' SHAKEEL AHMED BALOCH, J.---This criminal appeal is directed against the judgment dated 2-5- 2012, passed by the Sessions Judge, Kharan, whereby the appellants were convicted under section 302(b)/ 34, P.P.C. To suffer R.I Life Imprisonment as Tazir and to pay compensation of Rs,2,00,000 (Rupees two lacs) each to the legal heirs of the deceased Ijaz Ahmed, in default of payment, to further suffer S.1. For two years each with benefit of section 382-B Cr.P.C. The co-accused Shoukat Ali son of Ghulam Muhammad and Arz Muhammad son of Muhammad Raheem were acquitted of the charge as the prosecution had failed to establish its case against them.
2. Brief facts of the case are that on 15th October, 2010, at about 10:30 p.m, on the report of complainant Asadullah, an F.I.R. No, 84/2010 was registered at Police Station Kharan, alleging therein that on the aforesaid date, at about 9:30 p.m., he was informed by Zaheer Ahmed Shah son of Muhammad Ibrahim Shah through telephone that Ejaz Ahmed is in injured condition and he is taking him to the hospital. Upon this information he along with Ghulam Qadir, Habib ur Rehman and Abdul Baqi rushed to the hospital, where they found Ejaz Ahmed in his senses and was complaining pain on his body and face due to acid burns. The complainant further alleged that he inquired from Ejaz Ahmed about the incident, who told that he was going from the house of his brother-in-law Abdul Nabi towards his house, when he reached near the house of. Ghulam Ali Mazarzai, meantime accused persons namely Mehboob Ali, Amjad Ali, Ameenullah and Bilawal Akbar suddenly attacked, beaten him and also threw acid on his face and body, as a result whereof he received serious injuries and after listening to his hue and cry Zaheer Ahmed Shah reached there and took him to hospital in his vehicle. The complainant further alleged that on 14th October, 2010, a meeting was held by Ex-District Nazim and Arz Muhammad and they constituted a "Youth Force" wherein the above named accused persons were instigated to kill my nephew, as such on account of said conspiracy, the present incident occurred.
3. After completion of the investigation, the challan was submitted before the Court of Sessions Judge, Kharan. The charge was framed and read over to the appellants and the other co-accused persons, to which they denied and claimed trial. The prosecution in support of its case, produced 17 witnesses, and also exhibited relevant documents.
4. After close of prosecution side, the appellants and other accused persons were examined under section 342, Cr.P.C., wherein they denied the allegation levelled against them. They did not opt to record their statements under section 340(2), Cr.P.C, nor they produced any witness in their defence.
5. On conclusion of the trial, the appellants were convicted and sentenced as mentioned hereinabove, hence this appeal.
6. The learned counsel for the appellants argued that there are numerous contradictions amongst the statements of the prosecution witnesses, but the trial Court has not properly appreciated the fact and circumstances and the testimonies brought before the trial Court and has wrongly convicted the appellants in the case. The learned counsel further argued that on the same set of evidence the co-accused namely Haji Shoukat Ali and Arz Muhammad were acquitted of the charge. He argued that the judgment impugned suffers from mis-appreciation and non- appreciation of the evidence, which is an illegality and irregularity.
7. The learned Additional Prosecutor-General opposed the contention put forth by the learned counsel for the appellants and stated that the prosecution witnesses are consistent and the trial Court after proper appraisal of the evidence and material available on record, has rightly convicted and sentenced the appellants, as such, the impugned judgment needs not to be interfered.
8. We have heard the learned counsel for the parties and have perused the record. The prosecution in support of its case produced as many as seventeen witnesses. The P.W.1 Asadullah, the complainant, P.W.2 Habib-ur-Rehman, P. W.3 Abdul Baqi, P.W.4 Muhammad Arif, P.W.5 Ghulam Qadir, P.W.6 Abdul Nabi, circumstantial witness of the case, P.W.7 Muhammad Akhter, recovery witness of the article of the deceased and produced the articles P/1 to article P/10. P.W.8 Kaleemullah, recovery witness of the case. P.W.9 Abdul Wahab, recovery witness of four pictures of the deceased. P.W.10 Dr. Muhammad Anwar, who examined the deceased and issued Medical Certificate as Ex-P/10-A. P.W.11 Javed Ahmed, recovery witness of the Shalwar and Qameez of the deceased. P.W.12 Rustarn Khan, Recovery witness of the dead body of deceased. P.W.13 Muhammad Hashim Patwari, who prepared site plan Ex-P/13-A. P.W.14 Zaheer Ahmed Shah, circumstantial witness of the case. P.W.15 Eid Muhammad SI, 1st Investigating Officer of the case. P.W.16 Gul Muhammad SI/S.H.O. 2nd Investigating Officer of the case and P.W.17 Allah Dina IP Crime Branch Quetta, 3rd Investigating Officer of die case. The P.W.1 Asadullah complainant of the case in his statement before the trial Court stated that on 15th October, 2010 at about 10:00 p.m., he was informed by Zaheer Ahmed Shah that Ejaz Ahmed is injured and he is taking him to the hospital, whereupon he along with Ghulam Qadir, Habib-ur-Rehman and Abdul Baqi went to the hospital, where Ejaz Ahmed was in conscious condition and was complaining pain on his face and body on account of acid burns. On inquiry Ejaz Ahmed told that he was going to his home from the house of his brother-in-law, when he reached near the house of Ghulam Ali Mazarzai, in the meantime accused Mehboob Ali, Amjad Ali, Ameenullah and Bilawal attacked and beaten him and thereafter threw acid on his face and body, due to which he received serious injuries, and on his hue and cry Zaheer Ahmed Shah reached there and took him to hospital. The complainant in his statement further stated that on 14th October, 2010, a meeting was held in the house of Bilawal Akbar headed by Shoukat Ali and Arz Muhammad, where they constituted a Youth Force and the above named accused persons were instigated to kill his nephew Ejaz Ahmed. On account of their conspiracy, the instant incident was occurred. The P.W.2 narrated the same contention as narrated by the P. W.1 It is an admitted fact that the P. W.1 is not the eye-witness of the incident, rather he was informed by the P.W.14 Zaheer Ahmed Shah, who first saw the victim crying and took him to the hospital. No statement of the victim Ejaz Ahmed was recorded in his presence. He further stated that the Ejaz Ahmed did not name anybody who allegedly threw acid at him. He stated that during the period of taking Ejaz Ahmed from place of occurrence and from DHQ Hospital Kharan to Quetta, the victim did not mention the name of any person, allegedly committed the crime. It is to be noted that the father of the victim was also present in DHQ Hospital Kharan and took him to Quetta but his statement was not recorded by the Investigating Officer. The P.W.5 Ghulam Qadir also narrated the same story as narrated by the P.W.1 but during cross-examination he stated that he could not tell that while he was standing outside the hospital, whether Asadullah was present in the hospital or not. The P.W.10 Dr. Muhammad Anwar during cross-examination also stated that in his presence no statement of the victim was recorded. The P.W.-15 Eid Muhammad the Investigating Officer in his statement stated that he tried to record the statement of victim, but he was not in a position to record statement, rather no statement of dying declaration was recorded.
9. It is important to mention here that the instant case hinges on the sole statement of dying declaration of the victim Ejaz Ahmed, There is no eye-witness of the occurrence. The trial Court has convicted the appellants on the evidence based on dying declaration and the circumstantial evidence. It is relevant to reproduce the, reliance reported in Muree v. The State (PLD 2002 Karachi 530):-- "It may be stated that a dying declaration, which is relevant, is a violent exception almost all the fundamental rules of Law of evidence. All courts have agreed, with more or less difference of language, that the approach of death produces a state of mind in which the utterances of a dying person are to be taken as free from all ordinary motives to misstate. But cases are not uncommon of false declaration being made on behalf of a dying man. The courts have emphasized that such declaration must be in presence of doctor, Magistrate or, independent officials. A conviction, even in a case inviting capital punishment, may be based on dying declaration alone, but the court must be satisfied that it bears all the marks of truth."
10. Now we will address ourselves to the consideration of the question, whether or not the guilt of the appellants was established beyond all reasonable doubt. The question is thus that whether the dying declaration made by the deceased Ejaz Ahmed was voluntary or not? It is crystal clear that when the alleged dying declaration was made, Medico-Legal officer Dr. Muhammad Anwar, P.W.15, Zaheer Ahmed Shah, P.W.14, who first saw the victim lying and who brought the victim to the hospital. P.W.15 Eid Muhammad, the Investigating Officer, were present at DHQ Hospital Kharan, where the victim was provided with first aid and, later on referred to Quetta for further treatment, but none of these witnesses have stated anything in their statements before the trial Court pertaining B to the dying declaration. It is even out of the imagination that in the presence of Doctor and the father of the victim Ejaz Ahmed at the hospital, how is it possible that the victim instead of narrating the facts of the incident through dying declaration to his father who is the nearest and dearest to him, to the doctor who is treating him and trying to save his life and the Investigating Officer who is there to find out the clue of the culprits by asking the victim different questions could not succeed to disclose the names of the culprits but the P.W.1, P.W.2, P.W.3 and P.W.5 had a capability to get the name of the appellant disclosed.
11. The story narrated by the P.W.1, 2, 3, and 5 is based on the enmity with the acquitted persons as well as with the appellants. The dying declaration was not corroborated by any independent piece of evidence as such, is not worthy of reliance at all. The dictum laid down in the case of The State v.
Gulab Jan (1987 PCr.LJ 1769 [SC (AJ&K]). The relevant portion is reproduced herein below:-- "16. The second set of the prosecution witnesses produced to corroborate the dying declaration consists of testimony of Hay. Muhammad Rahim Khan, brother and Mst. Shah Begum, mother of the deceased. Both of them own the prosecution case. But since these witnesses are inimical to the respondents and the possibility of Mst. Aslam Jan having been influenced by her mother in the hospital to make the dying declaration against the respondents cannot be ruled out, the testimony of two witnesses named above, as held by the High Court, cannot be accepted as independent corroborative piece of evidence. The dying declaration, thus, not free from the possibility of having been made on the influence of her mother, loses the evidentiary value and cannot safely be made basis of conviction without independent corroboration which, as said earlier, is lacking in this case.
Besides, the dying declaration is to be accepted or rejected as a whole. It is not, in the circumstances, safe to accept the dying declaration in respect of Mst. Gulab Jan and rule it out in respect of other respondents."
12. Similarly the dictum laid down in the case Muhammad Yasin v. The State (1987 SCMR 303(sic)).
The concluding para of said judgment is reproduced herein-"Now there is no doubt that conviction could be based solely on a dying declaration as held in the authority reported in PLD 1977 SC 612, but then the dying declaration in that case should be free from every sorts of taint. If doubts arise about the truthfulness of a dying declaration then it is not safe to base a conviction solely on its basis without any independent corroboration. In the instant case major portion of the dying declaration as mentioned above has been found to be false and there is evidence to show that it was recorded at a time when the relations of the deceased were present with him. The possibility that the deceased might have been tutored could not therefore be excluded. There is no corroboration whatsoever of the dying declaration on file. Relying on the authorities reported in 1969 SCMR 84, PLD 1970 SC 406 and 1972 SCMR 40. We are of the opinion that it is not safe under the circumstances to base the conviction solely on this dying declaration."
13. The trial Court while convicting the appellants did not consider the logical aspect of the statements of the. P.W.10, P.W.14 and P.W.17. The P.W.10, the Medico-legal officer, who examined the victim P.W.14 Zaheer Ahmed Shah who first saw the victim crying and took him to the DHQ Hospital Kharan for treatment and P.W.17, the Investigating Officer. The P.W.10, P.W.14 and P.W.17 all were present at the DHQ Hospital Kharan and they stated in their statements before the trial Court that the victim Ejaz Ahmed at the hospital at Kharan did not even mention the name of anybody allegedly threw acid at him. The fact and circumstances lead us to the conclusion that the impugned judgment passed by the trial Court suffers from misreading and non-reading of the evidence. The learned counsel for the appellant has been able to make out a case for acquittal.
' Thus, in view of what has been stated and discussed hereinabove, the appeal is allowed and the judgment dated 2-5-2012, passed by the Sessions Judge Kharan is set aside. The appellants namely Amjad Ali and Ameenullah are acquitted of the charge. They be released, forth with if not required in any other case.
' These are the reasons of our short order dated 9th October, 2013.