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---S. 302‑Appreciation of evidence‑Medical Evidence showing that injuries on person of deceased were sufficient to cause his death in the ordinary course of nature ‑No other reason was shown for death of deceased‑Held, it was of no consequence to assert that if the injured had received proper treatment his death would have been avoided and he had survived or that due to negligence of doctors injured met death.

(b) Penal Code (XLV of 1860)‑

---S. 302 ‑‑Appreciation of evidence‑Medical evidence‑Hypothetical conjectures and surmises do not replace facts actually proved‑ Suppositions have no sanction in law‑In presence of definite opinion of Medical Officer no different view, held, could be imported on mere presumptions.

(c) Penal Code (XLV of 1860)‑

‑‑S. 302‑Motive .‑Proof‑Motive is that which moves or induces to act in a certain way‑Adequacy or inadequacy of motive was of little importance‑Atrocious crime could be committed for very slight motive on account of impulses‑Non‑discovery of motive for an offence does not signify its non‑existence‑Failure to produce evidence of motive though it may constitute weakness in whole body of proof but is not fatal‑Proof of motive is not more necessary than proof of any other relevant fact ‑Where there was a clear evidence that accused had committed offence, it was, held, immate rial that no motive was proved.

(d) Evidence Act (I of 1871)‑

‑‑S. 22‑Dying declaration‑Genuineness‑Test‑Admissibility in evidence‑Duty of Court.

Under section 32 of the Evidence Act, 1872 statement of a dying person is admissible in evidence. If it is duly proved and admitted in evidence then it stands on the same footing as of any other evidence as to its value and credibility and it can safely be the basis for conviction in a case. It may be oral or written. It is immaterial to whom it is made whether to a private person or to a police officer or to a Magistrate. While dealing with the question of dying declaration the Court has to judge it from standpoints. Some of the main test for determining its genuineness are ;

(1) Whether the maker had the requisite capacity to make the dying statement ;

(2) whether the maker had opportunity to recognise the assailants ;

(3) whether there were chances for mistake on the part of dying man in identifying and naming his assailants ;

(4) whether it was free from prompting from any outside quarter, and

(5) whether the witnesses who heard the deceased making his statement heard him correctly and whether their evidence can be relied on.

If it stands the normal test for judging its veracity, it becomes a wholly reliable piece of evidence and it can safely be accepted as a genuine and true statement of the maker. If it is found to be genuine and true it can by itself form a satisfactory basis for conviction even without corro boration.

As a maker is not subject to cross‑examination the Court has to carefully scrutinise all the physical circumstances as they appear from evidence.

(e) Penal Code (XLV of 1860)‑

‑‑S. 302‑Evidence Act (I of 1872), S. 32‑Dying declaration- Intrinsic and extrinsic infirmities ‑ Infirmities found regarding place and time of recording of dying declaration‑Overwriting, substitution and deletion of names of persons found in dying declara tion‑Such interpolations made after recording F.I.R.‑Eye‑witnesses were also present in hospital when dying declaration was recorded Such facts by itself, held, were sufficient to cast doubt in mind regard ing its genuineness and truthfulness.

(f) Penal Code (XLV of 1860)‑

‑‑‑‑ S. 302 Evidence Act (I of 1872), S. 32‑Dying declaration‑Dying declaration can be relied upon even if it is not attested by Medical Officer or a Magistrate or declarant does not expect death or it is a statement recorded under S. 161, Cr. P. C.

1976 P Cr. L J 545; P L D 1971 Kar. 239; P L D 1976 Lah. 520; 1978 P Cr. L J 35 ; P L D 1970 S C 406 ; P L D 1976 Kar. 4 ; 1977 S C M R 72 ; 1972 S C M R 574 and 1971 P Cr. L J 1089 ref.

1980 P Cr. L J (Kar.) 1190 ; 1975 S C M R 289 ; 1976 S C M R 471 ; A I R 1935 Lah. 94 and P L D 1984 F S C 3 disting.

(g) Penal Code (XLV of 1860)‑

‑‑S. 302‑Appreciation of evidence‑Contradictions in statements When material‑Interested witness‑Test ‑ No enmity existing between parties before incident‑Parties had been living amicably in same vicinity‑Mere relationship and closeness of such witnesses with deceased, held, could not be a cause to turn a witness to be interested one.

(h) Penal Code (XLV of 1860)‑

‑‑S. 302‑Appreciation of evidence ‑All three witnesses resided in area close to place of incident and were natural witnesses of occurrence Presence of witnesses at spot successfully proved by prosecution‑Medical evidence also corroborating version of such witnesses in toto‑Substitute of culprit not proved‑Witnesses not proved to have roped an innocent person ‑ Evidence of such witnesses, held, required no corroboration.

(i) Criminal Procedure Code (V of 1898)‑‑

‑- S. 354‑Penal Code (XLV of 1860), S. 302‑Examination of witnesses‑Prosecution, held, was not bound to examine each, and every witness shown in calendar filed with, challan-Discretion of prosecution to examine any number of witnesses and to drop any one who does not support it.

(j) Penal Code (XLV of 1860)--

‑S. 302‑Recovery-Crime weapon neither recovered nor any recovery relied upon by trial Court‑Admission of accused as to recovery of crime weapon., held, was irrelevant in circumstances. "

(k) Penal Code (XLV of 1860)‑

--S. 302 Appreciation of evidence‑Place of incident-Sufficient ocular evidence fixing place of incident available‑Mere absence of stains of blood at spot, held, had no significance and would not adversely affect prosecution case.

(l) Penal Code (XLV of 1860)‑

‑ S. 302‑Appreciation of evidence‑Evidence ' of ‑'Police officer; held, could not be discarded because of his being‑a policeman but veracity of his testimony ‑had to be accepted: or rejected as of any other witness.

(m) Penal Code (XLV of 1860)‑

‑‑S. 302‑Appreciation of evidence‑Principle of falsus in uno falsus., in omnibus, held, was mot applicable-Court has to sift grain from chaff.

(n) Precedent‑

‑‑Decisions in criminal cases, held, depended upon facts involved therein‑No hard and fast rule could be laid down for its decisions.

(o) Penal Code (XLV of 1860)‑

‑‑S. 302‑Appreciation of evidence'=Prosecution introduced two versions in respect of involvement of accused, one being presence of accused at time of occurrence and the other totally exonerating his presence and involvement. Version Which favoured accused person, held; to be accepted and benefit of doubt extended to accused.

1973 S C M R 12 ; 1972 S C M R 144 ; P L D 1955 F C 70 ; 1970 S C M R 405 ; P L D 1978. Kar. 710 ; 1969 S C. .M R 868, ; 1981 S C M R 182 ; 1973 S C M R 162 ' P L D 1956 F C 126 ; P L D 1976 S C 53 ; P L D 1963 S C 285 ; 1975,P Cr. L J 400 ; P L D 1978 S C 10 ; P L D 1976 S C 557 ; 1978 S C M R 136; 1975 S C M R 289 and 1983 P Cr. L J 1847 disting.

(p) Penal Code (XLV of 1860)‑

‑‑Ss. 34, 114, 109 & 110 ‑Common intention and abetment Distinction.

Abetment as a matter of fact does not in, itself involve the actual commission of the crime, abetted but it is a crime by itself; it is therefore, substantive offence under the P.P.C. and notmerely, appurtenance of the principal, offence.

The complicity of the offender for the crime under section 114, Penal Code, 1860 depends upon ;

(i) if absent would be liable to be punished at an abettor

(ii) is present when the act or offence is committed.

Provisions contained in this section are evidentiary and not punitary nor wide enough to include all accessories of Act. To bring home a charge under this section against an accused, it is incumbent upon the prosecution first to make out the circumstances which constitute the abetment of the offence so that if absent he would have been liable to be punished as a abettor and then to show that. he was also present when the offence was committed. Commission of offence of abetment as a matter of fact is sine qua. non for the. commission of .offence under this section to prove liability. The abetment must be complete 'some time before commission, of offence and then also the abettor is to‑ be present, at the‑.timer. when .the :offence is committed.

A clear distinction could' be drawn between sections 109 and 114 of the P.P.C. Section 109 is a punitive and provides 'for punishment of abetment of offence. On the contrary section 114; P. P. C. is not punitive one but raises presumption to bring the ease within the ambit of section 34; P. P. C.

(q) Penal Code (XLV of 1860)‑‑

--S. 302 Appreciation of evidence‑Both parties resident of' same vicinity ; houses of some of them quite contiguous to each, other, no previous enmity or ill‑will existed between them; all of them except one accused belonged to same tribe and on day of occurrence all of them attended a feast' in house of a common friend and returned to their houses thereafter when unusual and minor incident of staring took place and scuffle continued on for about 1/2 or 3/4 hours which was intercepted‑‑Nothing on, record available to suggest that co‑accused had maliciously caught hold of deceased to get him inju ries caused‑Possibility .of sincere effort on ‑ part of co‑accused to disengage participants from fight and to end scuffle could not be reasonably be excluded‑When two possible theories float from pro secution case; theory favourable to accused; held, to be ‑accepted in circumstances.

(r) Penal Code, (XLV of 1860)-

--Ss. 302 & 304, Part II. Appreciation of evidence--Fight ensured at spur of moment which .was neither, premeditated nor, pre‑planned Neither prosecution nor defence .cane . ‑out with clear breasts to disclose actual cause of scuffle‑‑Feeble motive introduced lacked support, motive thus remained shrouded under mystery.‑Accused had no intention to commit murder of deceased as tie inflicted only one injury on person of deceased and did not repeat; same, none could have prevented him from doing so Question as to whether act of accused amounted to culpable. homicide amounting to murder or culpable homicide not amount to molder riot pleaded at trial nor at appellate stage‑ Though sue exception was not pleaded' yet Court, held,, could consider same from attending. Circumstances emerging from prosecution case. itself‑Case of accused, ; held further, fell under S. 304, Part 11, P.P.C. and. not S.302; P. P.C. in circum stances‑Death sentence was: accordingly converted to 7 years' rigorous imprisonment maintaining fine imposed by trial Court.

Yahya Bakhtiar assisted by Ehsan-ul-Haq and S.A.M Qadri for Convict/Appellants

Muhammad Nawaz Ahmad for the State.

M. Raja M. Afsar for the Complainant.

Dates of hearing 7th 8th, 9th, 10th, 16th, 17th, 21st and 22nd July, 1985.

JUDGMENT

MIR HAZAR KHAN KHOSO, J.

‑The Criminal Appeals Nos. 20 and 21 of 1985 and the Criminal Reference No. 2 of 1985 for confirmation of death sentence arise from the same judgment dated 18th June, 1985 of the learned Sessions Judge, Quetta whereby the convicted the appellants Dr. Munir Ahmed son of Noor Ahmed by caste Kasi under section 302, P.P.C. read with section 114, P. P. C. and Mahmood son of Gul Muhammad by caste Herani for offence under section 302, P. P. C. for causing death of Muhammad Jaffar son of Gul Muhammad and awarded them sentence of death and fine of Rs. 10,000 each or in default of the payment of fine to undergo R. I. for one year. Both these appeals and the death reference are being disposed of by this single judgment.

2. According to the prosecution version on 30‑9‑1.983 at 3‑30 p.m. in Killa Kasi at a distance of about four furlongs from City Police Station, Quetta, in a quarrel Muhammad Jaffer received a knife injury on umblicus and was carried to Civil Hospital, Quetta for treatment. On a telephonic message from the Hospital at about 4 p. m. on the same day A. S.‑I. Muhammad Tariq rushed to the hospital and recorded the statement of the injured Muhammad Jaffar in the Casualty ward.

3. In his statement injured Muhammad Jaffer (now deceased) disclos ed the facts of the incident as follows :‑

Fard‑e‑Bayan from Muhammad Jaffar Kasi son of Gul Muhammad Kasi caste Kusi, resident of Killa Kasi Road, Quetta.

"I with my parents reside in Killa Kasi. I am studying. Today at about 2 p.m. I alongwith my brother Shah Muhammad mistaken for Sher Muhammad) and other friends Dr. Ghulam Muhammad, Ali Muhammad Kasi, Abdul Aziz Kasi, Manzoor Ahmed Kasi and Khan Muhammad Kasi had gone to attend a marriage ceremony in house of a friend at Shaldara Quetta. After attending the marriage, about an hour late returned alongwith my friends. After entering Kasi Kitla, alongwith the friends, we were going to our houses. Muhammad Jan Kasi was standing on the way. He gazed at us. Dr. Ghulam Muhammad asked him as to why he was staring Whether he would devour us Whereupon Muhammad Jan Kasi went away and we went inside the garage of Abdul Aziz. After sometime we came out of the garage for going towards our houses. We saw, Mahmood Sherani and Munir Ahmad Kasi alongwith Muhammad Jan Kasi who were standing there. They stopped us. Muhammad Jan asked Dr. Ghulam Muhammad as to what fudge earlier he had made whereupon Dr. Ghulam Muhammad and Muhammad Jan exchanged harsh words. I and other companions tried to separate them. Mahmood took out knife and attacked upon Ghulam Muhammad who swiftly slipped aside and luckily escaped. I, there after, initiated to control Mahmood whereupon Munir Ahmed caught hold of me from my back and Mahmood fully attacked upon me with knife which pierced into the left side of my stomach, The blood came out profusely. On tottering of my head I fell down on the ground. Muhammad Jan Kasi and his friends and Dr. Munir Ahmad gave kicks and fist blows to my companions. Many people whose names I do not know gathered there who saved me and Dr. Ghulam Muhammad from Muhammad Jan and his com panions. If those persons had not rescued me and Dr. Ghulam Muhammad from Muhammad Jan and his companions they would have killed me and Ghulam Muhammad. Muhammad Jan alongwith his friends decamped from the scene. People took me in a Rickshaw to Civil Hospital for treatment. I charge Muhammgd Jan Kasi, Mahmood Sherani, Munir Ahmad Kasi for having without any reason quarrelled with us and injured me."

4. Then A. S.‑I. Muhammad Tariq sent the statement of Muhammad Jaffar to the City Police Station, Quetta for necessary action. After incorporating the abovesaid statement in 15 4 of Criminal Procedure Code the S. H. O. Muhammad Shareef entrusted the investigation of the case to A. S.‑I. Muhammad Tariq. He recorded statements of P. Ws. Sher Muhammad, Dr. Ghulam Muhammad, Abdul Aziz, Ali Muhammad, Manzoor Ahmad in the Civil Hospital, Quetta. He secured blood‑stained shirt of Muhammad Jaffar. He visited the site and prepared its sketch. On 30‑10‑1983 Malik Zakarya Kasi ex‑Mayor of Municipal Corporation Quetta produced Dr. Munir Ahmad, Mahmood and Muhammad Jan at the Police Station. They were arrested. Muhammad Jaffer succumbed to the injury on 8.10‑1983 at 12.30 p.m. in the Civil Hospital, Quetta. The offence was changed from 307/34, P.P.C. to 302j34, P.P.C. On receiving information regarding death of Muhammad Jaffer, the A.S.I. went to the Civil Hospital, Quetta. He held inquest on his dead body ; and requested the Police Surgeon for its post‑mortem and report. On 10‑10‑1983 the appellant Mahmood volunteered to produce the crime weapon which however was not recovered. On 5‑11‑1983 S.H.O. Muhammad Sharif filed interim challan of the case for offence under section 302/34, P. P. C.

5. The case came for trial before the Court of the learned Sessions Judge, Quetta who on 2‑4‑1984 framed charge under section 302/34, P.P.C. against the appellants Munir Ahmad, Mahmood Khan and Muhammad Jan (acquitted now) who did not plead guilty to it.

6. During proceedings of the case it was projected that the place of incident i. e. the Killa kasi falls outside the Municipal Limits of Quetta where Criminal Law (Special Provisions) Ordinance 11 of 1968 is in force which ousted jurisdiction of ordinary Courts and the offence being scheduled one was triable under the Ordinance and the Sessions Court had no jurisdiction. The learned Sessions Judge on 19‑2‑1985 turned down the objection and proceeded with the case. His order was challenged in a revision petition before this Court. The learned counsel for the appellants did not press the Revision Petition and desired disposal of the appeals and reference on merits hence his revision petition was dismissed accordingly.

7. In support of its case the prosecution has examined P. W. 1 Sher Muhammad, Exh. 2. P. W. 2 Ali Muhammad Exh. 3, P. W. 3, Dr. Ghulam Muhammad Exh. 4, P.W. 4 Dr. Arbab Muhammad Yousuf Exh. 7, P. W. 5 S. H. O. Muhammad Sharif and P. W. 6 Muhammad Tariq A.S.I. Vide his statement Exh. 5 the District Attorney dropped P. Ws. Abdul Aziz and Manzoor Ahmed on the ground that they were won over and not willing to support the prosecution. On 16‑4‑1985 an application on behalf of the appellants was moved for tendering the abovesaid two witnesses for cross -examination ; but it was rejected on 8‑5‑1985. Their request for examining Abdul Aziz and Manzoor Ahmad as Court witnesses under section 540, Cr. P. C. was also declined.

8. On conclusion of .the prosecution. evidence, the appellants were examined on 16‑5‑1985. In their 342, Cr, P. C. statements they totally denied the allegations, brought by the., prosecution against them but however, led no evidence .in defence. In addition to : their 342; Cr, P. C. statements they ‑also filed their written statements. On their request the learned Sessions Judge inspected the site on 1‑6‑1985. Tile inspection. notes pre pared by the learned Sessions Judge and the site .plan prepared by the defence have been placed on record as Exhs.;, 2: and 21 respectively. The learned, Sessions Judge on 18th June, 1985 fund the appellants Munir Ahmed and Mahmood Khan guilty for the offence and sentenced them to death; but however acquitted their companion Muhammad Jan by extending benefit of doubt.

9. Being aggrieved and dissatisfied against their conviction and, sentences' the appellants ‑have conic in' appeal before this Court: The learned Sessions Judge under the provisions of section 374 of the Cr.P.C has sent the case for the confirmation of death sentences,

10. The learned counsel Mr. Yahya Bakhtiar assisted by Messrs Ehsanul Haq arid Mr. S.A.M. Qadri appeared for the appellants and Mr. Muhammad Nawaz Ahmad Advocate assisted by Mr. Raja Muhammad Afsar Advocate for the complainant represented the Advocate‑General. With their dexterous assistance. we have per used the record of the case and gone through the, entire'.' evidence adduced by the prosecution arid the written arguments filed before the trial Court:

11. The learned Sessions Judge has categorized the prosecution evidence as under:-

(i) Medical evidence,

(ii) the dying declaration of deceased

(iii) motive; and

(iv ) Ocular testimony of P. W s Sher Mohammad, Ali Mohammad and Dr. Ghulam Muhammad .

12, Dr. Muhammad Yousuf P. W. 4 Exh 7 has held autopsy on the dead body of deceased Muhammad Jaffar. He found the following injuries on his person

External:

Stab wound on the left side of abdomen below and to the left of umbilicus about 3 in length (wound is already stiched.)

Internal I found as under on interal examination :

< [if supportLists]>(1) Paricardial and heart: Both chambers of heart full of blood.

< [if supportLists]>(2) The pertonial cavity full of foul smelling fluid (pus) stiched rent in mesentry

< [if supportLists]>(3) Two rent in illuim which are already stitched.

< [if supportLists]>(4) Bladder Empty.

< [if supportLists]>(5) The rest of the organs were normal.

In my opinion the cause of death of Jaffar Kasi was generalized pertointius (Resulting from stab on abdomen and rents in illium) shock and death probable time that elapsed (a)between injury and death seven days and nineteen hours (b) between death And postmortem 6 hours I issued the certificate which I produce exh. P/B which is correct and signed by me. The injuries on the person of the deceased were sufficient to cause death in the ordinary course of nature."

13. The dying declaration has been reproduced in proceeding para. 3 of this judgment.

14. The ocular testimony came from the mouth of P. W. 1 Sher Muhammad and P.W. 2 Ali Muhammad and Dr. Ghulam Muhammad. Their examination‑in‑chiefs are reproduced in verbatim :‑

15. P. W. 1 Sher Muhammad "On 30‑9‑1983, on Friday at 2.00 p. m. I, Dr. Ghulam Muhammad, Muhnmmad Jaffar, Ali Muhammad, Manzoor Ahmad and Aziz Ahmad had gone to attend a marriage in Shaldara, Quetta. After attending the marriage we were returning to our house, at Kansi Road Shaldara, Muhammad Jan Kansi was sitting and he was staring at Ghulam Muhammad Kansi. Ghulam Muhammad Kansi asked him why he was staring at them. Muhammad Jan Kansi replied that he will see them. We came to our house and sat in the Garage of Aziz. After some times, we went out of the garage and we found, Muhammad Jan Kansi, Mahmood Sherani and Munir Ahmad Kansi standing at a distance of about 30 feet from the garage. Muhammad Jan Kansi told Dr. Ghulam Muhammad that he had misbehaved near the place of marriage with him. Mahmood Sherani attacked Ghulam Muhammad with a knife while Dr. Ghulam Muhammad shifted to one side. Muhammad Jaffar tried to catch Mahmood Sherani. Munir Ahmad caught Muhammad Jaffar from behind. Then Mahmood Khan Sherani gave a blow to Muhammad Jaffar with knife on his stomach. He started bleeding from the wound. Many persons collected there and intervened. Munir Ahmad, Muhammad Jan and Mahmood Khan Sherani attacked me, Dr. Ghulam Muhammad, Aziz Ahmad, Manzoor Ahmad and Ali Muhammad with knife lathis' but we were saved. Muhammad Jan and Munir Ahmad had lathis with them, The accused in Court are the same who were known to me before. We took the injured Muhammad Jaffer to hospital in a rickshaw while the accused escaped from there. The Investigating Officer secured the shirt of Muhammad Jaffar which had a cut of 2 and quarter inches which was also blood‑stained.

(Note :‑Sealed parcel is opened in Court. I see the shirt Art. P. 2 in Court is the same. The parcel was prepared in my presence and I had signed on it. I see my signatures on the parcel in Court. A Memo. of recovery was prepared in my presence which is signed by me and Faiz Muhammad. I produce it as Exh. P.A. which is the same)."

16. P. W. Ali Muhammad:

"On 30‑9‑1983, on Friday at about 2 p. m. I was standing in front of Aziz garage in Kansi Killa. Doctor Ghulam Muhammad, Sher Ahmad. Manzoor Ahmad, Abdul Aziz and deceased Muhammad Jaffar were standing with me. On return from a marriage, we had gone to take tea at Aziz garage when we came out of the garage, we found Munir Ahmad, Muhammad Jan and Mahmood standing there. Muhammad Jan stopped Doctor Ghulam Muhammad and asked him as to what he had said. They exchanged harsh words. Mahmood took out a knife and stabbed Doctor Ghulam Muhammad, but Ghulam Muhammad was saved. Muhammad Jaffer came forward to intervene, Munir Ahmad caught him from behind. Mahmood Ahmad gave a blow with knife on left side of stomach to Muhammad Jaffar. Muhammad Jan and Munir gave fist blows to me. A crowd collected there and hence I cannot say what happened thereafter. Munir, Muhammad Jan and Mahmood ran away from there due to crowd. The accused present in Court are the same namely Munir Ahmad, Muhammad Jan and Mahmood. Muhammad Jaffar injured was taken to hospital in rickshaw by Doctor Ghulam Muhammad and Sher Ahmad. When we were returning from marriage and we reached at Sha)dara, Muhammad Jan was standing there and be was staring me, Ghulam Muhammad, Muhammad Jaffar, Abdul Aziz, Manzoor Ahmad and Sher Ahmad. Ghulam Muhammad went to him and asked him, why he was staring him and whether he will eat them. Then Muhammad Jan had gone away from there. I cannot say why Muhammad Jan was staring at us."

17. P. W. 3 Dr. Ghulam Muhammad

"About one year ago, it was Friday. I, Sher Muhammad Jaffer, in all four or five persons had gone to attend a marriage in Shaldara. While we were returning from there at Shaldara Road I and Muhammad Jan had exchanged hot words. Muhammad Jan was staring at me and on this we had exchanged hot words. Then we all came to the garage of Aziz. We were taking tea in the garage. We came out of the garage and I saw a crowd collected there and the quarrel had started there. About 40/50 persons were collected there. I cannot give the names of the persons who had started the quarrel, Mahmood had given knife blows to Jaffar in my presence and in presence of the persons. I and probably Sher Muhammad had taken injured Jaffar to hospital, probably in rickshaw. Accused Muhammad Jan and Mabmood are present in Court, and they are the same persons who had quarrelled."

18. P. W. 5 Muhammad Sharif, S. H. O. has stated

"From 27‑7‑1983, I am working as S.H.O. City Police Station, Quetta. On 30‑9‑1983, 1 received Fard Bayan of Muhammad Jaffar Kasi son of Gul Muhammad caste Kasi from Muhammad Tariq S.1.P. I produce that statement Exh. P. C. On the basis of this statement. I incorporated it 154, Cr. P. C. Book. I produce F. I. R. Exh. P.C. is signed by me. Muhammad Tariq was deputed to investigate the case. On 6‑11‑1983, he gave me the police papers after completing the investigation. On the same date I prepared challan against the accused (interim) and sent it up before the Court.

(Note :‑Examination‑in‑chief reserved for want of report of Chemical Examiner)."

Re‑called and re‑affirmed.

Examination‑in‑chief continued to District Attorney.

"On 19‑5‑1985 I received the‑report of the Chemical Analyser from the Prosecuting Branch. I sent up the complete challan against the accused No. 250‑A on 19‑5‑1985. I produce the report of the Chemical Analyser, Exh. P/E is the same."

19. The facts regarding the investigation carried out by P. W. 6 Muhammad Tariq have already been given in detail in para. 4 of this judgment. It is needless to reproduce or repeat the same again.

20. Mr. Yahya Bakhtiar, the learned counsel for the appellants in support of his appeals has raised the following grounds :‑

(1) Classification of prosecution evidence was erroneous.

(2) Finding on point No. 1 regarding death of Jaffar deceased by knife injury is erroneous.

(3) Motive for offence not proved. It adversely reflects upon the prosecution case.

(4) Dying declaration of deceased Jaffar false, fabricated not corroborated by independent evidence hence unreliable.

(5) Eye‑witnesses related‑interested partisan‑their evidence not corroborated by independent evidence hence unreliable.

(6) Tainted ocular testimony could not corroborate tainted dying declaration and vice versa.

(7) Uninterested‑independent evidence though available, neither examined nor produced.

(8) Independent eye‑witnesses Manzoor Ahmad and Aziz Ahmad on fallacious grounds dropped by prosecution as won over and errone ously neither examined as prosecution witnesses nor Court witnesses adverse inference against prosecution.

(9) Inadmissible evidence regarding recovery of knife considered.

(10) Blood not found from the Vardat, scene of offence not proved.

(11) Material contradictions in prosecution evidence‑renders it, fabricated. false and un‑reliable.

(12) Evidence of police witness A.S.I. Muhammad Tariq on recording dying declaration of deceased Jaffar untroworth unreliable.

(13) Appellants entitled to benefit of doubt.

(14) Complainant party aggressor.

(15) Divisibility of evidence on principles of falsus in uno falsus in omnibus.

21. On the other hand repudiating the contentions raised by the learned counsel for the appellants Mr. Muhammad Nawaz Ahmad Advocate for the State and Mr. Raja Muhammad Afsar Advocate for the complainant contended that

(i) Death of deceased Jaffar proved.

(ii) Motive proved.

(iii) Dying declaration recorded with promptitude‑true‑genuine‑ corroborated sufficient for conviction.

(iv) Eye witnesses‑natural of locality‑disinterested‑truthful‑mere their relationship with deceased for discarding them not sufficient‑ parties residing in same locality very well‑know to each other. No mistaken identity‑no previous enmity ‑broad daylight incident no reason to leave loose real culprits and rope innocent persons‑‑ their evidence corroborated though corroboration not necessary.

(v) Tendency in people avoiding to appear as witness, even Manzoor Ahmad and Abdul Aziz declined‑not examined‑prosecution not bound to examine each and every person. No adverse inference to be drawn.

(vi) Absence of blood on spot explained.

(vii) No material contradictions on material points‑minor contradic tions natural.

(viii) Police personnel as a good witness as any other person. No reason for A. S. I. P. Muhammad Tariq to falsely rope the appellants.

(ix) Evidence. unambiguous.

(x) Point of aggression not involved.

(xi) Sufficient evidence against both the appellants.

22. At the outset Mr. Yahya Bakhtiar the learned counsel for the appellants seriously criticized the classification of the prosecution evidence namely, motive, the dying declaration, the ocular testimony and the Medical evidence as inducted by the learned Sessions Judge. He submitted that the above‑said pieces of evidence having not been substantially proved by the prosecution ; its classification was based on illusory assertion. His contention as a matter of fact has pivotal nexus with the issues document hence would be dealt with and discussed at appropriate place and till hereinafter.

23. The next grievance of the learned counsel for appellants was the affirmative finding of the learned Judge on cause of death of Muhammad Jaffar with knife. He submitted that his finding was based on no evidence available on the record but was misreading of facts. He pointed out that defence had not admitted his death by knife. There was also no concession on the part of the defence to have not disputed the cause of death of Muhammad Jaffar. He emphasised that in cross‑examination of the medical officer they had challenged it. In fact the observation of the learned Judge that the cause of death of deceased Muhammad Jaffar was neither denied nor disputed by defence has disturbed him. To confirm his stand he drew our attention to his written arguments filed before the trial Court where he said that the injury in the ordinary course of nature was not sufficient to cause death. He said that in fact the cause of death of Muhammad Jaffar was due to negligence on the part of doctors which resulted in peritonitis condition, ultimately in his death.

24. The learned counsel for respondent strongly repudiated his contention.

25. It seems that the appellants were not serious in raising this ground. They have taken it very lightly in memo. of their appeal. In ground B' they have said that it made no difference for them whether Muhammad Jaffar died as a result of injury or not as they had denied to A have inflicted injury on his person. Dr. Muhammad Yousuf in his state ment before the trial Court has deposed that the injuries on the person of deceased were sufficient to cause his death in the ordinary course of nature., No other reasons has been shown for his death. It is of no consequence to assert that if the injured had received proper treatment his death would have been avoided and he had survived or that due to negligence of B doctors the injured met his death. The hypothetical conjectures and surmises do not replace facts actually proved. Suppositions have no sanction in law. Likewise in presence of definite opinion of the medical officer no different view could be imported on mere presumptions. In result the finding of the learned Sessions Judge that deceased Jaffar met unnatural death by knife injury is not unexceptional one.

26. On point of motive the learned counsel contended that once the prosecution sets up a motive which has to be established by it otherwise it would adversely affect the veracity of the prosecution case as a whole. According to the learned counsel initially the motive advanced by the prosecution was unusual staring by acquitted accused Muhammad Jan at P.W. Dr. Gul Muhammad who in result rebuked him by expressing that if he would eat them whereupon he challenged him that he would see them. It was grievance of the learned counsel that when the principal accused Muhammad Jan who had actually thrown challenge to Gul Muhammad has been acquitted on account of benefit of doubt by the learned Judge, it ought to have been extended same to the both appellants. But on the contrary the learned Sessions Judge fished out support from the ocular testimony and motive, which he‑found out from the written statement of Jan Muhammad.

On the other hand the learned counsel for the respondent have vehe mently disputed his contention.

27. It may be pointed out that the learned Sessions Judge has not rejected the motive leading to the unfortunate incident but felt that the common intention of all accused for the commission of murder of deceased Muhammad Jaffar was missing. The two incidents i.e. the first one of staring and the second one of murderous assault seems are being confused together. In fact the learned Sessions Judge has dealt with the above facts separately. In such events it cannot be said with certainty that the motive culminating in commission of murder was turned down by the learned Sessions Judge. A motive is that which moves or induces to act in a certain way. Its adequacy or inadequacy is of little importance. Some times atrocious crimes have been committed for very slight motive on account of impulses. In the instant case we feel that some false vanity must have resulted in the serious consequences but the same has been concealed from the Court. However failure to discover motive for an offence does not signify its non existence, and failure to produce evidence of motive though it may constitute the weakness in the whole body of proof but is not fatal as in law. Proof of motive is not more necessary than the proof of any other relevant fact. Where there is a clear evidence that a person has committed an offence it is immaterial that no motive‑is proved.

28. Then the learned counsel for the appellants seriously attacked the dying declaration of deceased Muhammad Jaffar. He pointed out intrinsic and extrinsic infirmities rendering it unreliable. Pointing out the intrinsic falsities the learned counsel submitted that the deceased Muhammad Jaffar resided on Kasi Road whereas the statement discloses that he resided in Killa Kasi. In statement of P. W. Sher Muhammad has been shown as his brother Shah Muhammad. His true brother Khan Muhammad as Khan Muhammad only. The learned counsel reiterated that such mistakes could have never been committed by deceased Muhammad Jaffar if actually his statement had been recorded by the prosecution witness A.S.‑I. Muhammad Tariq.

29. The learned counsel pointed out the following extrinsic infir mities

(i) That the witnesses contradict in time and place of its recording.

(ill Before recording the dying declaration the medical officer was not

asked if the injured was in a condition or state of mind to make the dying declaration.

(iii) It was neither attested by a Magistrate nor by the medical officer.

(iv) It was recorded in the hospital where eye‑witnesses Sher Muhammad, Ali Muhammad and Dr. Gut Muhammad were present, the possibility of the recording of his statement at their instance or under their influence could not be ruled out.

(v) Deceased was not expecting death at that time hence no sanctity could be attached to it.

(vi) It was statement under section 161, Cr.P.C. recorded by Investigat ing Officer hence it was inadmissible.

30. The learned counsel pointed out that the Investigating Officer Muhammad Iariq had stated that he recorded the dying declaration at 4.10 p. m. in the Casualty Ward of hospital while Doctor was stitching the wound P.W. I Sher Muhammad has stated that the police had recorded the statement of Muhammad Jaffar after the operation in the ward. P.W. 2 Muhammad Ali has stated that he had gone to hospital after about one hour after Muhammad Jaffar was taken there when he reached there Muhammad Jaffar had already been taken for operation, He was un conscious when he was brought from operation theatre and could not say when he gained his senses. The police was not in the hospital when he reached there. The police had come to the hospital in the evening after sunset. Dr. Gut Muhammad stated that he could not say after bow long time Muhammad Jaffar had come out from the operation theatre ; but he had come out from the operation theatre in his presence. He was under anaesthesia at that time. The injured was taken to operation theatre immediately on his arrival in the casualty ward. The learned counsel further pointed out the contradiction regarding recovery of the shirt of the deceased and the conveyance whereby he was carried to hospital. Regarding his other objections there are no factual controversies hence needless to repeat.

31. In support of his contention Mr. Yahya Bakhtiar relied upon the cases reported in

(i) 1976 P Cr. L J 545. The relevant observation is on page 547, which reads as under :‑

"The statement of Mst. Bilqis (deceased) recorded by the A. S.‑I., too, could not be used as dying declaration as it was merely a statement under section 161, Cr. P. C. It was not recorded in the presence of the doctor nor did the A.S.‑I. care to get it recorded through a Magistrate or any other independent official and the prosecution never pressed it as a piece of evidence against the accused/ appellant."

(ii) P L D 1971 Kar. 239, which reads as under :‑

"The failure of Muhammad Hasan to call the doctor to certify that he was in a fit condition is also not understandable, for a doctor could have been available to him for this purpose in the hospital. It has been denied by Muhammad Hassan that he had recorded the state ment of Gulu in the name of deceased yet the making of this declara tion appears to u9 to be suspicious in the context of the above circumstances, for the possibility of preparing a statement after taking facts from Gulu and then affixing the thumb‑impression of the deceased cannot be excluded. We are, therefore, for the above reasons, inclined to agree with the learned counsel for the appellants that the making of this dying declaration was doubtful and that it should therefore be ruled out of consideration."

(iii) P L D 1976 Lah. 520, which reads as under :‑

"The interested dying declaration or interested ocular testimony in present case is not corroborated by any independent evidence nor it is supported by any strong circumstance respecting the participation of the four acquitted co‑accused in the committing of the murder of the deceased in the present case."

(iv) 1978 P Cr. L J Lah. 35, which reads as under :‑

"As such in the circumstances of this case in the safe administration of criminal justice we are of the view that the testimony of the eye witness cannot be relied upon so as to form basis for maintaining conviction of the appellants on the charge of capital punishment. The evidence of these four eye‑witnesses cannot be corroborated by the dying declaration. As held in the case of Nur Nabi v. The State and Wazir and others v. The State one tainted piece of evidence cannot corroborate another tainted piece of evidence. As such. we are of the view that the ocular evidence in the case needed corroboration from an independent quarter which is not forthcoming."

(v) P L D 1970 S C 406, which reads as under :‑

"As has been pointed out, all the eye‑witnesses were present on the night of 23rd and 24th December, 1962 in the hospital when the dying declaration of the deceased was recorded. Therefore, the possibility that the deceased was tutored by these persons cannot be ruled out, It may be that on account of tutoring, the major role of the occurrence in dispute was placed Muhammad Hussain."

(vi) P L D 1976 Kar. 4, which reads as under : ‑

"Therefore, though in law a conviction of an accused can be based entirely on the dying declaration of the deceased if the facts and the circumstances of the case so warrant such declaration must find independent and reliable corroboration if it is falsely implicates an innocent person. Moreover, in the present case statement made, though dying declaration in the eye of law, do not possess any particular sanctity for the deceased was not under any mortal fear or under an immediate apprehension that his Day of Reckoning had arrived. In these circumstances the discrepancies in the dying declara tion made by the deceased assume some importance and it would therefore be singularly inappropriate to base thereon the conviction of the appellants. We must, therefore, of necessarily look for reliable corroboration."

(vii) 1977 S C M R 72, which reads as under :‑

"It is difficult to appreciate why Alla‑ud‑Din was not taken straight away to the hospital and a Magistrate called there for the recording of his statement after obtaining a certificate from the doctor as to his fitness to make a dying declaration. Instead. The Police Officer adopted a, more time‑consuming process by first sending someone to the hospital to fetch a doctor to grant the certificate that Alla‑ud -Din in his senses and then recording the statement himself at the police station in the presence of the other witnesses. If there was time to send for a doctor then there was time also to send for a Magistrate to record the dying declaration. Why this was not done, it is difficult to say.

As this Court has said in the case of Ghulam Farid v. The State a dying declaration recorded at a police station when the relatives who have brought the injured there are present, is always suspected and certainly less worthy of credence than one recorded by a Magistrate after excluding the relatives.

We see no reason to depart from this salutary principle, for, otherwise, the value to be attached to a dying declaration. will be greatly dimi nished. In order to place implicit reliance on a dying declaration, one must be fully satisfied that it is a statement which has been made by the deceased voluntarily without any possibility of prompting, as to the cause of his death and has been correctly recorded by a responsible person."

(viii) 1972 S C M R 574, which reads as under :‑

"The other item of evidence against the respondent, namely, the dying declaration was also carefully examined by the learned Judges of the High Court and found not to be true and genuine. Although according to the prosecution case, several persons had collected at the spot after the incident, nobody came forward to depose that the deceased had charged his assailant before him. He was taken in tonga to the police station where for the first time he disclosed the name of the respondent as the person who had fired at him. As already stated above, tire occurrence had taken place at 6 a. m., and the statement of the deceased in the police station was recorded at 7‑15 a. m. after about an hour and 15 minutes. The doctor, who had examined him, stated categorically that because of the injuries to the deceased on the pancrea, small intestines, liver, spleen and the left kidney, he must have lost his power of speech within half an hour of receiving those injuries. This statement renders the dying declaration entirely doubtful. The High Court has also observed that the alleged dying declaration was recorded by the police officer in the presence of the relations of the deceased, and if at all it was made by the deceased, the relations may have done the prompting. The learned Judges have also noted from the site plan that there is a culvert on the northern bank of the road to the west of the point where the deceased was injured, and the probability could not be ruled out that somebody fired at the deceased clandestinely by taking cover in that culvert."

(xi) 1971 P Cr. L J 1089, which reads as under :‑

"I am absolutely clear in my mind that prosecution story is entirely false and truth rings in the statement made by Shah Muhammad. No reliance can be placed on the dying declaration of the deceased either, when it shows that it includes falsities in it."

32. On the other hand the learned counsel for the respondent strongly supported the genuineness of dying declaration. It was contended by them that dying declaration was promptly recorded by A. S.‑I. Muhammad Tariq at 4.10 p. m. immediately entered in 154, Cr. P. C. Book at the police station‑hence there was no possibility of its being manipulated but on the contrary such possibility was ruled out. At the time of recording his statement none of the eye‑witnesses was present in the ward, hence possibi lity of the influence or instance is misconceived. It was further contended that attestation of a medical officer or a Magistrate was not necessary. They also disputed that at the time of recording of dying declaration expectation of death was necessary.

33. In support of their contention the learned counsel for the com plainant relied upon the cases :‑

(i) 1980 P Cr. L J (Kar.) 1190, which reads as under :‑

"Thus, the dying declaration to which clause (1) of section 32 of Evidence Act applies, would not be hit by section i62 of Cr. P. C. his dying declaration is, therefore, a good piece of evidence in establishing the charge against the appellants.

This statement, though does not bear the signature of the deponent is, yet, admissible in evidence and can be safely relied upon. The dying declaration is supported by the version given by the eye‑witnesses

in their statements before the committal Court, which have been transferred on the record of the trial Court under section 288, Cr. Y. C. and are substantive piece of evidence."

(ii) 1975 S C M R 289, which reads as under :‑

"In the first instance, the law does not insist that for the purpose of being treated as a dying declaration, the statement should have been made under immediate apprehension of death, we cannot import into the statutory provision any such extraneous limitation. In the absence of a statutory requirement in this regard, the last incriminating statement made by the deceased could be legitimately treated as dying declaration as was rightly done in the instant case. It was a quite unembellished and straightforward statement having a ring of truth."

(iii) 1976 S C M R 471, which reads as under :‑

"Dying declaration of deceased quite unembellished and straight forward statement having a ring of truth. At least one knife injury given on vital part of body causing perforation of intestines and leading to development of perotonitis‑Intenion to kill clearly spelt out from nature and seat of injury. Sessions Judge and High Court considering F.I.R. later treated as dying declaration, supported by medical evidence and abscondence of accused sufficient to bring home guilt to accused petitioner, High Court's judgment held, pro ceeded on proper application of evidence and correct application of relevant principle of law to facts and circumstances of case and left no room for interference by Supreme Court."

Whereas Mr. Muhammad Nawaz Ahmad, the learned counsel for the State in support of his contention relied upon the cases :‑

(i) A I R 1935 Lah. 94, which reads as under :‑

"A statement made by a person who is dead, as to the cause of his death is admissible in evidence even though he was not aware that he was dying when he made it. It is of course, for the Court to consider in each case what value is to be attached to such a statement."

(ii) P L D 1984 F S C 3, which reads as under :‑

"A mere perusal of the statement of Mst. Nasreen made before the Investigating Officer shows as to how she was injured by the accused persons which ultimately caused her death. Thus, so far the admissi bility or relevancy of dying declaration is concerned no exception can be taken against it. Keeping in view the provisions of section 32 of the Evidence Act read with clause 2 of section 162 of the Code of Criminal Procedure reproduced above; it can reasonably be held that a statement recorded by the Investigating Officer under section 161, Cr. P. C. during investigation can be treated as dying declaration. The learned defence counsel has not been able to point out any provision of law to hold to the contrary. Thus, no objection can be taken against the admissibility of such dying declaration and the mere fact that it was recorded by the Investigating Officer himself under section 161, Cr. P. C. would not make it inadmissible in evidence."

We have minutely scrutinized the above dying statement and find that it inspires confidence and gives full and accurate details of the occurrence and how she was inflicted injuries by the accused persons. A.S.I. Zulfiqar Ali P. W. 10 has categorically stated that he recorded the said statement of Mst. Nasreen under section 161, Cr.P.C. without addition or omission."

34. At the very out set it may be pointed out that under section 32 of the Evidence Act statement of a dying person is admissible in evidence if its duly proved and admitted in evidence then it stands on the same footing as of any other evidence as to its value and credibility and it can safely be the basis for conviction in a case. It may be oral or written. It is immaterial to whom it is made whether to a private person or to a police officer or to a Magistrate. While dealing with the question of dying declaration the Court has to judge it from standpoints. Some of the main D tests for determining its genuineness are :‑

(1) Whether the maker had the requisite capacity to make the dying statement ;

(2) whether the maker had opportunity to recognise the assailants ;

(3) whether there where chances for mistake on the part of dying man in identifying and naming his assailants ;

(4) whether it was free from prompting from any outside quarter, and

(5) whether the witnesses who heard the deceased making his state ment heard him correctly and whether their evidence can be relied on.

If it stands the normal test for judging its veracity, it becomes a wholly reliable piece of evidence and it can safely be accepted as a genuine and true statement of the maker. If it is found to be genuine and true it can by itself form a satisfactory basis for conviction even without corrobora tion.

As a maker is not subject to cross‑examination the Court has to carefully scrutinise all the physical circumstances as they appear from evidence.

35. In the case in hand the dying declaration could not successfully; pass through the test. There are clear intrinsic and extrinsic infirmities in' it as pointed out by the learned counsel for the appellants regarding the place and time of its recording. The wrong description of his residence naming Shah Muhammad as Sher Muhammad. Evidently there is inter polation in it. Word Ghulam Muhammad has been deleted and replaced by Gul Muhammad. Shah Muhammad has been overwritten as Sher E Muhammad. Both these interpolations appear to have been made after recording the F.I.R under section 154, Cr. P. C. Book. This fact by itself is sufficient to cast doubt in mind regarding its genuineness and truthfulness. Besides admittedly eye‑witnesses Sher Muhammad, Ali Muhammad and Dr. Gul Muhammad were present in the hospital when it was recorded. The possibility that the deceased while making statement was permitted by the abovesaid witnesses cannot be ruled out. The arguments advanced by the learned counsel of the appellants regarding its attestation by a Magistrate or doctor or that the deceased did not expect his death or that it is a state ment under section 161, Cr. P. C. have not impressed us. The authorities relied upon as a matter of fact have no relevancy with the facts of the instant case. However a dying declaration can be relied upon even if it is, not attested by medical officer or a Magistrate or declarant does not expect death or it is a statement recorded under section 161, Cr. P. C. The authorities relied upon by the learned counsel for the complainant The authorities and the State have no relevancy, in that respect.

36. In support of his fifth contention Mr. Yabya Bakhtiar the learned counsel for the appellant submitted that the witnesses Sher Muhammad, Ali Muhammad and Dr. Ghulam Muhammad were deeply involved, false and interested witnesses. Besides there were material contradictions in their statements which made them unliable and untrustworthy. To support his contention the learned counsel pointed out the variations in statements of Dr. Ghulam Muhammad and P. Ws. Sher Muhammad and Ali Muhammad. The variations pointed out by the learned counsel were regarding exchange of hot words between Dr. Ghulam Muhammad and Muhammad Jan at Shaldara, the incident near the garage of witness Aziz Ahmad, exchange of hot words at that stage regarding part of Munir Ahmad and interference of the people collected at the spot and disappearance of the appellants from there. Production of the shirt of injured and conveyance whereby he was taken to the hospital. The learned counsel for the respondent sub mitted that as a matter of fact the contradictions were minor in nature hence not material to affect the prosecution case as a whole. 'they further submitted that the witnesses were independent and trustworthy.

37. It may be pointed out that the contradictions pointed out by the learned counsel for the appellants are not so material to affect the crucial point involved regarding the stabbing of deceased Muhammad Jaffar. All the three witnesses are unanimous that it was appellant Mahmood Sherani who had inflicted the knife injury on his abdomen. There can be no other opinion about it. We are therefore satisfied that appellant Mahmood Sherant was responsible for causing knife injury to deceased) Muhammad Jaffar. Regarding interestedness of the witnesses it may be pointed out that admittedly there was no enmity existing between the parties before the incident. They all have been living amicably in the same vicinity so much so that before the incident all of them had gone to attend a marriage feast in the house of common friend at Shaldara. However mere relationship and closeness of a witness with deceased have not been found to be a cause to turn a witness to be interested one. It has become an established law by this time and no further elucidation is required. All the three witnesses reside in the area close to the place of incident and they are the natural witnesses of the occurrence. Their pre sence at the spot has been successfully proved by the prosecution. Their presence even otherwise has not been challenged. In view of these facts their evidence in fact needs no corroboration even otherwise medical evidence corroborates their version in toto. Besides these witnesses are closely connected with the. deceased, there is no reason as to why they should leave a true culprit and rope in an innocent one. Phenomenon of substitution has received no appreciation from superior Courts of our country. There is no reason to discredit their testimony in respect of the injury caused by Mahmood Sherani on deceased Muhammad Jaffar. The dying declaration has already been discarded by us hence the contention of the learned counsel for the appellant that tainted ocular testimony does not corroborate tainted evidence has no relevancy.

38. Besides the social structure in this part of the country is quite different from that of the other parts. Here and tribal affinities are either quite close or too far. On account of tribal conflicts and feud the peoples of‑other tribes show a little interest in the matters of others. That is why the unconcerned people as well call them kept away themselves from appearing as witnesses. They believe in principle "of mind your own business". There is the reason why P.W. Aziz Ahmad and Manzoor Ahmad were dropped by the prosecutor as won over.

39. Mr. Yahya Bakhtiar the learned counsel for the appellant vehe mently criticized non‑producing of independent witnesses from the crowd and dropping of P. Ws. Manzoor Ahmad and Abdul Aziz by prosecution on mere statement of the learned Prosecutor. He felt aggrieved that even the trial Judge refused to tender these witnesses for cross‑examination or calling them as Court witnesses.

40. The learned counsel for the State submitted that it was not the correct position of law. It was the sweet will of the prosecution to examine a witness or not.

41. It may be pointed out that P. W. Manzoor Ahmad was examined at earlier stage before the tribunal where he had not supported the pro secution and presumably, that was the reason why both of them were dropped. Even otherwise they were offered to be examined as defence witnesses but were not examined. In our view the prosecution is not bound to examine each and every witness shown in the calendar filed with the challan. It is the discretion of the prosecution to examine any number of witnesses and to drop any one who does not support it. In the instant case by not offering the two witnesses in defence, the effect of adverse inference has been neutralized so the contention raised by the learned counsel for the appellants has no force and repelled accordingly.

Trial Court order dated 8‑5‑1985 rejecting the appellant's application for tendering the above two witnesses for cross‑examination and 16‑5‑1985 declining to examining them as Court witness are quite relevant hence their operative parts reproduced respectively

Dated 8‑5‑1985.

"Considering all the facts, the rulings cited above, I find that it is a discretion of the prosecution to examine any witness in the case and the question of tendering the prosecution witness for cross‑examination who has been given up, does not arise. Hence the application of the defence counsel for directing the Pro secutor to tender the witnesses for cross‑examination who have been given up by him, is rejected."

Dated 16‑5‑1985.

"I have duly considered the rulings cited by the Advocate for the accused and the District Attorney for the State. The section 540, Cr. P.C. gives wide discretion to the Court to examine any witness at any stage of the case. But the discretion is to be exercised judiciously. The Court has to consider if the evidence of any witness is essential to the just decision of the case, then the Court shall examine that witnesses. In the present case, the prosecution has given up these witnesses on the grounds that they have been won over, and they are not willing to support the prosecution case. In view of this statement of the Prosecutor, if these witnesses are examined as Court witnesses, then there is every possibility that the prosecution is likely to be prejudiced by the examination of these witnesses as Court witnesses. In view of the decision of the Supreme Court, as reported in P L D 1979 S C 59 at p. 169, the correct procedure in such a case has been laid down. According to this decision the prosecution has to make the given up prosecution witnesses available for the examination in defence, if the defence so desires. As such the application of the defence Advocate for summoning these witnesses as Court witnesses is rejected. The prosecution is directed to make these prosecution witnesses available at the close of the prosecution case for their examination as defence witnesses, if the defence so likes."

42. The learned counsel for the appellants seriously criticized obser vations made by the learned Sessions Judge on so‑called admission as he called it of appellant Mahmood Sherani leading to recovery of knife the crime weapon. This objection in our view is irrelevant as the crime weapon was neither recovered nor such fact was relied upon by the learned Judge.

43. Then the learned counsel strongly dispute the place of incident. He emphasized that the incident had not taken place near the garage of P. W. Abdul Aziz but it had taken place near the house of appellant Munir Ahmad. To support his contention the learned counsel for the appellant vehemently stressed that no blood was found at the spot. The learned counsel submitted that according to prosecution itself deceased had bleeded profusely and he remained there for pretty long time hence there ought to have been sufficient blood collected at the spot. To establish profuse bleeding the learned counsel referred to evidence of eye‑witnesses and also insisted upon production of the blood‑stained shirt of the deceased which was produced and seen accordingly. It contained blood stains. Then the learned counsel for the appellant submitted that the site being disputed they had requested the trial Judge to inspect it and he inspected and prepared inspection notes of the same which are part of the record. The learned counsel pointed out to the sketches prepared by the prosecution and by the appellants which were produced before the Court and formed part of the record.

44. The counsel for the State vehemently disputed this contention of learned counsel. They explained that in case of injury to a main artery only there could be sufficient bleeding to leave its stains at the spot and not otherwise. In the instant case proof of such injury was lacking.

45. In the context it may be observed that statement of Muhammad Tariq is plausible and satisfactory explanation that due to heavy traffic the traces of the blood had disappeared from the spot. Besides in our view as the scuffle had continued on for more than half an hour or so and many people had gathered there who must have been moving from here and there to disengage the combatants and in result the blood stains must have been destroyed and disappeared and not noticed by the witnesses Muhammad Tariq The offence at the initial stage was registered under section 307/34, P.P.C. where usually blood from the spot is not taken that is why, the A.S.‑I. Muhammad Tariq seems to have prepared the sketch of the Vardat on 30‑10‑1983 when the offence was converted from 307 to 302, P. P. C. Naturally by that time i.e. after the expiry of one month the stains of blood must have disappeared and vanished. However there being sufficient ocular testimony which we have believed to fix the place of incident. In such events mere absence of the stains of blood at the spot has no significance and it would not adversely affect the case.

46. Then the learned counsel for the appellants pointed out the biased investigation carried out by P. W. Muhammad Tariq. He submitted that (i) the witness did not record the F. I. R. on telephone message, (ii) did not record impartial dying declaration, (iii) did not collect independent evidence. He urged that being a police officer certainly had interest in the case ; his evidence should not be relied upon particularly in respect of the dying declaration recorded by him.

47. It may be pertinent to mention that we have already not relied upon the dying declaration hence the contention raised by the learned counsel for the appellant has no relevancy to that context. However evidence of a police officer cannot be discarded because of his being policeman but his veracity has to be accepted or rejected as of any other person.

48. It was then contended by the learned counsel for the appellant the complainant party consisted of six persons whereas appellants were three in number and the incident had taken near house of Dr. Munir Ahmad hence the possibility of the complainant party being aggressors cannot be ruled out. The learned counsel for the other side disputed it and submitted that it was not a case of aggression.

49. In our view it is a case of sudden fight which ensued at the spur of the moment ; the question of aggression is not involved at all.

50. The learned counsel for the appellants pointed out that when the learned Sessions Judge had acquitted Muhammad Jan on same evidence the appellants could have not been convicted but ought to have been acquitted. Even otherwise in the same evidence, the appellants are entitled to benefit of doubt. The learned counsel for the State vehemently disputed it and contended that case of the appellants was distinguishable from that of Muhammad Jan and against them sufficient evidence was available on the record to involve them.

51. It may be observed that the principle of falsus in uno falsus in omnibus is not recognized by the superior Courts of this country. The Courts have to sift the grain from the chaff. Besides in the case in hand the involvement of the all accused is distinguishable from each other hence the contention raised by the learned counsel for the appellant is devoid of force.

52. Since the authorities relied upon by the learned counsel for the appellants as well as the respondent are applicable with mostly all the contentions raised by them, hence are being reproduced here with at this stage

(i) 1973 S C M R 12, which reads as under

"Benefit of doubt‑Incident taking place in a busy cattle‑fair in presence of hundreds of persons, yet no independent witness produced Circumstance very suspicious and High Court, held, justified in giving benefit of doubt to accused."

(ii) 1972 S C M R 144, which reads as under

"Murder‑Benefit of doubt‑Prosecution version that large number of persons had gathered at place of occurrence but all the same pro secution failing to produce a single disinterested witness in support of its case‑Held, no implicit reliance could be placed on evidence of interested eye‑witnesses in absence of corroboration‑Prosecu tion, held, failed to prove its case beyond reasonable doubt Acquittal of accused, in circumstances, not interfered with."

(iii) P L D 1955 F C 70, which reads as under

"Duty to bring all relevant facts to notice of Court even though that might tend to mitigate offence."

(iv) 1970 S C M R 405, which reads as under :‑

"Murder trial‑Benefit of doubt statement of police officials con tradictory, prosecution witnesses intimately related to deceased and interested in prosecution‑Prosecution story unnatural, suffering from inherent impossibilities and not inspiring confidence‑Accused given benefit of doubt and acquitted."

(iv) P L D 1978 Kar. 710, which reads as under

"Benefit of doubt‑Interested eye‑witnesses of occurrence improving upon their police statement to implicate accused‑Incident although taking place in a busy hotel but none of witnesses from locality, including owner of hotel, examined by police as eye‑witnesses Contradictions and conduct of such eye‑witnesses suggesting witnesses to have been introduced by complainant being his confederates‑No recovery of any incriminating article made to corroborate ocular evidence‑evidence of motive and dying declaration ruled out of consideration‑Accused given benefit of doubt and acquitted in circumstances."

(v) 1969 S C M R 868, which reads as under

"Variations in statements of two crucial witnesses as to exact part played by accused‑Benefit of doubt given to accused and acquittal ordered."

53. Mr. Muhammad Nawaz Ahmad, learned counsel for the State relied upon cases :

(i) 1981 S C M R 182, which reads as under ‑

"No enmity of prosecution witnesses found towards accused and their evidence found reliable and true‑Medical evidence not found contrary to ocular testimony‑Conviction maintained, in circum stances."

"Injury ‑Oozing out of blood from wound inflicted on human body, and besmearing of wearing apparel Normal‑Quantity of blood and manner in which it would be smear clothes, however, held, depends upon nature and location of injury, weapon used, and first aid rendered to injured.

"Nothing on record to show eye‑witnesses being partisan in such a way as to falsely implicate appellant‑Most of conclusions reached by trial Judge, acquitting appellant, not possible to be deduced from evidence‑Acquittal, held, resulted in miscarriage of justice and rightly set aside by High Court."

(ii) 1973 S C M R 162, which reads as under

"Eye‑witnesses, evidence of‑Maxim : falsus in uno falsus in omnibus (false in one thing ; false in all) not followed by Courts in this country in context of conditions prevailing here‑Courts have duty to sift grain from chaff.‑Mere fact of evidence of eye‑witnesses being not relied upon against one of accused‑Would not react on credibility of evidence against other."

(iii) P L D 1956 F C 126, which reads as under

"Discrepancies in prosecution evidence‑Vague‑Fate of criminal case does not depend on such discrepancies."

(iv) P L D 1976 S C 53, which reads as under

"It is a frequent experience of criminal Courts that may a gruesome tragedy is enacted, with source of on‑lookers around, yet the assessing is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These "independent" on‑lookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic injunction. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest of their kith and kin. This indeed is one of the principal causes of delay in decision of criminal cases."

(v) P L D 1953 S C 285, which reads as under

"I am unable to discover in this case the slightest excuse for the appellant to have given the fatal knife blow to the deceased in a vital part like the abdomen. The deceased seems to have been attacked for a well‑intentioned expression of a desire that violence be avoided."

(vi) 1975 P Cr. L J 400, which reads as under

"Prosecution giving up a witness and not examining him in chief Question of affording opportunity to accused to cross‑examine such witness, held, does not arise‑Allowing such witness to be cross- examined illegal‑Court not putting any question to witness and straightaway allowing accused to cross‑examine him‑Such witness could not be called a Court witness‑Nor witness as a defence witness either."

(vii) P L D 1978 S C 10, which reads as under :

"Appreciation of evidence‑Discrepancies in statements of witnesses result of a slip due to passage of time and not of a kind as to create reasonable doubt in version put cross by them‑Cannot affect credibility of witnesses‑Fate of case, held, does not hang on mere omissions and discrepancies if not of a substantial nature creating reasonable doubt in prosecution case."

(viii) P L D 1976 S C 557, which reads as under

"Witness‑Cross‑examination‑Discrepancy‑Accused brought to trial three and a half years after occurrence‑Rustic prosecution witnesses inclusive of a woman subjected to lengthy and gruelling cross‑examina tion lasting from 2 to 4 days each by counsel reputed for employing brow‑beating tactics on witnesses‑Certain contradictions between their statements at trial and those recorded earlier, held, inevitable."

(ix) 1978 S C M R 136, which reads as under

"Murder‑Appreciation of evidence‑Witnesses related to deceased‑ would not normally allow real murderer to escape by implicating an innocent person. Evidence of such witnesses only to be scrutinized carefully and not to be rejected on that score."

"Prosecution not required to examine eye‑witness of a crime‑Ocular evidence receiving support from evidence of motive of crime and abscondence of accused for a long period and Courts below holding evidence of prosecution witnesses sufficient to prove guilt of accused, nothing, held, turns on fact of prosecution's failure to examine every possible witness of crime."

(x) 1975 S C M R 289, which reads as under

"One out of two knife injuries given on vital part of body perforating intestines and leading to development of peritonitis‑Nature and seat of injury‑Indicative of intention to kill." .

"It is common knowledge that murders have been committed for no motive worth the name and at any rate on mere minor pretexts. No hard and fast rule could be laid down in regard to the determination of intention which can be spelt out from all the ambient circum stances taken together. A host of them including the highhandedness of the petitioner ; the choice of the weapon of offence by him, the seat of injury and the damage done by it unmistakably establish the intention to kill or at least the knowledge that death could in all probability follow in consequence thereof."

(xi) 1983 P Cr. L J 1847, which reads as under

"Presence of complainant at time of occurrence quite natural‑Mere fact of complainant brother of deceased, held, no ground to reject his testimony."

"Statement of complainant duly supported by medical evidence, held, sufficient to determine guilt of accused."

53. The decisions in criminal cases depend upon the facts involved p rein. No hard and fast rule can be laid down for its decisions.

The authorities hereinabove have no relevancy in the facts involved therein.

54. As the cases of two appellants, Dr. Munir Ahmad and Mahmood appellants stand on different footing hence are distinguishable from one another. We therefore deal with their cases individually and sepa rately.

55. It is case of the prosecution that Dr. Munir Ahmad had caught hold of deceased Muhammad Jaffar from his back and appellant Mahmood inflicted fatal injury on his belly. It is evident that is why the Charge for offence under section 302 read with section 34, P. P. C. was framed against both the appellants and acquitted co‑accused Muhammad Jan by the learned Sessions Judge. From the perusal of the evidence adduced by the prosecu tion it seems that the pieces of evidence which associates him with the offence is that of witnesses Sher Muhammad and Ali Muhammad. These both witnesses throw upon him the responsibility of catching hold the deceased to facilitate appellant Mahmood to cause the fatal injury on vunerable part of his body. In fact their evidence has been totally belied by witness Ghulam Muhammad in that respect. Ghulam Muhammad as a matter of fact is the third material witness of the prosecution. He not only has exonerated him from the part assigned to him by the abovesaid two witnesses but even has not shown his presence at the Vardat. Evidence of Ghulam Muhammad has not been challenged by the prosecution. He has not b; en declared hostile. On the contrary his evidence seems to have been embraced and accepted. By that two versions have emerged out from the ease of the prosecution itself. One in favour of the appellant that he was not there and took no part in the incident favouring him. The other that he was there and facilitated appellant Mahmood to commit the offence. The prosecution has not only introduced but simultaneously relied upon the ocular versions of the abovesaid two sets of witnesses before the trial Court as well as before this Court. The learned Sessions Judge treating the version of witness Dr. Ghulam Muhammad as obliging and concessional one on account of his relationship with appellant Dr. Munir Ahmad, rejected his that version and accepted the other ocular version of the two witnesses and found him guilty for the offence under section 302 read with section 114 of the P.P.C. The conclusions drawn by the learned Sessions Judge are as follows

"Accused Munir Ahmad was present at the scene of offence, be had caught Muhammad Jaffar from behind and as such he had abetted the offence of murder committed by Mahmood Khan Sherani. I find him guilt under section 302 read with 114, P. P. C."

56. These are the facts that directly cover the case of Dr. Munir Ahmad and which are to be scrutinized and re‑appraised to determine his complicity in the crime. It may be recollected that earlier we have observed that prosecution itself has introduced two versions in respect of involve ment of appellant Dr. Munir Ahmad. One being present and catching hold p of deceased Muhamma.d Jaffar and other‑one totally exonerating his presence and involvement from the crime: which of the version is to be accepted Establish cardinal principle of law is that version which favours an accused person has to be accepted and benefit of doubt extended to him. It seems that the learned Sessions Judge in violation of accepted principle of law has taken an adverse view and erroneously stretched benefit of doubt in favour of the prosecution, and convicted the above appellant. The learned Sessions Judge in clear words had admitted that there was no direct evidence or any circumstantial evidence in the case to show that all the accused had common intention to commit murder of Muhammad Jaffar and even the motive as suggested by the prosecution was not sufficient for the accused for the commission of murder. He found that the common intention of all accused for the commission of murder of Muhammad Jaffar was not proved.

57. In spite of all that the learned Sessions Judge while acquitting accused not Muhammad Jan by giving him benefit of doubt convicted appellant Dr. Munir Ahmad saying that Munir Ahmad was present at the scene of offence, and had caught Muhammad Jaffar from back and as such had abated the commission of murder. He held him guilty for offence under section 302 read with section 114, P.P.C.

58. It may be said that impliedly the learned Sessions Judge did not find him guilty for the offence under section 34 of the P.P.C. To draw a line between common intention and abetment it would be pertinent to reproduce section 34 and section 10 of the Pakistan Penal Code

"34. Acts doee by several persons in furtherance of common intention.‑

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

"107. Abetment of a thing.‑A person abets the doing of a thing, who‑

Firstly.‑Instigates any person to do that thing ; or

Secondly.‑Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing ; or

Thirdly.‑Intentionally aids, by any act or illegal omisssion, the doing of that thing.

9. Abetment as a matter of fact does not in itself involve the actual commission of the crime abetted but it is a crime by itself ; it is therefore substantive offence under the P.P.C. and not merely appurtenance of the principal offence. However as the learned Sessions Judge has found appellant Dr. Munir Ahmad guilty of offence of abetment under section 114 of the P.P.C. it would be profitable to reproduce, It leads as under :‑

"114. Abettor present when offence is committed.‑Whenever any person who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in con sequence of the abetment is committed, he shall be deemed to have committed such act or offence."

60. The complicity of the offender for the crime under this section 114 depends upon (i) if absent would be liable to be punished as abettor, (ii) is present when the act of offence is committed. Provision contained in this section are evidentiary and not punitary nor wide enough to include all R accessories of act.

61. To bring home a charge under this section against an accused it is incumbent upon the prosecution first to make out the circumstances which constitute the abetment of the offence so that if absent he would have been liable to be punished as a abettor and then to show that he was also present when the offence was committed. Commission of offence of abetment as a matter of fact is sine qua non for the commission of offence under this section to prove liability. The abetment must be complete some time before commission of offence and then also the abettor is to be present at the time when the offence is committed. There is nothing on the record to suggest that prior to the commission of the offence appellant Dr. Munir Ahmad had acted in such a way that constitute an offence of abetment.

62. To defend the view taken by the, learned Sessions Judge in this behalf Mr. Muhammad Nawaz Ahmad, the learned counsel for the state abortively tried to convince us if it was not offence under section 114, P. P. C. then the abetment falls within the ambit of section 109 of the P. P. C.

63. A clear distinction could be drawn between sections 109 and 114 of the P. P. C. Section 109 is a punitive and provides for punishment of S abetment of offence. On the .contrary section 114, P. P. C. is not punitive one but raises presumption to bring the case within the ambit of section 34, P. P. C.

64. As a distinct charge for commission of offence under section 34, P. P. C. has not been proved therefore the contention raised by Mr. Muhammad Nawaz has no force.

65. Even on merits, one cannot loose site from the peculiar features of the case that the both parties reside in same vicinity ; house of some of them are quite contiguous to each other ; no previous enmity or ill‑will exists between them, all of them except appellant Mahmood belong to Kasi tribe, they had attended a feast in a house of common friend at Shaldara at a little distance from their houses, returned to their houses just thereafter and an unusual a minor incident of staring took place. The scuffle continued on for about 1 /2 or 3/4 hours and was intercepted. Beside there is nothing 'T on record to suggest that the appellant had maliciously caught hold deceased Muhammad Jaffar to facilitate appellant Mahmood to cause him injury. The possibility of his sincere efforts to disengage the participants from fight and to end the scuffle could not be reasonably excluded. In such case when two possible theories float from the prosecution case at itself as is in this case which are :‑

"One set up by the prosecution against this appellant and the other favourable to him. Theory favourable to accused' has to be accepted. Mr. Muhammad Nawaz Ahmad, the learned counsel for the state had conceded that if the first attack of appellant Mahmood on Dr. Ghulam Muhammad was believed then the action of appellant Munir would be deemed to be an aid to facilitate Mahmood to cause him fatal injury. If that part is not believed then his action would be innocent one. Dr. Ghulam Muhammad is one of the main witness. He has not supported the prosecution that appellant Mahmood had launched attacked on him. His version seems to have been treated as true hence no charge for offence under section 307, P. P. C. was frames against appellant Mahmood which shows that prosecution itself did not believe witnesses Sher Muhammad and Ali Muhammad to that extent."

66. The prosecution has miserably failed to bring home the charge of abetment beyond shadow of doubt against him. We extend benefit of doubt to him. His appeal is accepted. His conviction and sentence are set aside. He be set at liberty if not required in any other case.

67. We have relied upon the prosecution evidence and found appellant Mahmood responsible for killing of deceased Muhammad Jaffar. It has now to be seen whether it is a culpable homicide amounting to murder or culpable homicide not amounting to murder. But this aspect of the case was neither pleaded nor considered by the trial Court who should have considered it. For the purpose ought to have formulated a definite point for as to what offence was committed. However the perusal of the evidence reveals that

(i) The both parties reside in the same vicinity,

(ii) They all except appellant Mahmood belong to same tribe,

(iii) Majority of them attended the marriage of a common friend a short while before the incident and there existed no enmity as between them.

(b) Dr. Ghulam Muhammad did not supported the case of the prosecu tion (i) the challenge thrown at him by Muhammad Jan and (ii) the attempt of assault on him by appellant Mahmood.

(c) (i) before police witnesses Sher Muhammad and Muhammad Ali did not disclose threat, thrown by Muhammad Jan at Dr. Gul Muhammad.

(ii) before Court these witnesses improved and supported such threat.

Besides neither the prosecution nor the defence came out with clear breasts to disclose the actual cause for ensuing of the scuffle. Before us the actual motive remained shrouded under mystery. However a feable motive was introduced by Mr. Yahya Bakhtiar that before incident there was a rumour that Khan Muhammad brother of deceased Muhammad Jaffar was attacked by Jan Muhammad which had motivated deceased to avenge. It lacks support. The fight ensued at the spur of the moment. It was neither pre meditated nor pre‑planned. Appellant Mahmood had no intention to commit murder of Muhammad Jaffar. He inflicted only one injury on his person and did not repeat the same as none could have prevented him. Manifestly his act falls under the exception of section 300, P.P.C. Though such excep tion has not been specially pleaded, yet the Court can considered it from the attending circumstances emerging out from the prosecution case itself. In these attending circumstances the case of appellant Mahmood falls under, section 304 part‑II of P.P.C. but not under section 302 P.P.C.

68. The facts and circumstances discussed herein above make it clear that 'the learned Sessions Judge had rightly classified the prosecution evidence, hence the Ist contention raised by the learned counsel for the appellant at the out set in para. 22 of this judgment have no force.

69. In result the conviction and sentence of appellant Mahmood is altered from section 302 to section 304 Part‑1I P. P. C. His death sentence is converted to R. I. for 7 years ; but the fine of Rs. 10,000 imposed by the trial Court is maintained. If fine is recovered it shall be paid to the legal heirs of the deceased Muhammad Jaffar as compensation under section 544‑A Cr. P. C. The appellant is also allowed benefit of section 382 B) Cr. P.C. The appeal are disposed of accordingly. The reference for confirmation of death made by learned Sessions Judge is rejected. The death sentences of the appellants are not confirmed.

70. This constitutes the detailed reasoning of our short order, dated 22‑7‑1985.

M. B. A. Order accordingly

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