' ZIA-UD-DIN KH TTAK, J.--- On November 28, 2001, at 9 a.m. Badshah Khalid dec ased was going from his house (situate in village Kau) to village D man Shalga. When reached "Path Kass" Ali Zar, Shah Namroz and Nasibzada who were present there duly armed fired at him who in consequence was hit on the front of chest and got injured. The motive was a dispute over payment of money. The incident was witnessed by his brother Shah Khalid and cousin Fateh Bar Khan.
2. After being taken to R.H.C. Wari he reported the incident to Fazal Qadir I.H.C. No,30 and pursuant thereto a case was registered against Ali Zar (appellant erein) along with co-absconding accused Shah Namroz etc. Under secti 324/4, P.P.C. Vide F.I.R. No,305 dated 28-11-2001 Police Station, Wari, District Upper Dir. When later on the deceased then injured succ tubed to his injuries, the section of law was changed to section 302/34, P.P.C.
3. As the appellant along with co-accused became fugitive from law, the Investigating Officer after completing necessary investigation and initiating the requisite proceeding for declaring him as Proclaimed Offender sent the case to the learned Sessions Judge/Zilla Qazi Upper Dir for proceedings under section 512, Cr.P.C. Which were accordingly done vide order dated 26-9-2002.
4. After the arrest of appellant on 28-1-2004 he was sent to the Court of learned Additional Sessions Judge/Izafi Zilla Qazi Wari Dir Bala for trial who believing the dying declaration of the deceased and the ocular testimony of his brother Shah Khalid and cousin Fateh Bar Khan P. Ws and the factum of abscondence of the appellant found the latter guilty under section 302(b), P.P.C. And sentenced him to imprisonment for life and directed him to pay a compensation of rupees One hundred thousand to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to undergo six months' S.I. Vide his judgment dated 26-7-2006.
5. Ali Zar, appellant to challenge his conviction and sentence filed the instant appeal. His counsel Khawaja Muhammad Khan Garah, Advocate assailed the impugned judgment on a variety of grounds and submitted that the learned trial Court has not properly appreciated the evidence on record and thus arrived at a wrong conclusion while convicting the appellant. He contended that the occurrence had not taken place in the manner described by the prosecution as according to the report made by the deceased which later on became a dying declaration, three persons had allegedly resorted to firing but not a single empty was recovered from the spot, that the alleged dying declaration made by the deceased is a fabricated document, for there is no evidence on record anywhere right from inception of the report till the conclusion of trial that the deceased (injured then) was in full senses and capable of making a report. Similarly he urged that the dying declaration was allegedly made in the Hospital, yet its scribe did not obtain fitness certificate from the doctor. The learned counsel by referring to the testimony of P.W.4 Fateh Bar Khan contended that he did not find mention in the report so his statement does not command credence. Lastly, he submitted that Shah Khalid and Fateh Bar Khan P.Ws. Were not present at the spot and their claim of having seen the incident stand belied by a host of circumstances. That the motive has not been proved. That the medical evidence is in conflict with the ocular account of the incident and that the appellant did not abscond and even otherwise abscondence alone is not considered sufficient to base conviction of an accused person in absence of strong corroborative evidence and, therefore, the appellant deserved acquittal.
6. Conversely, the State counsel assisted by Mr. Fayyaz Khan, Advocate learned counsel for the complainant supported the impugned judgment of conviction and maintained that the prosecution has abundantly proved its case through evidence of high order and quality against the appellant, that the occurrence has been witnesses by two eyewitnesses and their testimony is supported by the medical evidence and other circumstantial evidence. While controverting the arguments of learned counsel for the appellant, with regard to the fitness or otherwise of the deceased, it was submitted that the deceased was in his senses and could talk when his statement was recorded by the police official and there is nothing on the record to suggest that the deceased was prompted by any out sider when making the statement. The learned counsel for the complainant argued that it is settled principle that the dying declaration is a very strong piece of evidence on which conviction can be based without any corroboration.
7. We have carefully considered the submissions of learned counsel for the parties and have gone through the record.
8. The prosecution case primarily rests on the dying declaration of the deceased and the ocular account of the incident furnished by P. Ws. Shah Khalid and Fateh Bar Khan. There can be no cavil with the proposition that the statement of the deceased in the form of an F.I.R. Can be treated as a dying declaration which by itself is good enough under Article 46 of the Qanun-e-Shahadat Order, 1984 for sustaining the conviction on a capital charge. Question in the instant case, however, is whether the maker of the statement (Exh.P.A./1) was in a fit condition to make statement which he is said to have made. It is not denied that the deceased (then injured) was brought to the R.H.C.
Wari after 3 hours of the incident at or about 12 noon on 28-11-2001 in critical condition which fact is borne out from the statement of Dr. Hafiz Nisar Ahmad (P.W.10). Medical report (Exh.P.W.10/1) shows a fire-arm entry wound on the sternum at a level parallel to sternal angle with corresponding exit wound on the left side of the chest just below the left shoulder joint. It was distorted in shape, large and open. In the supplementary medical report/death certificate (Exh.P.W.11/1) it is stated that the injured expired at 6 p.m. On 28-11-2001 at T.H.Q. Hospital Dargai due to firearm injury and massive bleeding. In the face of this medical evidence it was the duty of the police official concerned to have obtained a certificate from the doctor before recording statement of the injured that he was in a fit condition to give statement. Such certificate admittedly was not obtained and no reasonable explanation for this omission was given by the police official concerned. In the circumstances, fitness of the injured to make the statement (Exh.P.A./1) remains doubtful. It may also be pointed out that even the two witnesses namely Shah Khalid (P.W.3) and Fateh Bar Khan (P.W.4) did not fully support the prosecution case. Their evidence in fact suffers from glaring contradictions adversely reflecting upon the genuineness/veracity of the dying declaration. The site-plan (Exh.P.B) was drawn up by the Investigating Officer at the instance and pointation of Shah Khalid (P.W.3) according to which firing was made from a distance of 55-60 paces but the doctor (P. W.10) noticed blackening around the entry wound (which can be caused from close range firing), thus belying the dying declaration of Badshah Khalid deceased, (then injured).
9. The last piece of evidence in this case is abscondence of the appellant which no doubt, is for a long time for about 3 years but it F alone cannot be a substitute for real evidence. Abscondence is taken as corroborative piece of evidence only when there is convincing and unchallenged evidence led by the prosecution which is lacking in this case PLD 1990 SC 201.
10. For the aforesaid reasons, this appeal filed by appellant Ali Zar is allowed, the conviction and sentences recorded against him by the learned trial Court vide impugned judgment dated 26-7- 2006 are set aside and he is acquitted of the charge. He shall be set free forthwith, if not required in any other case.