P L D 1959 (W (PLP)

HABIBULLAH KHAN, J.‑On the 26th July 1956, at about 10 a.m. one Usman alias Manai of Sarband was shot dead allegedly by his co‑villagers Masal and Gul Khan '6 brothers in the village. In revenge, it is said, Khanzali and Arsallah brothers and their first cousin Abdul Majid shot dead two brothers Nur Ahmad and Amirzada in front of the serai of one Chiragh the same day at about 10‑45 a.m. The three persons were tried in the Court of Muhammad Daud Khan, Sessions Judge, Peshawar, who acquitted Abdul Majid and Arsallah, but convicted Khanzali for the murder of Nur Ahmad only under section 302, P. P. C. and awarded him transportation for life. He further held him guilty of an offence under section 19, Arms Act and sentenced him to one year's R. I. The two sentences were directed to run concurrently. A revision petition has been filed by Nisar Muhammad son of Nur Ahmad deceased, and in consequence notice has been issued to Khanzali to show cause, as to why his punishment should not be enhanced to death sentence. Usman alias Manai, the murdered man in the connected case, was a brother of Abdul Majid, the acquitted accused, and a first cousin of Khanzali the respondent, while Masai and Gut Khan charged for his murder are the sons of the maternal uncle of Nur Ahmad and Amirzada deceased. In that case Masai was acquitted, while Gut Khan was convicted for the murder of Usman and was sentenced to transportation for life. According to the prosecution story, after the murder of Usman by Masai and Gut Khan, the two brothers Nur Ahmad and Amirzada were returning home from their field, when they were confronted by Khanzali, Abdul Majid and Arsallah near the serai of Chiragh. Khanzali fired a shot at Nur Ahmad who was hit and fell dowh inside the serai. Abdul Majid went near him and fired a second shot at him. He was hit with this shot also. Arsallah fired at Amirzada who got wounded and fell down. When the villagers arrived at the spot, they found Nur Ahmad dead and Amirzada lying wounded. Amirzada was carried to Police Station Tehkal, where he made a report at I1‑20 a.m. giving the story outlined above. He was removed to the Lady Reading Hospital, where again his dying declaration was recorded by a male nurse. He had not yet completed his statement, when he expired. When the Investigating Officer reached the spot, he found the dead body of Nur Ahmad lying on a cot in front of the serai of Chiragh, Khanzali, Abdul Majid and Arsallah were found absent. Acting on information furnished by a resident of the village the Investigating Officer raided the house of one Gut Aman butcher, where Khanzali was hiding. He had a '303 magazine rifle with him. He was disarmed and taken into custody. Abdul Majid and Arsallah were arrested later one after another. 1n their statements in the trial Court, Khanzali, Abdul Majid and Arsallah pleaded innocent, and asserted that they .had been falsely involved in the case. The main evidence on which the prosecution relied in the trial Court consisted of the statement of Murad Ali (P. W. 9) an alleged eye‑witness, the two dying declarations, one made by Nur Ahmad in the, police station, and the other, incomplete, recorded by a male nurse, and the circumstance of the arrest of Khanzali, with a rifle, from the house of Gut Aman butcher. Two persons, namely, Zamir Gut and Lai Badin were mentioned by Amirzada deceased in the F. I. R. as eye‑witnesses, but they denied having seen the occurrence in their evidence at the trial. Murad Ali (P.. W. 9) was disbelieved by the learned trial Judge for cogent reasons. He was not mentioned in the F. I. R. at all. He made statement to policy for the first time three days after the occurrence. He is a deadly enemy of Khanzali in that the latter had given evidence against his son charged with murder only four days before the present occurrence. The learned Assistant Advocate‑General also concedes that Murad Ali is not a reliable witness. As to the dying statements, the learned Sessions Judge was of the view that since Arsallah alone was charged with having fired at and killed Amirzada deceased, the latter's dying statement was inadmissible and irrelevant in so far as it related to the murder of Nur Ahmad deceased by Khanzali. He, however, admitted in evidence the statement of one Wazir (not produced as a witness in the case) recorded under section 164, Cr. P. C. and considering it corroborated by the circumstance of Khanzali's arrest immediately after the occurrence, regarded the same as sufficient for his conviction. Pir Masoom Shah appearing for Khanzali, contends that the statement of Wazir under section 146, Cr. P. C. has been wrongly treated as evidence in the case, and if this statement is excluded, the dying declarations having been already held inad missible in evidence, the circumstantial evidence alone was not sufficient to substantiate the charge against his client, and that therefore, he was entitled to acquittal. We are constrained to observe with some regret that the learned Sessions Judge did not care to read the relevant provisions of the Law of Evidence as contained in section 33 to find out that the statement of a person recorded under section 164, Cr. P. C. is no evidence against an accused person. He was certainly wrong to think that it became admissible simply because the defence counsel had put a question to the Investigating Office during his cross‑examination in respect of this statement. The law on the point is so clear and well‑settled that it hardly requires any discussion to convince the learned Sessions Judge that the statement of Wazir under section 164, Cr. P. C. was absolutely inadmissible in evidence and should not have been even looked at. The learned Sessions Judge was also wrong to hold that since Khanzali had fired no shot at Amirzada the latter's dying declaration in respect of the murder of his brother Nur Ahmad allegedly by Khanzali was inadmissible in evidence. A bare reference to section 32 clause (1) of the Evidence Act would have made it perfectly clear that in the circumstances of the case the dying declaration of Amirzada in respect of the murder of his brother Nur Ahmad at the hand of Khanzali was relevant and admissible in evidence. Section 32 says :‑ "Statements, written or verbal, of relevant facts made by a person who is dead . . . . . . are themselves relevant facts in the following cases :‑ (1) 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". It will be recalled that according to the prosecution story, Khanzali, Abdul Majid and Arsallah launched a joint and simultaneous attack on the two brothers Nur Ahmad and Amirzada, and while Arsallah fired at Amirzada, Khanzali and Abdul Majid shot at and killed Nur Ahmad, at one and the same place and time. It does not require great efforts of imagination to comprehend the proximate and close relation between the murder of Amirzada and that of Nur Ahmad resulting from the same transaction. The dying statement of Amirzada to the effect that his brother Nur Ahmad was shot dead by Khanzali and Abdul Majid, constituted one of the circumstances of the transaction which resulted in his death, and since the cause of his death had come into question, in the case, the statement was, for that reason relevant. In Miao Khan v. The Crown (P L D 1954 Lah. 646) two sisters were attacked in the course of the same transaction. One died on the spot and the other succumbed to her injuries after some time. The latter's dying statement was held to be relevant in respect of the murder of the other. Dealing with the matter, His Lordship Mr. Justice Shabir Ahmad who delivered the main judgment, observed :‑ "I cannot think of any valid reason why the attack on Mst. Fatima should not be held to be one of the circumstances of the transaction which resulted in the death of Mst. Sardaran, and I would therefore hold that the statement of Mst. Sardaran was relevant even with regard to the attack on Mst. Fatima and the trial Judge committed an error in holding to the contrary". Fully agreeing with His Lordship's view in the case cited above, we feel no hesitation in holding that in the case before us the learned Sessions Judge committed a serious error in rejecting the dying declaration of Amirzada deceased as irrelevant in so far as it related to the death of Nur Ahmad. It is contended by Pir Masoom Shah that since the dying declaration has been disbelieved in respect of Abdul Majid and Aisallah who have been acquitted, it cannot be safely relied upon for the conviction of Khanzali respondent. There would have been some force in the argument, if there had been no other evidence against Khanzali apart from the dying declaration. We, however, find sufficient circumstantial evidence to corroborate the dying declaration. It is important to point out here that Nur Ahmad and Amirzada both were fired at from a very close range, because the Doctor who performed post‑mortem examination on their bodies found charring marks around the entrance wounds. It is, therefore, futile to argue that Amirzada was unable to identify the assailants. When the Investigating Officer reached' the village, he made a search for Khanzali and his companions. On receiving information that Khanzali was hiding in the house of Gul Aman butcher, he immediately went there and searched the house. Khanzali was found with a rifle in his hand. He had also some ammunition with him. When the rifle was examined, it was found to contain 6 live cartridges in its charger and one live round in its chamber. The barrel of the rifle smelt of freshly discharged gunpowder. The house in which he was found adjoins the semi of Chiragh where Nur Ahmad and Amirzada were attacked. The evidence of the Investigating Officer is fully corroborated by Abdul Wahab (P. W. 14) and Gul Akbar (P. W. 15) both of whom are absolutely disinterested and impartial persons, and Pir Masoom Shah has not been able to convince us, as to why this evidence should not be believed. When this circumstantial evidence is considered conjointly with the dying declaration of Amirzada and the motive for the double murder, no room for doubt is left in our mind that Khanzali fired at Nur Ahmad, as a result of which he died, and therefore, he is guilty of his murder under section 302, P. P. C. This brings us to the question of sentence. Considering this case, the learned trial Judge observed :‑ "The question of sentence in this case, is not difficult to decide. Khanzali accused, no doubt, has committed cold‑blooded and brutal murder, but he has done so, under a provocation. as about 45 minutes previous. to this occurrence, Usman his first cousin was murdered by the relatives of the deceased, and he had committed the present murder under that provocation. No doubt, this provocation was not sudden, as about 45 minutes or more had passed, and the accused' had ample time to cool down, biz; this provocation can well serve as extenuation entitling Khanzali accused to the lesser penalty provided for the, offence of murder I consequently sentence Khanzali accused to transportation for life under section 302, P. P. C. and to one year's R. I. under section 19, Arms Act, with the direction that both the sentences to run concurrently". If provocation were the only ground for the imposition of the lesser penalty perhaps we would not have hesitated to enhance. it, for the appellant killed an innocent person. But there is also another ground which has escaped the notice of the trial Judge. Doctor Samiullah Radiologist was produced by the prosecution to prove the respective ages of the three accused persons. He had examined them with the help of X‑Ray. According to him, Khanzali was over 18 years. The Doctor made this statement in Court after about a year of the occurrence. The age of Khanzali, therefore, at the time of occurrence would be little over 17 years. When he take into consideration his age along with the compelling motive for the offence, we feel some hesitation in awarding the death penalty. The petitioner's counsel has not made out a strong case for the enhancement of the punishment. Consequently for the reason given above, while the convictions and sentences under sections 302, P. P. C. and 19, Arms of Act are maintained, the revision petition is dismissed. K. B. A. Petition dismissed.