1969 PLP 85 (SCMR)

Date of hearing : 1st November 1968. ABDUS SATTAR, J.‑The appellants were convicted by the Additional Sessions Judge, Mardan, under section 302/34, P. P. C. and while Usman Shah and Mir Hassan were sentenced to death, Nadir Shah was sentenced to transportation for life for the murder of Dilawar at 9‑00 a.m. on the 9th December 1965. The convictions and sentences were affirmed by a Division Bench of the High Court of West Pakistan at Peshawar. The First Information Report was lodged by the deceased himself on the day of occurrence at 11‑15 a.m. This was recorded at the police station by M. H. C. Saifoor (P. W. 4). The prosecution case is that on the day of occurrence at 9‑00 a.m. the deceased accompanied by his younger brother Mir Hawas (P. W. 7) was going to his village. Mir Hawas was going a few paces ahead of the deceased. When they reached Wand Shamilat, the appellants appeared armed with topaks. They allowed Mir Hawas to proceed but as soon as deceased came near them all the three appellants fired one shot each at him hitting him in front on the chest, on both the arms and on the right side of ribs. The victim fell down. The injured was placed on a cot and taken to the police station. After the F. I. R. was recorded the injured was being taken to the hospital but died enroute. The motive for the offence alleged was that dispute was going on between the parties over the possession of some lands and that while the appellants continued in possession the deceased wanted the possession to be handed over to him on the plea that the said lands belonged to him. The convictions of the appellants are based mainly on the First Information Report which was treated as Dying Declaration and the evidence of Mir Hawas. Leave to appeal was granted to consider whether it was safe to rely on the Dying Declaration which was recorded at the police station and the interested statement of P. W. Mir Hawas, the brother of the deceased in the circumstances of this case as totally free from a taint of false implication of any of the three appellants. P. W. 4, M. H. Saifoor stated that many people had conic along with the deceased to the police station. Mir Hawas also was there. It is, therefore, to be considered how far it will be safe to place reliance on the dying declaration of the deceased particularly when it is supported only by the evidence of P. V"'. Mir Hawas who is a highly interested witness The presence of this witness at the time of the occurrence, moreover, appears to be doubtful. He has stated that he was ahead of his deceased brother driving the bullocks and his deceased brother was follow ing him at a distance of about 10 or 12 paces. The accused Usman Shah, Nadir Shah and Mir Hassan were sitting in the way armed with topaks towards‑the west. He passed the accused and when his brother came near them he turned back and saw all the three accused firing simultaneously one shot each at the deceased Dilawar hitting him. He rushed towards his brother and asked him about his condition. He replied that he was well but a charpai should be arranged for him. He then left for his village and on the way met Baghi Shah, Temrez, Bahadur Khan and Dayar Khan who were appraised of the occurrence. When he came back with these persons and a cot his brother was lying in injured condition who was then placed on the cot. If the accused had a grievance against the deceased it equally applied to this witness. In such circumstances they would not have left him alone and concentrated their attack on the deceased only. We are also unable to accept the story of this witness that he had left his injured brother at a lonely place and went to the village to bring a cot. P. W. 6 Ghulam Khan has stated that the place of occurrence is at a distance of one mile from the village. People were running from the village towards the scene of occurrence. Baghi Shah and Mir Hawas were also amongst them. The witness then adds that on his inquiry Mir Hawas told him that Usman Shah, Nadir Shah and Mir Hassan had shot at Dilawar. Mir Hawas, however, in his cross‑examination, disclaimed to have made any such statement to Ghulam Khan. After the close of the evidence the Public Prosecutor made a statement abandoning Bhadur Khan, Temrez and Baghi Shah as they were not mentioned in the First Information Report and were unnecessary. We have already noticed that at the time of making the dying declaration a number of persons who had accompanied the deceased were present including his brother Mir Hawas. It is therefore not unlikely that a prepared statement was put in the mouth of the deponent. Both the deceased and Mir Hawas claimed that the three appellants fired one shot each. It is highly improbable that none of them fired a second shot. On the evidence it cannot be said that the possibility of implicating one or two persons having other than the real culprit or culprits has been excluded. The result of this discussion is that in our view the appellants are entitled, to the benefit of doubt. The appeal therefore is allowed. The convictions and sentences of appellants are set aside and they are acquitted of the charge. They will now be set at liberty if not required in any other connection. Appeal accepted.