' ABDUL LATIF KHAN, J.---Fazal Khaliq has filed instant appeal under section 410, Cr.P.C. Against the judgment and order dated 10-10-2011 passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Wari, District Dir Upper, whereby he was convicted and sentence under section 302(b) P.P.C., in case FIR No. 86 dated 13-10-1987, registered at Police Station, Wari, Dir Upper, to imprisonment for life along with a fine of Rs.5,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased or in default thereof to further undergo imprisonment for six months SI. He was further convicted - and sentenced under section 307, P.P.C. To ten years R.I for the injury caused to Gul Zarin with a fine of Rs. 1,00,000 or in default thereof to further undergo SI for six months. Both the sentences were directed to run concurrently, however, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. According to prosecution story, on 13-10-1987 Muhabat Khan in injured condition lodged a report in Civil Hospital, Wari, that he along with Niaz Muhammad and Gul Zareen were on the way back home at deger vela from village Sundal, when reached near shop of Muhammad Amin, situated in village Rambial, in the mean time, Gul Amin, Gul Raziq sons of Said Amin, Muhammad Khaliq and Fazal Khaliq sons of Paida Khan started firing at them with their Kalashnikovs as a result of which he was hit on his right thigh, Gul Zarin was also hit and received injuries while Niaz Muhammad died on the spot after receipt of injury. He stated that he has no enmity with the accused, however, there was a land dispute between accused and deceased Niaz Muhammad. The occurrence was stated to be witnessed by village people of Rambial, as such; the above referred FIR was registered.
3. After completion of investigation, complete challan in the case was submitted under section 512, Cr.P.C. Since the accused were avoiding to appear before the Court, therefore, they were declared as proclaimed offenders by the trial Court vide order dated 27-4-1988. Later on, the convict- appellant was arrested and supplementary challan against him was submitted before the trial Court.
4. Learned trial Court after complying with the legal formalities under section 265-C, Cr.P.C, framed formal charge against the appellant, who did not plead guilty and claimed trial. Prosecution in order to prove its case produced nine witnesses. After closure of prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C. In which he claimed innocence and false implication, however, he was neither ready to be examined on oath under section 340(2), Cr.P.C.
Nor wished to produce defence. Learned trial Court after hearing the parties, convicted and sentenced the convict-appellant as stated above, vide the impugned judgment, hence, the present appeal.
5. Learned counsel for the appellant contended that report has been lodged with unexplained delay after consultation and deliberation. He contended that charge against the appellant has not been proved and conviction has been based on concocted and planted evidence. He added that site plan is contradictory to the prosecution version. It was argued that neither recovery has been effected nor there is specification of points and even no measurement has been made rather aerial distance between points Nos. 1 and 4 has been shown as 300 yards, therefore, identification from such a distance has become doubtful. It was argued that Medical officer has not been examined, however, an employee was examined, who verified the reports Exh.P.W.8/3 and Exh.P.W.8/4 and was not confronted with certificates. It was further added that eye-witnesses, namely, Sardar Muhammad and Muhammad Amin were not produced and would amount to have withheld the best evidence available with prosecution. It was argued that medical officer has not verified the Murasilla as both of them, i.e., the doctor and SHO were together at the time of report recorded in shape of Murasilla. It was argued that motive of land dispute has not been proved. It was also added that trial Court has take into consideration the alleged abscondance as evidence against the appellant, though, no question to this effect has been put to him in his statement under section 342, Cr.P.C. He added that prosecution has miserably failed to prove its case against the appellant-convict beyond any shadow of doubt, therefore, the sentence awarded to the appellant by the trial Court is against the law and liable to be set aside and appellant may be acquitted of the charge.
6. As against that, learned A.A.-G. Assisted by learned counsel for the complainant contended that site plan was prepared on next day of the occurrence at the pointation of Sardar Muhammad, since dead. It was argued that as the site/place of occurrence was steep and could not be measured, so, aerial distance was shown. He added that P.W.7 was not cross-examined on the line that identification of accused was not possible. He contended that appellant remained absconder for twenty two years and rest of the accused are still fugitive from law. It was added that Mohabat Khan complainant has no enmity with the appellant and he directly charged the appellant in a day light occurrence. He referred to medical report and certificate and argued that it was not questioned. It was added that accused was proclaimed offender as proceedings under section 512, Cr.P.C. Have already been concluded against him. He added that nonperformance of Postmortem examination is not fatal to the case and dying declaration, even oral, can be taken into consideration.
7. We have heard the learned counsel for the parties and perused the record with their able assistance.
8. The appellant was booked in case on the basis of Murasilla, culminated into FIR No. 86 dated 13- 10-1987 under sections 302/307/34, P.P.C., Police Station, Wari, on the report of deceased then injured Muhabat Khan, who disclosed information to the police that on eventful day, in the late afternoon, he was on his way to his village from village Sandal, in the company of Niaz Muhammad and Gul Zarin and when reached to the shop of Muhammad Amin in village Rambial where Gul Amin, Gul Razaq son of Said Amin, Muhammad Khaliq and Fazal Khaliq son of Paidar Khan resident of village Rambail opened firing upon them, complainant received fire shot on his right thigh, fell on the ground, Gul Zarin, the other injured, also hit by the fire on his neck and Niaz Muhammad lost his life on the crime venue on receipt of fire bullet.
The prosecution produced as many as nine P.Ws. In support of its case including P.W,7 Gul Zarin, the alleged eye-witness. He has also named Muhammad Amin and Sardar Muhammad as eyewitnesses, which is an addition to the contents of FIR No motive has been shown; however, accused and deceased Niaz Muhammad were in civil litigation with each other.
' Site plan Exh.P.W.8/8 was prepared by the Investigating Officer on the pointation of Sardar Muhammad (now dead). The deceased Niaz Muhammad was shown at point No.1 at a distance of approximately 300 yards, aerial distance, ftom point No.4, where accused/appellant along with others had been show, who opened indiscriminate firing from a deep place and crime venue is like a trench wherefrom no empty recovered. No measurement of actual distance made physically and identification of accused/appellant becomes doubtful, benefit of which must go to the appellant/accused and this vital aspect of the matter, alone is sufficient to discredit the prosecution version and to entitle the accused to acquittal. The prosecution is duty bound to prove the case through tangible evidence and even single and slightest doubt would be sufficient to disbelieve the story of prosecution. The evidence available on record shows that the occurrence has not taken place in the mode and manner as asserted by the prosecution as identification of accused/appellant by the complainant, who remained outside from the village and casually pay visit, is highly doubtful. It is also doubtful as to whether the alleged eyewitnesses had seen the occurrence and even Muhammad Amin has not been examined, if other witness, namely, Sardar Muhammad has since dead, and, thus, best evidence available with the prosecution has been withheld and adverse inference can be drawn against the prosecution. Though, Gul Zarin (P.W.7) was having the stamp of injuries but same alone would not prove the presence of the witness at the relevant time and it is ndt the guarantee of the truthfulness. In criminal jurisprudence, the general rule of appreciation of evidence is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the basic value of the statement of a witness. The real test is as to whether the statement of a witness is in consonance with the probability, whether it fits in with the other evidence and whether it inspires confidence.
9. The prosecution also relied upon the FIR-cum-dying declaration Exh.P.W.8/1 which has been recorded by P.W.8 SHO Sardar Ali in presence of Doctor. The close scrutiny of dying declaration, like the statement of an interested- witness, is required under the law and not to be believed as truth on the plea that dying person is not expected to tell a lie. Although the scriber of report stated in his statement that the injured was in a position to give his statement and also obtained a certificate in this regard but neither the certificate Exh.P.W.8/3 shows the time of examination of the victim as to when the doctor had examined the deceased (then injured) nor the concerned doctor was produced to verify its contents nor the employee (P.W.9) was confronted with the certificate, who was allegedly conversant with the signature of the doctor. At the time of report both the Investigating Officer and doctor were present but doctor has not verified the contents of Murasialla.
P.W.8 also deposed in his cross-examination that 5/6 persons were present with the injured at the time of report, which makes the dying declaration doubtful. It is well settled that maker of dying declaration is not subjected to cross-examination, therefore, great caution must be exercised in considering such kind of evidence and it is for Court to see that dying declaration inspires full confidence; that Court should satisfy that there was no possibility of tutoring; prompting and that Court should be satisfied that the deceased was in a fit state of mind to make the statement.
Similarly, Court should also see the statement of deceased as to whether he was having the opportunity to observe and identify the assailant. In the instant case the assailants were shown at a distance of 300 it yards and were in ditch, therefore, their identification from such a distance and that too, in the ditch was not possible.
10. As far as medical evidence is concerned, the doctor, who examined the deceased has not been examined in the case rather an employee has been produced who has verified the reports. The prosecution has alleged motive between accused and deceased Niaz which has not been proved through confidence inspiring evidence. In case of failure, it must suffer the consequence itself and not by the defence.
11. It is in the evidence of prosecution that the appellant remained absconder for sufficient period but on this point the -law is by now well settled that the same alone is not sufficient to record conviction and it can be used only as a corroboratory and confirmatory in support of ocular account but when the ocular account and dying declaration are disbelieved then it is of a very little value for Court for consideration.
12. In the final analysis of evidence on record, we are of considered view that, no doubt, unfortunate incident.Has taken place in which Niaz Muhammad and Mohabat Khan lost their lives and P.W.7 Gul Zareen received injury but not in the manner and mode as narrated by the prosecution. In view of the above discussion and analysis of evidence from all angles, we are of the view that the prosecution has failed to prove the guilt of the appellant-convict beyond shadow of doubt, therefore, the conviction of appellant cannot be maintained. Resultantly, while extending the benefit of doubt, we accept the appeal filed by the appellant-convict by setting aside his conviction and sentence and acquit him of the charges levelled against him.
' These are the reasons of our short order of even date.