1. ' SARDAR MUHAMMAD ASHRAF KHAN, J.-This order will dispose of both the appeals titled above which have been directed against the judgment of the District Criminal Court Kotli passed on 31-5- 1982 in a challan case under section 5 of the Islamic Penal Laws Enforcement Act, 1974.
2. ' Shortly stated, the facts giving rise to the above two appeals are that on 24-2-1980 at 4 p.m.
3. Muhammad Iqbal complainant was carried on a cot in an injured condition having a lire-arm injury on his neck, by his relatives to the Police Station Kotli where he lodged a verbal F. I. R. To the effect that at about 10 a. In. On the same day, Ghulain Rasool convict-appellant accompanied by his brother Khadim Hussain and one Rabbis son of Imam Din visited his shop being run in a village iyarali and asked for a cell tester for testing his battery cells and that the appellant after testing his cells returned the sank and purchased snuff from him. It was further alleged that after purchasing the snuff, the appellant asked him to show new battery cells to him as he wanted to purchase the same but when he took out the box of the battery cells from the shelf and wanted to show him the appellant did not see them as his companions said that they would purchase the same on their return. The report further contains the allegation that when he had hardly taken a turn after putting back the box of the cells in the shelf, the appellant who was holding a revolver in his hand fired a shot at him which struck him on the neck as a result of which he fell on the ground. It was also alleged that the occurrence was witnessed by Muhammad Afsar son of Mukhan and Sakhi Muhammad son of Mangta . From outside the shop where they were standing. It was also reported by the deceased-complainant that he suspected that Lal Khan son of Munshi who had enmity with him on account of litigation going on between them had conspired and entered into conspiracy for killing him with the appellant who made an attempt on his life. The above report was reduced into writing by the Officer Incharge of the Police Station who after registering the case under section 15 of the Islamic Penal Laws Enforcement Act, 1974 and preparing the report of the injury referred the complainant to the Medical Officer Kotli for treatment and examination for the purpose-of medical report who after examining the complainant sent him to C. M. H., Mirour for treatment on the same day. The complainant succumbed to his injury on First of Match, 1980 at about 9 p. In. In the Hospital whereupon the offence in the case was altered from section 15 to one section 5 of the said Act. The police after the investigation of the case put up a challan under section 5 of the Islamic Penal Laws (Enforcement) Act, 1974 against the appellant in the District Criminal Court Kotli which finding the appellant guilty of the said offence, convicted and sentenced him to 'Diyyat' amounting to Rs. 1,16,650 made payable within a period of three years vide its judgment dated 31st of May, 1982.
4. ' Feeling aggrieved by the above judgment, both the convict appellant and the father of the deceased filed the present appeals against it, former for setting aside his conviction and sentence while the latter for the alteration of Tivyat' to one of `Qisas',- ' To establish its case, the prosecution examined Muhammad Afsar, Muhammad Sher, Sakhi Muhammad, Haji Muhammad Akbar, Lal Din, Muhammad Saddaq, Patwari, Muhammad Anwar, Head Constable, Abmad Saeed, Inspector of Police, Muhammad Iftikhar, Assistant Sub-Inspector of Police and Muhammad Hafeez, Civil Medical Officer. Of the above-named witnesses, Muhammad Afsar and Muhammad Sher are eye-witnesses of the occurrence who deposed to have seen the appellant firing with his pistol on the deceased and causing injury on his neck at the shop of the deceased while Sakhi Muhammad P. W. Stated to have reached the shot soon after the occurrence on hearing the second of the shot. Haji Muhammad Akbar, P. W. Is the marginal witness of the recovery memos. Exh. P. A., P. B. And P. D. Under which the pistol Exh. P. 1, its licence Exh. P. 2 and the cloths of the deceased were taken into possession, respectively. Lal Din, P. W. Is also a marginal witness of recovery memo. Exh. P. D. Muhammad Saddaq, Patwari has prepared the site plan Exh. P.
5. E. Muhammad Anwar P. W. Has investigated the case while Abmad Saeed, Inspector of Police put up the challan in the Court. Muhammad Iftikhar, Assistant Sub-Inspector of Police has reduced the oral F. I. R. Into writing and has also prepared the statements Exh. P. G. And P. H. Doctor Muhammad Hafeez is the author of the report Exh. P. M. And also conducted the post-mortem examination of the dead body of the deceased.
6. ' The appellant. In his statement denied the charge against him and took up the defence that the Revolver fell from the hands of the deceased on the ground and accidently went off causing injury to him. Muhammad Yusuf, Wali Dad and Khadim, Hussain were examined as defence witnesses out of whom Muhammad Yusuf and Wali Dad stated that the deceased had made a statement before them that he was accidently injured by the pistol shot while Khadim Hussain deposed that he alongwith Ghulam Rasool, appellant and Muhammad Bashir was sitting outside the shop of the deceased when on hearing the sound of the pistol shot he found the deceased having received fire-arm injury on his neck and the pistol lying on the floor of the shop.
7. ' As would appear from the evidence adduced by the prosecution and summarized above, the case against the appellant rested on ocular evidence, dying declaration of the deceased, medical evidence and the recovery of the crime weapon from the appellant. The trial Court disregarded the evidence of the eye-witnesses as the same was disbelieved on the ground that there were material contradictions in their statements recorded under section 161, Cr. P. C. And the ones made before the trial Court and that one of them, namely, Muhammad Bashir, was not mentioned as a witness to the occurrence in the F. I. R. Made by the deceased himself but despite disbelieving the ocular account, the trial Court found the appellant guilty of the offence with which he was charged by relying upon the statement of the deceased as to the circumstances under which he received the fatal injury contained in the F. I. R. And the statement recorded under section 161, Cr. P. C. By the investigating agency and treated and tenderbd as dying declarations of the deceased as they were found to have been corroborated by the medical evidence, the recovery of the crime weapon from the appellant and the statement of the appellant, recorded under section 342, Cr. P. C. In which he had admitted the report of the forensic expert that the empty shell found in the chamber of the revolver at the time of its recovery from the appellant, had been fired from the said revolver to be correct.
8. ' We have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the appellant has contended that the trial Court has rightly excluded from consideration the ocular evidence produced in this case but has committed an error in relying upon the F.
1. R. Exh. P. F. And the statement of the deceased recorded under section 161, Cr. P. C. Exh. P. L. As dying declarations for the purpose of basing the conviction of the appellant as both of the above documents are fake and fabricated. In this connection, it has been contended that the F. I. R. Exh. P.
9. F. Alleged to have been lodged by the deceased, is not the same which was made by the deceased in writing and in which it was mentioned that deceased was injured as a result of pistol having gone off accidently after falling on the ground. As regards the statement of the deceased under section 161, Cr. P. C. And used as his dying declaration by the prosecution, it was argued that the same was never made by the deceased and has been fabricated after his death with a view to falsely implicating the appellant. It was further argued by the learned counsel for the appellant that substantial and material inconsistencies exist in the F. I. R. And the aforesaid statement of the deceased made before the police and they also stand contradicted on material aspects by ocular evidence adduced in this case and as such, they are not worthy of any reliance. It was also argued that since the aforesaid alleged dying declarations were recorded by the Police Officer in the police station and that too, in presence of the relatives of the deceased, they carry nc weight and cannot be made the basis of the conviction of the appellant. To support his above contentions, he has referred to cases reported as PLD 1966 SC 264. 1977 SCMR 72, 1973 SCMR. 26, PLD 1970 SC 406 and 1966 P Cr. L J 547.
10. ' The learned counsel appearing on behalf of the State, on the other hand, has contended that the trial Court had no reasons to disbelieve the statements of the eye-witnesses who were ,quite natural witnesses of the occurrence having been named in the F. I. R. As well as in the statement of the deceased recorded by the police under section 161, Cr. P. C. It was also argued that under law, there is no disability of the deceased and thus, the trial Court has committed no error in convicting the appellant on the basis of the dying declarations of the deceased as to the person responsible for causing fire-arm injury on his neck made in the F. I. R. And in the statement before the police, especially when the same found corroboration in the medical evidence, recovery of crime weapon from the possession of the appellant and the statement of the appellant himself in which he admitted the report of the forensic expert to be correct in which the empty shell found in the chamber of the revolver recovered from the appellant, was found to have been fired from the said revolver.
11. Now we proceed to take up each piece of evidence produced by the prosecution to establish its case against the appellant keeping in view the arguments addressed at the bar by the learned counsel for the parties. The eye-witnesses' account of the occurrence is furnished by the evidence of Muhammad Afsar and Muhammad Sher P. Ws. Which, in our view, has very rightly been disbelieved and discarded by the trial Court. In the first place, both the above witnesses are interested witnesses in the sense that they are related to the deceased inasmuch as Muhammad Afsar is a cousin of the father of the deceased while Muhammad Sher P. W. Is the husband of the sister of Muhammad Afsar and thus is also the husband of the cousin of the father of the deceased.
12. Secondly they both are chance witnesses who come across in front of the shop of the deceased about 20 minutes before the occurrence but continue to B engage themselves in conversation to witness the occurrence.
13. Thirdly, they have made substantial improvements in their statements before the trial Court on their previous police* statements recorded under section 161, Cr. P. C. And their aforesaid statements contain material contradictions and discrepancies out of which the mention of few would suffice here. In their statement at the trial Court they had deposed that after firing at the deceased with the revolver, the appellant had caught hold and pressed, the neck of the 'deceased who was rescued by them but no such incident has been mentioned in their police statements.
14. Similarly, in their evidence before the trial Court they stated that the appellant wanted to buy cells on loan from the deceased on whose refusal to oblige him, the altercation had ensued between the appellant and the deceased on which their attention was attracted towards the shop and they saw the appellant firing with the revolver at the deceased. This version does not find any mention in their police statement in which, on the contrary, they have stated that immediately after the occurrence, the deceased had told them that the appellant two days before the occurrence intended to buy goods from his shop on loan but on his refusal to oblige him, the appellant had threatened him saying that he would see to it. They have deposed before the trial Court that the deceased had become unconscious soon after the occurrence and did not speak to them but as mentioned earlier in their police statements, they had stated that he had told them that on his refusal to sell goods to the appellant on loan, the appellant had threatened him which threat was carried into effect today.
15. In view of the contradictions and improvements referred to above, it appears that the above- named eye-witnesses are not the witnesses of truth and were not present at or near the spot at the time of occurrence but have claimed to be so on account of their relationship with the deceased.
16. ' Apart from the above reasons there are other circumstances which also belie their presence at the place of occurrence at the relevant time. The F. I. R. Falsifies their evidence that at the time of occurrence they were standing outside the shop of the deceased engaged in conversation because in it Sakhi Muhammad and Muhammad Afsar P. Ws. Are mentioned to have witnessed the occurrence from outside the shop and thus when according to the F.
1. R. Muhammad Sher P. W. Was not an eye-witness of the occurrence and only Muhammad Afsar and Sakhi Muhammad were stated to be standing together outside the shop of the deceased at the time of occurrence, the evidence of Muhammad Afsar and Sakhi Muhammad P. Ws. About having seen the occurrence while talking outside the said shop becomes untrue and unbelievable.
17. They appear to have been prompted to claim themselves to be the eye-witnesses of the occurrence by their desire to help the prosecution in establishing the case against the appellant for the murder of their relative.
18. Now we proceed to examine the dying declarations relied upon by the trial Court for the conviction of the appellant which consist of F. I. R. Exh. P. F. And statement of the deceased Exh. P. L. Recorded under section 161, Cr. P. C. By the Investigating Officer. It may be mentioned that the above documents were not initially recorded as dying declarations of the deceased but it was only during the trial of the case that the same were tendered in evidence as such declarations with the permission of the Court. The above dying declarations have been assailed by the learned counsel for the appellant on the ground that they were not genuine having been made by the deceased but have been fabricated with a view to providing incriminating evidence against the appellant which otherwise lacked in the case. After examining the above contention of the learned counsel for the appellant in the light of the evidence on record and the surrounding circumstances of the case we have come to the conclusion that the same is not without any substance and the possibility of its being true is not ruled out. Even from the evidence of the prosecution witnesses it appears that the written F. I. R. Lodged by the deceased at the Police Station Kotli has not been produced and has been suppressed by the prosecution obviously because it did not suit it as the same did not involve the appellant as one having caused the firearm injury to the deceased and probably supported the defence version that the deceased .Received the said injury on account of the revolver having accidently gone off. Muhammad Afsar, Muhammad Sher and Lal Din, P. Ws.
19. Have in clear terms admitted in their statements recorded by the trial Court that the deceased had written the report of the incident in his own handwriting at Dhanwangali while he was being carried on a cot to the police station and that the same was handed over at the said station by Sakhi Muhammad P. W. We have no reason to disbelieve the evidence of the above witnesses in this respect especially when they are closely related to the deceased, one of them, namely, Lal Din being his father.
20. There are also other circumstances appearing in the evidence on record, which lend support to the conclusion that the F. I. R. Made at the police, station soon after the occurrence was not the same as has been produced G by the prosecution as Exh. P. F. And tendered in evidence as dying declaration but was different one which at least did not name the appellant as one having fired at the deceased with the pistol causing injury on his neck.
21. It is established from the prosecution evidence itself that the appellant accompanied the deceased to the police station and was present there when the F. I. To was lodged at it. Therefore, it looks , quite surprising and strange as to why the appellant was not arrested by the police then and then if the F. I. R. Exh. P. F. Was made by the deceased in which the appellant is alleged to have attempted to murder him by firing revolver shot at him. The appellant not only, was not arrested on that day at the police station but was allowed to move freely till 29th of February, 1980. Thus, the fact that the arrest of the appellant was made after six days of occurrence goes long way to show that the F. I. R. Lodged with the police did not contain accusation against the appellant of having caused a fire-arm injury to the deceased, but probably disclosed the deceased having received the said injury accidently as alleged by the defence, otherwise, there was no earthly reason for not arresting the appellant on the date of incident at the police station on the receipt of F. I. R. Exh. P. F.
22. Which named him as the person who caused the fire-arm injury to the deceased. Why the said written report was not produced by the prosecution but was withheld and substituted by another report alleged to have been verbally made by the deceased and reduced into writing by the officer incharge of the police station, is a question which admits of only one answer which is to the effect that the same did not name the appellant as one having caused the fire-arm injury to the deceased and thus did not suit the prosecution for the purpose of implicating the appellant for the murder of the deceased.
23. The legal inference that also arises from the non-production of the written F. I. R. Lodged by the deceased at the police station is that the same would not have supported the prosecution case, if it had been produced before the trial Court. The prosecution cannot escape the consequences of such an adverse inference that the Court is required to draw under section 114 of the Evidence Act.
24. Similarly, the genuineness of the statement of the deceased alleged to have been recorded under section 161, Cr. P. C. And used as his dying declaration also does not appear to be above suspicion.
25. The above statement has been recorded by the Investigating Officer, Muhammad Anwar, P. W. Who does not appear to have conducted the investigation in a straightforward and honest manner inasmuch as he has been found to have ante-dated the statement of another P. W., namely Sakhi Muhammad recorded by him under section 161, Cr. P. C. It becomes clear that the same was recorded after the death of the deceased but has been shown to have been recorded before his death. When confronted in cross-examination with the aforesaid inconsistency in the said statement, the said police officer explained the same by saying that the part of the statement which related to the deceased having died in the Hospital was added by him after the death of the deceased. A police officer who can go to the extent of either predating a statement of the prosecution witness or adding to it something which the witness did not state can also fabricate the statement of the deceased which is alleged to have been recorded, under section 161, Cr. P. C., and tendered and relied upon as his dying declaration. The suspicion that the aforesaid documents are not genuine but forged ones not containing the statement of the deceased is further strengthened from the fact that the same were not produced with the challan of the case as dying declarations of the deceased but were later on introduced as such during the trial of the case.
26. For the reasons stated above, we have no hesitation in expressing the view that the possibility of both the F. I. R. Exh. P. F. And police statement Exh. P. L. Allegedly made by the deceased being not genuine in the sense of not having been made by the deceased is not ruled out with the result that it is unsafe to treat them as dying declarations of the deceased.
27. Even if it is assumed for the sake of arguments that the above documents are genuine having been made by the deceased still, in our opinion, they are noteworthy of any reliance for founding conviction of the appellant on a capital charge. In the first place, they do not appear to be unblemished and straightforward statements having a ring of truth because they suffer from the material contradictions and inconsistencies. In the F. I. R., it is mentioned that the occurrence was witnessed by Muhammad Afsar and Sakhi Muhammad P. Ws. From outside the shop where they were standing but in the police statement Muhammad Afsar and Muhammad Sher P. Ws. Are stated to have witnessed the occurrence while standing near the corner of the house of one Bagga Khan. Similarly, in the F. I. R., it is stated that after purchasing the snuff from the deceased, the appellant had asked the deceased to show him the new cell as he wanted to purchase the same in the presence of his companions and that when the deceased wanted to show him the same, his companions did not see as they said that they would purchase the same on their return but in the police statement it is mentioned that the appellant remained sitting in his shop for about 15 minutes after his companions had left it and it was then that the appellant had asked him to show the new cell but refused to see them on the pretext that he will do so on his return and that it was thereafter that - the deceased was fired at by the appellant. In the police statement a further incident has been mentioned to show the motive for the crime which did not find mention in the F. I.
28. R. And which is to the effect that two days prior to the occurrence exchange of hot words between the appellant and the deceased had taken place on the demand of the latter for payment of price of the goods purchased by the former which ended on a threat thrown by the appellant to the deceased that we would see to it. The contradictions and inconsistencies in the two dying declarations of the deceased under consideration coupled with the fact that the same were neither recorded by the Magistrate nor under the M certificate of the Doctor that the deceased was fit to make the same lead one to the conclusion that they are untrue and unreliable on the sole basis of which conviction of the appellant for the charge of murder cannot be sustained without reliable and independent corroboration.
29. ' The learned trial Court has also erred in holding that the above dying declarations receive corroboration from the medical evidence and the statement of the appellant himself in which he had admitted the report of the fire-arm examiner to be correct. As regards the medical evidence, we fail to see how the same can be said to corroborate the dying declarations in view of the defence version of the incident. It only indicates that fire-arm injury was found on the neck of the deceased from which it cannot be concluded that the same was caused intentionally by the appellant and was not possible by the revolver going off accidently. Similarly, in our view, the report of the fire-arm examiner does not provide any corroboration to the statement of the deceased made in a dying declaration that the appellant had fired at him which only contains the opinion that the crime empty found in the chamber of the revolver recovered from the possession of the appellant was fired from the said revolver. This opinion does not in any way connect the appellant N with the crime with which he is charged in view of the defence taken by him with regard to the circumstances under which the deceased had received the fire-arm injury. The above report is also of no significance and value as in the same inability has been expressed to give an opinion as to whether or not the crime lead bullet recovered from the dead body of the deceased was fired from the said revolver.
30. For the above reasons, neither the medical evidence nor the statements of the deceased referred to above furnish any corroboration to the dying a declarations and could not be relied as such by the trial Court.
31. There are other surrounding circumstances which cast serious doubt on the truthfulness of the prosecution story and go to indicate the possibility of the defence plea that the revolver had accidently gone off as a result of which the deceased had sustained fatal injury on the neck, being true one. It is in the prosecution evidence that the appellant had remained at the scene of occurrence till the arrival there of some of the P. Ws. But he was not apprehended on the spot by them which fact go to show that at that time be was not considered to be the person who bad fired at the deceased. Likewise, the conduct of the appellant of having accompanied the deceased to the police station after the occurrence and the conduct of the police in not arresting him there are such circumstances which Q also lend support to the possibility of the defence version being factually correct. Yet there is another important circumstance which cannot be lost sight of while considering the charge of the prosecution against the appellant and that is the absence of motive for the commission of crime. Although R different motives have been attributed to the appellant for the commission of the offence but none of them stands proved. In the F.
1. R. It was alleged by the deceased that the appellant had fired at him with the animus to kill him at the behest and prompting of his relative Lai who was inimical towards bim but this suspicion was not even found to be welt-founded by the investigating agency, In the police statements of the deceased and the police report under section 173, Cr. P. C. It has been alleged that two days before the occurrence, the appellant bad threatened the deceased after an altercation having ensued between them on the refusal of the deceased to sell goods to the appellant on loan but at the trial no such motive was introduced or proved by the prosecution. Thus, in the absence of any motive for the crime, it appears inconceivable to us that the appellant after having armed himself with the revolver would have gone to the shop of the deceased alongwith other two persons with the intention to take his life and to achieve this object had been so desperate as to have fired at him in the bright day light and that too in the presence of so many persons.
32. For the reasons discussed above, we hold that the prosecution has failed to prove the charge against the appellant of having committed the murder of Muhammad Iqbal beyond reasonable doubt and accordingly accepting his appeal, set aside his conviction and sentence. Consequently the appeal of the State for conversion of his conviction is dismissed. The revolver recovered in this case shall be returned to the appellant only if the licensing authority deems it proper to renew its licence, otherwise, it shall stand confiscated in favour of the Government. This judgment contains the detailed reasons for the short judgment announced by the Court on 7-2-1984.