1978 PLP 33 (SCMR)

Allah Wasaya Malik, Advocate Supreme Court instructed by Sh. Abdul Karim Advocate‑on‑Record (absent) for Petitioner. Nemo for the State. Date of hearing t 28th September 11977. NASIM HASAN SHAH, J--‑The petitioner seeks leave to appeal against the judgment dated 10‑3‑1976 of the Lahore High Court passed in Criminal Appeal No. 639/75, whereby his conviction under section 302, P. P. C. was maintained but his sentence was altered from death to that of life imprisonment.

2. The facts, as disclosed by the prosecution, are that on 9‑9‑1972 at about 9-30 a.m. Gamu deceased came from his Chak to the Cattle Market at Bhakkar. When he reached Mianwali Transport Bus Stop in the town of Bbzkkar, three persons, namely, Ghulam Sarwar petitioner, Fatah Sher and Shah Nawaz armed with knives attacked him raising a lalkara that they would avenge the murder of Sharaf Ali. All the above said‑three persons then attacked the deceased and inflicted injuries with knives. Ghulam Sarwar petitioner inflicted a knife Now in his belly. Patch Sher caused him injury with the knife on his forehead while Shdhana gave him a knife blow on the left flank. The deceased, in order to save himself, snatched the knife from Ghulam Sarwar petitioner and inflicted injuries with the same knife on his left arm. However, the petitioner again snatched the knife from the deceased. In the meantime, Fetch Sher and Shah Nawaz accused were made to retreat by Anwar, Sadiq and Patch Sher P. W's. Syed Zaffar Hussain Shah, Sub‑Inspector (P. W. 12) who was on patrol duty, reached the spot and recorded the statement of the deceased (Exh. P. B.) at 9‑15 am. Based on this statement a case was formally registered at Police Station Bhakkar at 10‑05 am. on the same day.

3. The petitioner allegedly was apprehended at the spot alongwith the blood‑stained knife and eves produced before the Sub‑Inspector (P. W 12) He was also medically examined on the same day at 11‑50 a.m. and was found to have five injuries on his person which were quite fresh. Three days later, on 12‑9‑1972 at 1 p.m. Mr. Habib Ullah, Magistrate, Third Class, Bhakkar, recorded the deceased's dying declaration (Exh. P K) after getting a certificate of fitness from the doctor. The deceased died on 15th September 1972 in the Hospital.

4. During the investigation Syed Muhammad Ali Shah, D. S. P., (P. W. 10) who was verifying the investigation of a subordinate officer, recorded on 20‑9‑1972 the statement of Abdul Majid (P. W. 9), who also claimed to have seen the occurrence. As a result of the police investigation Fateh Sher and Shah Nawaz accused were found to be innocent and were placed in column No. 2 of the challan and were later discharged.

5. The prosecution produced all the three persons mentioned as eye witnesses in the P. I. R., viz., Sadiq, Anwar and Patch Sher before the Inquiry Magistrate, but as they did not support the prosecution version, they wore given up at the trial as having been won over. However, Abdul Majid (P. W. 9) was examined both before the Inquiry Magistrate and the trial Court and he fully implicated the petitioner in the incident.

6. In his statement under section 342, Cr. P. C. the petitioner denied the prosecution version and stated that he was not arrested at the spot, no blood‑stained knife was recovered from him, nor did he receive any injury, as alleged. According to him, the injuries on his person were the outcome of a row he had in the Court on that day with Hayat, Fatah Sher and Anwar. As regards the injuries on the person of the deceased, he stated that the deceased was a quarrelsome person and had quarrelled with some unknown Person at the Bus Stop as a result of which he received injuries, anal these injures were falsely attributed to him as he was in Bhakkar on that date.

7. The learned trial Judge placed reliance on the dying declarations (Exhs. P B and P K) of the deceased as also on the testimony of Abdul Majid P. W, supported by the recovery of the knife his arrest on the spot, the medical evidence and the motive. The learned Judges in the Lahore High Court maintained the conviction of the petitioner, but reduced his sentence to that of life imprisonment, en the ground that the motive for the offence was shrouded in mystery and was not clearly established on the basis of the evidence, namely, the dying declarations.

8. Before us, the learned counsel for the petitioner has argued that the dying declaration is in conflict with the medical evidence as injuries inflicted on the deceased therein are five, whereas in the dying declaration the number of injuries mentioned is three. The discrepancy pointer out is of little significance. A person making a dying declaration is at that time in great pain with imminent threat of death and cannot be expected to give an exact account on the minutest possible details.

9. The learned counsel also argued that the dying declaration is not worthy of reliance as it bas been considered to be false to the extent that two persons, i.e. Shah Nawaz and Fateh Sher were falsely involved therein. This argument is misconceived as Courts are now following the well‑established principle of sifting the chaff front the grain. The dying declaration in question, can be used and relied upon to the extent it establishes the implication of the petitioner.

10. It was further argued that the testimony of Abdul Majid Khan P. W. should not have been relied upon by the Courts below because, though not named in the dying declaration as an eye‑witness he was introduced by the Police at a later stage to strengthen the prosecution case. We are not inclined to accept this contention. The said witness was running a restaurant at the bus‑stop and was a natural witness of the occurrence. Because the statement of this witness was recorded by the police some days after the incident does not diminish the value of his statement especially as he had no motive to falsely implicate the petitioner.

11. In conclusion, we may observe that the name of the petitioner and the account of injuries attributed to him are quite consistently stated in both the dying declarations. These documents coupled with the testimony off Abdul Majid P. W. and the corroboration furnished by the circumstance of the petitioner's arrest at tire spot, the recovery of the blood‑stained knife and the medical evidence are sufficient to establish his guilt beyond any doubt.

12. This petition for leave to appeal, therefore, fails and is accordingly dismissed. QAISAR KHAN, J.‑After going through the order recorded by my learned brothers Muhammad Haleem and Nasim Hasan Shah, JJ. It is with reluc tance that I have to agree to it. Anyhow I would like to record my own observations also. It is a pity that in such like cases the record is not sent for and we have to rely only on facts given in the judgment of the High Court. I do not agree with my learned brothers that Abdul Majid P. W could he relied upon as he had a restaurant near the spot and had no motive for falsely implicating the accused. His presence on or near the spot was not mentioned by the deceased in both his ding declarations. The second dying declaration was recorded 3 days after the occurrence and if Abdul Majid had entire occurrence then the deceased would certainly have mentioned hit name at least in the second dying declaration as by that time the deceased would certainly have learnt as to who had seen the occurrence. The occur rence was being investigated by the police for 11 days near the restaurant of this P. W. and it is not understood as to why was he keeping mum for elf this time. If he had seen the occurrence and wanted to give evidence he would not have waited for 11 days to make up his mind for appearing before the police. The non‑existence of motive for false implication is being stretched too far by applying it in such like cases. This would amount to setting a very dangerous precedent in criminal cases. In my opinion no value whatsoever could be attached to the statement of such a witness. When the statement of Abdul Majid is kept out of consideration then we are left with no evidence whatsoever regarding the arrest of the accused on the spot with the blood‑stained knife. The three ocular witnesses Sadiq, Anwar and Fateh Sher mentioned in the dying declaration out of whom one had also allegedly injured the accused were not produced in support of the prosecution as they did not support the prosecution case even in the Court of the committing Magistrate. We are, therefore, left only with the dying declarations of the deceased: There is no doubt that the dying declarations were genuine as the occurrence had oaken place on the 9th and the deceased lived up to the 15th. The only question to be determined is as whether these declarations were true also and if not wholly true, whether these could be sufficient of convic tion without any corroboration. The arrest of the accused on the spot with a blood‑stained knife and the statement of the doctor have been taken as corroborations of the dying declarations, but as remarked above, the arrest of the accused on the spot with the blood‑stained knife has not been proved end the statement of the doctor could be no corroboration of the dying declarations so far as the culprits were concerned. The dying declarations had teen found to be false in material particulars. It involved 3 persons as assailants but even the police found two of them innocent and placed them in column No. 2 of the challan who were discharged by the committing Court. These declarations are also apparently false so far as the following assertions in it are concerned:‑ "After Ghulam Sarwar bad stabbed me in the belly I snatched the knife from him and caused him an injury with the said knife but that Ghulam Sarwar again snatched the knife from me." This is nothing but a cock and bull story. This accused Ghulam Sarwar had` a number of injuries on his person caused with a sharp‑edged weapon and this would, therefore, clearly suggest that the deceased too was armed with knife and used it as against Ghulam Sarwar accused. The above would, therefore, show that the dying declaration was not wholly true. This would, however, not mean that the deceased was either not stabbed of that he did not see the assailant because the occurrence took Issue in broad day light Since the accused‑petitioner was injured and the injuries according to his own statement were caused to him the day of occurrence the dying declarations to the extent that the deceased was subbed by the accused could be relied upon. But then there is no evidence on the to show that the accused had any motive for stabbing the deceased. There is no doubt that it had been mentioned in the dying declarations that the accused shouted that they would avenge the murder of Sharaf but then there is no evidence o3 file to show as to who Sharaf was, what was his relationship with the accused, as to whey was he murdered and by whom. Since there was no motive for the attack could safely be assumed that something happened on the spot between the parties on which both sides resorted to the use of knives. The case therefore needs consideration as to whether under the circumstances the action of the petitioner fell under the provisions of section 304, P. P. C., or not. But since my learned brothers are not inclined to allow the petition for special leave to appeal I therefore reluctantly agree with them that the petition be dismissed. Petition dismissed.