
 
12. The learned trial Judge, relying on the two
dying declara tions of the deceased, one
First Information Report‑cum‑the
dying declaration Exh. P A., and the second recorded
by Mr. Ghulam Rasool,
Political Naib‑Tahsildar, Exh. P. N., found that they ring true,
as
against the appellant, and he, therefore, convicted the appellant under section
302/34, P. P. C. and sentenced him to transportation for life etc. He acquitted
Sharifullah on the ground that no active role was assigned to him in the dying
declaration, and his mere presence on the spot would not justify the applica tion
of
section 34, P. P. C. against him.
 
13. The learned trial Judge, perhaps, derived
this conclusion from the dying declaration
Exh. P. N., wherein nothing
particular has been said to the effect that he heard
Sharifullah exhorting his
sons to fire. In this dying declaration, the deceased directly
charged the
appellant and the two absconders for opening fire on him. He subsequently
added
that Sharifullah, who is the father of the three accused, was standing, and on
his
saying, they had fired at him. The site plan shows that Sharifullah was
standing at
point which was at a distance of 136 paces from point A, where the
deceased was
easing himself, when he was fired at and wounded. It is not
possible, therefore, that the
deceased had actually heard Sharifullah exhorting
the appellant and the abscon ders to
fire. Since Sharifullah was present at a
distance of 136 paces away from him, and
about 25/30 paces behind their sons,
who had fired at him, he, perhaps, gained the
impression that they were firing
at him at his instance. If one reads the First
Information Report‑cum‑the
dying declaration Exh. P. A., he also gains the same
impression that the
deceased had not specifically charged. Sharifullah for exhorting his
sons
within his hearing, to fire at the deceased. The learned trial Judge,
therefore, was
not wrong in finding that Sharifullah could not legitimately be burdened
with
constructive liability contemplated in section 34, P. P. C.
 
14. The most important question for
determination in this case is, if the learned trial
Judge was right in finding
that the two dying declarations ring true with respect to the
appellant and the
two absconders. In both the dying declarations he had consistently
and directly
charged the appellant and the two absconders for jointly firing at him. It is
now well settled that the conviction of the accused on a capital charge can be
based on
the dying declaration of the deceased person alone. The test to which
a dying
declaration should be put was very clearly given in a Division Bench
judgment of the
Lahore High Court in Taj Muhammad etc. v. The State (P L D 1960
Lah. 723 at p.
727). The relevant portion of this judgment lays the clear
principle in the following
words:‑
 
"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."
 
15. In this case, much stress has been laid on
the medical evidence in pointing out that
the injuries found present on the
deceased could be caused by one person firing one
shot or more than one shot,
and therefore, unless the dying declaration is materially
corroborated, that
the appellant with the two absconders had participated in firing the
shots
jointly, it could not be determined with certainty who amongst them had fired
the
shots. This suggestion, perhaps, is based on the legal principle that when
more than
one conclusion can be drawn from a given set of facts, then the
conclusion favourable
to the accused should be accepted as correct. I am afraid
this principle is not applicable
in assessing the truthfulness or otherwise of
a dying statement) and the statement of an
eye‑witness. If on the medical
evidence it could be established that the deceased was
hit and murdered by a
single shot and three persons were charged by him in the dying
declaration then
the medical evidence runs counter to the dying statement, and in that
event, it
could reasonably be found that the dying statement did not ring true. In the
instant case, the record of the injuries found present on the deceased, when
studied
with great care, lead to the conclusion that they were at least the
result of three shots.
Injuries Nos. 1, 2, 3, 4 and 7 could be caused by a shot
fired from the back of the
deceased. Injury No. 3 could only be caused when the
deceased was fired at from his
left side, and injury No. 5 could only be caused
when he was fired from the front. The
injuries could, therefore, be caused by
at least three shots, and therefore, they did not
run counter to the statement
of the dying man, when he said that the appellant and the
two absconders had
fired at him. These injuries could have been caused by one man
firing three
shots, but this possibility cannot be considered to be amounting to a
contradic tion
of what the dying man had said about the persons who had fired at him,
and
caused his death. In these circumstances, it cannot be said that these injuries
are
inconsistent with what the dying man had said. The dying statements,
therefore, appear
to be genuine and true. The dying man had not stated that he
had seen such and such
man having witnessed the occurrence. He has not even
named Zikriya to be an
eye‑witness of the occurrence. He had merely
stated that Zikriya, his brother, and a
large number of other persons had
collected at the spot after the occurrence. This was
quite natural and it was
further borne out by the fact that Zikriya and others had carried
the cot of
the deceased to the police station.
 
16. The dying statements are further
corroborated by the abscondence of the appellant
for more than four months. The
explanation he gave for his abscondence that he had
gone to Punjab for earning
his livelihood and surrendered to the police, after he learnt
that he was
charged, is not very much convincing. His two brothers are still in outlawry
and undergoing the pangs of exile. This circumstance, therefore, lends further
support
to the truthfulness of the dying declarations. The dying man had made a
complaint two
days previous to the occurrence in the Court of the local
Magistrate expressly stated
therein that he was apprehending danger to his
person and property at the hands of the
appellant, his absconding brothers, his
acquitted father, and one Saidan Shah. This
further shows that the deceased was
apprehending danger not from any one of the
accused, but from all of them, including
one Saidan Shah. This mental state of the
mind of the deceased, even before the
occur rence supports the charge and also lends
corroboration which can
reasonably be taken into account, in determining the guilt of
the appellant.
 
17. For the aforesaid reasons, I find that the
dying declara tions of the deceased were
true. They also ring true. They are
not inconsistent with the circumstances brought on
the record. They are,
therefore, sufficient for the conviction of the appellant for an
offence under
section 302, P. P. C. The appeal had there fore, got no substance, and it is
dismissed.
 
FAIZULLAH KHAN, J.‑--I had the advantage of reading the
judgment to be
delivered by my learned brother. After giving It my anxious
thought and consideration,
I find myself with great regret unable to accede to
the reasors which prevailed with my
learned brother in recording the finding
that the two dying declara tions Exh. A. and
Exh. P. N. are true and genuine,
and as such could be made basis of conviction of the
appellant. I shall
endeavour to indicate with such clarity and brevity as may be possible
to me,
the reasons which have compelled me to come to a different conclusion.
 
2. Abdur Raziq, aged 28 years and his father
Sharifullah, aged 60 years, of village
Kalu Khan, were tried under section 302/
34, P. P. C. for the murder of their co‑villager
Yahya Khan, aged 50
years, son of Ilyas in furtherance of their common intention with
two
absconding brothers, namely, Abdul Malik and Abdul Khaliq, sons of Sharifullah.
Sharifullah was given the benefit of doubt and acquitted, while Abdur Raziq has
been
con victed under section 302/34, P. P. C., and sentenced to trans portation
for life, and a
fine of Rs. 100 or in default six months' further R. I. He
appeals against his conviction
and sentence. It will be convenient here to
state that the learned trial Judge has rested
the conviction of the appellant
practically on the two dying declarations Exh. P. A. and
Exh. P. N. of the
deceased, and the testimony of the two eye‑witnesses Muhammad
Sher (P. W.
13) and Amirzada (P. W. 14) and the evidence of Zikriya (P. W. 12) brother
of
the deceased, who deposed to have been attracted to the scene of occurrence by
hearing the shots and saw the appellant, his two absconding brothers armed with
topaks and their father Sharifullah (since acquitted) going near their hujra,
has also
been disbelieved, and the learned Assistant Advocate. General did not
wish to assail
the rejection of their testimony by the learned trial Judge.
 
3. The prosecution story as narrated at the
trial is that there was a bad‑blood between
the deceased on one side and
the appellant, his brother and his father on the other, over
a shamilat land,
part of which was in the occupation of the deceased while Sharifullah,
the acquitted
accused, was in possession of another part of the land adjacent to the land
in
possession of the deceased on which he had constructed a house. The appellant's
party wanted to extend their house and enclosed a part of the land in
occupation of the
deceased and had allegedly cut a palosa tree three days
before the occurrence. On 21st
December 1961, a day prior to the occurrence,
the deceased had given a complaint
Exh. P. S. for initiating proceedings under
section 107, Cr. P. C. against the four
accused and one Saidan Shah a relation
of the appellant, and handed it over to
Maqbulur Rehman A. S. I. (P. W. 11) on
the same day. The A. S. I had tried to contact
all the five persons named in
the complaint, but they were not to be found, being not
present in the village.
Halim Shah son of Nadir Shah, a relation of the appellant, also
on the same
date, viz., 2i‑12‑61, moved an application Exh. P. S/1 against the
deceased
and one Said Muhammad in which it was stated that the breach of peace
was likely
over a dispute on a piece of land between them.
 
4. The details of the actual occurrence were
given by the deceased in the F. I. R. Exh.
P. A. lodged by him with Muhammad
Idris Khan S. I. (P. W. 15) at 7‑50 a. m. on
22‑12‑61 at
Police Station, Kalu Khan at a distance of one mile from the scene of
occurrence. The purport of the F. I. R. in regard to the actual occurrence
minus the
motive, rendered into English, reads as follows:‑
 
"That after morning prayers he had gone to
the field of Mir Hawas to ease himself and
when he sat down he saw his co- villager
Sharifullah standing empty‑banded, shouting
order to his sons Abdul
Malik, Abdur Raziq and Abdul Khaliq, who were armed with
topaks, to kill
(maro), at which they fired with which he was hit and felled to the
ground;
that he did not take any notice but after his felling down, his brother Zikriya
P.
W. 12 and many other people collected on the spot, and that in the fields
many other
people who had gone to answer the call of nature, were present. That
he got injured at
various places as a result of the shots.
 
5. It is indeed highly regrettable that the
typed record should be prepared in a most
slipshod and perfunctory manner so as
to suffer from omission and inaccuracies. To
illustrate my point, the copy of
the F. I. R. Exh. P. A. in vernacular not only contains
omissions but it
suffers from serious inaccuracies, in that in the certified copy of the F.
I.
R. the word "FAIROAN" in original F. I. R. should be substituted for
the word
"CHARROAN" on the basis of which my learned brother
naturally while rendering the
F. I. R. into English used the word
"pellets" for the word "shots".
 
6. Later on between 10 and 11 a.m. Ghulam
Rasool, Political Naib Tehsildar,
exercising the powers of a Magistrate 3rd
Class (P. W. 2), recorded the dying
declaration Exh. P. N. of the deceased in
which the deceased stated that on 22‑12‑61,
early in the morning
(the word used is all as subha he was sitting and making water,
when all of a
sudden Abdur Raziq, Abdul Malik and Abdul Khaliq all three fired at
him one
after the other, at the bidding of their father Sharifullah, who was standing
on
the spot, and after the firing all the three ran away.
 
7. Mr. Abdullah Jan (P. W. 1) at 9. a. m. on 22‑12‑61,
examined the deceased and
found six injuries, reproduced in the judgment of my
learned brother. The deceased
succumbed to his injuries in the hospital at 10‑30
a.m., and Lady Doctor Miss Jamal
Ara (P. W. 1) assisting the Civil Surgeon,
Swabi held autopsy on the deceased on the
same day at 11‑40 hours and the
result of the examination has also been reproduced by
my learned brother.
 
8. Sharifullah was arrested by the S. I. on the
day of occur rence, while the appellant
and his other two brothers, namely,
Abdul Malik and Abdul Khaliq were not found.
The appellant surrendered on 8th
July 1962. While his other two brothers are still
absconding. Sharifullah and
the appellant were put on trial and besides the two dying
declarations Exh. P.
A. and Exh. P. N. the prosecution, as already stated, examined
Muhammad Sher
(P. W. 13) and Amirzada (P. W. 14) as ocular witnesses while Zikriya
(P. W.
12), brother of the deceased, deposed of having seen the appellant and his
other
two absconding brothers armed with topaks and Sharifullah their father
empty‑handed
going to their house near their hujra. The learned
Additional Sessions Judge
disbelieved the two eye‑witnesses, on the
ground that "the deceased has not mentioned
the presence of either
Amirzada or Muhammad Sher P. Ws. in his two dying
declarations", and
summed up the discussion at the close of para. 13 of the judgment,
thus:‑
 
"Therefore, in my opinion, these two
witnesses are chance witnesses and have been
later on introduced by the
deceased party, because the former is related to the deceased
and the latter
is on inimical terms with the accused party."
 
9. In para. 14 of the judgment the learned
Additional Sessions Judge while dealing with
the testimony of Zikriya P. W.,
observed as follows:-
 
"That in my opinion he is definitely
telling lies on this point. According to the I. O. the
house of Zikriya is in
the middle of the village abadi, distance about two and a half
furlongs from
the spot and that is why the I. O. has not shown the house of the
deceased in
the site plan."
 
10. After discarding the testimony of the three
eye‑witnesses indicated above, the
learned Additional Sessions Judge
observed that " a genuine dying declaration has
great value in law and
conviction can be based on it alone if it is proved beyond doubt
that it is
genuine and true." He then examined the dying declara tion in the light of
the
test laid down in the decision in Taj Muhammad etc. v. The State and after
rejecting the
argument of the learned counsel for the defence that the deceased
could not have
identified the assailant, while he was sitting easing himself
wrapped in a chadder
summed up the discussion, holding the dying declaration to
be true and genuine, as
follows:-
 
"Therefore, I hold that the F. I. R. Exh.
A. and the dying declaration Exh. P. N. of the
deceased are genuine and true documents
as they intrinsically ring true and there was
no chance of any mistake on the
part of the deceased to have identified his assailant, it
was not the result of
any briefing or prompting from outside quarters and that it is not
inconsistent
with the other evidence and circumstances of the case. Therefore, it will
be
not unsafe for me to base conviction on the dying declarations of the
deceased."
 
In fairness to the learned Additional Sessions
Judge in para. No. 18, he took into
consideration the abscondence of the
appellant for "about six and a half months" and
held " the
factum of the abscondence on the, part of Abdur Raziq also goes a long way
to
prove his guilt". While dealing with the case of Sharifullah, the learned
Additional
Sessions Judge, while quoting certain obser vations from Muhammad
Akbar v. The
State (P L D 1961 Lah. 348), held him not guilty, holding . . . .
. Sharifullah's presence
has been admitted but no active role has been assigned
to him. Therefore, mere
presence of this accused does not bring his case within
the orbit of section 34, P. P. C.
Therefore, I hold that the prosecution has
not proved any conduct of Sharifullah
accused to bring his case under section
34, P. P. C. Therefore, agreeing with the
unanimous verdict of the assessors, I
hold Sharifullah accused not guilty of any offence
and acquit him.
 
11. Qazi Abdul Wahab Khan, learned counsel for
the appellant vehemently argued that
the case against the appellant had not
been brought home beyond reasonable doubt and
that the learned Additional
Sessions Judge was wrong in resting conviction on the two
dying declarations,
holding them to be true and genuine, in particular when the learned
Additional
Sessions Judge had disbelieved the part of the dying declaration in regard to
the
complicity of Sharifullah, father of the appellant. It was also complained that
on the
facts and circumstances of the case, the dying declarations could not be
held to be true
and genuine, especially when the prosecution had tried to
smuggle in false
eye‑witnesses in the case. Lastly, it was argued that
the gunshot injuries on the
deceased were more compatible with having been
caused by one assailant rather than
three and that, at any rate, the occurrence
took place long before sun rise when the
identity of the assailant was not
possible, and in view of the bad blood between the
parties, the deceased had
made an attempt of charging all the male adult members of
the appellant's
family.
12. S. Ghazanfar Ali Shah, A. A: G. on the
other hand, argued that the case had been
brought home to the appellant beyond
reasonable doubt and the dying declarations
alone could be made the basis of
conviction, provided the Court was satisfied that the
dying declarations were
true and genuine, and that in the instant case the abscondence
of the accused
furnishes corroboration to the dying declarations, and the medical
evidence,
was also consistent and, at any rate, did not contradict the statement of the
deceased that the injuries had been caused by three different shots.
 
13. Before I tackle the question whether the
two dying statements in the instant case
could be considered to be true and
genuine, I would like to examine the question of the
evidentiary value of a
dying declaration, the test to which the dying deposition should
he subjected
to before it can be held to be true and genuine, and in particular whether
conviction can be founded on the dying declaration which has been disbelieved
in
regard to one of the accused.
 
14. The Legislature has enacted in section 32
(1) of the Evidence Act that:
 
"When the statement is made by a person as
to the cause of his death or as to any of the
circumstances of the transaction
which resulted in his death, in cases in which the
cause of that person's death
comes into question."
 
This provision has been made by the
Legislature, advisedly, as a matter of sheer
necessity by way of an exception
to the general rule that hearsay is not an evidence. On
a review of the
relevant provisions of the Evidence Act and of the decided cases,
including the
high authority of the Privy Council, it has now been irrevocab ly held
that it
cannot be laid down as an absolute rule of law that a dying declaration cannot
form the sole basis of the conviction C unless it is corroborated and that
conviction can
rest on the dying declaration alone, provided the Court is
"fully" convinced on the
dying declaration and other facts and
surrounding circum stances that the dying
declaration was true and genuine. The
Judicial Committee of the Privy Council in the
case of Chandra sekera v. The
King ((1937) A C 220), armed the decision of the
Supreme Court of Ceylon, and
made the following observations in the course of their
judgment, which would
suggest that a dying declaration if found reliable by a jury,
may by itself,
sustain a conviction:
 
" Apart from the evidence proceeding from
the deceased woman, the other evidence
was not sufficient to warrant a
conviction, but at the same time that other evidence was
not merely consistent
with the deceased's statement but pointed in the same direction.
It was a case
in which, if the deceased's statement was received, and was believed, as it
evidently was by the jury, to be clear and unmistakable in its effect, then a
convic tion
was abundantly justified and, indeed, inevitable."
 
Sir Lionel Leach, C. J. presiding over the Full
Bench. In re: Guruswami Tevar (A I R
1940 Mad. 196 at. p. 200), after examining
the decision of that Court and other High
Courts in India, tersely summed up
the discussion thus:-
 
"In my judgment it is not possible to lay
down any hard and fast rule when a dying
declaration should be accepted, beyond
saying that each case must be decided in the
light of the other facts and the
surrounding circumstances, but if the Court, after taking
everything into
consideration is convinced that the statement is true, it is its duty to
convict, notwithstanding that there is no corroboration in the true sense. The
Court
must, of course, be fully convinced of the truth of the statement and,
naturally, it could
not be fully convinced if there were anything in the other
evidence or in the
surrounding circumstances to raise suspicion as to its
credibility."
 
To the same effects are the decisions of the
Patna High Court in the case of
Muhammad Arif v. Emperor (A I R 1941 Pat. 409)
and of the Nagpur High Court in
Gulbarao Krishanjee v. Emperor (A I R 1945 Nag.
153). The same view was affirmed
in Taj Muhammad etc. v. The State. On a review
of the case‑law in regard to the test of
the reliability, there is
consensus of opinion that before acting on the dying declaration,
the following
tests should be fulfilled:-
 
(1) that intrinsically the dying declaration
rings true,
 
(2) that each case must be determined on its
own facts, keeping in view the
circumstances in which the dying declaration was
made,
 
(3) that a dying declaration stands almost on
the same footing as other piece of
evidence and is to be judged in the light of
the surrounding circumstances, and with
reference to the princi ple governing
the weighing of evidence,
 
(4) that the Court has to keep in view the
circumstances like the opportunity of the
dying man for observation, for
example whether there was sufficient light.
 
(5) that the statement has been consistent
throughout if he had several opportunities of
making a dying declaration,
 
(6) that the statement has been made at the
earliest opportu nity and was not the result
of tutoring by interested parties
and finally;
 
(7) in order to pass the test of reliability a
dying declara tion has to be subjected to a
very close scrutiny, keeping in
view the fact that the statement has been made in
absence of the accused who
had no opportunity of testing the veracity of the statement
by cross‑examination.
But if the Court after sub jecting the dying deposition to the
above scrutiny
is "entirely" satisfied about the truthfulness and genuineness of the
dying statement, conviction can be rested without any corroboration.
 
15. Keeping in view the tests set out above and
after a careful and anxious
consideration of the two dying declarations and other
evidence in the case. I am not at
all satisfied, much less "fully"
satisfied, about the truthfulness and genuineness of the
dying depositions in
regard to the complicity of the appellant rather on the contrary, I
am
satisfied, that the dying declarations suffer from such serious infirmities
which
incline me to hold them not to be true and genuine, that three assailants
had caused the
gunshot injuries to the deceased. The following reasons may be
listed in support of the
above conclusion:-
 
(1) It would be remembered that in both the
dying declarations the deceased very
distinctly charged Sharifullah for having
exhorted his three sons to fire, but
notwithstanding this, the learned trial
Judge acquitted Sharifullah, holding that his
mere presence did not bring his
case within the orbit of section 34. I am constrained to
remark that the
learned trial Judge should have failed to notice in both the dying
declarations
a categorical accusation against Sharifullah for having exhorted his sons
to
open fire at the deceased. Be that as it is, the fact remains that the learned
trial Judge
acquitted Sharifullah accused and as the Government has not
preferred any appeal
against his acquittal, the dying declarations in regard to
the complicity of Sharifullah
are proved to be false. This fact alone would be
sufficient to reject the dying
declarations in regard to the appellant, in that
it will be contrary to the well‑established
rule of prudence and
inconsistent with safe administration of justice to reject the dying
declarations
in regard to some accused and accept it against others.
 
It is well‑established principle of law
that the veracity of a witness is not "divisible",
and in case a
witness is not believed in regard to some accused, he cannot be believed
in
regard to others without independent corroboration in material particu lars in
regard
to the each of the remaining accused. If any authority is needed in
support of the above
view, reference may be made to the following:-
 
Muhammad Faiz Bakhsh v. The Queen P L D 1959 P
C 24.
 
Ashraf and others v. The Crown P L D 1956 F C
86.
 
Rehmat and others v. The State P L D 1959 S C
(Pak). 109 and,
 
Ahmad Khan and another v. The State P L D 1962
Lah. 390.
 
If it is unsafe to found conviction without
independent corrobora tion in regard to each
of the accused where a witness has
been disbelieved in regard to one of the accused it
will be doubly unsafe to
rest conviction on a dying declaration (which is not subject to
right of cross‑examination)
without independent corroboration in material particulars
in regard to other
accused when the same has been disbelieved in regard to one of the
accused in
the case. I am fortified in this view by the decision in R. v. Premanand
(1925
C 876) and the decision in Rang Ali and others v. The State (P L D 1958 Lah.
242). In the first‑noted case it was held that if a part of a dying
declaration is proved to
be false, the Court will not believe the other parts
unless they are corroborated. In the
second case, A. R. Changes, J., at page
257, summed up the discussion as follows:-
 
"But whatever the reason be, the fact
remains that even the dying declaration of Shah
Muhammad is a tainted piece of
evidence and cannot be relied upon. It is entirely out
of question to accept a
portion of the dying declaration and reject the rest. There must
be absolute
guarantee of the truth of the entire statement before it can be acted upon. A
`touched up' dying declaration has no evidentiary value whatsoever. It may be
that
some of the appellants if not all of them, had participated in this crime,
but on the
evidence before us we cannot hold positively that the guilt of any
of them has been
established."
 
(2) The most remarkable fact which emerges from
the record is that having disbelieved
the evidence of Zikriya (P. W. 12)
Muhammad Sher (P. W. 13) and Amirzada (P. W.
14), out of whom the last two
named purported to be eye‑witnesses though not
mentioned in the F. I. R.,
it necessarily follows that attempt has been made by the
prosecution to
manufacture evidence against the accused and that necessitates the
Court being
particularly more careful while judging the reliability of the two dying
declarations. If the prosecution could have manufactured two eyewitnesses and
Zikriya
(P. W. 12), brother of the deceased, could falsely come forward to
depose in regard to
his having been attracted to the spot on hearing the shots
and having seen Sharifullah
unarmed and the other three accused, including the
appellant, armed with topaks going
near their hujra, what is the guarantee that
the deceased should have different standard
of morality in not charging three
brothers instead of one either out of malice or at the
prompting of his brother
Zikriya (P. W. 12) for the gunshot injuries in particular when
he did not
hesitate to falsely implicate 70 years old Sharifullah for ordering his three
sons to open fire at the deceased.
 
(3) The prosecution story as contained in the
two dying declarations does not have the
ring of truth, in that it is difficult
to believe that Sharifullah, an aged man of 70 years
should march his three
sons off on a shooting expedition and then shout orders to kill
the deceased,
especially when the shooting affray was not occasioned on the spur of
the
moment and on sudden quarrel, but was the result of a cold blooded and
pre‑arranged
plan. One would expect an elderly person like Sharifullah to exercise
restraint, rather than to exhort any one of his sons, muchless his three sons,
to murder
an unarmed person which task could easily have been accomplished by
one gunman
alone.
 
(4) The deceased admitted in the dying
declaration Exh. P. A. that many other people
were also answering the call of
nature in the fields, but the prosecution has not cared to
produce any one of
disinterested witnesses. The houses of Durranai and Shamroze are
indicated at
points 9 and 10, respectively, in the site plan Exh. P. B., a few paces from
where the assailants had allegedly fired, but strangely enough none of the
inmates of
that house has been called as P. W. Again, Muhammad Sher (P. W. 13;
admitted that a
"dehqan" (tenant) of Taj Muhammad permanently lived
in the kotha of an arhat,
situated at a distance of 10/1. paces from the spot,
but even he was not cited as a
witness it the case. In other words, there had
been a clear attempt on the part of the
prosecution not to call any
disinterested witness, in particular when it is to be noticed
that the shots
were fired from the main thoroughfare leading from village Kalu Khan to
Adina
both of which are very big villages and, therefore, lot of people might be
going
about on the path at the time of the occurrence.
 
(5) It is important to note that all the
gunshot injuries on the deceased are of the same
size, viz. 1/4", and tile
recovery of the six pellets Exh. P. 7 which were examined in the
Court, shows
that the same size of cartridge, probably No. 4, had been used by the
assailant. I am, therefore, inclined to take the view that the injuries were
caused by two
and not three shots, and the statement of Lady Doctor Miss Jamal
Ara, (P. W. 11 who
conducted autopsy, is quite reconcilable with the suggestion
that two and not three
shots caused the injuries to the deceased. She stated in
cross‑examination "injuries
Nos. 1, 2, 3, 4 and 7 were situated on
the back portion of the body of the deceased,
which suggests that the deceased
was fired at from the back side, but injury No. 5
suggests that he was fired at
from the front or some what from left side. Injury No. 1,
of course, suggests
that it was fired from right side back. The statement of the lady
doctor is,
therefore quite reconcilable with the suggestion that injuries Nos. 1, 2, 3, 4
and 7 were the result of one shots. Assuming without conceding that the
injuries were
caused with three shots, it does not in the least follow that
three assailants had caused
the gunshot injuries. The balance of probability is
more in favour of the suggestion that
one man and one man alone had fired the
three shots. This suggestion is strongly
reinforced by the fact that the size
of the injuries is the same, and the cardboard discs
and the wad were found at
one and the same place. In case three men had fired shots,
the cardboard discs
and the wad would have been found dispersed over a wide area and
not found at
one point, namely, point `C' in the site plan. If the injuries on the person of
the deceased were proved to have been caused with three different firearms, for
example pellet injuries, bullet from a rifle and pistol injury, or the deceased
had borne
injuries which were proved to have been caused with three different
weapons, then in
that case one could have legitimately inferred that three
assailants were concerned in
the crime, but in the instant case since the
injuries have been caused with gunshots
having used the same number of
cartridges, it will be, if I may say so with respect,
hazardous to say that
three shots had been fired by three different assailants. It is very
easy for
one man alone with a double‑barrel gun or for the matter of that with a
single-
barrel gun, to have fired three shots, assuming that three and not two
shots had been
fired. If the gunshot injuries to the deceased could have been
caused by one assailant it
would be impossible to say which one of the three
accused had fired the shot. The
same result would follow if it is held that two
assailants had fired the shots as in that
eventuality it would not be possible
to say which accused out of the two accused was
innocent, with the result that
both of them would be given the benefit of doubt and
acquitted. In this
connection 1 may profitably quote the pithty observations of Young,
C. J. in
Khurshaid‑Hussain Salihon Shah and others v. Emperor (A I R 1941 Lah.
368),
on the evidentiary value of a dying declaration in cases where several
persons were
charged. At page 369, his Lordship, delivering the judgment for
the Count, observed:‑
 
"But assuming that there was only one
dying declaration which could not be criticised
which accused as many as seven
persons, we consider it would be unsafe in this
province to act on such
evidence alone without material corroboration of it. The fact
that As Ali, or
indeed any other Punjabi in the same circumstances, had been killed
would be
quite sufficient cause for the dying man to seek to be revenged against as
many
relatives of his assailant as possible. This Court has frequently remarked that
a
dying declaration which names only one person, and where the killing took
place under
circumstances where there could be no doubt that the dying man
identified his
assailant, is the very strongest possible form of evidence. In a
case like this however
where a large number of people are implicated it is a
very different matter and we have
no hesitation in holding that there being no
corroboration of the dying declaration the
evidence in this case is
insufficient to prove a charge of murder."
 
(6) The only other point which requires
comments is the fact that the appellant had
absconded after the occurrence.
Having held that one person alone had caused the
gunshot injuries as against
three charged by the deceased, the factum of the absconding
of the accused is
of no avail whatsoever to the prosecution. Be that as it is, the fact of
the
absconding of the accused is usually treated as a very small item on which
conviction can be based. It is well known that different persons are
differently
constituted and that some accused, though innocent, deliberately
abscond rather than
face the ordeal of the criminal trial. There is another
aspect of the case and it is that, as
already indicated, Maqbulur Rehman A. S.
I. (P. W. 11) had stated that on 21‑12‑61 he
had sent for the four
accused in connection with the complaint under section 107
moved by the
deceased, but they were not in the village. In other words, it was proved
that
the appellant was not present in the village on 21‑12‑61, and there
is no evidence
whatsoever (after having disbelieved Zikriya (P. W. 12),
Muhammad Sher (P. W. 13)
and Amirzada (P. W. 14), that the appellant was
present in the village on the day of
occurrence and after the occurrence he had
absconded. Before the factum of
abscondance can be taken into consideration
against an accused, the prosecution must
prove that the accused was present in
the village before the occurrence and that he
disappeared after it had taken
place, and the mere fact that the‑ accused had after the
occurrence
become an outlaw was not sufficient to be taken against him. I am fortified
in
this view by the decision of the Court of Judicial Commissioner in Fazal Rahim
v.
Emperor (A I R 1934 Pesh. 170). Mir Ahmad, A. J. C., delivering the judgment
for the
Bench, approving their previous decision in Nawab Khan v. Emperor (A I
R 1933
Pesh. 94), summed up the discussion in the following words:-
 
"All that we have got with regard to the
disappearance of the accused is the statement
of the Police Officer that he did
not find him at his house. To us it does not seem
sufficient for the purposes
of presuming against the accused that he had become an
outlaw after the offence
occurred. We think it is incumbent on the prosecution to prove
that the accused
was present in the village
before the occurrence and that he did
disappear after it had taken place."
16. For all the foregoing reasons, I hold that
the prosecution has not been able to bring
home the charge to the appellant
beyond reasonable doubt. I, therefore, accept the
appeal, set aside the
conviction and sentence and acquit him.
(The case was laid under section 378, Cr. P. C.
before Shakirullah Jan, J. who gave the
following opinion).
SHAKIRULLAH JAN, J.‑Abdur Raziq, aged 28 and his father
Sharifullah aged 60,
residents of village Kalu Khan, Tehsil Swabi, District
Mardan, were tried under
section. 302/34, P. P. C. for the murder of Yahya
Khan, aged 50, son of Ilyas, their
co‑villager, in furtherance of their
common intention with Abdul Malik and Abdul
Khaliq absconding accused, sons of
Sharifullah, on 22nd December 1961 at 7‑15 a.m.
in the field belonging to
one Mir Hawas by firing at him. Sharifullah was acquitted by
the learned
Additional Sessions Judge, Mardan, by his order dated 9th April 1963,
while
Abdur Raziq was convicted under section 302/34, P. P. C. and sentenced to
transportation for life and a fine of Rs. 100 or in default to suffer six
months' further
rigorous imprisonment.
2. Briefly the facts of the case are that a
piece of shamilat land was in possession of the
deceased. Sharifullah acquitted
accused was also in possession of a portion of shamilat
land adjoining the land
in possession of the deceased. Sharifullah, acquitted accused,
had constructed
a house on that land and wanted to extend it and had enclosed a part of
the
land in occupation of the deceased and had also cut a palosa tree three days
before
the occurrence. On 20th December 1961, the deceased filed a complaint
Exh. P. S. in
the Court of the Ilaqa Magistrate against Saidan Shah son of
Nadir Shah, Sharifullah
acquitted accused, Abdur Raziq appellant, Abdul Malik
and Abdul Khaliq absconding
accused, under section 107, Cr. P. C. alleging that
they had cut his tree. Halim Shah,
son of Nadir Shah had also filed a complaint
against the deceased and one Saeed
Muhammad under section 107, Cr. P. C. on 21st
December 1961, which is Exh. P. S./1.
The complaint Exh. P. S. filed by the
deceased was marked by the Ilaqa Magistrate to
the S. H. O., Police Station,
Kalu Khan, which was handed over to Maqbulur Rahman
A. S. I. (P. W. 11) on 21st
December 1961. The A. S. I. proceeded to the village and
carried on to trace
the five respondents in the complaint Exh. P. S., but was unable to
contact
them. The relations between the accused and the deceased party, therefore,
became strained on account of the dispute over the shamilat land and the
cutting of the
palosa tree belonging to the deceased by the appellant and the
absconding accused.
3. On 22nd December 1961, after offering his
morning prayers, the deceased went to
the field of one Mir Hawas for answering
the call of nature and while he was sitting in
the field, when the appellant,
the two absconding accused and the acquitted accused
came and at the instance
of the acquitted accused, the appellant and the absconding
accused fired shots
at the deceased who was hit and fell on the ground. Zakriya (P. W.
12), brother
of the deceased. also came to the spot. Many other persons were also
present in
the field, who were also answering the call of nature. The injured was placed
on a cot and taken to Police Station Kalu Khan, at a distance of a mile from
the spot,
where his report Exh. P. A., which is now being treated as his dying
declaration, was
recorded by Muhammad Idris Khan, S. H. O. (P. W. 15). He
prepared the injury sheet
Exh. P. K. and sent the injured to the hospital under
the escort of Yaqub F. C. He went
to the spot and prepared the site plan Exh.
P. B. From the spot he recovered six small
cardboard pieces and a big wad Exh.
P. I. from point C and took these into possession
per recovery Memo. Exh. P. E.
He also recovered and took into possession an empty
shell of 12 bore vide the
same Memo.
 
4. In the Civil Hospital Swabi, the dying
declaration Exh. P. N. of the deceased was
recorded by Ghulam Rasul Khan, then
3rd Class Magistrate at Swabi on 22nd
December 1961. In this dying declaration,
he stated that he was sitting in the field and
was passing urine early in the
morning, when suddenly Abdur Raziq, Abdul Malik and
Abdul Khaliq fired shots at
him at the instance of their father Sharifullah who was also
present and after
firing the shots all the three ran away.
 
5. In Civil Hospital Swabi, Yahya Khan
(deceased) was examined by Dr. Abdullah Jan
(P. W. 10) on 22nd December 1961 at
9 am., who ,found the following injuries on his
person:-
 
(1) Fourteen pellet entrance wounds on the back
in the lumbo sacral region and on the
back of the right buttock. Each wound was
" in diameter.
 
(2) Two pellet entrance wounds on the left
shoulder just above the clavicle.
 
(3) Seven pellet entrance wounds, " each
in diameter, on the postro lateral aspect of the
left leg.
 
(4) Twelve pellet entrance wounds on the back
of the left thigh. Each was " in
diameter.
 
(5) Two pellet wounds, one on the left scrotum
and one on glans penis. Each was " in
diameter.
 
(6) One pellet exist wound, " in
diameter, on front of the chest, in the middle.
 
6. The deceased succumbed to his injuries in
the Hospital at 10‑30 a.m. on 22nd
December 1961 and the post‑mortem
examination on his dead body was performed by
Lady Doctor Miss Jamal Ara (P. W.
1) at 11‑40 hours the same day who on external
examination confirmed the
injuries as describe above. The internal examination,
however, revealed that
the thorax sternum had got a hole. Both sides of the heart were
full of blood.
Four small pellets were removed from the abdominal wall. The
peritoneum was
also injured. Stomach was empty and injured at two places. The small
intestines
were injured at eight places. Sigmoid colon was injured at two places. The
left
kidney was punctured at several places. The main abdominal vessels (aorta and
inferior vena‑cava) were injured. The abdominal cavity was full of blood.
The liver
was punctured at two places. Death was due to shock and haemorrhage
on account of
the injuries to the abdominal visora and blood vessels.
 
7. Muhammad Idris Khan, S. H. O. (P. W. 15)
arrested Sharifullah on 22nd December
1961. Abdur Raziq appellant and the two
absconders were not traceable, and, therefore
proceedings under sections 87/88,
Cr. P. C. were taken against them and after the
completion of the proceedings
under section 512, Cr. P. C., they were declared as
proclaimed offenders. Abdur
Raziq appellant, however, surrendered himself on the 8th
July 1962.
 
8. Abdur Raziq appellant when examined pleaded
not guilty. While explaining his
absence from the village from 22‑i2‑1961
to 8‑7‑1962, he stated "I had gone towards
Punjab side before
the occurrence in search of my livelihood and when came to know
about the
charge against me, surrendered to the Police". When asked as to whether he
on 22nd December 1961 in the limits of village Kalu Khan along with his co‑accused
in furtherance of his common intention voluntarily caused the murder of Yahya
Khan
deceased by firing at him, he stated "Yes". The answer
"yes" seems to be mistyped and
apparently the appellant had stated
"No". When asked as to what was his statement, he
stated "I am
innocent and falsely charged". This shows that he actually denied the
commission of the offence as it is also clear from the judgment of the learned
Additional Sessions Judge.
 
9. In support of its story the prosecution had
examined Zakriya (P. W. 12), brother of
the deceased, Muhammad Sher (P. W. 1.3)
and Amirzada (P. W. 14) as eye‑witnesses.
Of these, the learned Additional
Sessions Judge disbelieved Muhammad Sher and
Amirzada P. Ws., on the ground
that the deceased had not mentioned their presence on
the spot in his two dying
declarations, and, therefore, in his opinion they were chance
witnesses. He
disbelieved Zakriya (P. W. 12) and while discussing his evidence he
observed as
under:‑
 
"Now this is to be seen, whether even if
it is admitted that Zakriya P. W. reached the
spot soon after the occurrence,
he saw the accused and the absconders at the time of
actual firing or was he
able to see them while decamping from the spot He admits that
he was attracted
to the spot after he heard the shots in his house. Therefore, the
distance
between the house and the spot will be the deciding factor to ascertain,
whether he could come to the scene of occurrence immediately and hence was able
to
see the firing or the accused leaving the spot. In his statement, this
witness has shown
the distance of his house from the spot to behalf furlong and
according to him he came
out of the house and saw the accused and the
absconders firing, because nothing
intervenes between his house and the scene
of occurrence. But in my opinion he is
definitely telling lies on this point.
According to the I. O., the house of Zakriya is in the
middle of the village
abadi, distant about two and a half furlongs from the spot and that
is why the
I. O. has not shown the house of the deceased in the site plan. Can a person
present in his house situated in the heart of the village, distant two and a
half furlongs
from the spot, reach the scene of occurrence in time to see the
accused party firing or
decamping? The answer would be definitely in the
negative. The accused and the
absconders must have tried to hide or run away
immedi ately after the occurrence.
Therefore, even if I believe that Zakriya P.
W. heard the shots in his house, he would
not have come to the spot to see the
actual firing or the accused and the absconders
decamping. Therefore, I do not
believe this portion of the statement of Zakriya P. W.
that he saw the firing
and also saw the accused and the absconders decamping from the
spot."
 
After rejecting the statements of the three eye‑witnesses,
the learned Additional
Sessions Judge based the conviction of the appellant on
the report Exh. P. A. of the
deceased and his dying declaration Exh. P. N. He,
however, acquitted Sharifullah,
father of the appellant, as pointed out above.
 
10. The case was laid before my brothers
Muhammad Daud Khan and Faizullah Khan,
JJ., but in view of disagreement between
them it was referred to me.
11. Qazi Abdul Wahab Khan, learned counsel for
the appellant, contended that the
firing had taken place at the time when
identification was not possible, because the
deceased had gone to the fields
for answering the call of nature before morning prayers
time and he had covered
himself with a chadar. The deceased was hit when it was dark
and the shots were
fired from some distance which made it impossible for him to
identify the
person or persons firing shots at him and seem to have charged the
appellant
along with the absconders and the acquitted accused on account of strained
relations. He further attacked the dying declaration on the ground that it was
false.
Sharifullah acquitted accused was also charged along with his three
sons. He continued
that had the deceased seen the persons firing shots at him,
he would have given the
direction from where the shots had been fired at him,
which in the opinion of the
learned counsel shows that he did not see any one
firing shots, as he did not say as to
who had fired from what direction. The
deceased had given the role of firing to the
appellant and the two absconding
accused, and the role of ordering to the acquitted
accused. Sharifullah,
acquitted accused, was equally inculpated under section 34, P. P.
C. and no
distinction could be made as to why he should not be punished if he had
participated in the offence. The two dying declarations consistently give the
role of
order to Sharifullah, and, therefore, to disbelieve the two dying
declarations qua him
means to believe it partially.
 
12. The question that arises would be as to
whether a dying declaration which is the
only evidence in the case and in which
the deceased charges a person for his injuries
should be believed against him
and the same dying declaration be disbelieved against
the other who is given
the role of ordering. The learned counsel for the appellant urged
that it is a
well known principle of law that a dying declaration, alone is sufficient to
convict a person, because a man while dying will not tell a lie, but the dying
declaration, however, loses its sanctity attached to it when a person to whom
an equal
role is given is acquitted. The learned counsel further contended that
the dying
declaration was not believed against Sharifullah, which means that it
was not genuine
qua him, but it was believed against the appellant, and in the
event of a dying
declaration having been found to be false against one, the
benefit of doubt would also
go to the appellant. The learned trial Judge relied
upon Taj Muhammad and others v.
The State, where it was held 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
inconsis tent
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 tests, for judging its veracity it becomes a
wholly reliable piece of evidence,
but if it does not, it is far words 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 well be that the whole of the
statement
is rejected."
 
The learned counsel for the appellant contended
that the dying declaration has not
stood the tests laid down in the above mentioned
authority. According to this authority,
if a dying man indulged in telling lies
even partially that would put the Courts on guard
against accepting the other
statement without any corroboration and the result may be
that the whole of his
statement is rejected. The learned counsel urged that the dying
declarations
are not genuine, because the deceased had indulged in telling lies by
charging
Sharifullah who has been acquitted and against whose acquittal there is no
appeal. He further contended that the learned Additional Sessions Judge was not
justified in rejecting the dying declaration regarding the guilt of the
acquitted accused
and accepting it regarding the guilt of the appellant. In
support of his contention, he
relied upon Muhammad Faiz Bakhsh v. The Queen (P
L D 1959 P C 24), where it was
held that "the credibility of witnesses
could not be tested as divisible and accepted
against one and rejected against
the other. Their honesty having been shown to be open
to question it could not
be right to accept the jury's verdict against one and re‑open it in
the
case of the other".
 
The same view was taken in another case
reported in Ahmad Khan and another v. The
State (P L D 1962 Lah. 390), where it
was held that "when prosecution witnesses are
discredited in respect of
majority of the accused, it will not be safe to believe their
evidence in
respect of the remaining accused unless there is some independent
corroboration
in respect of each of the accused. This rule of prudence is rendered all
the
more essential when it is proved that witnesses have deliberately committed
perjury.
 
13. The learned counsel fur the appellant
further contended that there was no material
on the record to show that the
injuries found on the person of the deceased were caused
by three persons and
the anxiety shown by the deceased to charge the appellant along
with his two
absconding brothers and their father, Sharifullah, acquitted accused would
show
that he was bent upon charging the entire family and on account of the number
of
the accused implicated the dying declarations of the deceased require
corroboration. In
support of this contention, he relied upon Khurshid Hussain
Salihon Shah and others v.
Emperor, where it was held as under:--
 
"A dying declaration which names only one
person, and where the killing took place
under circumstances where there could
be no doubt that the dying man identified his
assailant, is the very strongest
possible form of evidence. But where a large number of
people are implicated,
it is a very different matter and in the absence of corroboration
of the dying
declaration, the accused should not be convicted."
 
14. The only evidence on the record as pointed
out above accepted by the learned
Additional Sessions Judge is the two dying
declarations of the deceased. 1n the dying
declarations, the deceased never
said that Zakriya, P. W. had witnessed the occurrence
and all that he stated is
that after the firing Zakriya also came to the spot. This by itself
shows that
the deceased had no intention to bring in a false witness. He could have
easily
cited Zakriya P. W. as a witness, because he being a brother of the deceased
would have in any case supported him. He could have also stated in the dying
declaration that Zakriya had accompanied him to the fields for answering the
call of
nature which would have been quite reasonable, but he refrained from
saying so and it
follows that he made no attempt to introduce a false witness
and made quite an honest
report. It is expressly mentioned in his report that
after performing his morning prayers
he went to the fields where he was fired
at while answering the call of nature. The time
of occurrence would be about 7‑15
a.m. and that would be sunrise and there would be
sufficient light for
identification. The report was made at Police Station Kalu Khan, at
a distance
of a mile from the spot, at 7‑50 a.m. which shows that the report was
made
very promptly and without any delay, and, therefore, the question of
tutoring or
prompting the deceased to charge the accused on account of
suspicion would not arise.
From the police station he was taken to the Civil
Hospital Swabi, where his dying
declaration Exh. P. N. was recorded. This
statement is brief and in this he again says
that in the morning he was
urinating when the appellant, the two absconders and the
acquitted accused came
and he was fired at by the appellant and the two absconders. In
this dying
declaration, he once again charged the accused -appellant and the two
absconders for firing at him and the acquitted accused for his presence on the
spot.
Even at that late stage he did not name his brother Zakriya, Muhammad
Sher and
Amirzada P. Ws. as having witnessed the occurrence. This shows that he
was not
prepared to introduce false witnesses. The two dying declarations are
not contradictory
in any manner. Even the learned Additional Sessions Judge has
not disbelieved the
dying declarations so far Sharifullah is concerned, and in
para. 19 of his judgment
observed:-
 
"After admitting the dying declarations of
the deceased to be genuine and true, I have
to determine whether Sharifullah
accused has committed any offence and can be
equally res ponsible along with
his sons or not. No active role has been assigned to him
by the deceased. It is
alleged that he was present at the time of occurrence along with
his sons.
`Mere presence of a person at the time of commission of an offence by his
confederates
is not sufficient to bring his case within the ambit of section 34 of the
Code
unless community of design is proved against him . . . . . Sharifullah's
presence
has been admitted but no active role has been assigned to him.
Therefore, mere
presence of this accused does not bring his case within the
orbit of section 34.
Therefore, I hold that the prosecution has not proved any
conduct of Sharifullah
accused to bring his case under section 34, P. P. C.
Therefore, agreeing with the
unanimous verdict of the assessors, I hold
Sharifullah accused not guilty of any offence
and acquit him."
 
Here the trial Judge is distinguishing the case
of the acquitted accused on point of law
has not held the dying declaration to
be false. All that he stated was that yes,
Sharifullah was present, but he did
not actually participate, and, therefore, his case
does not come within the
ambit of section 34, P. P. C. When the trial Judge has
approached the case on
the point of law, his finding has no bearing, whatsoever, on the
point of
truthfulness of the dying declaration, who has charged the acquitted accused
for being present with his three sons for the simple reason that legal
interpretation of a
dying declaration has nothing to do with what the deceased
has said. Furthermore, if
the State did not appeal against the acquittal of
Sharifullah, it does not mean H that the
acquittal is correct, and this
acquittal does not show that the dying declaration is false.
 
15. In Moonda and others v. The State (P L D
1961 Lah. 333), while dealing with a
point that the Provincial Government had
not preferred an appeal against the acquittal
of some of the accused, Shabir
Ahmad, J. at page 340 para. 7 observed as under:-
"Before dealing with the merits of the
case, I will dispose of another point which Mr.
Salim touched upon during
arguments. I have mentioned already that though Sheikh
Muhammad Akbar had, by
his order dated the 8th of January 1957, acquitted nine of
the fifteen accused
tried by him, the Provincial Government presented an appeal
against only four
of them and allowed the acquittal of the other five to go
unchallenged. It was
urged by Mr. Saleem that the attitude of the Provincial
Government with regard
to the five of the nine acquitted accused cannot but be an
admission that there
was no case against the five against whom appeal under section
417 of the Code
of Criminal Procedure had not been presented and, therefore, the ten
appellants
could take benefit of the fact that the case against five of the accused
persons was believed by the Provincial Government to be false or if not false
at least of
doubtful nature. I am clearly of the view that this contention of
the learned counsel for
the appellant does not merit acceptance. The fact that
the Provincial Government did
not choose to file an appeal against the
acquittal of five of the nine accused acquitted
by Sheikh Muhammad Akbar cannot
stand on the same footing as a finding by a Court
of law that those five had
been falsely implicated. If the evidence of the prosecution
witnesses had been
held by a Court of law to be false against some of the accused
persons that
finding would, to a great extent have reflected on the weight attachable to
the
evidence of witnesses who had been proved to have implicated five innocent
persons, but the same result cannot follow because the Provincial Government
presented an appeal against only some of the acquitted accused."
 
16. The deceased had charged the acquitted
accused of having been present and
exhorting his sons to kill. In such cases
the Courts are inclined to hold that since he did
not take an active role he
cannot be convicted for constructive liability. His acquittal
does not amount
to a clear finding that the dying declaration is false and the fact that
the
Provincial Government did not appeal does not show that there was no case
against
the appellant.
 
17. The learned Assistant Advocate‑General
also relied upon Lalu v. The State (P L D
1959 S C (Pak.) 258). The facts of
that case briefly are that Lalu, Hakim Ali and Isso
were tried under section
302/34, P. P. C. Lalu and Hakim Ali were sentenced to death
and Isso to
transportation for life. On appeal, the High Court observed that the
evidence
required some corroboration before it could be accepted in order to uphold
the
conviction of the accused. This corroboration, according to the High Court, was
forthcoming only in case of one of the accused, namely, Lalu, whose appeal was
consequently dismissed, and the appeal, so far as it related to Hakim Ali and
Isso was
accepted and these two accused were acquitted. The State, however,
took an appeal, to
the Supreme Court from an order of acquittal in the case of
Hakim Ali only. The
appeal of Lalu was also before the Supreme Court. Their
Lordships, after re‑evaluating
the evidence and relying on the direct
evidence of eye‑witnesses rather than on the
evidence of recovery from
Lalu, dismissed Lalu's appeal, and, as the "direct evidence
of eye‑witnesses"
was equally incriminating so far as Hakim Ali was concerned, the
State appeal
was accepted and a sentence of death recorded against that accused.
 
From this authority it would appear that the
fact that not appeal was preferred by the
State against the acquittal of
Sharifullah does not show that the case against the other
accused was false.
The fact that four persons mentioned by the deceased as culprits in
his report
Exh. P. A. and the dying declaration Exh. P. N. will not suffice that the dying
declaration is false.
 
18. After careful consideration of the evidence
on the record, I have come to the
conclusion that the dying declaration of the
deceased is genuine and true and it does
not require any corroboration.
However, if any corroboration is needed at all, the
medical evidence showing
that the injuries found on the person of the deceased were
the result of three
shots, corroborates the dying declaration of the deceased, as he has
charged
the appellant and the two absconding accused for firing at him. The
abscondence
of the appellant after the occurrence and his remaining in abscondence for
about 71 months also supports the dying declaration of the deceased.
Corroboration
need not be of same probative force as in the case of an
accomplice and need not
necessarily be by oral testimony of another independent
witness. Corroboration may be
afforded by anything in the circumstances of a
case which tends sufficiently to satisfy
the mind of the Court. The occurrence
had taken place at about sunrise and the
deceased was in a position to identify
his assailants and he has consistently charged the
appellant and the absconding
accused for firing at him.
 
19. Maqbulur Rahman, A. S. I., had visited the
village on 21st December 1961 in the
evening in connection with the complaint
Exh. P. S. filed by the deceased in the Court
of the Ilaqa Magistrate and the
complaint Exh. P. S./1 filed by Halim Shah, but he did
not find the appellant,
the two absconding accused, the acquitted accused and Saidan
Shah who were
cited as respondents in the above‑mentioned complaint. The absence of
these persons from the village on 21st December 1961 does not mean that they
were
not present in the village on the day of occurrence.
 
20. The learned counsel for the appellant
lastly contended that the appellant was
entitled to acquittal, because when a
case of difference of opinion between a Division
Bench is referred to a third
Judge, he should agree with the finding of acquittal, if the
judgment is not
perverse. In support of his contention, he relied upon Khtri Bewa v.
The State
(A I R 1952 Orissa 37), where it was held that "the use of the words"
if any
(in section 429, Cr. P. C.) shows that the third Judge is not bound to
have a full hearing
and then to arrive at an independent opinion. The third
Judge can, unless on
scrutinising the materials on the record, the judgment of
the Judge pronouncing in
favour of the innocence of the accused is considered
far from reasonable or perverse,
give the benefit of reasonable doubt to the
accused and acquit him". This authority was
followed in a case reported in
Rajabali and another v. The Crown (P L D 1954 Sind
49), where at page 53 it was
held as under:-
 
"if an Hon'ble Judge of this Court takes a
view that the accused is entitled to the benefit
of doubt and that stand is
supported by the Public Prosecutor, I would not dissent from
it unless I come
to the conclusion that the judgment favouring acquittal of the accused
is
perverse. I have examined the record from the view point mentioned above and
notwith standing that there is an inaccuracy in recital of facts by Muhammad
Bakhsh, J
. I canny come to the conclusion that the judgment of Muhammad
Bakhsh, J., is
perverse."
 
21. With due respect I do not find myself in
agreement with the authorities cited above.
If it were the case that the third
Judge to whom the case is referred is to agree with the
finding favouring the
accused, then in that case there will be no necessity of referring a
case to a
third judge. The learned Assistant Advocate‑General relied upon section
378,
Cr. P. C., which is to the following effect:-
 
"When any such case is heard before a Bench
of Judges and such Judges are equally
divided to opinion, the case, with their
opinions thereon, shall be lard before another
Judge, and such Judge, after
such hearing as he thinks fit, shall deliver his opinion, and
the judgment or
order shall follow such opinion."
 
Section 429, Cr. P. C. also relied upon by the
learned Assistant Advocate‑General reads
as under:‑
 
"When the Judges composing the Court of
Appeal are equally divided in opinion, the
case, with their opinions thereon,
shall be laid before any other Judge of the same
Court, and such Judge, after
such bearing (if any) as he thinks fit, shall deliver his
opinion, and the
judgment or order shall follow such opinion."
 
22. The plain reading of these sections
shows that the, third Judge to whom the case is
referred need not agree with
the: finding of either of the two Judge, He is to give an
independent opinion
and then give his finding, Such judgment or order will follow his
opinion.
There is nowhere laid down in sections 378 and 429, of the Criminal
Procedure Code, that
the third Judge should follow or may follow The opinion of the
Judge who
has given his opinion favouring the
accused.
 
23. The learned Assistant Advocate‑General
relied upon Muhammadullah v. The State
(P L D 1963 Pesh. 161),Where Ortcheson, J.,
maintained the conviction and sentence
of the accused under section 302,
P. P. C. Muhammad Daud
Khan, J., however,
accepted the appeal and set aside the conviction and
sentence of the appellant. In view
of disagreement between the two learned Judges,
the case was referred to the third
Judge, Mr. Justice S. A. Haq, who by his
judgment reported in P L b 1963 Pesh. 77
(May edition) agreed with Ortcheson,
J., and thus the conviction of the appellant was
maintained. Similarly in a
case reported in Muhammad Khan and others v. The State (P
L D 1961 Lah. 936),
Muhammad Yaqub Ali, J., held that the dying declaration of the
deceased was
genuine while Ortcheson, J., dissented. On a difference of opinion the
case was
referred to Shabir Ahmad, J., who agreed with Muhammad Yaqub Ali, J.
24. In view of the above authorities relied
upon by the learned Assistant
Advocate‑General, the authorities cited by
the learned counsel for the appellant have
no bearing either in law or in
practice so far as the West Pakistan High Court is
concerned, because sections
378 and 429, Cr. P. C. do not support the stand taken by
the appellant's
counsel, and the judgments of the West Pakistan High Court reported in
P L D
1963 Pesh. 77 (May edition), P L D 1963 Pesh. 161 (August edition) and P L D
1961 Lah. 936 are against the proposition.
 
25. In view of the foregoing discussion, I am
of the opinion that the appellant has
rightly been convicted under section
302/34, P. P. C. and has already been awarded the
lesser penalty provided by
the law. I find no justification to interfere. The appeal is,
therefore,
dismissed.
 
K. B. A. Appeal
dismissed.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
;