1969L3054 (PLP)

M. Rashid Aziz for A.‑G. for the State. MUSHTAQ HUSSAIN, J.‑Hayatullah son of Sultan Khan, aged 23 years, Sultan Khan aged 51 years and Jahan Khan aged 60 years sons of Muhammad Khan, Suba Khan son of Jahan Khan, aged 34 years, Bahadur Khan son of Sadullah Khan, aged 32 years and Faizullah son of Rustam Khan, aged 20 years, stood their trial before the learned Sessions Judge Mianwali, under sections 302/149 and 148, P. P. C. for having voluntarily caused the death of Amir Khan on 9th November 1966 at peshiwala in the fields in the area of village Chhidru at a distance of five miles from Police Station Musakhel, in the district of Mianwali. The learned Sessions Judge convicted Hayatullah under section 302, P. P. C. and sentenced him to death. He acquitted him of the charge under section 148, P. P. C, All the remaining accused were acquitted by him of both the charges.

2. Hayatullah has filed an appeal against his conviction and sentence while the case is also before us under section 374, of the Criminal Procedure Code for confirmation of the death sentence.

3. The prosecution case is that one Gola Khan who belonged to the party of the appellant was murdered by Khan Gul (P. W. 11) and Amir Khan deceased some five years ago. They were acquitted of the charge. This resulted in strained relations between the appellant and his party on the one hand and the complainant on the ether. On the fateful day the appellant and the acquitted persons attacked Amir Khan deceased with fire arms when he was cutting the jawar crop in a field. The shot fired by Hayatullah hit Amir Khan deceased on the left side of his body while his right leg was injured as a result of the shots fired by the acquitted accused. Amir Khan (P. W. 10), Akbar Khan (P. W. 12) and Birbal (P. W. 13) who happened to be nearby saw the occurrence with their own eyes and raised an alarm. Hayatullah appellant and his compatriots then remarked that Amir Khan had died and they made good their escape. Amir Khan (P. W. 10) then placed the injured person on a cot and took him to Police Station Musakhel, where the first information report Exh. P. F. was recorded at 4‑00 p.m. on 9th November 1966 at the instance of Amir Khan deceased. He was thence taken to the District Headquarters Hospital, Mianwali, but he succumbed to his injuries on the third day. The F. I. R. was recorded by A. S. I. Mansab Beg (P. W. 14). The police station is at a distance of five miles from the scene of occurrence.

4. Sub‑Inspector Safdar Ali Shah (P. W. 15) who was Additional S. H. O. of the Police Station Musakhel, reached the scene of occurrence on 10th November 1966. He arrested Hayatullah appellant who produced gun Exh. P. 6 with cartridges Exh. P. 7/1‑2, which was taken into possession vide memo. Exh. P. O. The other accused were arrested on 20th November 1966. After completing the investigation he challaned the accused with the result already indicated above.

5. At the trial the appellant and his co‑accused denied having taken part in the occurrence.

6. The prosecution produced sixteen witnesses in all in support of its case.

7. This case can be disposed of on an extremely short ground. The eye‑witnesses in this case are Amir Khan (P. W. 10). who is married to Mst Alam Khatun sister of Birbal (P. W. 13); Khan Gul (P. W. 11) a first cousin of Mst. Amiran widow of the deceased, his cousin is married to the sister of the wife of the deceased, Akbar Khan (P. W. 12) another cousin of the deceased and Birbal (P. W. 13) still another cousin of the deceased and brother‑in‑law of Amir Khan (P. W. 10). The parties are admittedly inimical towards each other and the prosecution witnesses belong to the party of the deceased. The testimony of these witnesses has been rejected by the learned Sessions Judge as against the remaining five accused who have already been acquitted. The credibility of witnesses is not divisible and there is no justification for convicting the appellant on the basis of the testimony of these four so‑called eye‑witnesses who have implicated no less than five innocent persons all closely related to each other. The gun recovered from the appellant is not relatable to the offence as no empty cartridge was recovered from the scene of occurrence. The recovery of this weapon is, therefore, also of no use to the prosecution. The first infor mation report which has been treated as a dying declaration by the learned Sessions Judge is also not free from doubt as, when the Duty Magistrate reached the hospital at 11‑40 a.m. on the same day Amir Khan deceased who was still alive refused to have any dying declaration recorded on the ground that he had himself lodged the F. I. R. and therefore there was no need for a dying declaration. The so‑called dying declaration was recorded by the A. S. I. of the police. The A. S. I. has also stated that the condition of the deceased was not serious at the time when his statement was recorded by him. Sanctity is normally attached to a dying declaration because it is assumed that when a person is face to face with death he would like to make peace with God and would not tell lies. In this case his condition, as deposed by the A. S. I. was not serious and therefore the F. I. R. cannot be treated as a dying declaration.

8. There is, therefore, no evidence whatsoever against the appellant on which he could be convicted. The appeal is, therefore, accepted. The conviction is set aside and the sentence of death is not confirmed. We have already by a short order dictated today directed that the appellant shall be released if not required in any other case. Appeal accepted.