P L D 1965 (W (PLP)

7. On the 27th of March 1962, Dr. Allah Bachayo (P. W. 16) performed the post‑mortem examination on the body of Pir Bakhsh and found the following injury on the body: ‑ A small opening, about 1 c. m. in diameter, on the left side of the chest about 3" below the left nipple. On internal examination, the liver and right kidney were found ruptured and the right side of the abdominal cavity was full of blood. A bullet was removed from the kidney. The injury was due to a pistol shot. The injury was ante‑mortem, and sufficient, in the ordinary course of nature, to cause death, which was due to shock and internal haemorrhage as a result of the injury. In his opinion the deceased could have lived for about 15 minutes after the injury, but he could only have talked during the first five minutes.

8. Dr. Muhammad Shoaib examined Mst. Aishah on the 27th of March 1962, and found the following injuries on her person:‑-- (1) A circular aperture with a diameter of 1/3'' over the abdomen, 1?" above and ?" on the right side of the umbilicus. (2) An oblique lacerated wound, 1" x 1/3'' x 1/8", with an aperture at its right, and penetrating into the chest cavity. X‑ray examination showed an opaque shadow in the upper part of the right hypochandrium, and another on the lower lateral part of the chest on the right side. Vaginal swabs were taken and sent to the Chemical Examiner for the presence of semen. She was admitted as an indoor patient and was discharged on the 28th of May 1962. The injuries were caused by firearm, and were dangerous to life. On the 14th of April 1962, a bullet was removed from injury No. 2 and handed over to the S. H. O.

9. Dr. Nawaz Ali (P. W. 15) examined Budho appellant on the 30th of March 1962, and found the following injuries on his person:‑ (1) A pea‑sized abrasion on the first digit on the middle of the finger of the left hand. (2) A pea‑sized abrasion at the base of the middle finger of the right hand, posterior part, These injuries were about three days' old. They were simple and caused by coming into contact with some hard and blunt substance. They could have been caused by scaling over a wall.

10. The appellant denied the prosecution allegations and pleaded that he was innocent. He let no evidence in defence.

11. The evidence against the appellant consists of the motive deposed to by Haji Muhammad Rahim (P. W. 2), evidence of eye‑witnesses, namely, Mst. Aishah (P. W. 3) and her brother Malhar (P. W. 10) the oral dying declaration made by the deceased to Muhammad Ashraf (P. W. 6) Muhammad Akram (P. W. 7), Imam Bakhsh (P. W. 4) and Sarangram (P. W. 5), and the written dying declaration Exh. 35, recorded by Zarin Khan, S. H. O. (P. W. 15).

12. The learned Sessions Judge, has ruled out of consideration the oral as well as the recorded dying declarations. The dying declaration deposed to by Imam Bakhsh, Sarangram and Zarin Khan P. Ws. must be ruled out on the statements of Muhammad Ashraf and Muhammad Akram P. Ws. who have deposed that the deceased was not in proper senses and he made no dying declaration to them. It is most unlikely that he would be in a position to speak when he was brought out into the street. The recorded dying declaration must also be ruled out of consideration. The dying declaration is not even signed by the deceased, and this circumstance points to the deceased having been rendered unconscious on receipt of the injury, because his liver and kidney were ruptured.

13. The learned Sessions Judge also ruled out the evidence of Muhammad Ashraf and Muhammad Akram P. Ws. Two of the reasons which he gave were (1) that the bullet must have caused a fatal wound in the region of the heart, which is incorrect and (2) that the witnesses must have taken more than five minutes to reach the place of the occurrence. We have examined the evidence of these two witnesses with care and we agree with the learned trial Judge that the evidence is not such that we can implicitly rely on for purposes of holding that the deceased did make a dying declaration to them and named the appellant A as his assailant. The dying declaration as deposed to by the two witnesses is discrepant. Secondly, Zahur Khan contradicts their evidence and states that the deceased made no dying declaration. Thirdly, Muhammad Hanif Chowkidar has not been produced as a witness. The F. I. R. Exh. 29 is also inadmissible in evidence as it was recorded after investigation was commenced.

14. The motive is amply established on the record by the evidence of Haji Muhammad Rahim P. W. It is abundantly proved, despite her denial, that Mst. Aishah P. W. was carrying on an illicit intrigue with Pir Bakhsh deceased. The letter Exh. 18/1‑100 were recovered from the house of the deceased. These are proved by the evidence of Mst. Bushran (P. W. 14) to be in her handwriting. The appellant, it appears, wanted the deceased to stop the illicit connection and had threatened the deceased. The motive for the crime is thus clear.

15. To prove the charge of murder, we have the statements of Mst. Aishah (P. W. 3), and Malhar (P. W. 10). The evidence of Malhar has been disbelieved by the trial Court for very good reasons. His statement was not recorded until 31st of March 1962. His evidence must, therefore, be ruled out of account. We are c left with the testimony of Mst. Aishah P. W. She has not stated the hole truth, and, as was expected, has lied on many particulars. She has denied the authorship of letters Exh. 18/1‑

100. She has deposed that she heard only one shot from the adjoining vacant house while the S. H. O. found three bullet marks in the walls and three pieces of lead. Three shots, therefore, must have been fired. It is not improbable that she was with the deceased when the appellant turned up and fired at the deceased. She had chosen not to say that she was there. In fact she has stated when she saw the appellant standing in the adjoining house she did not see any weapon in his hand. She only deposed to have heard a shot. It is true that soon after the appellant appeared in her house and then he had a revolver in his hand, but in what circumstances the deceased received the injury, and at whose hand has not been deposed to. It may be that it was the appellant who fired on the deceased, but the evidence is not, in our view, D sufficient to bring home to the appellant the charge under section 302, P. P. C. The circumstances are not wholly incompatible with the innocence of the appellant of this charge, of which he is acquitted.

16. Although Mst. Aishah has not told the whole truth because she had to save her honour and her position was also at stake, but there is no doubt on her evidence that it was the appellant who fired at her with a revolver. She has named him as her assailant. She has no reason to substitute him in place of the actual assailant. We find that the appellant's relations appear in photographs in which she figures. Her relations with his family were, therefore, cordial, and there is no cause whatever for suspecting that she had implicated him falsely. The appellant also does not allege so in his statement. He also bears marks of scaling over her wall. We are satisfied on her evidence that the charge under section 307, P. P. C. is made out against him. We, therefore, uphold his conviction and sentence under section 307, P. P. C.

17. We also maintain his conviction under section 457, P. P. C. and the sentence of two years' R. I. under this section shall run concurrently with the sentence under section 307, P. P. C. ordered by the trial Court. We order accordingly. K.B.A.???????????????????????????????????????????????????????????????????????????????????? Appeal partly accepted.