' SH. AHMAD FAROOQ, J.---Through the instant Criminal Appeal, the appellant/Fazal Abbas alias Foju has challenged the judgment dated 29-4-2006, whereby the learned Additional Sessions Judge, Faisalabad, has convicted him under section 302(b), P.P.C. And sentenced to life imprisonment along with an order for payment of Rs.1,00,000 as compensation, under section 544- A, Cr.P.C. To the legal heirs of the deceased and in default whereof, to further undergo six months S.I. Benefit of section 382-B, Cr.P.C. Was extended to the accused/present appellant. However, through the same judgment, co-accused, namely, Mst. Ziarat Bibi, Noor Muhammad, Bashir Ahmad, Bagh Ali and Fateh Sher were acquitted by extending benefit of doubt to them.
2. Precisely, the prosecution story as narrated in the F.I.R (Exh. PE/1), which was lodged by the complainant / Muhammad Iqbal (P.W.6), is that during the intervening night of 13/14-8-2003, while he was asleep at his Dhari, at about 1-00 a.m. (night), Farzand, Foju and unknown son of Ghulam Umar, Fateh Sher, Noor Muhammad, Ziarat Bibi widow of Rajay Khan, Bashir and Bagh Ali along with three unknown persons, carrying different firearm weapons and sotas, came on a Hiace wagon.
The complainant alleged that Mst. Ziarat Bibi raised a "lalkara" to the effect that Sultan be taught a lesson for not returning her amount, whereupon the accused started firing. The complainant further alleged that a fire of Foju hit Muhammad Raza on the left side of his neck, whereupon he fell down.
The accused are also alleged to have caused injuries to the complainant, Mst. Nasim Akhtar and Sultan alias Sukha with their "Sotas". Thereafter, the accused forcibly abducted Mst. Fatima Bibi, Nasim, Parveen, Zarina, Saif Ullah and Sultan and took them to an unknown place in a Hiace wagon.
The complainant along with Khawar Abbas, Abid and many other persons reached Chak No,217/RB, in search of the abductees, whereupon Sultan, Fatima, Nasreen Akhtar and Parveen were released by the accused. However, the accused took away Zarina and Saif Ullah with them to an unknown place. The injured Muhammad Raza was taken to Allied Hospital, Faisalabad, for treatment, where Muhammad Raza subsequently died on 7-9-2003. The motive for the occurrence stated to be the claim of Mst. Ziarat Bibi against Sultan alias Sukha for return of some amount due to which the accused launched a murderous assault and injured the complainant party and abducted Saif etc. In furtherance of their common object.
3. After completion of investigation, report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences. The appellant and the acquitted accused were supplied copies of the necessary documents, as provided under section 265-C, Cr.P.C. Thereafter, the accused/present appellant and the co-accused were charged by the learned trial Court, to which they did not plead guilty and claimed to be tried.
4. During the trial, the prosecution in order to substantiate the allegations and to prove the charges produced twenty (20) witnesses, in addition to tendering in evidence report of the Chemical Examiner as Exh.PV and report of Bacteriologist as Exh.P.W. However, the P.Ws. Muhammad Afzal, Liaqat Ali and Abdul Ghafoor, were given up as being unnecessary.
5. Statements of P.Ws. Have been discussed in detail in the judgment of the learned Trial Court.
However, the gist of the material evidence of the prosecution relevant for the decision of the present appeal is being reproduced below:- ' P.W.1, Dr. Liaqat Ali Chaudhry, while posted as SMO, RHC, Chak Jhumra, District Faisalabad, medically examined Mst. Naseem Akhtar and observed the following injuries on her person.
(1) A painful tender contused swelling 5.0 c.m x 5. c.m. On left side of head 12 c.m. Above left ear.
The injured was advised for X-Rays.
(2) A painful tender contused swelling 2 c.m. x 2 c.m. On left side of forehead upper part near hairline.
' Both the injuries were declared as Shaja Khafifa, which were caused by blunt weapon within duration of 12 hours. Exh. PA , Exh. PA/1 and Exh.P/2, which were the carbon copy of MLR No,490/2003, pictorial diagram and injury statement of Mst.Naseem Akhtar and were prepared and signed by P.W.1.
' P.W.1 also examined Mr. Sultan son of Muhammad Khan, on the same day and observed the following injuries on his person:---
(1) A contusion 10 c.m. x 1 c.m. On right supra scapular region.
(2) A contusion 11 c.m. x 2 c.m. On back of right chest inner to scapula.
(3) A contusion 8 c.m. x 1 c.m. On back of right chest scapular region.
' All the above-mentioned injuries, were declared as "miscellaneous" and were caused by blunt weapon with duration of 12 hours. The carbon copy of the MLR No, 491/2003 (Exh. PB), pictorial diagram (Exh.PB/1) were written, prepared and signed by P.W.1, in addition to endorsing the injury statement of Sultan (Exh.PB/2).
' P.W.1 also examined Muhammad Iqbal on 14-8-2003, and found the following injures on his person:-
(1) A painful tender contused swelling 6 c.m. x 6 c.m. All around left eye with subconjunctival haemorrhage in left eye.
(2) A contusion mark 6 c.m. x 4 c.m. Just below left eye.
(3) A contusion 12 c.m. x 1 1/2 c.m. On outer side of right arm upper and middle parts.
(4) A contusion 7 c.m. x 3 c.m. On back of right forearm upper part.
(5) A painful tender contused swelling 8 c.m. x 6 c.m. On back of right hand. The injured was advised for X-rays.
(6) A contusion 9 c.m. x 2 c.m. On back right chest scapular region. The injury was advised for X- rays.
(7) A contusion 8 c.m. x 2 c.m. On back of right axilla.
(8) A contusion 7 c.m. On back left chest upper part. The injured was advised for X-rays.
(9) A contusion 11 c.m. x 4 c.m. On back of right buttock upper part.
(10) A contusion 8 c.m. x 3 c.m. On back and outer side of left thigh upper part.
(11) A contusion 2 c.m. x 1 c.m. On inner side of right knee upper part.
(12) A contusion 2 c.m. x 1 c.m. On inner side of right ankle.
' Injuries Nos.1, 5, 6 and 8 were kept under observation while injury No,2 was declared as "Shaja Khafifa" whereas the remaining injuries were declared as "Miscellaneous". All the injuries were said to have been caused by blunt weapon within duration of 12 hours. P.W.1 prepared and signed the carbon copy of MLR No .492/2003 (Exh. PC) and pictorial diagram (Exh.PC/1), in addition to endorsing the injury statement of Muhammad Iqbal (Exh. PC/2).
' P.W.2, Dr. Mukhtar Ahmed, while posted as C.M.O., Allied Hospital, Faisalabad, medically examined Muhammad Raza son of Akbar Ali, on 14-8-2003, at about 4-15 a.m. And found the following injury on his person:-
(1) A lacerated wound 1 1/2 c.m. And 1 c.m. (DNP) on left side of neck.
' The above injury was kept under observation for Radiologist and Surgeon's opinion. The carbon copy of the MLC No,(Exh.PD), and endorsed the pictorial diagram (Exh.PD/1), which were signed by P.W.2.
' P.W.5/Muhammad Ashfaq, Head Constable, stated that on 7-9-2003, I.O. Handed over the dead body of the deceased Muhammad Raza to him for its postmortem examination and he took the dead body of the deceased to RHS 96/12-L, District Sahiwal, and after the post-mortem examination, the Doctor handed over him the dead body of the deceased as well as two sealed boxes, two sealed envelops, Chadar of the deceased and the copy of the post-mortem report, which he produced before the I.O. And he took them into possession vide recovery memo. Exh.PL, which was attested by him.
' P .W. 6 Muhammad Iqbal, complainant, deposed that during the night 13/14-8-2003, he along with Muhammad Raza was sleeping at his Dhari on the roof of a room, whereas Sultan, Saif, Nasreen, Parveen, Fatima and Zarina were sleeping in the courtyard of Dhari. He stated that at about 1-00 a.m. Night some persons with muffled faces came up the roof and gave him the butt blows of their firearm weapons. He also stated that the police obtained his signatures on blank papers. He further deposed that the Exh.PE, complaint bears his signatures but the same was not read over to him. He was declared hostile and cross-examined by the learned S.P.P.
' P.W.7/Khawar Abbas, stated that he knew nothing about the occurrence of this case. He was declared hostile and cross-examined by the learned S.S.P.
' P.W.8/Abid Hussain deposed that he knew nothing about the occurrence of this case. He was also declared hostile and cross-examined by the learned S.P.P.
' P.W.10/Zarna Bibi wife of Saif Ullah stated that they went to Ali Raza (deceased), who was residing in Chak Lahorian with Iqbal Cheema and at about 1-15 a.m night, firing was made by persons, who were with muffled faces at that time. She also stated that no one abducted them as she and her husband went to their home on their own accord. At the request of the learned S.P.P., she was declared hostile She was subjected to lengthy cross-examined by the learned S.P.P.
' P.W.11/Zulfiqar Ali, 4075-CI, is the recovery witness, who has deposed that on 22-11-2004, accused Fazal Abbas alias Faju, during investigation, got recovered the crime weapon gun 12-bore (P1) from the residential room of his Dhari, situated in Chak No,19/JB, which was taken into possession vide recovery memo. Exh.PM and he as well as Liaqat Ali, P.W., attested the same.
' P.W. 12/Syed Zameer-ul-Hassan, Medical Officer, Government High(sic) Abdul Qayyum Hospital, Sahiwal, conducted the post-mortem examination, on 8-9-2003, of the dead body of Muhammad Raza (deceased) and found the injuries mentioned in MLR No, 2880/03, dated 14-8-2003, which was prepared by Dr. Mukhtar Ahmed, C.M.O., Allied Hospital, Faisalabad. He also stated that there were a bed sore on the right buttock measuring 4 c.m. x 3 c.m. Outer aspect and on the back of right shoulder measuring 2 c.m. x 3 c.m. He also stated that the opinion would be given after Chemical Examiner and Histopathologist report. Probable duration between injury and death was about 25 days and time elapses between death and postmortem was about 30 hours.
' Carbon copy of post-mortem report (Exh.PN), pictorial diagram (Exh.PN/1), injury statement (Exh.
PP) and inquest report (Exh.PQ) bear the signature and stamp of P.W.12.
' P.W.13/Muhammad Nawaz, S.I. Stated that on 7-9-2003, he was entrusted with the investigation of the case regarding the death of Muhammad Raza (deceased). He also stated that he along with police officials went to Chak No,99/12-L, District Sahiwal, where dead body was lying. He inspected the dead body and after preparing the injury statement (Exh.PP) and inquest report Exh.PQ, and handed over the dead body to Ashfaq Ahmed, Constable. He further stated that the after the post- mortem examination, Medical Officer handed over him police papers, post-mortem report, three sealed boxes, two sealed envelops and last worm clothes of the deceased, which were taken into possession vide memo Exh.PL, which was attested by Ashfaq Ahmad, H.C.
' P.W.14/ Mazhar-ul-Haq, S.I. Narrated that on 15-11-2004, he arrested Fazal Abbas alias Fajoo accused and on his pointation recovered gun 12-bore from his Dhari located in Chak No,19/JB, which was taken into possession vide memo Exh.PM, attested by the P.Ws. He also deposed that he got prepared site plan of place of recovery of gun Exh.PM/1 as well as prepared supplementary challan against the accused Fazal Abbas, on 24-11-2004.
' P.W.15/Mst. Fatima Bibi stated that about two years seven months ago, Sultan and Muhammad Raza (deceased) were working as servant of Muhammad Iqbal and were living at his Dari situated in Chak No,21/JB. He also stated that her daughters Naseem and Parveen were also living with them and Zarina wife of Saif Ullah was staying as guest with them. She deposed that at about 1-00 night, when they were sleeping at Dera of Muhammad Iqbal, Farzand, Fauju, Fateh Sher, Noor Muhammad and Ahmad Yar as well as three unknown persons came there along with Ziarat Bibi, Bashir and Bagh Ali, who were armed with firearm and sotas. She also deposed that Ziarat Bibi raised "lalkara" stating thereby to teach lesson to Sultan Ali for non-payment of money, upon which the accused starting firing. Fauju fired at Raza hitting on the left side of his neck. Raza fell down and the accused belaboured her, Naseem, Parveen and Sultan, Saif and Zarina. The accused forcibly boarded them including her, Naseem, Parveen, Sultan, Zarina and Saif Ullah on a Dallah and when they reached in Chak No,127/RB, they released her, her daughter Mst.Naseem, Parveen and Sultan, but they took away Saif Ullah and Zarina with them.
' P.W.16/Sultan and P.W.17, Mst. Naseem Akhtar narrated the same story as deposed by P.W.15/Mst.
Fatima Bibi.
' Ahmed Yar, A.S.I., while appearing as P.W.18, deposed that on 14-8-2003, he was entrusted with the investigation of the case and he went to the place of occurrence, inspected it and prepared site plan, without scale (Exh.PS) and all the drawing and writing thereon is in his hand and bears his signatures. He stated that on 17-8-2003, complainant again joined the investigation and made supplementary statement before him wherein he nominated Shafqat son of Muhammad Anwar and Muzammal son of Mansib, who were mentioned in the F.I.R. As unknown accused. He also stated that on 27-8-2003, he declared four accused i,e, Bashir, Fateh Sher, Bagh Ali and Noor Muhammad, innocent.
' P.W.20/Tariq Mahmood, Sub-Inspector, who is the first Investigating Officer of the case, deposed that on 14-8-2010, Muhammad Iqbal/complainant appeared before him and got recorded his statement, which was read over to him and he thumb marked the same as a token of its correctness. He further deposed that he handed over the complaint (Exh.PE) to Zulfiqar Ali, Constable, for onward transmission to Police Station for registration of formal F.I.R. And proceeded towards Allied Hospital and submitted an application to the M.O. (Exh.PT) for recording statement of injured P.W. Muhammad Raza. He also deposed that after getting permission on the application, he recorded the statement of Muhammad Raza injured P.W. (Exh.PU), which was thumb marked by him. He lastly stated that the statement of Muhammad Raza is in his handwriting.
' P.Ws.3, 4, 9, 17 and 19 are formal witnesses, therefore, there is hardly any need to discuss their evidence in detail.
6. After closure of the evidence of the prosecution, statements of the present appellant and the acquitted accused were recorded under section 342, Cr.P.C. The present appellant denied the prosecution version and in response to the question "Why this case against him and why the P.Ws.
Have deposed against him", the appellant replied as under:-- "Ans. I am innocent. During investigation co-accused Fateh Sher, Noor Muhammad, Bashir, Bagh Ali and Ziarat Bibi were found innocent. Occurrence took place in the darkness of night. Police obtained the thumb impression of Muhammad Iqbal, complainant on blank paper in order to show its efficiency and registered the F.I.R. Complainant has already stated before the Court that his thumb impression was obtained by the police on blank paper which was not read over and explained to him. Prosecution story has not been supported by the P.Ws. Mentioned in F.I.R. Khawar Abbas, Abid Hussain and Zarina Bibi alleged abductees, P.Ws. Fatma Bibi, Naseem Bibi and Sultan deposed against me under the pressure of police."
' However, the present appellant neither produced any evidence in his defence nor opted to make his own statement on Oath in disproof of the charges or allegations made against him, as envisaged under section 340(2), Cr.P.C.
7. Upon conclusion of the trial, the learned trial Court found the present appellant guilty of committing the murder of Muhammad Raza (deceased) and thus convicted and sentenced him, as mentioned herein above. However, co-accused of the present appellant, namely, Mst. Ziarat Bibi, Noor Muhammad, Bashir Ahmad, Bagh Ali and Fateh Sher were acquitted of the charges by extending benefit of doubt.
8. Aggrieved by the impugned judgment, dated 29-4-2006, the appellant preferred the instant appeal before this Court.
9. Learned counsel for the appellant contended that the prosecution has miserably failed to prove its case beyond any shadow of doubt. He submitted that the motive for the occurrence was stated to be a grudge nourished by Mst. Ziarat Bibi against Sultan alias Sukha, who did not return her money and the accused in furtherance of their common object alleged to have injured and abducted the members of the complainant party. He maintained that the said Mst. Ziarat Bibi has been declared innocent during the investigation as is evident from the statement of P.W.13. He further maintained that without proving the motive, which is the foundation of the whole case, the superstructure raised thereon cannot stand. He also submitted that five accused have been acquitted on the basis of the same evidence of the prosecution, whereas the present appellant has been convicted and sentenced, which is against the rule of consistency. He argued that not only the complainant of this case, namely, Muhammad Iqbal (P.W.6), but also the other eye-witnesses i,e, Khawar Abbas (P.W.7), Abid Hussain (P.W.8) and Zarina Bibi (P.W.10) have not implicated the present appellant as an accused in their statements. He further argued that the cause of death of Muhammad Raza (deceased) was not established and he died twenty-three days after receiving the injuries at his neck and being discharged from the hospital. He asserted that the evidence of the prosecution is full of contradictions/ discrepancies regarding the number of persons, who launched the murderous assault as well as regarding weapon used by the present appellant.
Lastly, he argued that the statement of Muhammad Raza (Exh.PU) cannot be considered as "dying declaration" as the same was recorded in the absence of Doctor and without any certificate regarding the injured being fit to make a statement. He claimed that the ocular evidence is not only self-contradictory but also did not inspire confidence. He submitted that the impugned judgment is the result of non-reading and misreading of evidence on record and the conviction recorded thereon cannot be maintained. He pleaded that the appellant may be acquitted.
10. Conversely, the learned Deputy Prosecutor General submitted that two injured P.Ws. Namely, Sultan (P.W.16), Mst. Naseem Akhtar (P.W.17), as well as eye-witness/Mst. Fatima Bibi (P.W.15) have fully supported the prosecution version and that the ocular account of the occurrence is corroborated by the medical evidence, given by P.W.1, P.W.2 and P.W.12. He argued that the said witnesses had no enmity with the accused and their evidence deserves to be given credence. He maintained that a gun .12 bore was recovered from the present appellant by P.W.11, in addition to a bullet, which was found and taken out from the body of Muhammad Raza (deceased) during his post-mortem examination, by P.W.12. Finally, he argued that the prosecution had proved the case against the present appellant, who inflicted an injury on the left side of the neck of the deceased with firearm, which ultimately caused his death and as such, the appellant was rightly convicted and sentenced..
11. I have heard the learned counsel for the parties and evaluated the evidence as well as the documents on record, minutely.
12. The alleged motive for the occurrence is that Sultan alias Sukha owed some amount to Mst.
Ziarat Bibi and on his refusal to pay the same, Mst. Ziarat Bibi instigated the co-accused to launch a murderous attack at the said Sultan alias Sukha, who was residing at the Dhari of complainant / Muhammad Iqbal (P.W.6), as his servant, situated in Chak No,21/JB, along with his family members.
No doubt, Mst. Fatima Bibi (P.W.15), Sultan alias Sukha (P.W.16) and Mst. Naseem Akhtar (P.W.17) deposed in their respective statements about the afore-mentioned motive of Mst. Ziarat Bibi and the co-accused for the occurrence, but P.W.13, who had investigated this case, at initial stage, has categorically stated during the course of his cross-examination that neither Mst. Ziarat Bibi went to the Dhari of Muhammad Iqbal Cheema/complainant (P.W.6) nor she abetted any other co- accused for the commission of the offence. P.W.13/Investigating Officer found Mst. Ziarat Bibi as having been not involved in the occurrence. It is pertinent to mention here that P.W.13 recorded his opinion after thoroughly examining Sultan alias Sukha and Mst. Ziarat Bibi in addition to many other persons, who were produced before him by both the parties. It is not denied that three P.Ws., namely, Mst. Fatima Bibi (P.W.15), Sultan alias Sukha (P.W.16) and Mst. Naseem Akhtar (P.W.17) are closely related to each other and Sultan alias Sukha was an employee of Mst. Ziarat Bibi and he had taken an advance amount from her, which was still outstanding. The occurrence is alleged to have taken place at the "Dhari" of Muhammad Iqbal (P.W.6), who did not mention the presence of Mst. Ziarat Bibi at the time of occurrence. Similarly, Khawar Abbas (P.W.7) and Abid Ali son of Muhammad Fazal (P.W.8), who, according to the F.I.R., was present at the time of occurrence, showed their total ignorance about the said incident while appearing as witnesses of prosecution during the trial. Mst. Ziarat Bibi was declared innocent by the Investigating Officer in the report submitted under section 173, Cr.P.C. Hence, the motive, set up by the prosecution, could not be established. Needless to mention here that the superstructure raised on a foundation, which did not exist, has to fall down.
13. The manner by which the accused were involved in the occurrence is also highly doubtful, keeping in view the statements of the complainant (P.W.6) as well as Khawar Abbas (P.W.7), Abid Hussain (P.W.8) and Mst. Zarina Bibi (P.W.10). The complainant, while appearing as P.W.6, deposed that four persons with muffled faces came up on the roof of his "Dhari" at 1-00 a.m. During the night of 13/14-8-2003 when he and Muhammad Raza (deceased) were asleep. P.W.6 also stated that Mst. Zarina Bibi was sleeping in the courtyard of his "Dhari" at the time of occurrence. The said Zarina Bibi appeared as P.W.10 and deposed that at about 1-15 a.m. (night) when she was sleeping at the Dhari of Iqbal Cheema, some persons, who had muffled their faces, made firing. According to F.I.R., Mst. Zarina and her husband Saif Ullah was forcibly abducted on gunpoint and taken to an unknown place by the accused on a Hiace wagon, whereas Mst. Zarina Bibi while making her statement as P.W.10 totally denied their abduction by the accused. Rather, she stated that she and her husband went to their home on their own accord. Furthermore, the complainant/ Muhammad Iqbal while appearing as P.W.6 deposed that the police obtained his signature on a blank paper and he denied his thumb impression on complaint (Exh.PE). The said statement of complainant / P.W.6 is totally contradictory to the statement of P.W.20/Tariq Mahmood, who stated that not only the statement was read over to the complainant but also the thumb marked the same in token of its correctness. In the F.I.R., the complainant alleged that he chased the accused, who had abducted Mst. Fatima Bibi and others along with Khawar Abbas and Abid Ali, but the said Khawar Abbas and Abid Ali while appearing as P.W.7 and P.W.8, respectively, deposed that they knew nothing about the occurrence. Additionally, P. W. 6/ complainant mentioned in his statement that four persons with muffled faces entered his house at the time of occurrence, whereas Mst. Fatima Bibi (P.W.15) gave the name of seven accused along with three unknown persons, in addition to Mst. Zairat Bibi, who launched a murderous attack on the fateful night. Surprisingly, number of the assailants, as stated by P.W.16/Sultan and Mst. Naseem Akhtar (P.W.17), were 40/45 and 11, respectively. Finally, Ahmed Yar, A.S.I. (P.W.18), who was the first Investigating Officer of this case, stated that he visited the place of occurrence on 14-8-2003 and prepared a site plan (Exh.PS) without scale. The number of assailants, according to his investigation, was four/five persons only.
Above all, the occurrence took place at 1-00 a.m. At night and no witness of the prosecution specifically stated that there was any electric bulb or light of the moon through which they could count the number and identify the accused. No blood-stained earth or empties were collected from the spot as admitted by P.W.18 in his cross-examination. The complainant alleged in the complaint (Exh.PE) that the present appellant along with Fateh Sher, Noor Muhammad, Bashir Ahmad, Bagh Ali and Mst. Ziarat Bibi came at the place of occurrence armed with different weapons and "sotas" but the fact remains that not only the said persons were declared innocent by P.W.13 and P.W.18, in their investigation, but also have been acquitted by the learned trial Court, vide the impugned judgment. Hence, the motive, mode/manner and the accused persons, who were actually involved in the occurrence, could not be proved by the prosecution through their ocular evidence beyond reasonable doubt.
13-A. As far as the medical evidence is concerned, Muhammad Raza (deceased) was medically examined for the first time by P.W.2/Dr. Mukhtar Ahmad on 14-8-2003 and the injury sustained by deceased was not declared fatal by him. Muhammad Raza was injured on 14-8-2003, whereas after being discharged from the hospital, he died in his village on 7-9-2003. It is extremely significant that P.W.12/Dr.Syed Zamir-ul-Haq, who conducted the post-mortem examination of the dead body of Muhammad Raza, did not record his opinion regarding the cause of death. This fact was also admitted by P.W.14, who had investigated the case and prepared a supplementary challan against Fazal Abbas / present appellant. P.W.14 stated that he did not obtain the report regarding the cause of death of the deceased from the Doctor, who conducted postmortem examination of the dead body of the deceased (Exh.PN). Additionally, P.W.12 / Dr.Zamir-ul-Haq also found bed sore on the buttock and the back of right shoulder of Muhammad Raza (deceased) at the time of his post-mortem examination. Likewise, there is no evidence that the bullet, which was recovered from the body of Muhammad Raza (deceased) was fired A from 12 bore gun, which was allegedly recovered on the disclosure of Fazal Abbas alias Foju/present appellant, P.W.14 admitted that the projectile recovered from the dead body of Muhammad Raza during post-mortem was not sent to Director, Forensic Science Laboratory for its comparison with the weapon of offence allegedly recovered in this case. Therefore, the cause of death of Muhammad Raza (deceased) could not be proved by the prosecution beyond any shadow of doubt through the medical evidence. Hence, ocular account is not supported by the medical evidence available on the record.
14. Now adverting to the recovery of the alleged weapon of offence i,e, gun 12 bore from the present appellant. P.W.11/Zulfiqar Ali stated that during the investigation, on the disclosure of Abbas alias Foju/present appellant, the police party recovered a gun 12 bore (P1) from the Dhari, situated in Chak No,19/JB, on 22-11-2004, which was taken into possession vide recovery memo Exh.PM. Similar statement was made by P.W.14/Mazhar-ul-Haq regarding the recovery of weapon of offence from the present appellant. On the contrary, an eyewitness of the occurrence, namely, Mst. Fatima Bibi, while appearing as P.W.15, clarified in her cross-examination that Foju/present appellant and Bagh Ali, co-accused, were armed with pistols. P.W.11/Zulfigar Ali and P.W.14/Mazharul-Haq, who effected the recovery of weapon of offence on the disclosure of the present appellant admitted that they did not join any private person of the locality at the time of effecting the said recovery. P.W.14 further stated that he did not remember whether he sent the recovered gun to the Forensic Science Laboratory in order to determine its working condition, despite the fact that the occurrence took place between night of 13/14-8-2003 and the alleged weapon of offence was recovered on 22-11- 2004 i,e, after more than one year and three months. P.W.14 admitted that cartridge containing pallets is used in 12 bore gun and not the bullet. P.W.14 further admitted that he did not get the bullet/projectile recovered from the dead body of Muhammad Raza during the postmortem compared with 12 bore gun recovered from the present appellant from theForensic Science Laborator.
' Furthermore, no empty was found or recovered from the place of occurrence by the police official i,e, Ahmed Yar, A.S.I./P.W.18, who visited the scene of the crime immediately after the occurrence on 14-8-2003. Consequently, it cannot be held with certainty that the present appellant caused injury to Muhammad Raza on the left side of his neck with his 12 bore gun during the occurrence, which ultimately caused his death.
15. The learned trial Court while convicting and awarding the sentence to the present appellant has given undue importance to the statement of Muhammad Raza (Exh.PU), which was recorded by P.W.20/Tariq Mahmood in Allied Hospital, Faisalabad, on 14-8-2003 and considered the same as "Dying Declaration". In this connection, it is significant that the learned defence counsel had raised an objection at the time of exhibiting the statement of Muhammad Raza as Exh.PU and the same was to be decided at the time of final judgment. But, the learned trial Court did not give his finding on the objection of learned defence counsel, despite the fact that P.W.20/Tariq Mahmood admitted in his cross-examination that statement under section 161, Cr.P.C. Is not required to be signed or thumb marked by the person making the statement. The statement of Muhammad Raza (Exh.PU) is thumb marked by Muhammad Raza and the same can neither be considered substantive piece of evidence nor used in trial or could be considered as a "Dying Declaration". A bare perusal of the statement of Muhammad B Raza (Exh7PU) would reveal that it is almost a verbatim copy of the statement of P.W.6/Muhammad Iqbal/complainant (Exh.PE), which has already been denied by the said Muhammad Iqbal while appearing P.W.6. Moreover, the said statement was made on 14-8- 2003 whereas Muhammad Raza died on 7-9-2003. P.W.20/Tariq Mahmood, who recorded the said statement of Muhammad Raza (Exh.PU) clearly admitted in his cross-examination that there was no apprehension of death of Muhammad Raza when he recorded the said statement on 14-8- 2003. P.W.20 was not even aware of the date of death of the said Muhammad Raza. Even otherwise, Muhammad Raza has also implicated Mst. Ziarat Bibi in the commission of the offence in the statement (Exh.PU), but she was found innocent during the investigation. The allegation of abduction of Mst. Zarina Bibi and Saif Ullah by the accused levelled by Muhammad Raza in the afore-mentioned statement (Exh.PU) has also been proved to be false. Even otherwise, "Dying Declaration" is a weak type of evidence and the only valid reason for accepting it is that the person making it is in immediate danger of death and unlikely to speak falsely. The said ground is lacking in this case as Muhammad Razamade statement on 14-8-2003 whereas he died on 7-9-2003.
16. Lastly, the learned trial Court has given credence to the statement of three witnesses i,e, P.W.15/Mst. Fatima Bibi, P.W.16/Sultan and P.W.17/Mst. Naseem Akhtar, who are inter se related to each other, as compared to the statement of the complainant/Muhammad Iqbal (P.W.6), who (according to P.W.1/Dr.Liaqat Ali Chaudhary) sustained twelve (12) injuries in the occurrence. The learned trial Court did not take into consideration the statements made by P.W.7/Khawar Abbas, P.W.8/Abid Hussain and P.W.10/Mst. Zarnia Bibi, wherein they denied the knowledge of the occurrence, despite the fact that they have been cited as eyewitnesses of the occurrence.
Similarly, according to F.I.R., Mst. Zarina Bibi along with her husband, namely, Saif Ullah, were allegedly abducted on pistol point and taken to an unknown place by the accused in a Toyota Hiace, but the said Mst. Zarina Bibi, while appearing as P.W.10, has totally denied their abduction by the accused. The learned trial Court has acquitted the accused, who allegedly caused injuries to Mst. Naseem Akhtar (P.W.16) and Sultan (P.W.17), by disbelieving their statements. Similarly, the persons, who allegedly abducted P.W.15/Mst. Fatima Bibi has also been acquitted. In fact, the trial Court despite incriminating statements of P.W.15, P.W.16 and P.W.17 acquitted all the accused from the charges except the present appellant and that too without any corroborative evidence. No doubt, the maxim "Falsus in Uno Falsus in Omnibus" cannot be applied with full force in criminal cases as the Courts are expected to sift the grain from the chaff but in the instant case, the present appellant could not have been convicted and sentenced merely on the statements of afore- mentioned P.W.15 to P.W.17 by totally ignoring remaining ocular as well as medical evidence.
17. From the above discussion and observations, it is established that neither the motive for the occurrence could be established by the prosecution nor the ocular account was trustworthy and confidence inspiring. There was no reason to disbelieve the statement of the complainant and the other witnesses, who were also present at the time of occurrence. The cause of death of Muhammad Raza was not declared by the Doctor, who conducted the post-mortem. The ocular account was also not corroborated by the medical evidence. The acquittal of the co-accused has caused a serious dent in the prosecution story qua the present appellant. Hence, the prosecution failed to prove the guilt of the present appellant beyond reasonable doubt. Consequently, the conviction and sentence awarded to the present appellant is not sustainable. Resultantly, the instant appeal is allowed, conviction and sentence awarded by the trial Court to the present appellant is set aside and he is acquitted of the charge by giving him benefit of doubt. The appellant is in jail, he shall be released forthwith, if not required, in any other case.