P L D 1978 Supreme Court 298 (PLP)

I consider that it is not necessary to indulge in any speculation on this point, as the uncertainty as to whether Muhammad Aslam used his own revolver or pistol with which he had already fired at Abdul Rauf deceased or whether he used the weapon carried by appellant Muhammad Asghar, cannot, in my opinion, negative the direct testimony of Muhammad Khalid as to the identity of his own assailant, nor can it reflect adversely on the fact that immediately after Muhammad Naeem and Abdul Rauf had been fired upon, Muhammad Khalid had seen both the appellants together, one of them riding on a bicycle, and then both of them getting away from the spot after Adam had fired upon him. The evidence of Muhammad Khalid thus lends strong circumstantial corroboration to the dying statement of Muhammad Nacem as to the circumstances of the transaction in which he received the fatal injury, and his companion Abdul Rauf was also done to death by the two appellants. My conclusions, therefore, are that the incident took place at a time when there was sufficient day‑light to enable identification of their assailant ,v by Muhammad Naeem deceased as well as Muhammad Khalid (P. W. 14) Muhammad Naeem, as well as his relatives, had no motive to falsely substitute the present appellants for the real culprits, that the dying statement made by him is both genuine and true and it finds strong circumstantial support from the evidence of Muhammad Khalid. Muhammad Khalid had also no motive whatsoever to falsely implicate Muhammad Aslam in so far as his own injury was concerned, nor to falsely depose as to the presence of Muhammad Asghar near the spot at the relevant time in the company of Muhammad Aslam. The different nature of the injuries attributed to appellant Muhammad Aslam in the case of Muhammad Naeem deceased and Muhammad Kbalid cannot negative the direct testimony of Muhammad Khalid, nor the dying statement of Muhammad Naeem, as none of them could have full opportunity to observe all the movements of the two appellants durin the interval that elapsed between the initial incident of firing on Muhammad Naeem and Abdul Rauf and the second incident of firing upon Muhammad Khalid. It would be, in my opinion, clearly wrong to negative these two pieces of evidence on the basis of the different kinds of injuries just mentioned. As a result I am fully satisfied that both the appellants have been rightly convicted and sentenced. I would, accordingly dismiss this appeal. QAISER KHAN, J.‑After going through the judgment of my Lord the Chief Justice proposed to be delivered in this case it is with respect that I have to state that I do not find myself in agreement with it. I therefore, proceed to record my own judgment. The facts of the case need not be reiterated as these have already been given in detail in the proposed judgment of my Lord the Chief Justice. I straightway proceed with the discussion of evidence. The prosecution evidence in this case consists of the following pieces :‑ (1) The dying declaration of Muhammad Naeem deceased recorded by Mahmood Ahmad, Naib‑Tahsildar P. W. 4 and deposed to by hint and Gul Muhammad A. S. I. P. W. 18. (2) Ocular testimony of Maqsood Ahmad P. W. 13. (3) Ocular testimony of Muhammad Khalid P. W. 14 and Fazal P. W. 15. (4) Recovery of cycle of the deceased from the accused on the 6th of June 1972, deposed to by Muhammad Aslam S. H. O. P. W. 16 and Hashmat Ali P. W. 10. (5) Recovery of a '12 bore pistol at the instance of Muhammad Aslam accused on the 10th of June 1972 deposed to by Muhammad Aslam S. H. O. P. W. 16 and Murid Ahmad P. W. 11. (6) Recovery of a pistol at the instance of Asghar accused on the 10th of June 1972 deposed to by Muhammad Aslam S. H. O. P. W. 16 and Murid Ahmad P. W. 11. (7) Recovery of one ' 12 bore and two '32 bore empty cartridges from the spot on the 2nd of June 1972 deposed to by Gul Muhammad A. S.1. P. W. 13 and Muhammad Rafiq P. W. 9. (8) Medical evidence. (9) Motive deposed to by Maqsood Ahmad P. W. 13." Taking the motive first the whole of the evidence with respect to it is the dying declaration of Muhammad Naeem and the statement of Maqsood Ahmad P. W.

13. The motive given by Maqsood Ahmad P. W. is that Muhammad Aslam accused and Abdur Rauf deceased were workers of rival political parties and that a day before the day of occurrence Abdur Rauf deceased had hoisted a flag on the P. P. P. office which had been opened earlier in the village with the permission of Abdul Aziz Dogar M. P. A. and which had annoyed Muhammad Aslam accused. The deceased Muhammad Naeem has however not made any mention of this motive in p his dying declaration. He has simply stated that Muhammad Aslam told' him that his father was a bad man. Gul Muhammad A. S. I. P. W. 18 has clearly stated that he did not go to Chak No. 261/EB to verify whether any flag had been hoisted or not. The statement of Maqsood Ahmad P. W. has been disbelieved by the High Court as regards the actual occurrence of which he claimed to be an eye‑witness and no importance could therefore be attached to his statement in respect of the motive. There was thus no evidence on file to show that the accused had any motive to waylay the two deceased for attacking them. There is no doubt that it is in evidence that a year before the present occurrence Muhammad Aslam accused was charged for firing at a brother of Muhammad Naeem deceased in which case Abdur Rauf was prosecution witness against him, but then there is evidence on file to show that Abdur Rauf in his evidence did not charge Muhammad Aslam for the said offence. The said incident could not Q therefore be a motive for the two accused to attack the two deceased. On the other hand the alleged firing by Muhammad Aslam accused on the brother of Naeem could be a motive for charging the accused either falsely or on suspicion. There was thus no apparent motive for the accused to R attack the two deceased and to that effect is the finding of the trial Judge as well. So far as the medical evidence is concerned it does not corroborate the prosecution evidence but on the other hand it contradicts it. The prosecution case and its evidence is that Muhammad Aslam accused fired at Abdur Rauf and then at Khalid while Muhammad Asghar had fired S at Naeem deceased. The statement of the doctor however shows that Khalid and Naeem both had received bullet injuries while Abdur Rauf had received a '12 bore gun injury from which card boards and pellets were recovered. Now if Muhammad Aslam accused had injured Abdur Rauf deceased with a '12 bore gun then how could he cause a bullet injury to Khalid. The medical evidence would show that Khalid had been fired at by the culprit who had fired at Naeem and this is not the prosecution case or evidence. The assertion that the two accused might have changed their weapons while pursuing Muhammad Naeem deceased is preposterous and that was not possible even according to the prosecution evidence. The statement of Khalid shows which was the version of Maqsood Ahmad P. W. as well that Aslam accused was riding a cycle and that Asghar was running after him. The question of their changing weapons during the pursuit of Naeem could not therefore arise. Furthermore this is neither the prosecution case nor there is any evidence regarding it and it is non T of the business of the courts to find out explanation whether reasonable or not for such serious discrepancies in the prosecution evidence. It is therefore abundantly clear that the medical evidence instead of corroborating the prosecution evidence contradicts it. Now coming to the recoveries both the trial Court and the High Court have disbelieved them and these are therefore of no value as against the/o accused. But that is not all. If all the police officials who are prosecution witnesses in this case could resort to fabricating this false evidence o recoveries as against the accused then what sanctity could be attached to their statements as regards the rest of their evidence, that is to say the time of the receipt, of information in the police state on and the time of' the recording of the dying declaration etc. The two accused were charged fort having murdered two persons on the 2nd of June 1972, and for having taken away their cycle but strangely enough both were arrested by the police on the 6th of June 1972 riding the same cycle in broad daylight in Burewala town close to the police station. This is so preposterous that it amounts to nothing but doing violence to intelligence. If the police in this case could resort to this what else could not be expected of it to do. As regards the ocular testimony, the High Court has not relied upon the statement of Maqsood Ahmad P. W. 13 and rightly too as his statement is nothing but a jumble of concoction and the less said about it the better. So reading of it shows that he was never present on the spot and that he did not see anything. He is an old man of seventy years of age and could not have been accompanying Khalid when his young and grown‑up sons were tenants of Khalid P. W. Besides he was according to him sitting in the trolly behind the tractor which was being driven by Khalid and how on earth could he see the accused coming from the opposite direction. He had gone a step further than Khalid by stating that Asghar accused raised a lalkara before As!am accused fired which was not the case of even Khalid. He also went to the extent of saying that soon after the occurrence he saw Maqsood P. W. 13 present at the place where Abdur Rauf was lying dead. There are many other contradictions in his statement also which make it a worthless piece of evidence. We are therefore, left with the dying declaration of Naeem and the statement of Khalid P. W.

14. There is no doubt that both of them were injured and their presence on the respective spots where they were injured could not be denied but then the fate of this case mainly hinges on the exact time at which the occurrence took place. The prosecution case is that the occurrence took place at 6‑30 p.m. in broad daylight as sun set time on the ‑ day of occurrence was round about 7‑15 p.m. On the other hand the defence case is that the occurrence took place after 8 p.m., when it was pitch dark and that both Khalid and Naeem could not and did not identify their assailants. According to the dying declaration Naeem was shot at 6‑30 p.m. and after running for a furlong he allegedly went to the hospital 2 miles away in a Suzuki. Khalid according to his statement was also injured at 6‑30 p.m. and he too went to hospital at Burewala 2 miles away in his tractor. Now in view of the above Naeem should have reached the hospital at the latest by 6‑45 p.m., and Khalid at the latest by , 7 p.m. in any case. According to Dr. Aslam P. W. 7 however they arrived in the hospital respectively at 7‑45 and 8 p.m. The statement of the doctor further shows that he examined Naeem at 8‑30 p.m. and Khalid at 9 p.m. The above would therefore clearly show that neither the deceased Naeem nor Khalid nor even the doctor had come out with truth. If the deceased and Khalid had been injured at 6‑30 p.m. and 8 p.m. and even if it be assumed that they arrived in the hospital at 7‑45 p.m. and 8 p.m. then they could not have been examined by the doctor at 8‑30 and 9 p.m. There is nothing in the statement of the doctor to show that he did not or could not attend to them for some time for any reason. As a matter of fact his statement would show that he started attending to the injured as soon as they came to the hospital. Now even if the statement of the doctor that he examined the two between 8‑30 and 9 p.m. is taken as correct still it would show that the occurrence did not take place before 8 p.m. because both y the injured had rushed to the hospital in fast moving vehicles and they could have reached there is less than 15 minutes and there was no reason why the doctor could delay their examination. But even this statement of the doctor that he examined them at 8‑30 and 9 p.m. is belied by the prosecution evidence on file. The statement of Rehmat Ali P. W. 8 uncle of Khalid injured shows that the deceased and injured were examined by the doctor some time between 10 and 10‑30 p.m. and that the clothes of Khalid for examination were taken out by the doctor in his presence. His statement shows that he reached the hospital after 10 p.m. and that the clothes of the two injured were handed over by him to the doctor which were later on handed over by him to the investigation officer. This assertion of his is supported by the recovery memos. of the clothes which show that the clothes were in fact given by Rehmat Ali P. W. to the investigation officer namely Gut Muhammad P. W. Now if the investigation officer alongwith the Naib‑Tehsildar had arrived in the hospital at 9 p.m. as alleged by him it is not possible that the clothes of the two injured could have been given to Rehmat Ali instead of him. The statement of Rehmat Ali clearly shows that when he came out of the office of the doctor at 10‑30 or 11 p.m. he found Gut Muhammad A. S. I. P. W. standing in the verandah. This in turn will negative the statement of Gut Muhammad A. S. I. P. W. 18 and that of the doctor P. W. 7 that the information was conveyed to the police station vide chit Exh. P.K. at 8‑10 p.m. If the doctor had sent the said chit to the police station at 9‑10 p.m. and it had been received in the Police Station at 9‑20 then Gut Muhammad A. S. I. could not have reached the hospital distant hardly a furlong at 10‑30 or I1 p.m. It is also not understood as to how could the dying declaration be recorded at 9‑20 and handed over to the A. S. I. at 9‑45 when the Naib‑Tehsildar and A. S. I. reached the hospital allegedly at 9 p.m. and Naeem by that time had already been examined by the doctor and was lying in the ward. Furthermore the village was distant hardly six hundred yards from the spot and information of the occurrence must have reached the village in less than half an hour. It has been held that Maqsood Ahmad P. W. did not see the occurrence. Since it was he who reported the matter he must naturally have learnt of the occurrence in the village. He admittedly owned a cycle and according to him went to the police station on his cycle. The distance from the village to the police station could hardly have taken him half an hour. Under the circumstances since the report was lodged at 9‑15 p.m. the occurrence could not have taken place earlier than 8‑15 p.m. Besides the recording of the first information report at the' instance of Maqsood Ahmad at 9‑15 also suggests that no information had reached the police station till then. It does not stand to reason that if the chit Exh. P. K. had been received in the police station at 8‑20 p.m. and Gut Muhammad A. S. L .had gone to the police station for recording the statement or the dying declaration of the injured, Sanaullah A. S. I. P. W. 17 could have recorded the F. I. R. at 9‑15 p.m. at the instance of Maqsood Ahmad. He would certainly have waited for information from A. S. I. Gut Muhammad or at any rate could easily have contacted Gut Muhammad before recording the first information report as the hospital was hardly a furlong away. The statement of Sanaullah A. S. I. P. W. 17 does not show that he incorporated the chit Exh. P. K. of the doctor in the daily diary but even if it be assumed that he did so he has clearly admitted that the going of Gul Muhammad to the hospital was not at all recorded in the daily diary from which the time of his departure could be verified. There is also conflict in the evidence regarding the giving of the chit Exh. P. K. to Gul Muhammad. The statement of Sanaullah A. S.

1. P. W. . shows that Gul Muhammad A. S. I. was not in the police station and that he sent the chit after him. On the other band the statement of Gul Muhammad A. S. I. P. W. shows that be was present in the police station when the chit was delivered to him. In view of all the above facts and circumstances it is abundantly clear that the occurrence took place in dark and that Naseem and Khalid could no ~W therefore identify their assailants. Now coming to the dying declaration of Muhammad Naeem and the statement of Khalid their mere perusal would show that these were not true and could not be relied upon. Taking the dying declaration first I would agree with my Lordship the Chief Justice that the dying declaration recorded by a Magistrate 3rd Class would be admissible in evidence. I am y also of the opinion that the ding declaration was genuine and had not been fabricated while Muhammad Naeem was unconscious. But for the following reasons I am of the opinion that it was not true and could not relied upon :‑ (1) The occurrence according to the dying declaration took place at 6‑30 p.m. The deceased at once rushed to the hospital only 2 miles away in a Suzuki but strangely enough he reached there at 7‑45 p.m. as deposed to by the doctor. If his version of 6‑30 p.m. was correct then he could have been in the hospital at 6‑45 p.m. which is not the case. The dying declaration to the extent that the occurrence took place at 6‑30 p.m. was therefore palpably wrong. (2) If Muhammad Naeem had been fired at from a close range as alleged by him in his dying declaration and seriously injured then he could never have escaped from the two accused even if the two had run after him on foot. According to the dying declaration he ran for one furlong up to the road then saw a Suzuki arriving, stopped it and entreated the driver to take him to the hospital but even then he was not overtaken by Muhammad Aslam who was in his hot pursuit. This is something preposterous. It becomes more preposterous if we take into consideration the statement of Khalid P. W. according to whom Aslam accused had pursued Muhammad Naeem deceased on a cycle. (3) There can be two situations only. Either Nacem got into the Suzuki and started for the hospital when the tractor driver Khalid was fired upon or he was still on the road when Khalid was fired upon. If he was still on the road without having boarded the Suzuki then the question of the‑accused leaving him and firing at Khalid could not arise. If on the other hand he had started going in the Suzuki when Khalid was fired upon then how on earth could he know as to who fired at whom. (4) The firing on the tractor driver clearly appears to be information conveyed to him by others, and this would in turn show that the dying declaration was tutored. In this connection there is evidence on file to show that the relations of Naeem had arrived in the hospital before his dying declaration was recorded. The statement of the doctor shows that a large number of relations of the injured had arrived in the hospital within minutes of their arrival. The statement of the Naib‑Tehsildar also shows that many persons were present in the hospital and some even in the ward where the dying declaration was recorded. The statement of Gul Muhammad A. S. I. also shows that the relations of the injured were present in the hospital when he reached there at 9 p.m. According to this witness even Maqsood Ahmad P. W. was also present in the hospital when he reached there. In view of the above it is therefore abundantly clear that the dying declaration was not true and could not be relied upon. So far as the statement of Khalid P. W. 1 is concerned there are inherent weaknesses in it and no reliance could therefore be placed on it for the following reasons :‑ "(1) According to Khalid he was fired upon at 6‑30 p.m. while he was driving his tractor and that he went straight to the hospital in that tractor. Now if he had been fired upon at 6‑30 p.m. then under no circumstances could he reach the hospital at 8 p.m. the distance being only 2J miles according to the statement of Muhammad Sharif P. W.

6. He has therefore clearly perjured himself so far as the timing of the occurrence is concerned. Even if we take the statement of the doctor as correct that he reached the hospital at 8 p.m., the occurrence could not have taken place earlier than 7‑45 p.m. as he being injured must have raced to the hospital. He could not therefore identify his assailant as sunset time on the day of occurrence was at 7‑15 p.m. (2) He has stated that Aslam came riding a cycle while Asghar was running after him but in this he is contradicted by the dying declaration of the deceased which shows that Aslam accused ran after him towards the road on foot and not on cycle. (3) This witness was coming from Burewala when he was fired at and after being injured he turned back and rushed to Burewala hospital. It is however very strange that just before be was fired upon Naeem was also allegedly fired at by the accused but despite the fact that Naeem saw him being fired at he did not see Naeem being fired upon. (4) It also does not stand to reason that Aslam could have fired at him without any rhyme and reason in broad daylight knowing full well that he had nothing to do with him. (5) There is evidence on file to show that during the days of occurrence tractors were being regularly stolen and taken by force in the area in question and it appears that an attempt was made at Khalid for taking away his tractor while he was driving it in dark. (6) It appears that Khalid reached hospital round about the same time as Naeem reached and since he had not identified the culprit who fired at him the police took advantage of it and made him a witness in the murder case. The assertion that he had no motive to do so has no substance in it as 'there is evidence on file to show that he had a motive to implicate the two accused. He is a nephew of Rehmat Ali P. W. 8 and the son o Rehmat Ali that is to say his first cousin was murdered. Yusuf father o Rauf deceased and maternal uncle .off Naeem deceased was a prosecutio witness in that case and Rehmat Ali P. W. and for that matter Khalid P. W. had to repay that debt. Furthermore the statement of Khalid itself shows that he and his uncle Rehmat Ali P. W. were fed up with Aslam accused as he was a bad man and under the circumstances he could have been ready to oblige the prosecution when he did not identify his own assailant. In view of the above no reliance could be placed on his statement as well. The upshot of the above discussion is that the charges have not been brought home to the accused or any one of them beyond a reasonable doubt. Giving the accused the benefit of doubt I would therefore accept their appeal, set aside their convictions and sentences and acquit them. G. SAFDAR SHAH, J.‑I have had the advantage of going through the judgment of my Lord the Chief Justice proposed to be delivered in this case. I respectfully agree with the conclusions recorded by his Lordship on all the legal questions urged by Mr. Mahmood Ali Qasuri, the learned counsel for the appellants. But sincerely regret that I have not been able to agree with his Lordship that the prosecution has succeeded to establish the guilt of the appellants herein beyond reasonable doubt. The facts of the case have been lucidly and elaborately mentioned in the judgment of my Lord the Chief Justice. However, for the sake of ready reference I would briefly recall the essential outlines of the case of the prosecution. The unfortunate incident in this case, in which Abdur Rauf and his cousin Muhammad Naeem lost their lives, is said to have been ppawned by the political rivalry between Abdur Rauf on the one side and Muhammad Aslam appellant on the other. It is said that in the last General Elections held in 1970, Muhammad Aslam was the devoted worker of the Council Muslim League, whereas deceased Abdur Rauf was the zealous protagonist of Pakistan People's Party ; in the emotionally charged atmosphere of those days, due to the intense polarization between the two major political parties, namely, the People's Party and the Pakistan National Alliance, deceased Abdur Rauf was allowed by Chaudhry Abdul Aziz, the local M. P. A., belonging to the People's Party, to establish a party office in the village : the office in question was formally inaugurated on June 1, 1972, when Abdur Rauf is said to have hoisted on the office the flag of the People's Party as a result of which Muhammad Aslam felt highly aggrieved ; in order to teach a lesson to Abdur Rauf, Muhammad Aslam, accompanied by his friend Muhammad Asghar (the other appellant), therefore, waylaid the two deceased persons near the tube‑well of one Haji Muhammad Ali ; after a while when Abdur Rauf and Muhammad Naeem arrived on a cycle, propelled by Abdur Rauf and Muhammad Naeem sitting on its bar, the appellants herein, each armed with a pistol, suddenly confronted them. Upon this unexpected encounter Abdur Rauf and Muhammad Naeem alighted from the cycle when Muhammad Aslam is said to have challenged Abdur Rauf that he would now be taught a lesson for setting up the People's Party's Office in the village ; after having challenged. him this, Muhammad Aslam is said to have immediately fired at Abdur Rauf with his pistol as a result of which he was hit, felled to the ground instantaneously died ; in so far as Muhammad Asghar is concerned he too fired with his pistol at Muhammad Naeem who was hit in the abdomen, but nonetheless he started running towards the nearby metalled road, followed by Muhammad Aslam on the cycle of deceased Abdur Rauf ; that while so chasing him to the metalled road, Muhammad Aslam is said to have again fired a few shots at Muhammad Naeem none of which, however, bit him and so he succeeded to reach the metalled road ; on reaching the metalled road, Muhammad Naeem is said to have hailed one Sufi, who just arrived on a Suzuki Motor Cycle, and begged him to take him to the Boorewala Hospital as he was injured ; it is said that the said Sufi was impressed with the entreaties of Muhammad Naeem, accordingly made him sit on the motor‑cycle and drove him to the Boorewala Hospital reaching there at 7‑45 p.m. The case of the prosecution is that when Muhammad Aslam saw Muhammad Naeem getting away from the ambush, ostensibly without much damage, he turned his pistol towards P. W. Muhammad Khalid, who was sitting on the wheel of his tractor, proceeding from Boorewala to his village, and fired at him causing him injury in the right shoulder ; in order to rush himself to the hospital, therefore, Muhammad Khalid is said to have straightway driven himself to the Boorewala, Hospital, on his tractor, arriving there at 8 p.m. Now the case of the prosecution is that the occurrence bad taken place at 6‑30 p.m., on 2‑6‑1972, in the area of Chak No. 261/EB, situate at a distance of 2J miles from the Boorewala Police Station. As against this the case of the appellants is that the occurrence had taken place sometime in the dark, when the assailants could not be identified, but due to previous enmity with the complainant party they had been involved in this case only on suspicion. In the trial Court the prosecution case had rested on the motive ; on the eye‑witness account of Masood Ahmad (who had also lodged the F. I. R. at Boorewala Police Station at 9‑15 p.m. on the day of occurrence), Muhammad Khalid and Fazil ; on the dying declaration of deceased Muhammad Naeem, recorded by Mahmood Abroad Khan, Naib‑Tehsildar (P. W. 4) on the recovery from the two appellants of the cycle belonging to deceased Abdur Rauf, the crime weapons, namely, the pistols and from the spot of one .12 bore and two .32 bore empties and the medical evidence. The learned trial Judge, however, disbelieved the recovery evidence, as according to the Fie‑Arms Expert none of the said empties had been fired from the two pistols. He further disbelieved the prosecution that the cycle belonging to deceased Abdur Rauf was recovered from the two appellants on 6‑6‑1972 when they were caught riding on it in the Boorewala Town not far from the Police Station. Notwithstanding this finding, however, the learned Judge convicted the appellants on the ground that after the occurrence they had stolen the said cycle and had used it for escaping from the scene of occurrence. As regards the rest of the evidence of the prosecution, the learned Judge was impressed with it and consequently be convicted the appellants and sentenced each of them to death on the two counts ; further convicted them under section 379, P. P. C. and sentenced each of them to R. I. for one year. In the case of Muhammad Aslam, he was further convicted by him under section 307, P. P. C. for the attempted murder of Khalid (P. W. 14) and sentenced him to undergo R. I. for four years. In the appeal filed by the appellants in the High Court, and in the confirmation proceedings, the learned Judges of the Division Bench disbelieved Maqsood (P. W. 13), disbelieved the motive, agreed with the finding of the learned trial Judge in regard to the negative value of the recovery of the crime weapons from the appellants as also that the prosecution had failed to establish that the appellants herein were caught red‑banded on June 6, 1972, riding the cycle of deceased Abdur Rauf near the Police Station. However, with the rest of the findings of the learned trial Court, the learned Judges agreed and consequently they dismissed the appeal of the appellants and confirmed their death sentences. It is the well‑settled practice of this Court that normally it does not got into the re‑appraisement of evidence. But it is equally well settled that in a case the High Court is found to have committed an error of law or hash disregarded any of the well‑known principles relating to the appraisal too evidence, resulting in the miscarriage of justice, then the Court has not B hesitated to reappraise the evidence in the interest of justice. The appraisal of evidence, especially in a murder case, has always seemed to me to the most difficult undertaking which in the nature of things has come to rest on the shoulders of a Judge. The declining moral standards of the society in which we live seem to have further compounded this difficulty with the result that quite often a Judge finds himself placed on the horns of dilemma whether to believe or disbelieve a witness who on solemn affirmation has deposed to the facts of a case from his own knowledge. It is true that the burden of a Judge is somewhat lightened if the witness has been examined and cross‑examined by a competent and experienced lawyer, but all the same the ultimate responsibility rests on the Judge to believe or disbelieve him. In reaching any such decision it is impossible for a Judge to lay his hands on any tailored formulae, so as to say, to assist him to come to right conclusion. For no artificial aids would enable him to seek the truth except his own background, his knowledge of the human affairs and his understanding of the basic nuances of the human nature. For example, and hereby I would take the liberty of mentioning an extreme hypothesis, if a witness says on solemn affirmation that he had with the aid of his own physical prowess, run the distance of a mile in less than three minutes or that he had, without taking any food or water for a month, survived in the desert of Sahara, surely it would be absurd to take him seriously, much less to believe him. It is true that this is an extreme example. But then the Courts are not infrequently faced with more or less similar situations due to the perjured evidence of witnesses who for their own reasons have consciously attempted to pervert the course of justice. Perhaps it was because of this realisation and the consequent difficulties which a Judge must face in the discharge of his arduous duty, that Munir has, in the introduction of his Law of Evidence (1974 Edn.) expressed himself as follows :‑ "The first of these questions, viz., whether a witness should or should not be believed is one of peculiar difficulty owing to perjury that pervades the atmosphere of law Courts in this country. What is the Judge to do where, as it came to the experience of the writer in answer to a true charge of murder the accused is able to support a plea of alibi by proof of an actual conviction of an offence of cattle lifting alleged to have been committed by him at the time of murder at a place, not connected by rail, fifty miles away from the place of murder, and witnesses are prepared to swear to the arrest of the accused and his detention in custody at and since the alleged time of the murder? In another case of murder, the writer again speaks from experience, a conviction of an offence under the Motor Vehicles Act said to have been committed at a place, some 200 miles away from the place of murder, where it was physically impossible for the accused to be after committing the murder, was given in evidence, and though the murder charge resulted in conviction, the difficulty of the Court in coming to a decision to convict can well be judged. Questions of this nature can never be solved by any artificial rules of evidence, and the best guide of the Judge on such questions is his own common sense and experience of human nature. Again, though the law may declare that a certain fact may be given in evidence to prove another fact, it is impossible for the law to say, except in very rare cases, that the Judge should consider the latter fact to be proved on proof of the former fact. No rules of law can impart to the Judge a knowledge of the ordinary rules of ratiocination, and here again the accuracy of his decision will depend upon his general education, on the development of his intellectual faculties and his experience of men and the world." Now by keeping these principles in view, let us now proceed to examine the case of the prosecution. Leaving aside the dying declaration of the deceased Muhammad Naeem for the present, the prosecution had tendered in evidence in the trial Court three eye‑witnesses, namely, Maqsood Ahmad (P. W. 13), Muhammad Khalid (P. W. 14) and Fazil (P. W. 15) out of whom Maqsood Ahmad has been disbelieved by the High Court. The finding of the High Court in regard to the evidence of P. Ws. Muhammad Khalid and Fazil, however, is (see para. 13 of the judgment) that they were not the eye‑witnesses to the shooting of deceased Abdur Rauf and Muhammad Naeem‑ But "the fact remains that their evidence serves as a strong circumstance against these appellants who were found armed with deadly weapons in the close vicinity of the crime. This lends immense support and corroboration to the statement of Muhammad Naeem deceased which he made before the Magistrate 11 Class while he was under the apprehension of death. We are of the considered opinion that the learned trial Court was fully justified in placing reliance on the dying declaration which although by itself was sufficient to warrant the conviction of the appellants yet the Court sought full support from the statement of Muhammad Khalid (P. W. 14) and Fazil (P. W. 15). With profound respect to the learned Judges in the High Court, however, they do not seem to have even addressed themselves to the basic question whether the occurrence in this case could possibly have taken place in the manner as deposed to by the P. Ws. in the trial Court. The finding of the High Court is that the appellants herein had no motive to take the life of Abdur Rauf and Muhammad Naeem with which conclusion I respectfully agree. Considering, however, that the absence of motive would be no ground to disbelieve the case of the prosecution if there exits in a case other satisfactory evidence. But the question is whether the prosecution in this case can be said to have satisfied the said requirement. Maqsood Ahmad (P. W. 13), who was not only the only eye‑witness of the occurrence, but also was the author of the F.

1. R,, has been disbelieved by the High Court. Therefore, excluding the evidence of this witness from consideration, there remains the evidence of Muhammad Khalid (P. W. 14) and Fazil (P. W. 15). The view taken by the High Court, however, is that they . were not the witnesses to the shooting of Abdur Rauf and Muhammad Naeem, but nonetheless their evidence has been used by the learned Judges in corroboration of the dying declaration of the latter, as they were satisfied that at the time of the occurrence they had not only seen the appellants near the scene of the crime, but Muhammad Aslam is said to have also shot P. W. Khalid injuring him in the right shoulder. Now a little probe into the story of the prosecution would at once bring E into bold relief its utter unnaturalness and implausibility. It is difficult to believe that the appellants herein, both of whom were under the age of 24 years, could have allowed Muhammad Naeem to get away from the scene of occurrence, after having effectively shot him in the abdomen. It is in evidence that Muhammad Naeem, after receiving the said injury, had started running towards the mettled road, situate at a distance of more than a furlong, followed by Muhammad Aslam on the cycle of the deceased Abdur Rauf and yet Aslam had not only failed to overtake him, but allowed him to reach the mettled road, hail one Sufi, who is said to have just arrived on a Suzuki Motor‑Cycle, and after explaining to him his predicament he made him sit on the motor‑cycle and drove him away to the Boorewala Hospital. Had the High Court, which seems to have accepted the said version of the prosecution as a matter of course, delved a bit deeper into the matter, perhaps the utter futility of the case of the prosecution would have clearly revealed itself. Unfortunately, the High Court has deprived me of the benefit of its valuable views in this respect. On my part, therefore, I have not been able to persuade myself to accept the story of the prosecution, namely that Muhammad Naeem with a bullet injury in his abdomen, was able to escape from the two appellants whose department otherwise revealed their unshakable determination to put him to death. Similarly, it is beyond my comprehension to believe that when Muhammad Naeem succeeded to escape on the motor‑cycle of that ethereal being (Sufi), Muhammad Adam, for no obvious reason or motive, turned his pistol on Muhammad Kbalid (P. W. 14), who was proceeding on his tractor from Boorewala to his village, and effectively shot hum in the shoulder. Be that as it may, if the occurrence had really taken place at 6‑30 p.m., then why was it that Muhammad Naeem and Muhammad Khalid had reached the Boorewala Hospital, situate just about 21 miles away from the place of occurrence, at 7‑45 p.m. and 8‑30 p.m., respectively, when both of them had travelled on mechanized transport. In regard to these timings there cannot be any doubt, for Doctor Muhammad Aslam (P. W. 1) has affirmed them in his evidence in the trial Court. The fact, however, is that the prosecution has not been able to explain this delay and consequently the objection of the learned counsel for the appellants, namely, that the P occurrence had taken place sometime in the dark hours cannot be said to be F without substance. It is significant to note, however, that while dealing with the same question the learned Judges in the High Court have observed "We are also (aware) of the working conditions in our medical institutions and can safely presume that it would take considerable time before a doctor makes himself available to the patient for First Aid and Medical Treatment. So in this case the note of the doctor showing arrival of the patient at 7‑45 p.m. would clearly lead to an inference that Muhammad Naeem deceased had reached sometime earlier in the hospital before he actually came in contact with the Medical Officer." With profound respect to their Lordships, however, by making these observations they were not only giving the benefit of doubt to the prosecution, but evidently were disregarding the unequivocal evidence of the Medical Officer in which he explained himself as .follows :‑ "The very first information that I received about this case was when Muhammad Naeem injured came walking into my hospital at 7‑45 p.m. on 2nd June, 1972. 1 started making the medical examination about the nature of injuries to Muhammad Naeem. at 8‑30 p.m . .. Rehmat' Ali and other relatives of the injured man, had come to the hospital 10 or 15 minutes after his arrival. Before the arrival of these relatives, I gave him first aid treatment. From 7‑45 p.m. to 8‑30 p.m. I was busy treating this injured man and so started examining him only at 8‑30 p.m." The medical evidence also would seem to support the possibility that the occurrence had taken place actually in the dark hours, when the assailant G could not be identified. The evidence of Doctor Aslam is that when he examined Muhammad Naeem on June 2, 1972, he had found on his person the following injury "A bullet wound 4/10" oval in shape on the outer aspect of the left side of the abdomen 2" above the anterior superior iliac spine." (The underlining* is mine). Similarly on the post‑mortem examination conducted by him on the dead body of Abdur Rauf on June 3, 1972, he had found on it the following injury :‑ "A fire‑arm wound 1" x 3/4' deep to the chest cavity on the front and side of the upper arm 4J" below the top of the left shoulder. The injury was directed towards the right, rightly downward and forward. The area around the injury was charred 3" x 11'. The cotton Kurta and Banyan were also charred at the site of the injury with perforation on both these clothes corresponding to the injury." (The underlining* is mine) Now a look at the type of injuries suffered by Abdur Rauf and Muhammad Naeem would show that both of them had been shot from the left side, as also that Abdur Rauf was shot from almost, the contact range, H as according to the medical evidence the area around the injury suffered by H him, as well as his cotton kurta and banyan both, were found to be charred. The recovery of the card‑board pieces from his left pectoral‑major‑muscle, as well as the two pellets recovered from the right side of his chest, 5' away from the mid‑line of the inter‑costal space, would further support this conclusion. In this view, can it be said with any degree of certainty that the prosecution case is even plausible? The only alleged eye‑witness Maqsood Ahmad (P. W. 13) has been disbelieved by the High Court. He has been disbelieved because he had falsely claimed to have seen the occurrence. Therefore, excluding his evidence from consideration, I find myself in the void not knowing where to turn for guidance. While saying this I am conscious of the other two witnesses, namely, Khalid and Fazil. But before I deal with their evidence a little further probe into the rest of the evidence would seem to be necessary. Now if the version of the prosecution is believed that no sooner the two deceased persons reached near the tube‑well of Haji Muhammad Ali, than the appellants herein emerged from the nearby Khal and appellant Muhammad Aslam threw a challenge at Abdur Rauf that he would now be taught a lesson for opening the office of People's Party in the village ; that thereupon the deceased persons alighted from the cycle when Muhammad Aslam is said to have fired his pistol at Abdur Rauf and Muhammad Asghar at Naeem then the type of injuries suffered by them would be improbable, if not impossible. The fact that both of them had been shot from the left side would show that their assailants had emerged from the left side of the road. It would, therefore, follow that if Muhammad Aslam had actually thrown a challenge at Abdur Rauf, as a result of which he and Naeem both are said to have alighted from the cycle, then their natural posture would be that they would be facing the appellants in which event they would be shot frontally and not from the left side. Unfortunately; in the High Court this aspect of the case has gone wholly unnoticed and consequently again I have been deprived of the benefit of the views of their Lordships. In the High Court reliance was mainly placed on the dying declaration of Muhammad Naeem which according to the learned Judges was corro borated by the evidence of P. Ws. Muhammad Khalid and Fazil, both of whom ware said 'to b.‑ disinterested witnesses. It is in evidence, however, that a year prior to the present occurrence appellant Muhammad Aslam had attacked and injured Muhammad Saleem, a brother of deceased Muhammad Naeem, for which he was tried under section 307, P. P. C. but was acquitted. In that case deceased Abdur Rauf the first cousin of Muhammad Saleem, had appeared as witness for the prosecution but according to the copy of his evidence, produced on the record of this case, he had resiled from his earlier statement which perhaps seems to have made the acquittal of Muhammad Aslam in that case possible. Upon the same question, however, the High Court has, against Aslam, recorded the following findings :‑ "Muhammad Aslam appellant was desperado who was out to (sic) the members of the deceased family and was also fully conversant with the effective use of fire‑arm. Although once unsucessful he took another chance with the help of his friend Muhammad Asgbar appellant and this time he succeeded in taking two lives instead of one." Now with profound respect to the learned Judges this finding would rather seem to be uncharitable because the copy of the evidence of deceased Abdur Rauf from the former case against appellant Aslam has nothing in it to sustain the said findings. I have already expressed my doubt regarding the manner in which according to the prosecution Abdur Rauf and Muhammad Naeem had lost their lives, as the entire story of the prosecution in that respect would seem to be ludicrous. However, Muhammad Khalid has, on solemn affirmation, underwritten its authenticity with the result that his own veracity as a witness has become questionable. It is true that he was injured at about the same time when Abdur Rauf and Naeem were attacked. But this in my humble view would not suffice to hold that he had told the truth. It is in evidence that during the days of occurrence in, this case the stealing of tractors was quite a common feature in the area of Boorewala. A number of F.

1. Rs. were brought on the record of this case by the appellants, in that behalf. But unfortunately they seem to have received no serious attention in the High Court. Furthermore, it is in the evidence of S.

1. P. Muhammad Aslam (P. W. 16) that on the very day of occurrence in this case (i.e. June 2, 1972) a case under section 392, P. P. C. (regarding the theft of a tractor) had been registered at Boorewala Police Station but of this too no notice was taken in the High Court. So far as P. W. Khalid is concerned he is related to the complain an party. It is in evidence that be is the nephew of Rehmat Ali (P. W. 8 whose son (i. e. the cousin of Khalid) was murdered sometime ago and in the trial of the accused in that case the father of deceased Abdur Rauf, name Yousaf had appeared as a witness for the prosecution. Now this circumstance by itself would seem to be of not much consequence. But when viewed in juxtaposition with the other evidence its significance cannot easily be brushed aside. The trial Court as well as the High Court both have disbelieved the case of the prosecution about the motive, the recoveries, the pivotal evidence of Maqsood of Ahmad (P. W. 13) and the recovery from the appellants of the cycle of deceased Abdur Rauf on which they were allegedly caught riding near the vicinity of the Boorewala Police Station. The question, therefore, is as to what was the need to fabricate all this evidence. In a straightforward and genuine case all this padding would indeed be unnecessary. But unfortunately this is what the prosecution has done only to spite its own case. Furthermore, during the days of occurrence the theft of tractors was quite a common feature in the area of Boorewala, therefore, the possibility cannot be ruled out that P. W. Khalid was fired at by unidentified robbers. But was lucky to get away with an injury only in his shoulder and so was able to drive his tractor to the Boorewala, Hospital. This in my humble view would seem to be the only reasonable explanation about the injury suffered by Khalid, for otherwise, it would be absurd to believe that Muhammad Aslam would leave his intended victim, namely, Muhammad Naeem to get away from his clutches and instead fire at Khalid without any reason. According to the High Court, P. W. Khalid was a disinterested witness. But with respect this does not seem to ‑be the position. Apart from being related to the complainant party, as well as supporting the false evidence or P. W. Maqsood Ahmad, the assertion made by him in the Court of the; Committing Magistrate, with which statement he was duly confronted, was that Muhammad Aslam was a desperate person with whom, and here I would quote his own words, "my uncle, father of Rauf deceased, etc. and myself were fed up . . . " In the trial Court, however, he denied to have made any such statement before the Court below. But this was evidently incorrect. Furthermore, in the Court of the Committing Magistrate he had said nothing about the fact that deceased Muahmmad Naeem was also admitted in the hospital in injured condition. But in the trial Court he took the position, ableit voluntarily, that the Medical Officer had told him that Naeem also had been admitted in the hospital. Now normally all these contradictions could be readily ignored, as being not very material. But in view of the totality of the case of the prosecution they do seem to acquire quite a bit of significance. It can well be imagined that when P. W. Khalid and deceased Muhammad Naeem arrived in the hospital in injured condition) the news must have spread in the village as a result of which their relatives seem to have arrived in the hospital some of whom were even present in the very ward where the dying declaration of Muhammad Naeem was being recorded by Mahmood Ahmad Khan, Naib‑Tehsildar. It would not be unreasonable to presume, therefore, that since the crime was unwitnessed, P. W. Khalid seems to have b.‑en prevailed upon by the complainant party, to support them and he readily obliged them not only because he himself was somewhat allergic to Aslam but also because the father of Abdur Rauf deceased to whom he was related had previously appeared as a witness for the prosecution in the case of which the cousin of Khalid had been alleg edly murdered by Muhammad Aslam appellant. As regards P. W. Fazil, he was 75 years old at the time of occurrence. In his examination‑in‑chief what he had said in the trial Court was that on the day of occurrence he was riding the trolly of P. W. Khalid's tractor proceeding from Boorewala to their Chat: that after crossing the bridge of 5‑L minor canal, he saw appellant Muhammad Aslam coming on a cycle from the opposite direction, followed by appellant Asghar who was running; that on seeing them Asghar raised a lalkara whereupon Aslam fired at P. W. Khalid, hitting him on his right shoulder. Now apart from the fact that P. W. Khalid has said nothing about the raising of lalkara by appellant Asghar, P. W. Fazil admitted in cross‑examination to be the tenant of M Khalid for the past 20‑25 years as also that his two sons, namely, Sikandar M and Noor also were his tenants. In answer to a question as to what was the nature of his duty with P. W. Kbalid, he replied that he was maintaining his accounts, but m the Court of the Committing Magistrate, with which statement he was duly confronted, he had deposed differently saying that actually his sons were maintaining the accounts as well as cultivating the land of Khalid. On further questioning he went on to reply that on the day of occurrence he had gone to Boorewala to deliver load of melons to one Rehmatullah, the Commission Agent; that he had gone to Boorewala for that purpose at Peshiwela; that in his 161 Cr. P C statement he had told the Investigating Officer to have met Maqsood Ahmad (P. W. 13) .on the spot who, had told him of the attack on P. W. Khalid; that in his said statement he had also told the Investigating Officer that P. W. Maqsood Ahmad had` informed him as to how the appellants herein had attacked deceased Abdur Rauf and Naeem. But none of these facts were mentioned by him in his, 7V 161, Cr. P. C. statement with which he was duly confronted. In point of fact what he had said in the Court of the Committing Magistrate, with which statement also he was duly confronted, was that on the day of occurrence he had returned from Boorewala a little before Peshiwela. And this would show that he had no business to be riding in the trolly of P. W. Khalid's tractor when Khalid was fired upon. The other two ridiculous statements made by him in the trial Court were that before appellant Aslam fired at P. W. Khalid he stopped his bicycle, placed one foot on the ground and then fired and further that when he went to his village he had talked to none about the occurrence excepting his sons and one Ali Muhammad. It may also be pointed out that in the earlier part of his cross‑examination what he had said was that "on the day of occurrence, I carried the melons to Boorewala for the first time". But subsequently he resiled from that position saying that "I had taken the melons to the Commission Agent 8 or 10 times. I never received any receipt from the Commission Agent. It is incorrect that I have given a false statement and I was not with Khalid P. W. at the time of attack on him". Now by the close scrutiny of the evidence of P. W. Fazil, there is no doubt in my mind that he was not the witness of truth. The very reason for which he claimed to have been in the company of P. W. Khalid was that he had gone to Borewala to deliver to Rehmatullah, the Commission Agent, a load of melons. But his evidence in this respect in unbelievable. Furthermore, if the statement made by him in the Court of the Committing Magistrate is preferred to the one made by him in the trial Court it would be obvious that he was nowhere around the place of occurrence. But all the same had come forward to support P. W. Khalid, as his two sons were his tenants. On my part I would prefer to rely on his statement made in the Court of the Committing Magistrate, as at that time his memory would be comparatively fresh and he would be under muchless pressure at the hands of Khalid as well as the complainant party. The manner in which the investigation in this case was conducted would seem to support the conclusion that the occurrence was wholly unwitnessed and consequently the appellants herein were roped in on account of suspicion. The evidence of Doctor Muhammad Aslam (P. W. 1) is that after examining deceased Muhammad Naeem, when he walked into the hospital in injured condition, he found a bullet injury in his abdomen and consequently he wrote to the local Police Station at 8‑10 p. m. A Ruqa (Exh. P K) that someone should come to the hospital to record the dying declaration. The Police alongwith the Magistrate arrived in the hospital sometime before 9 p. m. when the Magistrate recorded the dying declaration of deceased in his presence, after he had certified him to be in a fit state to make a state ment. It is true that the dying declaration in question would seem to support the assertion of the Doctor. But strangely enough the Ruqa sent by him to the local Police Station of Boorewala was not recorded in the Roznamcha, although it was received by A. S. I. P. Sanaullah (P. W. 17) who claims to have put in 33 years service in the Police Force. Assuming for the sake of argument that this was just an omission, there exist in the evidence of same Sanaullah and A. S. I. P. Gut Muhammad (P. W. 8) glaring contradictions which p would o a long way to impugn their veracity as Police Officers. The evidence of A. S. I.P. sanaullah is that when he received from the Medical Officer, Civil Hospital, Boorewala, the said Ruqa (Exh. P K) at 8‑20 p. m., he sent A. S. I. Gut Muhammad to the hospital. But in cross‑examination he admitted that at that time Gut Muhammad was not present in the Police Station and so he gave the said Ruqa to one F. C. Azmat Ali for delivering it to Gut Muhammad. He further admitted that according to the Police rules, the arrival and the departure of every Police Officer must be entered in the Roznamcha. But admittedly the departure of Gut Muhammad, A. S. I. P. was not so recorded when he left for the hospital. Now the evidence of Gut Muhammad is that Ruga (Exh. P K) was delivered to him in the Police Station and it was thereafeer that he left for the hospital. He admitted, however, that he had not entered his departure in the Roznamcha of the Police Station. Furthermore, his evidence in the trial Court was that when he reached the hospital, alongwith the Naib Tehsildar, at 9. p. m., Khalid and Naeem both had already been medically examined. But in the Court of the Committing Magistrate, with which statement he was duly confronted, he had deposed differently saying that they were examined after he reached the hospital. How this being the evidence of these two experienced Police Officers, will it, not be legitimate to presume that the investigation of the case had been diverted by them into wrong channels . . .. especially when both of them were aware of the rules of their department and yet vioiated them with impunity. The grievance of the appellants throughout has been that they were framed in this case due to the influence of Choudhry Abdul Aziz, the local M. P. A. belonging to the People's Party as also on suspicion. It is true that they have not been able to establish their stand by any positive evidence. But the various circumstances discussed by me hereinbefore would, indeed be a pointer in that direc tion to show that for whatever reason the course of the investigation had been perverted. The evidence of Rehmat Ali (P. W. 8)‑the uncle of P. W. Khalid would seem to support this conclusion. His evidence is that on the day of occurrence, at about 10 p. m., when he reached Boorewala from Multan he heard about the incident and consequently straight away proceeded to the hospital to enquire about his nephew, namely, P. W. Khalid. He admitted in cross-examination that when he reached the hospital at 10‑30/11‑00 p. m. he met the doctor who handed him the clothes of P. W. Khalid and deceased Naeem for handing them over to A. S.

1. P. Gul Muhammad, who was waiting in the verandah of his Office. Gul Muhammad has confirmed this version of Rehmat Ali. In answer to a question whether the doctor had removed the clothes of P. W. Khalid in his presence he replied in the negative. But in the Court of the Committing Magistrate, with which statement he was duly confronted, he had not only said so but had also admitted that while taking off the clothes of P. W. Khalid one by one, the doctor simultaneously noted down the injuries on his person. How P. W. Khalid himself has corroborated the evidence of Rehmat Ali at least in regard to the time at which he had visited him in the hospital saying that he had come to see him at 11‑00 p. m . From all this it would, therefore, follow that neither deceased Muhammad Naeem nor P. W. Khalid could have reached the hospital at 7‑45 and 8‑00 p. m. respectively, as otherwise, P. W. Khalid could not have been examined for his injuries by the doctor some time between 10‑30/11‑00 p. m. In the face of all this incontrovertible evidence, therefore, the rebuttable presumption of truth attached to the various documents, namely, the dying declaration of the deceased and the Ruqa (Exh. P K) sent by Doctor Muhammad Aslam to the Boorewala Police Station would stand rebutted and consequently they would lose their evidentiary value at least in regard to the time at which they were said to be prepared. This leaves us only with the dying declaraion of deceased Muhammad Naeem. I am in respectful agreement with my Lord the Chief Justice that the dying declaration in question was properly recorded by a Magistrate of the Second Class; that it was in no was fabricated nor was it made when Muhammad Naeem was unconscious. Notwithstanding this, however, I am of the humble view that the said dying declaration is not true and consequently the same could not be taken into consideration against the appellants. The law in regard to the utility of a dying declaration is well settled in our legal system. But nonetheless it would be, instructive to reproduce from the judgement of this Court, in the case of Tawaib Khan and another v. The State ( PLD 1970 SC 13) the following dictum :‑ The dying declarations of the deceased have a degree of sanctity under the law, being statements of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate, innocent persons on false charges. But, in the matter of the administra tion of criminal justice taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and' what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deducted in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with ` the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind shed all the age‑old habits and deep‑rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of dying declarations like the statements of interested witnesses, becomes absolutely necessary." Now by keeping these principles in view, let us proceed to examine the contents of the dying declaration of deceased Muhammad Naeem. By the detailed analysis of the evidence on record, I have come to the conclusion that the occurrence in this case had taken place sometime in the dark hours of the night. But according to the dying declaration of Muhammad Naeem it had taken place at 6‑30 p. m. The fact that he was absolutely wrong in this assertion can be readily appreciated from the fact that he claimed to have, reached the hospital at 6‑45 p. m. although the intervening distance was only about 2J miles which was traversed by him on a Suzuki motor cycle, Similarly it is unbelievable that after having received a bullet injury in hi. abdomen he could have out‑distanced the two appellants herein one of whom (Muhammad Aslam) is said to have chased him on the cycle of deceased Abdur Rauf and yet he managed to reach the mettled road, covering a distance of more than one furlong, hail the rider of the motor‑cycle and after explaining to him that he was injured he gave him a ride to the hospital. It is also in evidence that when the dying declaration of Naeem was being recorded in the hospital quite a few of his relatives were lurking around some of whom were even present in the same ward where his dying declaration was being recorded. In these circumstances the possibility cannot be ruled out that his dying declaration was more the result of the promptings of his relatives than entirely the product of his own free will. Furthermore, there is no satisfactory evidence on record to corroborate the said dying declaration. Before concluding, it may as well be mentioned that while analysing the evidence in this case, the substantial and material portions of which seem to have received no treatment in the trial Court as well as in the High Court, I have been conscious of the fact that the doctrine falsus in uno falsus in omnibus has not been judicially recognised by the Courts of our country. According to the well‑established practise, therefore, it is the duty of a Judge to remove what has come to be known "chaff from the grain" and this has been my precise endeavour in this case. I regret to say, however, that after the trial Court as well as the High Court both came to the conclusion that the recoveries of the weapons from the appellants herein were unbelievable, that the recoveries of the crime empties were unacceptable, that Maqsood Ahmad (P. W. 13) who not only claimed to be the eye‑witness of the occurrence, but was also the author of the F. I. R. could not be believed U that the appellants herein had no motive to commit the crime, and that the Investigating Agency was wrong to allege that the appellants herein were arrested on June 6, 1972 from the vicinity of Boorewals Police Station while riding the cycle of deceased Abdur Rauf, it would be absurd to give any credit to the Investigating Agency respecting the rest of the investigation. In point of fact the evidence of P. Ws. Khalid and Fazil which seem to have received no serious treatment in the trial Court as well as in the High Court, is highly unnatural, and thus wholly unacceptable. In this view, there is no evidence left on the record of the case of which the prosecution can claim any benefit. The fact that even the dying declaration of deceased Muhammad Naeem would seem to be untrue there is left no evidence to connect the two appellants herein with the crime. For all these reasons, therefore, I would grant to the appellants herein the benefit of doubt, consequently allow their appeal and set aside their conviction and sentences and direct that they should be released forthwith unless required in connection with some other case. ORDER OF THE COURT In view of the majority opinion, this appeal is allowed with the result that the conviction and sentences of the appellants herein are set aside and it is directed that they shall be released forthwith unless required in connection with some other case. S. A. H. Appeal allowed.