The appellant Muhammad Akbar alias Bachhi son of Muhammad Sharif, caste Rajput, resident of Kasurpura, Karim Park, Ravi Road, Lahore was tried by-Malik Saleem Akhtar, Additional Sessions Judge, Lahore for an offence under section 302/34 of Pakistan Penal Code, and was convicted and sentenced to life imprisonment and to pay a fine of Rs. 1.000 in default whereof he was ordered to suffer 6 months' R.
1. The appellant has filed an appeal against the same.
2. The occurrence took place on the 19th of April. 1977, at 9-30 p.m. The first information report was lodged by Muhammad Umar (P. W. 4) on the same day at 1 1-40 p.m. The case was registered under section 307/34, P. P. C. On the death of Dr. Zahoor-ul-Hasan on the 21st April, 1977 the offence was changed to section 302/34, P. P. C.
3. Briefly, the facts given in the first information report are that on the day of occurrence when the informant was present in the mosque where the deceased had gone to say his prayer, the appellant along with his two co-accused, namely Ijaz and Shahid alias Shada came in the mosque, armed with revolvers and fired at Zahoor-ul-Hasan after raising lalkara, "Kill him ! Catch him". The deceased fell down and all the accused including the appellant decamped.
4. About the motive it was stated that Naseem Shah, brother of Dr. Zahoor-ul-Hasan (deceased) had been murdered by Ijaz and Shada, co-accused of the appellant. They used to stop him from prosecuting them in his brother's case and as the deceased did not succumb to the pressure, the appellant and his co-accused have launched the murderous asqault on him. The first information report was recorded on the basis of statement of Muhammad Umar (P. W. 4), recorded, by Abdur Rashid, A. S. I. (P. W. 7). The deceased was admitted to the hospital. His statement was recorded by the said Abdur Rashid, A. S. I. (P. W. 7) after obtaining opinion from the doctor about fitness of the deceased on the 21st April, 1977, while he was admitted to Mayo Hospital, Lahore. The deceased died later on, as result of injuries, he had received in the alleged occurrence. After investigation the challan was submitted to Court. The appellant was arrested on the 15th June, 1977. The co-- accused of the appellant could not be arrested and they were declared absconders, and the challan was submitted to Court against the appellant
5. The prosecution in all produced eleven witnesses during the trial. Muhammad Umar complainant (P. W. 4) and Abdul Aziz (P. W. 3) were examined as eye-witnesses. Both these witnesses did not name the appellant. They were declared hostile and were cross-examined. The complainant Muhammad Umar in cross-examination when confronted with the fact that he had named the appellant in the First Information Report, stated that his name was told to him by one Usman, named as an eve-witness in the First Information Report. Usman was not produced he was given up by the learned Prosecutor as he had absconded in some other case and was not traceable. Nothing incriminating could be brought out by cross-examination on these witnesses.
Out of the other witnesses produced during the trial, the evidence of Manzar Ali Shah (P. W. 6) who partly investigated the case. Abdur Rashid, A. S. I. (P. W. 7) who recorded the statement of Muhammad Umar complainant on the basis of which F. I. R. Was recorded, and had recorded the statement of the deceased under section 161 of the Code of Criminal Procedure because of the deceased having expired after the same was produced as dying declaration Exh. P. K., making that statement and had investigated the case, and the evidence of Dr. Muhammad Afzal Farooqi (P. W.
9) needs consideration. The evidence of Manzar Ali Shah (P. W. 6) is not of much consequence except that he had arrested the appellant. He has not collected any incriminating evidence against the appellant. The evidence of the other prosecution witnesses is of a formal nature and does not advance the case of the prosecution.
6. Learned counsel for the appellant has argued that in view of the statements of P. Ws. 3 and 4, the only evidence which remained to be weighed against the appellant is the so-called dying declaration, recorded by Abdur Rashid, A. S. I. (P. W. 7) under section 161 of the Code of Criminal Procedure. He has vehemently argued that the dying declaration without any corroboration cannot form the basis of conviction and sentence. He has placed reliance upon Hazara and another v.
State (1976 P Cr. L 1 106).
Learned counsel for the appellant has argued that no reliance can be placed even on the dying declaration because it was not recorded-
(a) by a Magistrate ; and
(b) that it was not made by the deceased under any apprehension of death and so cannot be accorded the sanctity which is the basis of reliance on the dying declaration with the presumption that a dying man would not tell a lie.
He has also referred to the statement of Abdur Rashid, A. S. I. (P. W. 7) and has argued that it is clearly stated therein that the deceased was in a fit condition, was speaking both Punjabi and Urdu. According to him this statement' was recorded after two days of the occurrence and naturally by that time the deceased must have come to know about the contents of the first information report, and so it can be safely argued that he made a statement to corroborate the F. I.
R. Learned counsel for the appellant has also raised a point that Dr. Muhammad Afzal Farooqi (P. W.
9) who had given opinion (Exh. P. J./1), was only a House Surgeon and was not authorized to give such an opinion because the deceased was not being treated by him. He has also pointed out to the discrepancy between the statements of Dr. Muhammad Afzal Farooqi (P. W. 9) and Abdur Rashid A. S. I. (P. W. 7) about the place where the opinion (Exh. P. J./1) was given by the doctor, and pointed out that according to the A. S. I. The certificate Exh. P. J./1 was issued by the doctor, not in the West Surgical Ward where the deceased was admitted as a patient.
7. Learned counsel for the State has argued that the dying declara--tion has been recorded properly and is corroborated by motive and by the medical evidence. He has relied upon Malook v.
The State (1977 P Cr. L J 481). This authority is of no assistance to the present case, as in the cited the ocular evidence was also found to be reliable and was corroborated by the other evidence also, which is not the position in the case in hand.
8. Arguments heard. There is no denial of the fact that there is no eye-witness account available in this case. No incriminating recovery has been effected. The motive stated in the first information report and in the statement of the deceased recorded under section 161 of the Code of Criminal Procedure is against absconding accused. No relationship what--soever of the appellant has been stated with the absconding accused, against whom the eye-witnesses have made positive statements, as such the evidence of motive cannot lend any support to the prosecution against the appellant.
9. So far as the medical evidence is concerned, it is not the speaking evidence. It can lend support to the account of the injuries if that account is found to be worth some reliance. The medical evidence by itself cannot form the basis of conviction. In this view of the matter the only evidence which remains is the dying declaration of the deceased recorded by Abdur Rashid A. S. I. (P. W. 7) as statement of a P. W. Under section 161 of the Code of Criminal Procedure which also needs scrutiny.
The dying declaration does not bear the signatures of the deceased nor there is any certificate from the doctor that the deceased remained conscious during the recording of his statement. The explana--tion offered by P. W. 7 Abdur Rashid, A. S. I. That he did not get the signatures as he had recorded the statement of the deceased as a P. W. Under section 161 of the Code of Criminal Procedure, lends support to the argument of the learned counsel for the appellant that the statement was not recorded as a dying declaration. According to P. W. 7 Abdur Rashid, A. S. I., the doctor was present in the Casualty Ward when he presented the application and Dr. Muhammad Afzal Farooqi's statement that he was in the ward when he gave opinion (Exh. (P. J./1), is wide discrepant. If the statement of Abdur Rashid, A. S. I. Is to be relied upon, it means that Dr. Muhammad Afzal Farooqi (P. W. 9) had not examined the deceased at the time when he had given opinion Exh. P. J./1 because the deceased was admitted in the West Surgical Ward and not in the Casualty Ward. The fact that the dying declaration does not bear the signatures of the doctor and the fact that there is no certificate about the fitness of the deceased during the period, his statement was recorded, lend support to the view that the doctor was not present in the Ward where the deceased was admitted at the time, the opinion Exh. P, J./1 was given by him. Naturally this opinion was not regarding the latest condition of the deceased. The statement which has beets exhibited as dying declaration is not the original statement recorded by Abdur Rashid, A. S. I.
(P. W. 7). It is in fact a carbon copy of the same. All these facts cast shadow of doubt about the authenticity of the dying declaration.
10. In the circumstances of the case, there is no trustworthy evidence to connect the appellant with the crime: The whole case against him is doubtful. The appeal is accepted and the conviction and sentence of the appellant is set aside. He shall be released forthwith if not required in any other case.