P L D 1961 (W (PLP)

ORTCHESON, J.‑

Muhammad Khan, aged 45 years, Sharif, aged 28 years, Nishan Ali, aged 50 years, Kafayat Ali, aged 55 years, Karam Ali, aged 60 years, Samundar Khan, aged 30 years, Muhammad Afsar, aged 26 years, Muhammad Fazil, aged 22 years, and Gulzar, aged 55 years, have been convicted and sentenced by the learned Sessions Judge, Jhelum, by order dated the 1st of February 1961 as under :‑ (i) Muhammad Khan under section 302/149, P. P. C. to death f or the murder of Zaman Khan and to transportation for life for the murder of Ghulam Muhammad; (ii) Muhammad Sharif under section 302/149, P. P. C. to death for the murder of Ghulam Muhammad and to transportation for life for the murder of Zaman Khan; (iii) the remaining seven appellants under section 302/149, P. P. C. to transportation for life each on two counts for the murders of Zaman Khan and Ghulam Muhammad; (iv) all nine appellants to eight years' rigorous imprisonment each under section 307/149 P. P. C. for the attempted murders of Khuda Baksh, Saif Ali, Muhammad Azam and Faiz Ali P. Ws. ; and (v) all nine appellants under section 148, P: P. C. to three years rigorous imprisonment each. In the case of the seven appellants sentenced to transportation for life under section 302/ 149, P. P. C. the sentences for all the offences of which they have been found guilty were ordered to run concur rently, while the same order was passed with respect to Muhammad Khan and Muhammad Sharif if the sentences of death should not be confirmed by this Court.

2. Seven other persons were jointly tried with the appellants but were given the benefit of the doubt by the learned Sessions Judge and acquitted. One Resham, who is also alleged to have taken part in the occurrence, is or was absconding.

3. The convicts have appealed and the case is also before us under section 374, Cr. P. C. for confirmation of the sentences of death passed on Muhammad Khan and Muhammad Sharif. This order will dispose of both the appeal and the reference:

4. All the appellants, who are residents of village Chhoi Jandran, Tehsil Pind Dadan Khan, are inter‑related as are the principal eye‑witnesses with the exception of Khuda Baksh (P. W. 24). Zaman Khan deceased was also related to these witnesses, who are themselves related to the appellants. The long and somewhat complicated relationships are given in detail in the judgment of the learned Sessions Judge and need not be here repeated.

5. Ghulam Muhammad deceased, Khuda Bakhsh P. W. and one Buta, who reside in other villages, were on friendly terms with Feroze Khan (P. W. 19) and on the 18th of February 1960 paid him a visit. The following day, at about digarwela Feroze Khan, Ghulam Muhammad, Buta and Muhammad Azam (P. W. 21) were sitting at the house of one Muhammad Afzal when they heard some person shouting." On climbing on to the roof of Muhammad Afzal's cattle‑shed, where they found Zaman Khan deceased and Saif Ali (P. W. 22) already present, they saw the appellants and their eight companions at a distance of about 35 yards in an open field near the house of one Alam Sher. Resham was carrying a pistol in his hand and had a jhola hanging from his shoulder. Samundar Khan, Karam Ali and Muhammad Afsar were armed with pistols, while Samundar Khan and Karam Ali were in addition carrying hand‑grenades. Sharif; Gulzar and Muhammad Khan had rifles, Kafayat Ali a Sten gun, Banaras a hand‑grenade and the others hatchets. All seventeen climbed on to the roof of Alain Sher's house and from there passed to that of Gulsher (P. W. 23), a brother of Alain Sher. The two deceased and their companions tried to escape on to the roof of the kotha of Ahmad Khan (P. W. 14) between which and Muhammad Afzal's cattle‑shed is a small kotha belonging to one Farman Ali, Faiz Ali (P. W. 20), who had been sitting in his sister's house near that of Muhammad Afzal, joined the others on the roof of Ahmad Khan's kotha. On seeing them, Resham absconder threw a hand‑grenade in their direction, but it luckily only hit the parapet wall of the kolha and dropped into Farman Ali's courtyard. Those of assailants who were carrying rifles and pistols then opened fire. Khuda Bakhsh P. W., who is the brother of one Nadir and had been sitting in the latter's kotha, climbed on to the roof on hearing the firing and was hit. Although he himself does not name his assailant, the shot is alleged to have been fired by Gulzar appellant. The shots fired by Sharif, Muhammad Khan and Samundar Khan and a second shot fired by Gulzartit Ghulam Muhammad deceased, Zaman Khan deceased, Muhammad Azam P. W. and Saif Ali P. W., respectively.

6. Ghulam Muhammad deceased was carried by Faiz Ali P. W. to Feroze Khan's kotha. Feroze Khan himself running into the courtyard of Muzafar Khan (P. W. 26). Saif Ali had become unconscious on being hit and remained lying on the roof of Ahmad Khan's kotha. From Muzaffar Khan's courtyard, Feroze Khan saw Sawar, Fazil, Riasat and Mahra accused dig a hole in the roof of his kotha, through which Resham and Karam Ali threw hand‑grenades into the room. He himself managed to escape and to reach Police Station Kallar Kahar, at a distance of eight miles from Chhoi Jandran, where, he lodged the first information report Exh. P. A. at 11 p. m.

7. After recording the report, Raja Amir Muhammad S.H.O. (P. W. 28) went to the spot, where he found the dead bob; of Ghulam Muhammad lying on a charpoy in Feroze Khan's kotha. Three pieces of hand‑grenade and a spring Exh. P. 8 were recovered from the charpoy. Zaman Khan, who was then still alive, Muhammad Azam, Saif Ali, Faiz Ali and Khuda Bakhsh were sent for medical examination to Chakwal. Thirty‑two pieces of shrapnel, a lever and the base‑plug of a hand‑grenade (Exh. P.9) were recovered from Farman Ali's courtyard.

8. A number of the accused were arrested on the 29th of February and in the course of interrogation on the 16th of March, Karam Ali, Gulzar, Muhammad Afsar Kafayat Ali and Muhammad Khan led a party including the Sub‑Inspector to their respective houses. From that of Karam Ali were recovered a hand‑grenade and a fuse (Exhs. P. 20); from that of Gulzar a rifle, three misfired and two live cartridges (Exh. P. 21) ; from that of Muhammad' Afsar a pistol (Exh. P. 22), a live bullet and three misfired cartridges (Exhs. P. 23 to 25), from that of Kafayat Ali a sten‑gun (Exh. P. 26) and six bullets (Exhs. P. 27 to P. 32) and from that of Muhammad Khan a licensed shot‑gun (Exh. P. 33) and a license (Exh. P. 34). Muhammad Sharif led the ‑ party to the house of his maternal uncle, Sher Mulk, from which he produced the rifle Exh. P. 35, four empties, two misfired and one live cartridge (Exhs. P. 36 to P. 42).

9. From inside the room into which the hand‑grenades are stated to have been thrown, the investigating, officer recovered four metal utensils Exhs. P. 3 to P. 6, one of which was riddled with holes, while the others had also been pierced by fragments of metal. Some pieces of hand‑grenade were also found sticking in the charpoy and shrapnel marks were seen on the walls.

10. On his admission to hospital the statement of Zaman Khan (Exh. P. V.) was recorded by Malik Abdul Ghafur, Naib Tehsildar (P. W. 11). In this document Zaman Khan ascribes the injury found on him to Muhammad Khan appellant.

11. It maybe mentioned here that Malik Abdul Ghafur also recorded the statements of Khuda Bakhsh and Saif Ali P. Ws. (Exhs. P. X. and P. Y.) respectively, presumably as dying declarations.

12. The post‑mortem examinations of the bodies of the deceased were carried out by Dr. Akhtar Alim (P. W. 1). Ghulam Muhammad had the following injuries‑:‑ (1) A firearm wound " x " x 3", on the left cheek, " in front of the left ear with inverted margins, with fracture of the niandible and an iron piece was recovered from the wound. (2) (a) A firearm wound, " x 1/3" and entering the chest with inverted margins, on the front of left chest " above the middle of left clavicle. (b) A firearm exit wound, 1 " x 1", with everted margins on the back of left chest, 3" below the top of left shoulder and 5" to the left of vertebral column with piercing of the upper part of left scapula. On dissection first and second ribs on left side were found fractured at their back. Plesura was pierced on left side and thoracic cavity was full with blood. The apex of the left lung was found pierced and the left sub- clavian artery was found pierced. The rest of the organs were found healthy. Stomach was found empty and the small intestines contained digested food. Death was due to shock and haemorrhage from the cutting of the sub‑clavian artery. The piece of metal referred to under injury No. 1 was later found by the expert to be a remnant of an exploded hand‑grenade (vide letter Exh: P. V. V.).

13. Zaman Khan had two firearm wounds, one of entry, 1/5" x 1/5", on the opigastric region and the other of exit, " x 1/3", on the left side of the chest. The peritoneum and the liver had been pierced, the injury being sufficient in the ordinary course of nature to cause death.

14. The same doctor examined Khuda Bakhsh, Saif Ali, Muhammad Azam and Faiz Ali P. Ws. Khuda Bakhsh had two firearm wounds, the first, " x 1/3", with inverted edges, on the front and inner aspect of the right thigh, and the other, 5 " x 2 ", with everted edges, on the back of the left thigh. This injury is described by the doctor as the exit wound corresponding to the first, grid muscles and other tissues ‑of the thigh were protruding. Saif Ali bad two firearm wounds, 1/3" x 1/3" and 3/4" x ", on the font of the right side of the chest and the back of the left side of the chest respectively, and a lacerated wound, " x 1/3', skin deep, op the left angle of the mouth. Muhammad Azam had three firearm wounds, " x ", " x 1/3", and 1 " x 1", on the anterior of the left axilla, the medial border of the left axilla and the back of the left side of the chest respectively. Faiz Ali had a wound, 1/8" x 1/8" x ", on the inner aspect of the right thigh. All the above injuries, are described by the doctor as simple.

15. The motive alleged by the prosecution for the murders‑is that some 8 or 9 years previously Feroze P. W. had thrown hand grenades at Resham absconder. He, Azam and Saif Ali P. Ws. and several others were tried for that offence but Feroze was acquitted Further, nine months before the present occurrence, Resham absconder, Karam Ali, Samundar and Gulzar appellants, and two others gave a beating to Feroze and broke his leg. As a result of the ensuing trial, Samundar and one other of the accused were acquitted, the rest being convictcd and fined.

16. The appellants and their co‑accused pleaded not guilty and ascribed the case to enmity. They led no evidence in defence.

17. In his judgment the learned Sessions Judge held that with the exception of Khuda Bakhsh, who, as already stated, did not name any of the offenders, the prosecution witnesses were not only inter‑related but inimical to the appellants and that consequently no reliance could be placed on their testimony unless it was corroborated by independent evidence. That corroboration was, in the opinion of the learned Sessions Judge, supplied by the medical evidence and by what he somewhat vaguely refers to as "the circumstantial evidence on the record'‑". It appears, however, that his conviction of the nine appellants is largely based on Zaman Khan's dying declaration (Exh. P.V.). After giving an English translation of the dying declaration, which runs as follows :‑ "Yesterday, at digarwela, Resham son of Muhammad Ali, Nishan Khan son of Muhammad Ali, Kafayat Ali son of Muhammad Ali, Karam Ali son of Nawab Ali, sharif son of Nawab Ali; Samundar Khan son of Shahwali, Muhammad Khan son of Sattara, Muhammad Afsar son of Shahwali and Muhammad Fazil son of Saparas and others attacked the house of my son‑in‑law, Muhammad Afzal. I ran and climbed on to the roof of the kotha. Muhammad Khan son of Sattara fired a shot, which hit me in my stomach. Saarif son of Nawab Ali also fired a shot which hit Ghulam Muhammad and thus murdered him. The shot fired by Gulzar Khan hit Saif Ali. Muhammad Azam was hit by a shot fired by Samundar Khan. The women (sic) took me in an injured condition to my house. Before this, these accused had broken the leg of Feroze Khan. That incident was the cause of enmity for the accused." The learned Sessions Judge remarks: "From the above, it is clear that Zaman Khan deceased has named only 10 persons including Resham absconder. In other words, he has only men tioned the names of nine accused persons (the names are then given). Out of them, he has implicated Muhammad Khan, Sharif, Gulzar and Samundar as having actually fired the shots, which caused injuries. He, however, did not describe as, to how and by whom Khuda Baksh P. W. was hit. It is quite understandable for him to have missed this part of the occurrence when so many shots were fired and that Khuda Bakhsh P. W., who was not standing on the same roof with him, was standing on another roof away from him, when he was hit. Therefore it can be safely assumed that at least the afore‑mentioned nine accused took part in the occurrence and I hold accordingly."

18. The view of the learned Sessions Judge that taking into account the fact that with the exception of Khuda Bakhsh, who has not helped the prosecution so far as the identity of the assailants is concerned, all the eye‑witnesses are not only inter related but inimical to the appellants, reliable corroboration of their evidence is necessary, is undoubtedly correct, but it remains to be seen whether such corroboration can be held to be provided by Zaman Khan's dying declaration. It is true that there is no, rule of law that corroboration of a dying declaration is required, and that the facts of each particular case must be taken into consideration, but the following observations of the learned Judges in Khurshid Hussain Salihon Shah v. Emperor (A I R 1941 Lah. 368) are very relevant: ‑ "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 A. S. 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."

19. Again, reference may also with advantage be made to the following remarks in Khushal Rao v. State of Bombay (P L D 1958 S C (Ind.) 203):

"It may also be shown by evidence that‑ a dying declaration is not reliable because it was not made at' the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was ebbing away."

20. The observations made in the above two authorities apply with full force to the circumstances of the present case. Zaman Khan deceased was himself related to the eye‑witnesses and inimical to the appellants, and the number of persons named in the dying declaration is no fewer than ten. The dying declaration was also not recorded at the earliest opportunity. Although the occurrence took place at digarwela on the 19th of February, Zaman Khan was not medically examined at the hospital till 3‑10 p.m. on the following day. Malik Abdul Ghafur who recorded the dying declaration, received the doctor's Exh. P. T. f at 3‑45 p.m. and reached the hospital at about 4 p.m.

21. Another very significant fact is that, as shown by the ruqqa Exh. P. Q. Q. sent by the doctor to the Station House Officer, Chakwal, Zaman Khan died very shortly after his statement Exh. P. V. was recorded. The relevant portion of the ruqqa, which is dated the 20th of February, runs: "Zaman Khan son of Muhammad, a medico‑legal case, ha expired today at 5-40 p.m." At the time the dying declaration was recorded, therefore, Zama Khan was almost at his last gasp. Moreover, the post-mortem examination shows that both the peritoneum and the liver had been injured. Zaman Khan must accordingly have been in considerable pain while his statement was being recorded.

22. The record further shows that there was full., oppor tunity for Zaman Khan's relatives to tutor him regarding the identity of the assailants. Malik Abdul Ghafur has stated that when he reached the hospital seven or eight persons were present near the beds of Khuda Bakhsh. Saif Ali and Zaman Khan, and it is reasonable to suppose that these persons included or consisted entirely of their relations.

23. Finally, it cannot be overlooked that in the circums tances described by prosecution it is highly unlikely that Zaman Khan and the eye‑witnesses could have accurately observed the details of the injuries inflicted by the individual assailants. Including Resham Khan absconder the party of the appellants consisted of no fewer than seventeen persons, and brought Faiz Ali, Muhammad Azam and Saif Ali contend that the various shots were fired at separate intervals, they are contradicted by Feroze Khan, who states :‑ "The first person to launch the attack was Resham absconder, who threw his hand‑grenade at us, but it hit the parapet wall of the kotha of Ahmad Khan on the court‑yard of Farman Khan. After that all the accused started firing at us." Muzaffar's statement on the point is as follows :‑ "Gulzar accused then fired a shot with his rifle which hit Khuda Bakhsh P. W., who at that time was standing on the roof of the kotha of his brother Nadir. After that the rest of the accused started faring at the P. Ws. and the deceased." In my opinion Feroze Khan's version is the most probable.

24. Mr. Islam‑ul‑Haq for the State contended that the fact that in his dying declaration Zaman Khan named only ten persons out of the seventeen alleged by the prosecution to have taken part in the occurrence is proof of his truthfulness, but this argument is by no means conclusive. As I have already pointed out, Zaman Khan was very near to death and in great pain when his statement was recorded, and his omission of the names of seven of the alleged assailants may be due to failing memory or inability to concen trate. In this connection it is to be noted that after giving the names of the nine appellants and of Resham Khan, Zaman Khan added the word "etc.", which shows that he was not confining the number of the assailants to ten only.

25. Taking all the above circumstances into consideration, I am constrained to hold that the dying declaration of Zaman Khan itself requires corroboration and consequently cannot safely be used to corroborate the statements of the eye‑witnesses.

26. As none of the weapons recovered from the various accused has been linked with the offence, the learned Sessions Judge was right in disregarding the recoveries. It is true the sten‑gun Exh. P. 26 alleged to have been produced by Kafayat Ali appellant is an unusual type of weapon, its recovery thus appearing at first sight to provide some corroboration of the witnesses story, but the possibility that the witnesses were previously aware that Kafayat Ali possessed such a gun cannot be entirely ignored.

27. As no other corroboration of the statements of the eye witnesses is forthcoming, I have no option but to hold, agreeing with the opinion of the assessors at the trial, that the identity of the assailants has not been satisfactorily established, I would accordingly accept the appeal, set aside the convictions and sentences of the appellants, and acquit them. MUHAMMAD YAQUB ALI, J.‑

I have carefully read the judgment proposed to be delivered *by my learned brother Mr. Ortcheson in this case and for the reason to be mentioned here after regret my inability to concur with it.

2. The occurrence took place on the 19th of February 1960, at digarwela i.e., between 4 and 5 p.m., in village Chhoi Jandran, at a distance of eight miles from Police Station Kallar Kahar, District Jhelum, the entire track being hilly. It took Raja Amir Muhammad Khan, Station House Officer (P. W. 28), who undertook investigation in the case, four hours to cover this distance. Question is whether the report lodged between 10‑30 and 11 p.m. was belated. The manner in which the accused mounted the attack on their unfortunate victims shows that it lasted for .a considerable time As brought out in evidence the victims were first chased from the house of Muhammad Afzal P. W. to the roof of Ahmad Khan and a hand‑grenade thrown at them which fell in the courtyard of the house and exploded there. After that a number of shots from rifles and other firearms were fired at them, some of which hit Rhuda Bakhsh P. W., Ghulam Muhammad deceased, Zaman Khan deceased, Muhammad Azam P. W. and Saif Ali P. W. At this stage, Feroze Khan (P: W. 19) got down from the roof of the house of Ahmad Khan and concealed himself in the near‑by house of Muzafar Khan. Muhammad Azam (P. W. 21) sought shelter in the kotha of Feroze and was followed by Jamedar Faiz Ali who carried with him Ghulam Muhammad deceased in an injured condition and both of them placed him on a cot in a kotha and chained it from inside. With unabated fury the assailants collected on the roof of the kotha, where the aforementioned P. Ws. and the deceased had taken shelter, and bored a hole in it. Through it they dropped two hand grenades which outright killed Ghulam Muhammad and injured Jamedar Faiz Ali. The terror struck in the hearts of the victims of this assault was so great that even though the accused had departed. Muhammad Azam and Faiz Ali P. Ws. did not stir out of the kotha of Feroze till 3 a.m. when Raja Amir Muhammad Khan arrived at the spot. In these circumstances, Feroze, who was the main target of the attack and had fortunately escaped unwounded, could not have walked out in the open to go to the nearest police station for lodging the report as soon as the attack was over. He must have, therefore, left the house of Muzaffar Khan stealthily after it had become dark. The fact that the entire track to be covered by him was hilly and he had to go on foot further explains the delay, if any, in lodging the first information report. I am, therefore, clearly of the view that there was no delay in lodging the first information report at 11 p.m. Further it is difficult to believe that after the attack was over the complainant party had the courage to assemble together in the village, where the accused also resided, to counsel with each other and fabricated a false case against their enemies.

3. As to the enmity between the P. Ws. and the accused, since the assault took place in broad‑day‑light, the present case is not one of mistaken identity or of unknown culprits. The occurrence must have lasted for at least half an hour. Thus the victims, particularly those who were injured, had sufficient opportunity to identify their assailants. The only question which requires consideration accordingly is whether some innocent enemies have been implicated in the case. In order to eliminate this possibility, the learned trial Judge did not accept the state ments of the eye‑witnesses, including those who were injured and whose presence could not be doubted on any hypothesis, without corroboration which was furnished by the dying declaration of Zaman Khan deceased (Exh. P. V.). Intrinsic evidence of its correctness is provided by the fact that whereas Feroze had named as many as sixteen assailants in the first information report, Zaman Khan mentioned only nine, namely, the convict‑appellants. The contention thas as the dying declaration was recorded on the following day there was sufficient time for the friends of Zaman Khan to tutor him and that as he died soon after making the statement his will to withstand such persuasion must have been weakened, is therefore, fully repelled by this circumstance. On the contrary, the fact that Zaman Khan died soon after making the statement adds to its sanctity. The learned trial Judge was, therefore, right in relying on the dying declaration of Zaman Khan as a strong piece of corroboration of the ocular evidence in the case.

4. There are also some important recoveries to be taken into consideration. Pieces of exploded band‑grenades were found in the courtyard of Ahmad Khan and from inside the kotha of Feroze P. W. A number of household articles lying in the kotha like utensils, which were hit by, shrapnel, looked like sieves. The roof of the kotha was found to have been ripped open through which the two hand‑grenades were thrown. Ghulam Muhammad deceased and Jamedar Faiz Ali P. W. were found to bear injuries caused by hand‑grenade splinters. This supports the prosecution case as to the manner in which the assault took place. The recoveries of the stein‑gun and other firearm as well as live and used cartridges, though not directly connected with the crime, undoubtedly furnish evidence against the accused that they could have used the firearm attributed to them in the first information report. In this context the recovery of step‑gun which is an uncommon weapon from the house of Kafayat Ali and a hand‑grenade from the house of Karam Ali have special significance. Lastly, the manner in which the attack took place in broad‑day‑light also shows that the number of the assailants was quite large which again is a relevant factor in assessing the correct ness of the prosecution case. I am thus unable to concur with my learned brother that because of the alleged enmity between the parties, the entire prosecution case should be disbelieved or benefit of doubt given to each one of the culprits. It has been said by one of the P. Ws. in the case that no one died a natural death in village Chboi Jandran. It is indeed due to the fact that in many past cases of murder or assault the accused were acquitted mostly by this Court. To say so with respect,.when crime of such ghastly nature is allowed to go unpunished, it completely demoralises society, particularly in the country side. The aggrieved parties lose faith in the efficacy of Courts to punish their wrong‑doers and feel called upon to take law in their own hands. I for one am against this state of affairs and, therefore, reluctant to readily extend benefit of doubt to the convicts in this case.

5. In the result I find no force in this appeal and dismiss it, confirming the death sentence of Muhammad Khan and Muhammad Sharif appellants. ORTCHESON, J.‑

My ‑ learned brother Muhammad Yaqub Ali finds himself unable to agree with the conclusion at which I have arrived in this case. I accordingly direct that the case be laid before His Lordship the Chief Justice for nomination of a third Judge so that a majority finding may be obtained. Learned counsel for the appellants and for the State to be informed. SHABIR AHMAD, J.‑

This appeal by nine persons of whom to have been sentenced to death and the reference under section 374 of the. Code of Criminal Procedure for confirmation of the two sentences of death have come before me under sections 429 and 378 of the Code of Criminal Procedure because my two learned brothers, namely, Ortcheson, J., and M. Yaqub Ali J., who heard them in the first instance, were not agreed as to the order that should be passed, the former being of the opinion that the appeal be accepted in its entirety and the latter of the opinion that it be dismissed in its entirety.

2. The appeal is the outcome of an incident which occurred in village Chhoi Jandran, Tahsil Pind Dadan Khan of District Jhelum, late in the afternoon on the 19th of February, 1960, and resulted in the receipt of firearm injuries by five persons, two of whom died as a result thereof. The prosecution case was that the culprits, who were seventeen in number, carried firearms and hand‑grenades, when they launched an attack on the murdered persons and their relatives. The first information report in the case, which is Exh. P. A. on the record, was made the same day at 11 p.m. at Police Station Kallar Kahar, which is at a distance of about eight miles from the scene of occurrence, by Feroze, Khan, who said that he was one of the eye‑witnesses. The report which. was fairly detailed narrated the important parts of the incident as well as some of previous incidents which were stated to be the motive for the present attack and that besides the informant a number of persons had witnessed the occurrence. Of the persons named as culprits in the first information report, sixteen were sent up by the police for trial of whom seven were acquitted. One Resham was shown as a fugitive from justice and as far as is known, this man Resham has not been arrested

3. At the trial the prosecution case was supported by more than one piece of evidence. One of such pieces of evidence was the depositions of the witnesses who said that they had seen the occurrence. Another piece was the recovery of rifles and a hand‑grenade at the instance of some of the appellants, while yet another was the dying, declaration stated to have been made by Zaman Khan, who was one of the murdered persons, the name of the other murdered person being Ghulam Muhammad.

4. Feroze Khan (P. W. 19), Jamadar Faiz Ali (P. W. 20), Muhammad Azam (P. W. 21), Saif Ali (P. W. 22), Gul Sher (P. W. 23), Khuda Bakhsh (P. W. 24) and Muzaffar (P. W. 26), of whom Jamadar Faiz, Ali, Muhammad Azam, Khuda Bakhsh and Saif Ali bore injuries on their persons, gave evidence as eye witnesses. The assertion of the above‑mentioned witnesses that they had witnessed the occurrence was neither doubted by the learned trial Judge nor by my two learned brothers who heard the appeal in this Court. It was said by the learned trial Judge that as the relations between the appellants and the eye‑witnesses were not cordial, the depositions of the eye‑witnesses including those who bore injuries should not be acted upon unless they were corroborated by some other evidence: The corroboration which the learned trial Judge considered necessary was, according to him, found in the dying declaration of Zaman Khan, which was recorded by Malik Abdul Ghafoor, Naib Tahsildar, Chakwal, who appeared as the eleventh witness for the prosecution at the trial and of which the record is Exh. P. V. This dying declaration was recorded at about 4 p.m., on the 26th of February 1960, in the hospital at Chakwal, where Zaman Khan was sent by the police officer who had recorded the report and had after, that gone to the scene of occurrence. It is in evidence that Zaman Khan had reached the hospital about an hour before his dying declara tion was recorded because the police officer, who was coaducting the, investigation, was of the view that the condition of aman Khan was dangerous and if his statement were not recorded without delay there was likelihood of his dying without having given his version of the incident. In his dying declaration Zaman Khan named Muhammad Khan, Muhammad Sharif, Nishan Ali, Kifayat Ali, Sammundar Khan, Karam Ali, Muhammad Afsar, Muhammad Fazil, Gulzar and Resham Khan absconder as some of the culprits. He said that there were some more culprits, but he did not give their names. Of 'the sixteen persons who stood trial before him, the learned trial Judge convicted the nine appellants, who were mentioned not only in the dying declaration of Zaman Khan but also in the depositions of Feroze Khan (P. W. 19), Faiz Ali (P. W. 20), Muhammad Azam (P. W. 21), Saif Ali (P. W. 22), Gul Sher (P. W. 23) and Muzaffar (P. W. 26). Khuda Bakhsh (P. W. 24), who was another eye‑witness, did not name any of the culprits, evidently for the reason that he did not know their names as he was not a resident of the village in which the double murder had been committed, though he deposed in Court that the number of the assailants was fifteen or sixteen and added that he could not identify any of them because they were at some distance from him and the daylight was failing. This witness was hit with a bullet but could not say who was the person who caused that injury. Khuda Baksh (P. W. 24) is not shown to be interested either in the complainant party or against any of the appellants and his statement, therefore, is not as useless as it appears to have been believed to be by the learned trial Judge, because the statement clearly shows that the number of the assailants was fifteen or sixteen.

5. My brother Ortcheson,.J., considered that the dying declaration of Zaman Khan was a piece of evidence to which no greater weight could be attached than to the depositions of the eye‑witnesses other than Khuda Bakhsh and it was for that reason that he expressed the .view that the case against the appellants was not established beyond all reasonable doubt. It appears from the remarks made by my brother Ortcheson, J, that if he had considered the dying declaration to be reliable, he would not have had any hesitation in upholding the conviction of the appellants. My brother M. Yaqub Ali, J., did not discuss the evidence in detail, but briefly dealt with the main question discussed by Ortcheson, J., namely whether or not the dying declaration of Zaman Khan was sufficient to furnish such corroboration to the depositions of eye‑witnesses other than Khuda Bakhsh as‑to justify the dismissal of the appeal, but made some remarks of general character. It appears necessary to deal in some detail with the question whether the evidence which my learned brother Ortcheson J., did not consider "sufficient for the conviction of the appellants was sufficient for their conviction.

6. There can be no manner of doubt that an incident did occur in the village in, question on the 19th of February 1960, in the course of which five persons received gunshot injuries and of those five, two lost their lives. Neither the learned trial Judge nor my two learned brothers, who heard the appeal, doubted that an incident, in which firearms were' used, had occurred and the principal question that requires determination is whether the evidence on the record, justifies the conviction of all or any of the appellants. As already indicated by me my learned brother Ortcheson J., expressed the view that the dying declaration of Zaman Khan, of which the record is Exh. P. V., was not such a reliable piece of evidence as to justify the conviction of the appellants either by itself or in conjunction with the evidence of the eye‑witnesses produced by the prosecution. The main reasons he gave for not relying on the dying declaration of Zaman Khan were; firstly, that as a large number of persons had been named in the dying declaration it would not be safe to accept it against all or any of them especially, as the relations between the parties had been strained for 'some time and in this connection he made a reference to a decision of the Lahore High Court Khurshid Hussain Salihon Shah and others v. Emperor (A I R 1941 Lah. 368.) from which he quoted about a dozen lines, and secondly, that the dying declaration of Zaman Khan was recorded after a considerable time had elapsed from the incident in which connection he referred to Khushal Rao v. Emperor (A I R 1958 S C 203).

7. A dying declaration is a statement which the Evidence Act makes admissible in evidence if the maker thereof has died provided the statement refers to any of the matters mentioned in section 32 of the Act one of which matters is the cause of death of the person who made the statement. In this regard the law in some countries is that in order to be admissible as a dying declara tion, the statement made by a person, who is‑not alive at the time at which the statement is sought to be used as evidence, must have been made at a time he was aware of the nearness of death, but the Evidence Act which is the law governing evidence in this country does not enjoin the existence of the awareness of the nearness of death as a condition precedent for the admissibility of a‑statement as a dying declaration. One of the main reasons for using a dying declaration as a piece of evidence in countries where the law is different from that in this country in the respect indicated above, is that a person who is under the impression that he is shortly to face his maker is not likely to tell lies. Under the law in force in this country, however, the maker of such a statement need not be aware of the imminence of death when he makes the statement and it follows that some dying declarations made admissible by the law of this country may have been made when there was no knowledge in the maker thereof of the nearness of death and the resultant facing of the maker in the near future. There is also another matter connected with dying declarations which has to be borne in mind and this is that the maker of the statement cannot by reason‑ of the fact that he is no longer in the land of the living, be subjected to cross‑examination as a witness is subjected. There can, however,‑be no manner of doubt that a dying declaration is a piece of evidence which the Court can and has to consider along with the other evidence in the case and that in law there is nothing to prevent a conviction being based on a dying declaration alone. No hard and fast rule can be laid down with regard to the ,weight that should be attached to dying decla ration just as no such rule can be laid down with regard to the statements of the witnesses. What weight should be attached to a particular dying declaration must necessarily depend on the A circumstances of the case and, therefore, with all respect "to the learned Judges who gave that decision, the general remarks made in Khurshid Husain Salihon Shah and others v. Emperor with regard to a dying declaration being of little value if the number of persons mentioned as culprits was large, cannot be considered to be an. exposition of law capable of rendering useful assistance in other cases. There can be no doubt that if a dying declaration made by a person of questionable integrity involves only one person, Courts will attach but little weight to it, but if the person who made a dying declaration was of unquestionable integrity the fact e that the number of persons mentioned as culprits by him in ht dying declaration was large would not by itself suffice as a ground for rejecting it. It follows, therefore, that the fact that Zaman Khan had named a number of persons as culprits in his dying ‑declaration could not by itself be a ground for rejecting it.

8. The point taken by my learned brother Ortcheson, J., that the dying declaration having been recorded about 24 hours after the incident must lose considerably in weight, is also not as weighty as it would at first sight appear to be. Here again, as in the case of dying declaration in which a number of persons are mentioned as culprits, no hard and fast rule can be laid down with regard to the weight that should be attached to them as it would depend on the circumstances of each case whether the delay in the recording of the dying declaration should affect its weight. The dying decla ration of Zaman Khan was no doubt recorded about twenty‑four hours after the incident, but it is in evidence that it was recorded about an hour of his reaching the hospital at Chakwal, where the Magistrate, who recorded the dying declaration, was posted. It is obvious that if a Magistrate had been taken to the village in which the occurrence took place, he could not have reached there before the afternoon of the, day next to the one on which the inci dent had occurred, because the messenger who went to fetch the Magistrate would have had to go from the village to Chakwal or possibly to Jhelum and the Magistrate would have had to travel to the village. It is obvious that if this course had been followed Zaman Khan, one of the victims, would have been deprived of the chance of getting medical aid. It was, perhaps, for this reason that the police officer in charge of the investigation took steps in the first instance to have Zaman Khan removed to the hospital at Chakwal and it was only on reaching there that he took steps to have the dying declaration of Zaman Khan recorded. In the circumstances of the case, the dying declaration of Zaman Khan cannot be said to have been recorded with inordinate delay, and though I am not prepared to accept the dictum that if a dying declaration is recorded with delay it must be rejected, I do not doubt the wisdom of decisions which lay down that' if a dying declaration is recorded with unexplained delay, it should not generally be considered reliable. I am clear in my mind that the dying declaration of Zaman Khan does not suffer from the defect that its recording was unnecessarily delayed, because as I have shown it was recorded soon after Zaman Khan reached Chakwal where a Magistrate was available to record his dying declaration.

9. This brings me to the question whether or not such weight should be attached to the dying declaration of Zaman Khan as to justify its being considered valuable corroboration of the deposi tions of the eye‑witnesses produced by the prosecution. No doubt, as pointed out by my learned brother Ortcheson, J., according to the evidence on the record some relatives of Zaman Khan were present with him at the time the Magistrate went to record his dying declaration in the hospital at Chakwal, but in the circum stances of the case that fact alone is not sufficient for doubting the correctness of the dying declaration of Zaman Khan. The first information report definitely named seventeen persons as culprits while the dying declaration named ten definitely and was to the effect that there were some other persons along with those named by the declarant. It is inconceivable that if the dying declaration had been made at the instance of the relatives of the declarant all those persons who had been named in the first infor mation report would not have been named in the dying declaration. It is true that even according to the dying declaration more than ten persons took part in the murderous assault but one fails to see what was there; besides a desire to tell nothing but the truth, to prevent Zaman Khan from naming the other seven persons mentioned in the first information report as culprits. It is in evidence that Zaman Khan had two wounds, resulting from a bullet that of entry being on the apigasteric region and the one of exit on the left side of the chest and as a result his peritoneum and liver had been pierced. A person who had received an injury of this character could have had but little hope of surviving and I am clear in my mind that at the time Zaman Khan made his dying declaration he knew that he was in a, precarious condition, and indeed it is in evidence that he died at 5‑40 p. m. the same day, that is, about an hour after his dying declaration was recorded. Doctor Akhtar Alim (P. W. 1), by whom Zaman Khan was exa mined as soon as' he reached the hospital, deposed that the injured man was in a condition of severe shock and his pulse was so weak that it could not be counted. Zaman Khan was a man of 65 years old and he could, not but have felt that he was about to die. I cannot bring myself to believe that a person in this state would not tell the whole truth regarding the identity of the assailants and I do not find any ground for doubting the correctness of the dying declaration which is as far as the appellants go, in accord with the statements of a number of eye‑witnesses.

10. It appears to me that neither the learned trial Judge nor my learned brother Ortcheson, J , had attached to the deposition of Muzaffar Khan (P. W. 26) the weight it was entitled to. This witness is the maternal uncle of Mehar Khan and Banaras Khan, two of the acquitted accused, and also quite nearly related to some of the appellants. The witness deposed that the wife of Kifayat Ali appellant is the daughter of his real sister. Record of the statement of the witness‑is further to the effect that he said that the mother of Samundar Khan one of the appellants and that of Daftar, one of the acquitted accused, were real sisters and that they were the daughters of the daughter of paternal uncle of the witness. The relationship of the witness with some of the accused persons is so close that I cannot bring myself to believe that hey would name them falsely. In addition there is the circumstance that Khuda Bakhsh (P. W. 24); who is an entirely disinterested witness, said in clear terms that the number of culprits was fifteen or sixteen, All this evidence makes it clear that the number of the assailants was large and I do not see why the mass of evidence which the prosecution has produced to connect the appellants with the crime, except that relating to recoveries of rifle and a hand grenade, should not be accepted against them. Consequently, I cannot bring myself to agree with the opinion expressed by my learned brother Ortcheson, J., to the effect that it would be unsafe, on the evidence on the record, to uphold the conviction of the appellants.

11. Mr. Shaukat Ali, Advocate, who appeared for the appellants before the two learned Judges, who heard the appeal in the first instance as well as before me, contended before me that in this case the approach of M. Yaqub Ali, J., was not in accordance with the strict principles governing the administration of justice in. criminal cases and in this connection drew my attention to a part of the penultimate paragraph of the judgment recorded by my brother M. Yaqub Ali, J. This part reads as follows "It has been said by one of the P. Ws. in the case that no one dies a natural death in village Chhoi Jandran. It is indeed due to the fact that in many, past cases of murder or assault the accused were acquitted mostly by this Court. To say so with respect, when crime of such ghastly nature is allowed to go unpunished, it completely demoralises society, particularly in the countryside. The aggrieved parties lose faith in the efficacy of Courts to punish their wrong‑doers and feel called upon to take law in their own hands. I for one am against this state of affairs and, therefore, reluctant to readily extend benefit of doubt to the convicts in this case." For the reasons that I will presently detail I agree with my brother M. Yaqub Ali, J. that the appeal merits dismissal but want to make it clear that my agreement with him in the decision regarding the ultimate result does not mean that I agree with the approach to the case envisaged in the above‑reproduced passage from h s judgment. It appears to me that the learned counsel for the appellants was not entirely unjustified in his attack on the above reproduced passage. The considerations which my brother M, Yaqub Ali, J, has mentioned in the above‑reproduced passage are not strictly relevant: when determining the question whether or not the guilt of an accused person was established, though they may be kept in view when considering what the proper sentence for the offence, if established, would be. The fact that solve heinous offences committed in the village, undoubtedly by some of its resi dents, had gone unpunished and the result very probably had been the commission of more crimes by some of the other residents of the village, is no ground for punishing any resident of the village who is mentioned by the witnesses produced by the prosecution to be one of the culprits. To decide the crucial question of the liability or otherwise of each of the accused persons, attention ha to be riveted on the relevant evidence on the record and the fact that the acquittal of the accused may lead to the com mission of more offences is an entirely irrelevant consideration.

12. Having considered the entire evidence on the record in the light of the principles mentioned above, I have arrived at the conclusion that the guilt of all the appellants has been established beyond all reasonable doubt and I uphold their convictions. The only question that requires consideration now is whether the sen tence of death imposed by the learned trial Judge on Muhammad Khan and Muhammad Sharif should be confirmed. Deaths of two human beings were caused by means of such diabolical deeds that if the two sentences of death were not confirmed miscarriage of justice would result. Consequently, I dismiss the appeal in its entirety and confirm the sentence of death passed on Muhammad Khan and Muhammad Sharif. A. H. Appeal dismissed.