' MANZOOR HUSSAIN SIAL, J.-Mohammad Sadiq (30), his brother, Mohammod Riaz (20) and their father Ali Ahmad (80) along with five others were tried under sections 302/149 and 148, P. P. C. By the Additional Sessions Judge, Gujranwala, for forming an unlawful assembly and rioting, in the course of which, Mohammad Zaman, a commission gent in Mandi Jamke was murdered in the area of Police Station, Alipur .2hatta. Learned trial Judge vide his judgment dated 31st January, 1970.
Acquitted all of them. This appeal is directed against the order of their acquittal. The appeal was admitted as against the above-mentioned respondent but dismissed, with respect to other accused in limine.
2. The prosecution case, as disclosed by Mohammad Zaman in his dying declaration recorded at 2 p. m. On 14th November, 1967 by Atta Mohammad, Naib-Tehsildar (P. W. 14) in the Civil Hospital, Wazirabad, on the direction of the Sub-Divisional Magistrate, Wazirabad, and on the certification of the Lady Dr. Khadija Abdullah P. W. 15 is as follows :- ' On 14th November, 1967 at 10-30 a. m. Mohammad Zaman was standing at the Chabutra of his shop. Bashir, Ali Akbar, Nazir Ahmad, Sanaullah, Faqir, Seth Siddique, Mohammad Nawaz Cheema and others were also present there at that time. In the meantime the present respondent, with three four persons, armed with rifles came there. Mohammad Sadiq opened the attack and fired with his rifle and carbine, which hit Zaman in his back and he fell down. The other accused followed suit by firing. The persons present at the spot ran for their lives. The accused continued firing in order to scare away the people and disappeared.
3. The motive for the offence was that about 8/9 years prior to the occurrence Khurshid, brother of Mohammad Zaman and Mohammad Anwar, his cousin, murdered Mohammad Nawaz, brother of Mohammad Sadiq and Riaz respondents.
4. Mohammad Ali, A. S.
1. (P. W. 6) received written dying declaration of Mohammad Zaman through Talib Hussain F. C. And drew formal F. I. R. (Exh. P.
0.) at 4.15 p. m. On the same day and registered case under sections 307/149 and 148, P. P. C. At Police Station Alipur Chatta. The relations of Mohammad Zaman injured, after getting the dying declaration recorded and providing first aid to him in the Civil Hospital, Wazirabad, removed the injured to Mayo Hospital, Lahore.
5. Ch. Lqbal Akbar, S. H.
0. (P. W. 36) reached the spot on 14th November, 1967 and found a crime empty and two blood- stained bricks Exh. P 2/1-2 there, which he took into possession vide memo Exh. PA and PB respectively.
6. Sultan Asghar, Inspector (P. W. 37) also partly investigated the case. He arrested on 17th November, 1967 Riaz and Ali Mohammad accused. He recovered from Riaz accused carbine P 7 with cartridge P 8 in it and two more cartridges. All these were taken into possession vide memo.
Exh. P. D. He also recovered unlicensed rifle P 10 from Ali Ahmad accused and used cartridge P 10/1 and secured them vide memo. Exh. P. E. Three live cartridges P 11/1-3 were also recovered from his right dub.
7. Bashir Ahmad, A. S. I. Also partly investigated the case. On 11 th August, 1968 he arrested Sadiq Mohammad accused and recovered at his instance rifle P 12 and cartridges P 13/1-3 vide memo Exh. Pq.
8. Mohammad Zaman died in Mayo Hospital on 15th November, 1967 at 9.45 a. m. The autopsy performed by Dr. Nusratullah P. W. 34 on his body. On 16th November, 1967 revealed following injuries :- '(1) A lacerated wound 1' diameter at back at the level of 10th thoracic spine.
(2) A laceration left side thigh on medial side 1" x 1
(3) Laparoto my incisions (median) 8' long bearing 17th stitches.
(4) Two small drainage incisions on left and right side hypochondrium region.
' He found gun-powder tatooing at injury No,
1. He also recovered two pellets from abdomen and one pellet was removed by him from the vertebra column. Injury No, I was caused by fire-arm while injury No, 2 by blunt weapon. The other two injuries were the result of operation conducted by the surgeon.
' Injury No, 1 was considered sufficient by the doctor to cause death in the ordinary course of nature.
9. The accused respondent pleaded innocence and led no evidence in defence. They explained their involvement in the case due to enmity.
10. The learned trial Court did not believe the prosecution version and vide impugned judgment acquitted the respondents.
11. Khawaja Shaukat Ali, learned counsel for the State contended that the order of the trial Court acquitting the respondents was based on superficial reasoning. He submitted that the dying declaration of the deceased finds sufficient corroboration from the ocular evidence and the evidence of motive and recoveries. According to him, the prosecution has established its case against the respondents beyond reasonable doubt.
12. Learned counsel for the respondents, on the other hand, contended that the dying declaration contained inherent infirmities and was interpolated. He maintained that no sanctity could be attached to this piece of evidence for passing legal order of respondents' conviction.
13. We have heard the learned counsel for the parties at length and perused the entire evidence on the record. The prosecution relied on the dying declaration of the deceased, being an important piece of evidence, coming from the mouth of the deceased holding the present respondents guilty of the offence.
14. We have examined the original documents of dying declaration and find that it has some basic infirmities in it. We consider it unsafe to place reliance on it without corroboration by other evidence of unimpeachable character. It is in the evidence of Ch. Atta Mohammad (P. W. 14) that prior to the recording. Of the dying declaration the deceased was surrounded by a number of persons and even at the time of reducing it into writing 2/3 relations of the deceased remained present in the room. In these circumstances, the possibility cannot be excluded that they prompted him to involve the respondents, who were their enemies. Nazir Ahmad (P. W. 31), real brother of the deceased, had also admitted that he had told the deceased that he was hit by Sadiq accused and that Ali Ahmad and Riaz were also present there. The document contained subsequent insertion of the words "wa carbine" which are in different ink and do not conform to the original sequence of the statement. The possibility that it was purposely done after the medical examination of the injured, cannot be ruled out, because this insertion would facilitate the ocular. Evidence to appear in accord with the medical evidence of the recovery of empty cartridges from the place of incident.
15. The explanation given by the Naib-Tehsildar Atta Mohammad (P. W. 14), for the words "wa carbine" who was the scribe of the dying declaration, does not appeal to reason, because he could have conveniently added the same words at the close of the statement.
16. The deceased was hit in his hack, and it was difficult for him to have recognized his assailants at that time, because the occurrence lasted hardly for few minutes. It is thus evident that the deceased's statement being open to doubt, could, hardly be relied upon without corroboration.
17. We, therefore, in the first instance examine the evidence of recoveries for corroboration. The crime empty removed from the place of occurrence on 14th November, 1967 was not sent to the Forensic Science Laboratory until the carbine was recovered on 17th November, 1967 at the instance of Riaz accused. Mohammad Qumes, F. C. (P. W. 5) and Mohammad Ali A. S. I. (P. W. 6) could not furnish satisfactory explanation for retaining the crime empty for two days, without depositing it in the maikhana of Police Station, Alipur Chatta. Althougn,,Qumes F. C. Had stated that he had deposited the crime empty in the Malkhana during this time, but it could not be proved on the record. The factum of delay alone in dispatching the crime empty to the Forensic Laboratory, until the recovery of carbine on 17th November, 1967 diminishes drastically its evidentiary value.
18. The other weapons recovered from Ali Ahmad and Sadiq accused also did not furnish adequate corroboration because no empty was found on the spot to link those weapons. For having been used in the occurrence at the relevant time. In these circumstances the evidence of recoveries does not provide sufficient corroboration to the ocular version so as to connect the respondents with the commission of the crime.
' The ocular evidence, even otherwise, by itself, did not inspire confidence. Ali Akbar (P. W. 27) was a relation of the deceased and evidently inimically disposed against the accused. At first he showed as if he had no connection with the deceased but later on he had to admit that he was related to the deceased. He admitted that he laid prostrate along with other P. Ws. When the assailants started firing. Sanaullah (P. W. 28) and Bashir Ahmad (P.. W. 29) admitted that they were working as Palledars at the shop of the deceased. They made several improvements in their statements with which they were duly confronted. This exhibited their deep interest in the deceased and inclination for prosecution of the respondents. Similarly, Seth Mohammad Siddique (P. W. 30), being a colleague of the deceased, as commission agent in Mandi Jamke Chatta, could not instill confidence to believe his statement to be true, because of he being party man of the deceased.
The conduct of Nazir Ahmad P. W. The brother of the deceased shows that he was not present at the scene of occurrence. He admits that he met Ghulam Sarwar, his brother, incidentally at the Railway Station and did not accompany the injured to the hospital, although he was in precarious condition, but came back to his shop to attend his normal business. He also improved his statement and introduced reloading of the carbine by Sadiq respondent. He also admitted that neither Mohammad Zaman deceased nor any other P. W. Saw the accused coming and that he saw Sadiq respondent after hearing report of the gunshots.
20. The eye-witnesses in this case are not independent, they are either related to the deceased or his partymen. Their evidence, without corroboration, therefore, is not worthy of credence. We have also taken into consideration following points noticed by us in the evidence which react on the prosecution version.
' The prosecution itself does not attribute active role to Ali Mohammad and Riaz accused. It is in evidence that they only resorted to ineffective firing to scare away the people. This does not sound true, because had they come to take revenge of murder they would not have felt contented by resorting to ineffective firing and spared Nazir Ahmad P. W. Who was present at a close distance from the deceased. It appears that either they were not present at the scene of occurrence or they did not participate in the firing. This point finds further support from the fact that only one crime empty was found at the spot despite firing by all the respondents.
' Ali Ahmad accused, being 80 years of age and father of Sadiq and Riaz accused, normally would not participate in the occurrence, in presence of his young sons.
'According to the ocular version, Riaz accused had a riffle which was used, but no rifle was recovered from him and the carbine recovered at his instance could not be safely connected with the crime empty, as has already been discussed above.
21. Neither Nazir P. W. Nor Sarwar real brothers of the deceased, thought of lodging the F. I. R. And even the Palledars and other interested persons in the town did not advise them to approach the police for the purpose. Had they been present there, they would have lodged the report with the police.
22. The prosecution did not join independent witnesses to attest the recoveries but associated relations of the deceased which rendered the evidence of recovery doubtful.
23. The prosecution case that Sadiq accused was armed with carbine and rifle simultaneousely, appears to be odd and that he used both weapons makes it more doubtful. This appears to be an attempt made by the prosecution to bring ocular evidence in harmony with the medical evidence.
24. The absence of Sadiq accused at the place of occurrence at the relevant time was established from his arrest on the same day at Police Post, Kukarali, is testified by Allah Dad, A. S. I.
25. The F. I. R. In this case was lodged after preliminary investigation conducted by the Police at the spot and thus rendered the document to be of no significance in evidence.
26. We have scrutinised the entire evidence and find that the reasons for acquittal of the respondents mentioned by the trial Court are neithe wholly speculative nor manifestly wrong. We may observe that, the order of acquittal, can only be reversed, if the judgment of the trial Court I reasonable, perverse, speculative and has resulted in miscarriage of justice, if by appraisal of evidence two conclusions are equally possible, the order of acquittal should not be set aside in appeal.
27. After careful consideration of the evidence on the record, we ar of the view, that the prosecution has failed to establish its case against the respondents beyond reasonable doubt. In the result we find no merit in this appeal and dismiss it. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.