P L D 1983 Supreme Court 70 (PLP)

ASLAM RIAZ HUSSAIN, ACTG. C. J.-This judgment will dispose of Criminal Appeal No. 3-P of 1978 filed by Allah Bakhsh against his conviction and sentence under section 302, P. P. C., and Criminal Petition No. 17-P of 1978, filed by Muhammad Ashiq against the acquittal of Elahi Bakhsh and Shah Nawaz co-accused of Allah Bakhsh, by the Peshawar High Court vide the impugned judgment dated 14-2-1978.

2. The occurrence in this case took place at about sunrise time on 15-11-1975 in the area of Village Rangpur Janoobi, P. S. Paroa, District D. I. Khan. The F.

1. R. was lodged by Sawan, one of the deceased, who was carried to the Police Station, Paroa while he was still alive. 1t was recorded by Sharifullah, S. H. O. (P. W. 16) at 2 p. m. After his death statement (Exh. P. A.) of Sawan was used as dying declaration. He has stated therein that on the morning of the incident he and Allah Ditta (deceased) were returning to their village from Village Rora. When they reached the land of Sona Khan and Haji Shah Nawaz, Allah Ditta (deceased) looked back and told Sawan that Allah Bakhsh, Elahi Bakhsh and Shah Nawaz, accused, were following them. Thereupon Sawan looked back and saw them, when Allah Bakhsh fired a shot with a topak which hit Sawan on the right side of his chest. On being hit Sawan fell down. His companion (Allah Ditta, deceased) rap to save himself but all the three assailants chased him. Allah Bakhsh fired another shot on which Allah Ditta (deceased) fell down. Thereafter he (Sawan) heard another shot but he could not say as to who had fired it. He also stated that Elahi Bakhsh co-accused was empty handed. After the incident all the three accused went away. He stated further that one Rab Nawaz, who was standing nearby, saw the occurrence and that some other people who were also present in the nearby land had also seen the occurrence. After the incident Kauro Khan, Hussain Bakhsh and some other persons including Ashiq (brother of Sawan deceased) turned up at the spot whom he told about the incident. .

3. The motive, as stated by Sawan the deceased-complainant, was that about 3/4 months earlier Allah Ditta (deceased) had abducted the sister of Elahi Bakhsh co-accused, who was returned to her family on the next day. It is because of this incident that the accused, having found an opportunity, murdered Allah Ditta and injured him (Sawan deceased).

4. After recording the above-mentioned F. I. R. the S. H. O. sent Sawan for treatment to the District Headquarter Hospital, D. I. Khan. while the S. H. O., himself proceeded to the spot, from where he recovered -two .12 bore empties, one .303 bore cartridge and 2 pieces of cardboard disks. However, no fire-arm weapon was recovered by him from the accused after their arrest. These recoveries therefore did not advance the prosecution case. It may be mentioned that Sawan who was still alive reached the District Headquarter Hospital, D.

1. Khan on the same day (i. e. 15-11-19'.'5), where Faizullah, A. S. I. got his dying declaration (Exh. P. B.) recorded. which was attested by, Dr. Adam Shah. In this statement Sawan stated that at about sunrise time on 15-11-1975 he and Allah Ditta (deceased) were returning from Village Rora when the three accused, namely, Allah Bakhsh, Elahi Bakhsh and Shah Nawaz caught up with them. Allah Bakhsh was armed with a .12 bore gun, Shah Nawaz had a pistol while Elahi Bakhsh was empty handed. Allah Bakhsh fired a gunshot hitting on the front side of his chest as a consequence of which he fell down. Shots were also fired at his companion Allah Ditta who died at the spot. He (Sawan) added that he had no personal enmity with the accused.

5. At the trial the prosecution relied mainly on the ocular testimony of Ramzan (P. W. 13), Khaliq Dad (P. W. 14) and Sooba (P. W. 15); the medical evidence and the evidence of motive as mentioned in the F.

1. R. Rab Nawaz the only witness named in the F. I. R. was not produced. The ac--used pleaded innocence but did not lead any evidence in defence.

6. The learned Sessions Judge, D.

1. Khan believed the prosecution evidence and convicted all the three accused under section 302, P. P. C., and sentenced each of them to imprisonment for life on two counts and a fine of Rs. 1,000 for each count and further R. 1. of 6 months in default of payment of fine. On appeal, however, the High Court acquitted Elahi Bakhsh and Shah Nawaz but dismissed the appeal of Allah Bakhsh. It not only maintained his conviction but accepting the Revision for enhancement of sentence filed by Muhammad Ashiq the brother of Sawan, also enhanced his sentence from imprisonment for life to death. Feeling aggrieved he has filed the present appeal as of right, while Muhammad Ashiq brother of Sawan (deceased) has filed a petition (Cr. P. No. 17-P of 1978) against the acquittal of the two co-.accused namely Elahi Bakhsh and Shah Nawaz.

7. The learned counsel for the appellant pointed out that the High Court had disbelieved all the three eye-witnesses and had relied only on the two dying declarations to maintain the conviction of the appellant but it acquitted Elahi Bakhsh and Shah Nawaz who were also mentioned as the accused by Sawan (deceased) in the same dying declarations. He contended firstly that the two dying declarations had been fabricated by the police. He submitted further that it was not open to the High Court to sift the dying declarations, believing a part thereof while disbelieving the rest. He later agreed that the High Court could, indeed, sift the dying declarations but argue that it could not rely on it against Allah Bakhsh alone unless independent evidence was available on the record to corroborate the dying declarations qua by him. He also submitted that there was material difference in the versions given in the two dying declarations.

8. We have carefully studied the two dying declarations and read the relevant portions of the impugned judgment of the High Court and in the light of the above-noted arguments advanced by the learned counsel, but cannot bring ourselves to agree with him. It may be mentioned !hat Sawan' (deceased) lived for about 20 days after receiving the injury. Apparently he had not been critically injured and was not only alive but was also in a fit condition to make a statement (Exh. P. A.) when he was taken to the Police Station. The second dying declaration recorded at the District Headquarter Hospital, D. I. Khan was even attested by the doctor, whose signature was got proved through another doctor of the said hospital who was familiar with the same. We are of the view that the two dying declarations give substantially the same version, except that the first dying declaration is more detailed and the differences between them pointed out by the learned defence counsel are not material. The fact that the solitary gunsho injury on Sawan (deceased) was on the front side of his chest merely show that he had turned towards the assailants when his companion, Allah Ditta (deceased) told him that they were; being followed by the accused persons. The fact that the aforementioned injury was charred shows that he had been fired at from very close quarries. Since it was a day-time occurrence it is obvious that Sawan must have seen and identified as to who shot at him. It is not alleged that be had any previous enmity with Allah Baksh appellant which would have induced him to substitute him (Allah Bakhsh appellant) for the real assailant. He had attributed firing, by name,? Allah Bakhsh alone, and about the other shots heard by him he has clear stated that he could not say as to who had fired the same. In this view o the matter, once the High Court relied upon the two dying declarations a being true, the conclusion that these brought home the guilt to Allah Bakhsh alone, is quite justified, because even if Elahi Bakhsh and Shah Nawaz wet with him it cannot be said with certainty that they too shared the intention of murder with Allah Bakhsh.

9. The learned counsel then submitted that the facts of the case call, for a lesser sentence inasmuch as that the appellant had shot at Allabi Ditta (deceased) in vindication of his family honour, the former having abducted a girl of his family. We, therefore, partly accept the appeal anal while maintaining his conviction tinder section 302, P.P.C. reduce his sentence from death to imprisonment for life.

10. As for Cr. P. No. 17-P of 1978, against the acquittal of Elahi Bakhsh and Shah Nawaz co-accused of the appellant, we have already observed that from the evidence on the record it could not be said that the charge had been brought home against them beyond reasonable doubt. This petition is consequently dismissed. S. A. H.?????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.