1976 P Cr (PLP)

ABDUL JABBAR KHAN, J.‑Allah Bakhsh son of Karim Bakhsh (25), Allah Yar son of Abdul Ghaffar (26). Allah Diwaya son of Khair Muhammad (40), Ghulam Rasul son of Khuda Bakhsh ('70), Karim Bakhsh son of Din Muhammad (60), Ghulam Qadir son of Pir Uaklisn (35), Fida Hussain son of Palya Shah (25), Ghulam Akbar son of Inayat Ullah (30) and Nur Muhammad son of Qadir Bakhsh (23), were tried by the learned Sessions Judge, Bahawalpur, Ex‑Officio Additional Sessions Judge, Muzaffargarh, under sections 302/323, 148/149, P. P. C. for causing the death of Ghulam Farid deceased and inflicting simple injuries on the person of Qadir Bakhsh P. W. vide his judgment dated 17th June 1974, the learned trial Judge convicted all of them and sentenced them as follows :‑ Allah Bakhsh accused to death under section 302/149, P. P. C. with a fine of Rs. 100 or in default to undergo one month's R. I. Ghulam Rasul, Allah Diwaya, Karim Bakhsh and Allah Yar accused, were sentenced to imprisonment for life each under section 302/149, P. P. C. with a fine of Rs. 100 or in default whereof to undergo further one month's R. I. each. They were further ordered to pay 1,000 each to be paid to the l5eirs of the deceased as compensation under section 544‑A, Cr. P. C. or in default of payment of this amount to suffer further R. I. for one year each. Fida Hussain, Ghulam Qadir, Nur Muhammad and Ghulam Akbar were sentenced to six month's R. I. each under section 323/34, P. P. C. with a fine of Rs. 100 each to be paid to Qadir Bakhsh P. W. as compensation under section 544‑A, Cr. P. C. or in default of payment of fine they were ordered to suffer further one month's R. I. each. All the above‑mentioned nine accused were sentenced to one year's R. I. each under section 148, P. P. C. Allah Bakhsh, Allah Yar, Allah Diwaya, Ghulam Rasul and Karim Bakhsh accused/convicts have filed an appeal (Criminal Appeal No. 457 of 1974) against their conviction and sentences through Mr. Mahmud Ali Kasuri and Mr. Mushtaq Raj, Advocates while Ghulam Akbar and Ghulam Qadir accused/convicts have filed a joint appeal (Criminal Appeal No. 479 of 1974) through Mr. D., M. Arbey, Advocate, against their conviction and sentences. Out of the convicts Fida Hussain and Nur Muhammad accused have not preferred any appeal. There is also a Murder Reference (No. 122 of 1974) referred by the learned trial Court under section 374, Cr. P. C. for the confirmation of the death sentence awarded to Allah Bakhsh accused/ appellant. We propose to dispose of both the two appeals as well as the Murder Reference by a single judgment.

2. The occurrence took place on 25th May 1972, at 11 a.m. within the premises of District Courts, Muzaffargarh in a plot lying between the Court of Sessions on the east and office of the Deputy Commissioner and Copying Agency on the west, situated at a distance of one furlong from Police Station Saddar, Muzaffargarh. F. I. R. Exh. P. L./1 was based on the Dying Declaration of the deceased Ghulam Farid which was recorded by Mian Muhammad Iqbal M.I.C., Muzaffargarh (P. W. 1) on the same day at 11‑45 a.m. The formal F. I. R. Exh. P. L./1 was registered at Police Station, Sadder Muzaffargarh at 12‑15 p.m. by Ahmad Din S. I., P. W. 17 initially under section 307/148/149. P. P. C. but after the death of the deceased which occurred on the same day at Multan in Nishtar Medical Hospital, the same was altered under section 302/148/149, P. P. C.

3. A number of motives have been set up by the prosecution against the appellants for the murder of Ghulam Farid deceased, which are as follows:‑ (i) That one Ghulam Rasul, the brother of Allah Bakhsh appellant contested B. D. Election against Mien Ghulam Murtaza, the brother of Ghulam Farid deceased, who was defeated in that election; (ii) that a decree Exh. P. Q. dated 29th December 1968, was passed by Ghulam Farid deceased in favour of one Ghulam Farid son of Ghulam Haider against Ghulam Rasul, the brother of Allah Bakhsh appellant for the recovery of Rs. 500 ; (iii) that Mst. Zohran wife of Ali Muhammad who is the brother of Allah Bakhsh appellant, had filed a suit for the recovery of maintenance allowance against said Ali Muhammad in the Union Council of which Ghulam Farid deceased was the Chairman. The appearance of Mst. Zohran against the brother of Allah Bakhah appellant was resented by Allah Bakhsh ; (iv) 5/7 years prior to the occurrence Allah Bakhsh appellant and his brother Ghulam Rasul were challaned in a case of abduction of a woman and it was suspect ed by them that Ghulam Faxid deceased had sent a man to the relatives of the woman that the woman had bean concealed by Allah Bakhsh appellant in his house ; (v) that one Manzoor was involved in a civil litigation for the recovery of produce rent with Allah Bakhsh appellant and his brother Ghulam Rasul and according to the pro secution ultimately both the parties were bound down under sec tion 107, Cr. P. C. The above‑mentioned Manzoor was able to get himself bailed out on a surety given by Muhammad Shafi, the driver of Ghulam Farid deceased. In consequence thereof it is alleged that Allah Bakhsh appellant and Ghulam Rasu1, his brother, extended threats of murder to Ghulam Farid deceased as he was helping their opponent ; (vi) that one Mst. Azim Khatun wife of Karim Bakhsh appellant is stated to have been identified by Ghulam Farid deceased at the time when she mutated her property in favour of one Amir Bakhsh Ambreen. This action of Ghulam Farid was highly resented by Karim Bakbsh appellant who it is stated had filed a private com plaint against Ghulam Farid deceased and Amir Hakhah Ambreen to the effect that Mst. Azim Khatun had not sold her land and that Ghulam Farid deceased had wrongly identified her at the time of sanction of that mutation; (vii) that Abdul Rehman P. W. 7, the uncle of the deceased had purchased some land from the cousin of Allah Yar appellant. Whereupon Allah Yar had filed a suit against the factum of said sale and was able to secure the decree for its cancella tion. Abdul Rehman P. W. went in appeal against that decree but the same. was dismissed. Despite losing his legal title Abdul Rehman P.W. did not deliver the possession of the land to Allah Yar appellant. The motive against Ghulam Rasul and Allah Diwaya appellants is stated to be that Ghulam Rasul appellant had abducted Mst. Sakina of Sakhiani caste and had kept her in his house. It is alleged that Mst. Sakina was got recovered by Ghulam Farid deceased and both the appellants under reference were challaned in that case.

4. The first picture of the incident has been revealed by the deceased himself while making his statement Exh. P. L. before a Magistrate First Class in the following manner On the fateful day Ghulam Farid deceased went to District Courts to attend to some of his personal affairs. At 11 a.m. when he emerged from the office of the Deputy Commissioner he saw Allah Diwaya Allah Bakhsh, Ghulam Rasul, Karim Bakhah and Allah Yar appellants alongwith 5/6 other persons nut known to the deceased, present under a jamon tree. He was Immediately fired at by Allah Bakhsh appellant which hit the deceased on the right side of his abdomen. The other persons duly named and described by him caught hold of him and belaboured him with lathis. According to the deceased one of the lathi blows caused the fracture of his head. He in his statement held Jalil Haider Shah, Advocate and Ghulam Rasul son of Karim Bakhsh Makwal, resident Uttera Sandila, as the persons who had arranged this attack on his life. It was told by the deceased to the Magistrate that he was taken to the hospital by Nawab Asadullah Khan of Khan Garh accompanied by his brother‑in‑law Manzoor Ahmed and his driver Muhammad Shafi.

5. Ahmad Din S. I. (P. W. 7) who was posted as an S. H. O. at Police Station, Saddar, Muzaffargarh, at the relevant time, happened to be present in the office of the Superintendent of Police, Muzaffargarh in connection with some official duties on the day of occurrence. He received an information that tiring had taken place in the district Courts and immediately left for the place of occurrence after the receipt of the information. When he reached the spot he gathered the information about the incident and was told that Ghulam Farid deceased who had fired upon had already been taken to the hospital in an injured condition. Realising the gravity of the situation regarding the physical condition of the deceased he went to the office of the Deputy Commissioner and filed an application Exh. P. L./2 without wasting any time, stating therein that arrangement for the recording of dying declaration of the deceased be made. The Deputy Commissioner acting in the capacity of District Magistrate. deputed Mian Muhammad lqbal M I. C. (P. W. 1) for recording the dying declaration of the injured person. The S. I. apprised Mian Muhammad Iqbal of the District Magistrate's order who immediately left the hospital all alone by himself. The S. I. also managed to reach the hospital following the Magistrate. Mian Muhammad Iqbal P. W. 1, recorded the statement of Ghulam Farid deceased whereupon the S. I. obtained its copy from the Court of Mian Muhammad Iqbal P. W. for the purpose of registration of the case and thus he recorded F. I. R. Exh. P. L./1 on the basis of dying declaration Exh. P. L. Leaving the injured under the care of the doctor he went to the place of occurrence for the purpose of investigation. Irshad Hussain P. W. It had caught hold of Allah Bakhsh appellant along with the pistol while Nazir Ahmed (not produced) caught bold of Ghulam Qadir appellant. Nazir Ahmed also apprehended Allah Yar appellant when he had handed over Ghulam Qadir appellant to an F. C. who bad arrived at the spot in the meantime. Subsequently these accused were handed over to Ahmed Din S. I, at the spot who formally arrested them alongwith Fida Hussain accused. The remaining accused had run away and could not be apprehended. Ahmed Din S. I. P. W. arrested Karim Bakhsh, Allah Diwaya and Ghulam Rasul appellants on 28th May 1972, while Ghulam Akbar appellant was arrested on 14th August 1972, by Nafees- ud‑Din P. W. 14, who was posted as S. H. O. at Police Station, Kinjar. The investigating Officer took into possession an unlicensed pistol P. 3. live cartridge P. 4 and empty cartridge P. 5 (from inside the pistol) recovered from Allah Bakhsh appellant, vide memo. Exh. P. C., which was attested by Irshad Hussain P. W. c 1 and Nazir Hussain (not produced) besides the Investigating Officer himself. He also took into possession sarya P. 1, produced by Nazir Hussain which he recovered from Ghulam Qadir appellant and dung P. 2 which Nazir Hussain had obtained from Allah Yar appellant, vide memo. Exh. P. B. He took some blood‑stained earth from the spot. into possession vide memo. Exh. P. N. He got prepared site plans Exh P. A./1 P. A./2, from Khalil Ahmad Draftsman P. W.

6. Ijaz Abmad P. w. 2 who was posted as an A. S. I. on 25th May 1972, at Police Post, Shish Mahal, Multan, received an information from Dr. Zubair regarding the death of Ghulam Farid deceased. He went to Nishtar Hospital, Multan. He examined the dead body of Ghulam Farid deceased ; prepared inquest report Exh P. J. and injury statement Exh. P. H. in respect of it. After completing the formalities he had sent the dead body to the Anatomy department. Nishtar Hospital, Multan, for post‑mortem examina tion through Samand Khan F. C. and Fateh Khan F: C. The inquest report Exh. P. J. was prepared by him on the information which be gathered from Abdul Rehman P. W. 7 and Taj P. W. 8 who were with the deceased at the time of his death and was also told by these persons that a case had already been registered at P. S. Saddar, Muzaffargarh.

6. Dr. Muhammad Afzal P. W. 15, medically examined Ghulam Fared deceased on 25th May 1972, and found that he was pale, sweating and cold with weak pulse but all the same he found him conscious and informed the Magistrate to record his dying declaration. He found the following injuries on his person :‑

(1) A lacerated gunshot wound of entry 1 'x 1 " in the right hypocon drium, There was bleeding from the wound. Some of intra abdominal contents in ruptured condition were protruding out of this wound. Two big holes were also present on the right and front of malmal blood‑stained chola. Smoke was smeared around the chola holes. A big hole was also present in the front part of right side of the bunyan. Smoke was also present around this hole. There was no wound of exit but few hard foreign bodies could be felt under the skin near right kidney angle. (2) A transverse lacerated wound 2 ' x '' x scalp deep was present at the top of the head between the ears. According to the doctor Injury No. 1 was grievous and dangerous to life. Injury No. 2 was kept under observation. Both the injuries were quite fresh. Injury No. 1 was caused by a fire from the fire‑arm, while injury No. 2 was caused by a blunt weapon. On the same day this doctor medically examined Qadir Bakhsh son of Kbuda Bakhah P. W. 12 and found the following injuries on his person :‑

. (1) A transverse lacerated wound 2' x 1' into scalp deep on the right side of back of the bead, 3 ' above the right ear. (2) A contusion mark 4 '' x '' in the middle of left upper arm. (3) A transverse contusions mark 2'x '' in the middle of right upper arm. (4) A transverse, abraided contusion mark 4' x '' in the middle of left calf. (5) An oblique lacerated wound 3' x ' x scalp deep on the right bead, 4" above the right ear. After the deceased had succumbed to his injuries post‑mortem examina tion was conducted upon his body by Dr. Altaf Hussain Gardezi P. W. 13, who found similar injuries on his person as given in the medical examination report of Dr. Muhammad Afzal P. W. 15 and besides this Dr. Altaf Hussain Gardezi P. W. removed six big pellets from the back of right chest and wads of cartridge from the wound, which he handed over to the police in a sealed parcel. He found that plurea, peritoneum, pancrease and mesentry, liver and right kidney were ruptured. In the opinion of the doctor the cause of death was shock and haemorrhage as a result of injury No.

1. This injury was anti‑mortem and was sufficient to cause death in the ordinary course of nature, Injury No. 2 was caused by a blunt weapon and was simple in nature. The time between injuries and death was about six hours and between death and post‑mortem was within 16 to 18 hours. During his cross‑examination he stated that the edges of injury No. 1 were scorched which means burning. The burning according to him could be caused by the flame of the powder. The two wads, one of card board and the other of felt, were lying inside the wound. This could happen only if the weapon was fired from very close range or almost in contact with the body.

7. Allah Bakhsh appellant when examined at the trial under section 342, Cr. P. C. denied all the motives attributed against him and also denied the making of dying declaration by Ghulam Farid deceased before a Magistrate. When questioned that why the P. Ws. had deposed against him, he replied that he had been falsely involved due to political rivalry with Mien Ehsan Karim, Advocate whose brother Ghulam Mustafa was opposed by him, his relations and party‑men. He claimed himself to be a member of P. D. P. of Nawab Zada Nasrullah Khan and had refused to oblige Mien Ghulam Mustafa and Mien Ehsan Karim, to cast vote in favour of Mian Ghulam Mustafa. He also challenged the veracity of Irshad Hussain P. W. for the reason that he was munshi of Mien Ehsan Karim. He how ever, did not deny his presence on the day of occurrence in the District Courts premises where he had gone to get his Land Reform papers pre pared from the Patwari. According to him after getting his Land Reform papers completed he left the Court premises and went to his house which was situated in Mohallah Sheikbupura in Muzaffargarh City. He claimed that he was arrested from his house and not from the spot as was the case of the prosecution. Allah Diwaya appellant has professed his innocence and has attributed the case due to party faction with Mien Ehsan Karim, Advocate and has added that Ghulam Farid deceased was a notorious man and a number of persons including his cousin Allah Bakhsh son of Mien Miran, bad filed applications against him. Allah Yar appellant has also denied his participa tion in the crime and has explained that Abdul Rehman P. W. 7 has deposed against him for the reason that he had filed a suit‑ against him in connection with the land which said Abdul Rehman had obtained illegally. He also attributed this case at the machination of Mian Ehsan Karim, Advocate whom he had refused to oblige to cast vote in favour of his brother. He produced a copy of decree Exh. D. C: dated 1st November 1971, in the civil suit titled Khuda Bakhth and Allahyar etc. v. Ibrahim etc. Ghulam Qadir, Ghulam Akbar, Noor Muhammad, Ghulam Rasul, Fida Hussain and Karim Bakhsh accused have similarly, claimed to be innocent and have attributed their involvements in the case due to party faction. Fida Hussain appellant has, however, claimed that he was a grocer by profession and bad come to Muzaffargarh city for the purpose of purchasing articles for his shop. He was arrested by the police when he' was purchasing articles at the shop in Muzaffargarh city.

8. The case of the prosecution rests on the following categories of evidence‑

(i) the evidence of motive; (ii) the Dying Declaration of Ghulam Farid deceased; (iii) the ocular testimony as provided by Irshad Hussain P. W. 11 and Qadir Bakhsh P. W. 12 the injured witness; (iv) the evidence of recovery of pistol P. 3 with crime empty P. 5 in its chamber alongwith one live cartridge P. 4 recovered from the person of Allah Bakhsh appellant supported by the positive report of the Fire Arms Expert Exh. PR; and (v) the medical evidence.

9. We have heard the learned counsel for the appellants as well as learned counsel for the State and have perused the entire record of the case with their assistance, very carefully. As far as the different motives given in the earlier part of the judgment set up by the prosecution in this case against various appellants are concerned, it may be pointed out that the learned trial Court has repelled all the motives except the two, one regarding the election contest between the brother of Allah Bakhsh appellant and Mian Ghulam Murtaza, the brother of the deceased and a decree for the recovery of Rs. 500 against Ghulam Rasul, the brother of Allah Bakhsh appellant, passed by the deceased at the instance of one Ghulam Farid son of Ghulam Haider. We have gone through the reasoning as given by the learned trial Court while declining to rely on other motive besides the two given above and find that it had good reasons to reject all these allegations which the prosecution failed to substantiate with cogent evidence so as to persuade a rational mind to accept these contentions. The outcome of all these averments by the prosecution at the most can only show that there did exist a bad blood and enmity between the deceased and the appellant Allah Bakhsh. Undoubtedly both these events do not relate to a time either close or im mediately prior to the occurrence yet it indicates towards unsavoury relations between the two. Moreover it is settled law that the absence of motive oil presence of weak motive does not provide reason for the Court to disbelieve direct evidence of the main incident if that evidence is otherwise worthy of credit and can form sound basis for conviction of the accused. In view of the matter we are of the considered opinion that Allah Bakhsh appellant had no love lost for the deceased Ghulam Farid and his alleged action can emanate from a long standing rancour of certain past events.

10. The learned counsel for the appellant Allah Bakhsh and Allah Yar, Allah Diwaya, Ghulam Rasul and Karim Bakhsh appellants, who have been sentenced to life imprisonment in this case has assailed the F. I. R. which in fact is a Dying Declaration by Ghulam Farid deceased as being, of doubtful nature for the reasons that it was not signed by the deceased him self and the promptitude with which it was recorded within a period of 45 minutes, reflects on its authenticity and indicates towards strong presumption that in fact it was recorded at some time later but the insertion of timings in it, has been manipulated by the prosecution in collusion with the Magis trate. It has been further submitted that Qadir Bakhsh, the injured witness, who had come forward to support the version of the prosecution, does not find mention in the F. I. R., whereas persons mentioned in it like Nawab Asadullah Khan of Khan Garh, Manzoor the brother‑in‑law of the deceased and Shafi, the deceased s driver, had not come forward to support his narra tion. Great stress has been laid on the absence of motive in this dying declaration which was within the knowledge of the deceased and would have gone a long way to establish animus of Allah Bakhsh appellant and his other co‑appellants. It has also been submitted that according to this dying declaration the deceased has claimed that he was beaten with lathis by Allah Diwaya, Ghulam Rasul, Karim Bakhsh and Allah Yar, accused, after he was fired upon by Allah Bakhsh appellant. The learned counsel has pointed out that this part of narration of the deceased is against the medical evidence as according to that evidence there was only one injury on the head of the deceased which the P. Ws have attributed to Ghulam Qadir appellant who was stated to be armed wish a sarya which was recovered at his instance during the course of investigation in this‑case. Lastly he has closed the criticism of this docu ment Exh. PL (the dying declaration) by saying that strangely enough Jalil Haider Shah, Advocate and Ghulam Rasul who were pin pointed by the deceased as the persons who were really responsible for this attack on his person, were never interrogated by the investigating agency either to affirm this allegation or to repel it. As regards the ocular testimony which only consists of two witnesses namely, Irshad Hussain P. W. 11 and Qadir Bakhsh P. W. 12, it has been submitted that this Irshad Hussain P. W. happens to be a clerk of Mian Ehsan Karim, Advocate, who according to the defence was pivot in the drama staged by the prosecution and had also not hesitated to play the role of a prosecutor on the side of the complainant party. With regard to Qadir Bakhsh P. W. it has been reiterated that he was a put up witness whose name was not mentioned in the F. I. R. by the deceased and has been brought on the scene with self‑suffered injuries so as to show that his presence at the spot could not be excluded because of the injuries on his person. In the same strain it has been contended that the two Foot Constables and one Nazir Hussain who were responsible for the apprehension, at the spot, of Fida Hussain, Allah Bakhsh, Allah Yar and Ghulam Qadir accused, were kept back by the prosecution without any cogent reasons whereas they would have been the natural witnesses to support the prosecution version. It has been the common argument with all the appellants in this case that Jalil Haider Shah, Advocate, was a Chairman of Pakistan Peoples Party at Muzaffargarh whereas the appellants were supporter of Nawabzada Nasrullah Khan, a leader of the Pakistan Democratic Party and thug the prosecution considered this Advocate of the Pakistan Peoples Party, sacrosanct and could not muster strength or courage to interrogate him despite the fact that he was named as conspirator and the moving spirit behind the murder of the deceased.

11. We have given our anxious thought to all the contentions raised by the learned counsel for the appellants and find that the dying declaration Exh. PL was a document recorded by Mian Muhammad Iqbal P. W. 1, a First Class Magistrate who fully satisfying himself that the person making the dying declaration was conscious and was in a fit condition to make a statement and took all possible care to see that there was nobody around him at the time he made a statement and also consulted the doctor by recording a statement that the deceased was fully capable of giving narration of the incident in which he was involved. Despite the lengthy cross‑examination by a battery of lawyers, we do not find anything to show that the Magistrate either acted carelessly by, not complying with the mandatory provisions under the law as laid down for the recording of dying declaration or acted dis honestly in collusion with the prosecution to set up a false case against Allah Bakhsh appellant and others. We are of the firm opinion that wild allega tions of collusion and dishonesty are nothing but fantasy on the part of the defence who out of frustration to gain anything from this witness have nut hesitated to cast aspersion on the character of this Magistrate. The in fact that mere deceased did not sign his statement after he had made it before the Magistrate or that he did not give minute details either of motives or of the incident, does not in any way detract front the authenticity of his version on the salient points of this case. The short statement made by hirer rather goes in favour of the documents as being correct as a person who received a fatal injury of the kind which this unfortunate person had received, would not be expected to narrate the incident m a laborious manner and recollect the past which might have been the cause of it. The fact that the medical evidence did not reveal more than one blunt injury on his person although the sine was attributed to the companions of Allah Bakhsh appellant by the deceased in his dying declaration, can at the most show that after receiving such a close shot by a firearm of the dimen sion as recovered from the person of Allah Bakhsh, would naturally send the deceased in a state of shock and anything after that would be nothing but a hazy recollection of events by the injured person who could make certain averments in that state of mind which may be the result of his conjecture. In the instant case there can be no dispute about the fact that when Allah Buksh appellants opened tire on the deceased he was hale and hearty person and could not mistake his assailants in any manner whatsoever. Similarly before this attack was launched at his person he had also seen four other persons, whose names are mentioned in the dying declaration and thus it would be natural for him to presume that their presence alongwith Allah Bakhsh appellant would be for ulterior motives and thus when he had received an injury by a blunt weapon on his head it would look reasonably probable to believe that he would attribute it to those whom he had seen earlier with the appellant Allah Bakhsh at the spot. The later part of his statement may be result of a hallucination caused by the shock of the first injury received by him or his guess work against the other four who were seen by him at the spot, of which he retained some faint impression when he found himself in a fit condition to make a statement. Therefore we shall have to apply the principal of separating the chaff from grain to the statement of this witness who is to be treated at par with the status of an interested witness and would also seek for further corroboration to substantiate this later part of his state ment. In the circumstances of this case we do not find that the deceased received more than one injury with a blunt weapon on his head and the ocular evidence relating to this part of the account is also discrepant and does not lend support to his contention: From the ocular evidence there is definitely a corroboration of this statement of the deceased to the extent that Allah Yar appellant gave a Bang blow on the head of the deceased after he was fired at by Allah Bakhsh appellant. As far as the other three appellants namely 6hulanl Rasul, Allah Diwaya and Karim Bakhsh mentioned by deceas ed in the dying declaration, where declared by the P. Ws. as empty‑handed. We will discuss the plausibility as well as the weight of ocular testimony regarding these three appellants at the proper stage when we discuss the veracity of ocular testimony in this case. For the time being it is sufficient to say that dying declaration made by the deceased positively connects Allah Bakhsh appellant with the act of firing as well as Allah Yar appellant with the inflic tion of injury or the head of the deceased, both from its own contents as well as from the testimony of two eye‑witnesses. 1n case the defence had pointed out any malpractice, violation of mandatory rules or malice on the part of Mien Muhammad lqbal P. W. 1, the Magistrate, 1st Class, from the record of the case then we would not give so much weight to this document as we have attached to it in the instant case. Therefore, we have no option but to place implicit reliance on the dying declaration vis‑a‑vis the guilt of Allah Bakhsh and Allah Yar appellants.

12. The ocular testimony in this case has been provided by Irshad Hussain P.W. 11 and Qadir Baksh P. W.

12. Qadir Bakhsh P.W. although not mentioned in the F. I. R. (dying declaration) received as many as five injuries. out of which two were on the head, one being 2' x x into scalp deep on the right side of back of the head, 3 above the right ear, besides the other three received on the arm and on the calf. The defence did make a faint attempt by making a suggestion to Dr. Muhammad Afzal P. W. 15 who had examined this witness that about the possibility of injuries being caused by a friendly hand or of self‑inflicted nature but the same was positively rebutted by the doctor who stated in unequivocal terms that neither injury Nos. 2, 3 and 4 were caused by friendly bands on the person of Qadir Bakhsh P. W. nor it was possible that injury Nos. 2, 3 and 4 could be self‑inflicted. He also reasoned out by saying that size, appearance and location of the injuries were such that they could not be self‑inflicted or self‑suffered. It may be pointed out that learned counsel for the defence had not the courage to make similar suggestion regarding injury Nos. 1 and 5 because the seat of location of these injuries by itself would not encourage any body to make suggestion of the nature. With this analysis of the injuries caused on the person of Ghulam Qadir P. W. 12, no room for doubt is left in our mind that this witness was present at the time of occurrence and no exception can, in any manner, be taken to his involvement in the aftermath of the attack on the person of the deceased. Both these witnesses have cor roborated each other on all salient points and the defence has not been able to make out anything against them as to show either they had a motive to falsely implicate the appellants or they had any old friendship with the com plainant party so as to lend support to their case without any justification.

13. In order to assess the culpability of Ghulam Rasul, Allah Diwaya and Karim Bakhsh appellant we have to weigh and assess the narration re garding their part played in this drama as given by them so as to see whether these three appellants did or could act in the manner as described by these two P. Ws. Qadir Bakhsh P. W. has stated in this examination‑in‑chief that Allah Diwaya, Karim Bakhsh and Ghulam Rasul appellant although empty‑handed yet caught hold of the deceased before he was actually fired upon by Allah Bakhsh appellant. It will be interesting to reiterate the narration of this witness as given by him in his cross‑examination in paragraph No. 1 at page 67 of the Paper Book:‑‑

"Accused Karim Bakhsh had caught Ghulam Farid deceased from his right arm and had stood behind him while giving twist to the arm and while catching the same. Accused Allah Diwaya had put his arm around the neck of Ghulam Rasul who had caught Ghulam Farid deceased from his legs by bending down and while standing on his left side." Qadir Bakhsh P. W. 12 stands corroborated by Irshad Hussain P. W. 11 on this detailed account of the part played by these three appellants. It is also in evidence of Irshad Hussain P. W. 11 that Ghulam Rasul was the oldest among tae three, was 7 feet to height and was weighing about 4 maunds. If the statement of Irshad Hussain P. W. is accepted about the height, age, breadth and the weight of Ghulam Rasul, then the story as given by these witnesses, becomes highly improbable as well as ridiculous. Firstly it is unimaginable that a man of 60 years, 7 feet in height with an extra ordinary volume would be able to bend to the extent as to hold the knees of middle size person and if at all he could perform this impossible feat, then he would not cover the entire front of his victim. If the deceased was placed in a situation like this where he was being held from the back by two other individuals then it would not be possible for any person to shoot him without taking the risk of killing his own compatriots and friends. We consider this description as nothing but a wanton piece of exaggeration which the P. Ws. in their zeal to give some role to the empty‑handed persons have come for ward with this cock and bull story. We have no hesitation to reject this incredible and preposterous narration which snakes a rational mind revolt toy its very suggestion.

14. As far as the role of Ghulam Nadir and Ghulam Akbar (appellants in Criminal Appeal No. 79 of 1974), is concerned, we have no hesitation to rely on th: testimony of injured witness Qadir Bakhsh P. W. 12 who has fully implicated them as the persons who injured him with sota blow and the same has found support from the medical evidence on the record. We do not find any force in the criticism of the learned counsel for the appellants regarding the veracity of these two witnesses. If at all the defence thought that the whole case was being engineered at the instance of Mian Ehsan Karim Advocate, then there was no bar from them to produce some evidence on the file to show the complicity of this Advocate in this matter. Mere allega tion without any substance, however, loud they are proclaimed, cannot make the claim look as genuine. Similarly, if the defence felt that this was a case of political victimization there was nothing in their way to produce Nawab Asadullah Khan of Khan Garb or any other witness given up by the prosecution as unnecessary to produce in their defence or to make request to the Court to summon them as Court witnesses in order to prove its contention. The very fact that Jahl Haider Shah, Advocate against whom the deceased made complaint in his dying declaration that he was the person behind the attack launched by Allah Bakhsh appellant and his companions belonged to Pakistan Peoples Party, goes to throw over board the defence version regard ing their grievance that the appellants being P. D. P. people wore victimized for their political conviction. How one could possibly imagine that the appellants who claimed themselves to be P. D. P. persons would act on the behest of Pakistan Peoples Party Chairman to commit the murder of his enemy.

15. Lastly the learned counsel for the appellants has argued that the case of the appellant does not merit the sentences as awarded to them by the learned trial Court for the reason that the dying declaration as well as the P. Ws. are silent on this point as to what took place immediately before the occurrence which made Allah Bakhsh appellant to attack the deceased with out any provocation. According to the learned counsel for the defence this would be a redeeming feature in favour of the appellants for awarding them lesser penalty. We are hardly impressed with this argument. As referred earlier, Allah Bakhsh had definitely some cause of grievance which motivated him to take revenge and thus his dastardly act of violence does not entitle to any lenient treatment.

16. In the light of the above discussion we are of the considered opinion that Allah Bakhsh appellant has been rightly convicted and sentenced alongwith Allah Yar appellant, under section 302/34, P. P. C. relying on the dying declaration ; recoveries of weapon of offence from the two appellants, supported by the evidence of Firearms Expert and the medical evidence. The learned trial Judge also rightly convicted and sentenced Ghulam Qadir and Ghulam Akbar appellants. As far as Ghulam Rasul, Karim Bakhsh and Allah Diwaya appellants are concerned, we are of the view that the learned trial Judge was not justified to convict and sentence them as they have not participated in the murder of the deceased. The result is that we maintain the conviction and sentences of Allah Bakhsh and Allah Yar appellants and appeal qua them is dismissed. Appeal with regard to Ghulam Rasul, Karim Bakhsh and Allah Diwaya is accepted. Their conviction and sentences are set aside and they are acquitted of all the charges. They should be set at liberty forthwith unless they are wanted in some other case. The conviction of Ghulam Qadir and Ghulam Akbar appellants is warranted regarding quantum of sentence visited upon Ghulam Qadir and Ghulam Akbar appellants, we alter their sentence to the extent of period already undergone by them. Since, they are on bail, they should be discharged of their bail bonds. However, the sentence of Rs. 100 or in default whereof to undergo further one month's R. I. each is maintained.

17. The sentence of death awarded to appellant is confirmed. Appeal dismissed.