' ROOH-UL-AMIN KHAN, J.---Through the instant criminal appeal, appellant Sher Umar Khan, has called in question the legality and propriety of judgment dated 27-9-2010, passed by learned Additional Sessions Judge- I, Topi Swabi, whereby respondents-accused Khan Pur alias Khaney and Sher Amin, have been acquitted from the charge in case FIR No,153 dated 13-3-2009, registered under sections 302/34, P.P.C. At Police Station Topi, District Swabi.
2. The prosecution case as unfolded in the murasila Exh.PA/1, based FIR is that, on 13-3-2009 Sher Amjid Khan complainant in injured condition reported to Amir Hamza Khan S.I. (PW.12) in casualty room, in presence of Casualty Medical Officer Swabi, that on the fateful day, he after offering Assar prayer in Mohammadi Mosque, was on the way along with Jan Bahadur, to their homes. At 1700 hours, when they reached a thoroughfare of Mohallah Agay Muhammad Khel, Zaroobi Khan Pur alias Khanay and Sher Amin (respondents-accused), duly armed with firearms present there, on seeing them, opened fire at them with intention to do them away, resultantly, he and Jan Bahadur sustained firearm injuries. After commission of the offence, the accused make their escape good from the crime venue. In addition to complainant, the occurrence is stated to have witnessed by P.Ws. Sher Umar Khan and Sher Muhsin Khan. Motive behind the incident, advanced by the complainant was a brawl between him and Sher Amin, some three months, prior to the incident.
Initially the case was registered under section 324/34, P.P.C., but later on, both injured viz complainant and Jan Bahadur succumbed to the injuries, as such section of law was altered and 5.324, P.P.C. Was substituted with section 302, P.P.C.
3. On completion of investigation, challan was submitted against the accused-respondents before the trial court, where they were summoned and formally charge sheeted to which they pleaded not guilty and claimed trial. To prove the guilt of the respondents-accused, prosecution examined as many as eighteen witnesses. After close of the prosecution evidence, respondents-accused were examined under section 342, Cr.P.C. Wherein they denied the prosecution allegations and professed their innocence. They, however, declined to be examined on oath as their own witnesses under section 340(2), Cr.P.C. Or to produce evidence in defence. On conclusion of trial, the learned trial court, after hearing both the sides, vide impugned judgment, acquitted the respondents- accused, hence, this appeal.
4. Learned counsel for the appellant argued that learned trial court has over sighted the report of the deceased then injured which in a sense is a dying declaration, attested by Casualty Medical Officer (PW.9) a disinterested witness, wherein both the respondents accused have directly been charged for commission of the offence, thus, was sufficient for sustaining conviction of the respondents-accused; that the ocular account furnished by P.Ws. Sher Umer Khan and Sher Mohsin Khan supports the dying declaration of the deceased then injured; that circumstantial evidence in the shape of recovery of bloodstained earth, the last worn bloodstained garments of the two deceased, the crime weapons and FSL report in respect thereof, further supplement the prosecution version; that motive has been proved through cogent and confidence inspiring evidence; that all the P.Ws. Are unanimous on material aspects of the case, and the prosecution has proved the guilt of the respondents up to the hilt, therefore, the impugned judgment of the trial court is liable to be set aside.
5. As against that, learned counsel for the respondents-accused while controverting the arguments of the learned counsel for the appellant contended that in fact no report had been made in the hospital by the deceased then injured and the alleged dying declaration is a fake and procured document having no evidentiary valuable; that report has been lodged after due consultation and preliminary investigation; that presence of the alleged eye-witnesses Sher Umer Khan and Sher Mohsin is doubtful; that no crime empty has been recovered from alleged crime spot; that statement of Jan Bahadur, the other deceased then injured, who died on 3rd day of the occurrence, has not been recorded by the Investigating Officer without any plausible explanation, whereby an inference may be drawn that he was not supporting the version of the complainant; that the prosecution evidence is full of contradictions and discrepancies creating doubt about presence of the eye-witnesses and the mode and manner of the incident as alleged by the deceased then injured, therefore, the learned trial court has rightly acquitted the respondents- accused.
6. We have considered the respective submissions of the learned counsel for the parties and have perused the record with their valuable assistance.
7. To meet the argument of the learned counsel for the appellant, the moot point for determination before us would be as to whether the report of the deceased then injured can be termed as a dying declaration? And if so, how much weight can be attached to it because a dying declaration is a question of fact and has to be determined on the facts of each case. To find out truth or falsity of a dying declaration, a case is generally considered in all its physical environments and circumstances. It is necessary to find out how far the evidence or its different parts fit in with the circumstances and possibility that can safely be deduced in a particular case. Therefore, in order to pass the test of reliability, a dying declaration has to he subjected to a very close scrutiny, keeping in view the fact that such statements are made in the absence of an accused who has no opportunity of testing the veracity of the statement by cross-examination. In examining the intrinsic worth of dying declaration the inherent consistency, genuineness and truth of the statement in the context of surrounding circumstances, the fact that the deceased was not tortured or motivated by hate or other mercenary motives to give an untrue account or substitute or falsely implicate persons in the crime, its credibility according to normal human standards and the absence of any inherent infirmity or weakness therein, all have to be apprised. Similarly, in examining its extrinsic value, an appraisal of surrounding circumstances i,e, that the deceased was in a fit condition to make the statement would also have to be carefully examined.
8. Article 46 of the Qanun-e-Shahadat Order, 1984, postulates a mechanism for recording the dying declaration, according to which, dying declaration, whenever possible, preferably be recorded by a Magistrate and if Magistrate is not available or if there is no time to call the Magistrate due to deteriorating condition of the victim, it can be any body e.g. Public servant like a Medical Officer or any other person. Likewise, in case of absence of the Magistrate and the Police Officer, such statement should be recorded in presence of two or more reliable disinterested witnesses to the case. If availability of two independent witnesses is not possible then it should be recorded in presence of two or more police officials. No doubt, conviction can be based on dying declaration alone, provided it is true and free from prompting from outside. To accept such statement, without considering the surrounding circumstances of the case, would not be safe administration of justice to convict accused merely on the basis of so called dying declaration.
9. Taking the report/statement of the deceased then injured Sher Amjid Khan on the touch stone of the principles referred to above, it appears from the record that his report was recorded by Amir Hamza S.I. In casualty DHQ hospital Swabi in the shape of murasila. Dr. Manzoor Rasheed Casualty Medical Officer of the said hospital who examined the deceased then injured vide MLC Exh.PW.9/1 has opined that patient (injured Sher Amjid Khan) was brought to in a shock having firearm injuries on his person. The factum of the deceased then injured being in shock at the time of medical examination has also been confirmed by the said PW in his statement recorded as PW.9. In his cross-examination he while explaining the shock deposed that shock is of two kinds, one physical and the other mental, and in case of firearms injuries, shocks are both, physical and mental. He deposed that the patient was serious and was profusely bleeding. The medical Officer (PW.9) neither in MLC nor in his court statement has stated a single word that despite such precarious condition of the deceased then injured, he was capable and fit to make statement. Though, the murasila i,e, report of the deceased then injured has been attested by him but he has not issued any certificate with regard to capability of the deceased then injured to make a statement. Thus, in such circumstances, it cannot be believed that the deceased then injured was fully conscious, well oriented in time and space, and capable to give statement. Sher Umar Khan PW.15, who is rider of the report has admitted in his statement the presence and availability of other people and relatives of the deceased then injured at the time of report, thus, the possibility of prompting the deceased by his close relative in implication of the accused, could not be ruled out.
10. In light of the above, it can be safely concluded that the report of the deceased then injured cannot be termed as a dying declaration because neither the same has been recorded by a Magistrate nor by the Medical Officer nor in presence of two or more reliable and independent witnesses nor the medical officer has furnished any certificate regarding capability of the deceased to give statement. So far as the attestation of report of the deceased then injured by the Medical Officer is concerned, no doubt, he has attested the murasila, but on this particular point, neither his statement has been recorded by the local police/Investigating Officer under section 161, Cr.P.C. Or by a Magistrate under section 164, Cr.P.C. To testify that the deceased was capable of giving statement nor an opportunity of cross-examination has been provided to the defence, which is against the principle of audi alterm partem i,e, no one should be condemned unheard. Fair hearing is the cardinal and fundamental principle in criminal administration of justice. An individual whose life, liberty or property, are in legal jeopardy then he has a vested legal right to confront the evidence against him. In the circumstances, the status of statement of the deceased then injured would not be more than a statement under section 161, Cr.P.C. And not a dying declaration. Admittedly, dying declaration or a statement of a person without the test of cross- examination is a weak kind of evidence and its credibility depended upon the authenticity of the record and the circumstances under which it is recorded. Dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie. In this respect reliance can be placed on case titled, Mst.
Zahida Bibi v. The State" (PLD 2006 Supreme Court 255).
11. Besides, one Jan Bahadur, who allegedly sustained injuries in the present occurrence had been examined by Dr. Fazal Qadir SMO (PW.10) on 13-3-2009 in Civil Hospital Topi whereas the deceased then injured had been examined in DHQ hospital Swabi. If one goes through MLCs of both the deceased then injured, the MLC of deceased then injured Jan Bahadur would reveal that he was examined first at 06.00 p.m. i,e, prior to examination of the deceased then injured Sher Amjad whose examination has been shown at 6.10 p.m. So in such circumstances, Jan Bahadur should have first reported the incident because PW.10 Fazal Qadir Medical Officer has categorically mentioned in his MLC that though he was in serious condition but capable to talk and was well oriented in time and space and this fact also finds support from his court statement, but such is not the position herein. The I.O. Has even did not bother to record his statement under section 161, Cr.P.C. Or to give any plausible explanation for not doing so, which creates serious doubt in the prosecution case and amounts to withholding of best available evidence, thus, in the circumstances, adverse inference would be drawn that had he been examined he would have not supported the prosecution version.
12. The ocular account of the incident has been furnished by Sher Umer Khan (PW.15), father and Sher Mohsin Khan (PW.16), nephew of the deceased. Both the P.Ws. Are closely related with the deceased. In the circumstances, both are not only highly interested but also inimical towards the accused keeping in view the motive as alleged in the report. In such like situation, it is a consistent view of the Courts from which no departure can be made on any occasion that testimony of such witnesses must get corroboration through corroboratory evidence which shall come from unimpeachable source. The statements of both these witnesses are contradictory with each other. According to P.W. Sher Umar Khan firing remained continued for about 5/6 minutes, while contrary to it, P.W. Sher Mohsin Khan deposed that it remained continued for about 2/3 minutes. In the site plan, both these witnesses have been shown at points Nos.5 and 6 i,e, in front of gate of the mosque but none of them have sustained a single scratch what to say of any firearm injuries despite the fact that both being father and nephew of the deceased were in the direct range of firing of the accused shown at points Nos.3 and 4, and were at their mercy but they have been let spare. Had they been present there at the time of occurrence, keeping in view the norms of our society, particularly in this part of the country, the assailants would not have spared them so as to leave evidence behind them. When the assailants were so aggressive who even did not care for disinterested and unconcerned person Jan Bahadur who also sustained firearm injuries would by no means spare the P.Ws. If present there. Moreover, both the P.Ws. Have admitted in their cross- examination that the deceased then injured remained on the spot for about 10/15 minutes and they did not pick them up, which conduct of the P.Ws. Being father and nephew of the deceased, is quite unnatural keeping in mind the norms of our society where elders in affection and the younger in respect, sacrifices their lives for each other. Had the two P.Ws. (father and nephew) present on the spot, they even wasting a minutes, would have shifted their beloved the deceased then injured to save his life what to think about wasting of 15 minutes like a silent spectators. Neither in the report nor in their statements recorded under section 161, Cr.P.C. The P.Ws. Have specifically mentioned the bore of the weapons allegedly used by the respondent in commission of the offence but to improve his statement and to bring it in line with other circumstances of the case, P.W. Sher Umer Khan while making dishonest improvement stated that the accused were armed with topaks.
13. The site plan is alleged to have been prepared at the instance of aforesaid alleged eyewitnesses. Both the P.Ws. Have furnished contradictory stance about their visit to the spot. Sher Umer Khan (P.W.15) stated that it was about 6.10 p.m. When the Investigating Officer called him on telephone to the spot while according to Sher Mohsin Khan (P.W.16), they on receipt of telephone call from their house reached village and remained on the spot for five minutes. Muhammad Shoaib Khan S.I. The Investigation Officer is not supporting the versions of the P.Ws. Who deposed that he met with the aforesaid P.Ws. On the spot for the first time. He has not stated anything about any H phone call qua his visit to the spot to P.W. Sher Umer Khan. The stance of the P.Ws. Is also belied by other circumstances of the case i,e, the report has been made at 06.10 p.m. In the hospital and both the P.Ws. Have shown their presence in hospital with the deceased then injured at the same time, then how it was possible for them to reach and remained on the spot at 6.10 p.m.
At the same time they are alleging their presence in the hospital and at the spot, which does not appeal to a prudent mind. Moreso, Muhammad Shoaib Khan S.I. Deposed that it was 7.20 p.m.
When he received a copy of FIR and after perusal of the same, he proceeded to the spot and reached there at 7-45 p.m. Which totally negates the versions of the eye-witnesses regarding their visit to the spot at 6-10 p.m.
14. There is yet another aspect of the case, which gives a fatal blow to the prosecution case. It divulged from the record that after administering first aid to the deceased then injured in DHQ Sawabi, he was shifted to LRH, Peshawar for further treatment. P.W. Sher Umer Khan has denied his company with the deceased then injured to LRH Peshawar by deposing that he did not accompany the deceased then injured because the I.O. Summoned him to the spot, but his version totally runs contrary with the documentary evidence i,e, Post Operation Orders Exh.PW.5/1 where he has signed the High Risk Consent Certificate in LRH Peshawar before operation of the deceased then injured, which shows his presence there in the LRH, making his presence on the spot at the time of spot inspection and preparation of the site plain, highly doubtful and impossible. It is an often quoted phrase regarding appreciation of evidence substantially in criminal justice that men may lie but the circumstances do not. Thus, every human narration is always susceptible to be checked on the touchstone of circumstances as well as with reference to a normal human conduct. The ocular evidence furnished by both the eye-witnesses, is in consistent and incompatible with medical evidence as well as other circumstances of the incident creating serious doubts about the presence of both the alleged eyewitness and about the mode and manner of the occurrence as alleged in the FIR. It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion; whether the prosecution has succeeded in establishing accusation against the accused or otherwise; and if it comes to the conclusion that the charges so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case.
The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit the prosecution story and entitle the accused for acquittal. Moreover, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance can be placed on case titled, "Faryad Ali v. State" 2008 SCM R 1086).
15. Admittedly, no crime empty has been recovered from the spot despite alleged indiscriminate firing of the respondents-accused. It is not the case of the prosecution that someone removed the empties from the spot before arrival of the Investigating Officer, as such, in absence of recovery of any crime empty, the recovery of .12 bore double barrel Shotgun and 7 MM bore rifle from the respondents-accused and FSL report regarding its working condition, would be of no help to the prosecution. Moreover, the Laboratbry has only given its opinion regarding working conditions of the two weapons but no findings whether any firing has been made from the same or not, has been furnished. No independent and impartial witnesses have been associated with the recovery proceedings of the alleged crime weapon,.
16. More so, this is appeal against acquittal and standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. Marked difference exists between appraisal of evidence in appeal against conviction and in appeal against acquittal.
Appraisal of evidence, in appeal against conviction is done strictly and in appeal against acquittal such rigid method of appraisal is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence on record. Scope of appeal against acquittal of accused is considerably narrow and limited. Unless the judgment of acquittal is perverse, completely illegal and on perusal of evidence, no other decision could be given except that accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice. High Court is always slow in exercise of jurisdiction under section 417, Cr.P.C. Unless it finds that gross injustice had been done in administration of criminal justice. It is settled law that the appellate Court while dealing with acquittal order had to exercise jurisdiction cautiously because the acquitted accused enjoys double presumption of innocence, the one available to him before conclusion of the trial and the second after the verdict of acquittal in his favour. While Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, unless it is found to be arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non- reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondents/accused by extending him benefit of doubt, after proper appraisal of evidence to which no exception can be taken:
17. Resultantly, this appeal being without any substance stands dismissed.