NAZIR AHMAD BHATTI, J.-The present four appellants, namely, Sardood son of Sayed Hassan, aged about 30/35 years, Sheikh Hassan son of Seyed Hassan aged about 35/40 years, Misal Khan son of Mir Akbar, aged about 30/35 years and Adam Khan son of Gulab Akbar, aged about 25/30 years alongwith another co-accused Watan Khan son of Muhammad Ayaz Khan, all residents of Village Samandar Tittar Khel, Tehsil Lakki Marwat, Distt. Bannu were charged under sections 302/307/148 and 149, P. P. C. By the learned Sessions Judge, Bannu for committing the murder of Najibullah Khan and attempting at the life of Alla-ud-Din on 8th January, 1980. The prosecution case, against the present four appellants, was proved under section 302, P. P. C. And they were consequently sentenced to undergo life imprisonment each and to pay a fine of Rs, 6,000 jointly or in default to undergo six months, R. I. Each vide judgment dated 24th May, 1983. The learned Sessions Judge also ordered that the fine, if recovered, should be paid to the legal heirs of the deceased as compensation. However, accused Watan Khan was acquitted from all the charges. The charge under section 307, P. P. C. For attempting at the life of P. W. Allauddin and the charge under section 148/149, P. P. C., having not been proved against the appellants, they were acquitted of the same.
By the present appeal, the four convicts have challenged the said conviction and sentences.
Complainant Taj Muhammad has also filed a revision petition bearing No, 19/D of 1983 praying for enhancement of the sentences of the appellants from life imprisonment to that of death. The judgment in the present appeal will also dispose of the said revision petition, notice of which was accepted by the learned counsel for the appellants.
2. The prosecution case, as disclosed in F. I. R. No, 4 of Police Station Lakki Marwat, recorded at 19-30 hours, copy Exh. P. A. Shows that complainant Taj Muhammad had taken his son Najibullah Khan in injured condition at 16-00 hours in police post, Shahbaz Khel, and reported that on the said day at about `Peshin Qazavela' he was busy inspecting his wheat crop in his own land situate in village Samandar Tittar Khel when a bus arrived from which his son Najibullah Khan, Allauddin and some other persons alighted, Najibullah Khan and Allauddin started on the path and when they reached near the house of Syed Hassan accused Sardood and Sheikh Hassan sons of Syed Hassan and accused Watan Khan son of Muhammad Ayaz, and accused Misal Khan son of Mir Akbar all armed with topaks came out of the compound of the house and fired one shot each at Najibullah Khan and Allauddin whereupon the latter two ran towards to Ziarat Shah Sahib, Najibullah Khan took refuge in a roofless quarter of the hospital and Allauddin entered Chowk Shah Sahib that the complainant ran towards the said quarter to save his son as all the four accused were following him, when he reached near his son all the four accused also came and again fired one shot each at Najibullah Khan in spite of his beseaching. Najibullah Khan got injured and the four accused ran away. The cause of enmity between them was political rivalry. This report was incorporated in the aforesaid F. I. R., at 19-30 hours and Najibullah Khan subsequently died.
3. A dying declaration, copy Exh. P. F. Of injured Najibullah Khan was also recorded on the same day at 17-30 hours in the operation room of Civil Hospital Lakki Marwat wherein he stated that he and Allauddin had gone to Paizu in the morning and were returning therefrom, when they reached near their land known as Chakdadey at about Peshin Qazevela they saw accused Sardood and Sheikh Hassan sons of Sayed Hassan accused Adam Khan son of Gulab Akbar and accused Mir Hassan son of Maidullah standing armed with topaks, as soon as they saw Najibullah Khan and his companion, accused Sardood and his brother Sheikh Hassan fired at him with which he was injured and fell down that there was previous blood fued enmity between them. Doctor Chiragh Hussain Shah and Mir Abbas Khan son of Haqnawaz Khau are marginal witnesses of this dying declaration and it appears to have been written by some 'Assistant Sub-Inspector of Police of Lakki Marwat at that time. In view of the F. I. R. And the dying declaration, all the five accused were charged for the offence as stated earlier. Except accused Watan Khan, all the four accused absconded and on their arrest, all the five accused were sent up for trial before the learned Sessions Judge, Bannu. All the accused pleaded not guilty and claimed trial. In order to prove the offence against all the accused, the prosecution produced 16 witnesses. The accused were examined under section 342, Cr. P. C. On 16th February-1933. They plead innocence but produced no defence.
4. P. W. I, Feroz Khan, had accompanied injured Najibullah Khan to the hospital where he died at Peshin Qazavela and he identified his dead body at the time of post-mortem examination. P. W. 2, Zarif Khan Patwari had prepared a site plan, Exh. P. B./1 at the instance of the Investigating Officer. P.
W. 3 Dr. Chiragh Hussain. Medical Officer, Civil Hospital Lakki, examined injured Najibullah Khan on 8th January, 1980 at 5-30 p. m. Who was brought by P. W. 9 Muhammad Khan Foot constable. The doctor found one fire-arm inlet wound 1/4" x -t" on the right buttock 3" below the upper border of the right pelvic bone. According to the Doctor, the injury was caused by a fire-arm within a duration of 12 hours. Najibullah Khan died in the hospital whereafter the said Doctor conducted his post-mortem examination on 9th January, 1980 at 9-30 a. m. The Doctor has stated that prior to his death, the Investigating Officer had recorded the dying declaration of the deceased at 17-30 hours in his presence and he is marginal witness thereto. In the post-mortem examination, the Doctor confirmed the aforesaid internal injury and on external examination, he found the blood vessels injured and right pelvic bone fractured. According to the Doctor, the death occurred due to haemorrhage, shock and injuries to the vital organs, caused by fire-arm, and time between injuries and death was 1 to 6 hours. The Doctor also recovered a metallic piece weighing 20 grains from the dead body of the deceased. In cross-examination, the Doctor admitted that at the time of recording the dying declaration, Najibullah was in a shock condition. The Doctor also admitted that generally a certificate is given to the Police Officer to the effect that the injured person is fit to record statement and such certificate is recorded on the said statement but he had not recorded this certificate on the dying declaration. The Doctor has further stated that none of the relatives of the injured, except one attendant was present at the time of recording the dying declaration. He denied the suggestion that the injured was unconscious at that time and he blindly signed the dying declaration because the brother of the deceased was his friend. Except P. W. 13 Taj Muhammad and P. W. 14, Allauddin, who are eye-witnesses of the occurrence, the other witnesses are formal. However, P. W. 11, Ashiq Khan has stated that deceased Najibullah Khan had deputed him before this occurrence to call on the accused and to ask them to pay back the loan which the deceased had advanced to Zarwali younger brother of accused Sardood but the latter expressed his inability to pay back the loan. P. W. 15, Ashiq Farouqi, S. H.O., Tajoori, Bannu, had carried out the investigation. P. W. 16, Muhammad Farooq had also joined the investigation.
5. P. W. 13, Taj Muhammad made some very important variations froM the F. I. R. At the time of trial.
He stated that he had also seen accused Misal Khan alighting from the said bus and hurrying towards the baithak of Sayed Hassan. In the F. I. R. He had stated that he had seen the first shots fired by the accused on his son and Allauddin, but appearing as P. W. 13, he stated that on his enquiry both of them told him that they Were fired at by the four accused. He made a further improvement upon the original story by stating in cross-examination that after the first ineffective shots, accused Sardood and Misal Khan took position on one side of the Khola (where Najibullah Khan had taken refuge) while the other two accused took position on the other side and then accused Sheikh Hassan, Watan Khan and Misal Khan fired at the deceased ineffectively and then accused Sardood fired a shot which hit the deceased and he fell to the ground and that P. W.
Allauddin (who had taken refuge in another place) again arrived at the spot and saw the occurrence from a distance of about 10/15 paces from the Khola. He came out with another motive for the offence and the same was the dispute about loan which had been taken from the deceased by Zarwali younger brother of accused Sardood. He made a further improvement in the original case by stating that he was standing by the side of his son when he was fired at in the Khola. He admitted that Najibullah Khan was unconscious and was not in position to be brought down from the bus in which he was taken to the police post. P. W. 14, Allauddin, has also made some very important departures from the original prosecution story when he appeared as a witness in the trial Court. He stated that he had seen Misal Khan also alighting from the bus ahead of them and hurrying towards the baithak of Sayed Hassan. This circumstance was not stated by him in his statement under section 161, Cr. P. C. He has admitted that after the first ineffective shots by the five accused i. e. Sardood, Sheikh Hassan, Watan Khan, Misal Khan and Adam Khan, he and Najibullah changed their direction and Najibullah Khan took refuge in the Khola while he ran towards the Chowk of Shah Sahib. He then came back near the Khola where the four accused namely, Sardood, Sheikh Hassan, Watan Khan (he does not know the name of the 4th one) fired at Najibullah Khan, while the shots fired by Sheikh Hassan, Watan Khan and Misal Khan proved in effective but the shot fired by Sardood from a rifle injured Najibullah who fell down to the ground.
He bad admitted that Najibullah Khan was not in a condition to speak. His statement under section 161, Cr. P. C. Does not show that accused Sardood was armed with a rifle whereas the other accused were armed with shotguns. P. W. 15 Ashiq Farooqi, had recorded the report, Exh. P. W. Taj Muhammad in the Police Post, Shahbaz Khel, where he happened to be present. He prepared the injury sheet, Exh. P. C. Of Najibullah Khan who was unconscious and he despatched him for medical treatment to the hospital. He then left for the spot. He arrested accused Watan Khan on 9th January, 1980 and the other accused on 19th February, 1980 and 12th January, 1980 . In cross- examination he has admitted that he had recovered two empties of 303 bore from inside the Khola where injured Najibullah Khan was alleged to be present.
6. The prosecution did not produce the scribe of the dying declaration and its second marginal witness Mir Abbas, In fact, it is not known as who is the scribe of the dying declaration, because the signatures of scribe on the original and his identity could not be established. Doctor Chiragh Hussain Shah is the only witness produced to prove the dying declaration. However, he admitted that the injured was in a condition of shock when he was brought to the hospital and when his dying declaration. Was allegdly being recorded. He also did not certify if the injured was in a fit condition to talk or made any statement.
7. The learned Sessions Judge, Bannu did not believe the evidence of the two eye-witnesses i,e, P.
W. Taj Muhammand and P. W. Allauddin. He was of the opinion that the said two witnesses have not witnessed the occurrence or if they had seen the same, then they are suppressing the truth. He based this opinion on more than one motive coming to light after recording of the F.I.R. Or as disclosed in the dying declaration improvements in their statement and difference of accused persons as disclosed in the F.I.R. And as mentioned in the dying declaration of deceased Najibullah Khan. We agree with the findings of the learned Sessions Judge in respect of the ocular testimony.
P. W. Taj Muhammad would appear to us to be chance witness. His presence at the spot at the time of occurrence is not established. Had he been there, he being father of the deceased, would have also not been spared by the assailants of his son, for the simple reason that they would be letting off an eye-witness. Furthermore, he has made many important improvements upon the prosecution story as originally disclosed in the F.I.R. And as adverted to in the foregoing portion of this judgment. It is a daylight occurrence this witness allegedly standing very close to the deceased and at a very short distance from the assailants, could surely identify the weapons in the possessions of the accused, but he has used the word topaics in his F.I.R. Which is a very convenient word and can be twisted and given any particular meaning at the time of trial.
Moreover, it is very strange that four persons, two from one side of the Khola and two from the other side thereto, had fired at the deceased but there was only one injury on his person. P. W. Allauddin, as originally stated in the F.I.R., had taken refuge in another place after the alleged first ineffective shots were fired by the accused at him and the deceased. He did not come out of the place where he had taken refuge according to the F.I.R. Consequently, he could not have witnessed the occurrence which took place in or around the Khola. The prosecution was conscious of this inherent defect in the F.1.R. About the testimony of P. W. Allauddin, so at the time of trial, he was made to narrate a completely new circumstance showing that after taking refuge in the chowk of Shah Sahib, he had returned to the "Khola" had witnessed the occurrence from a closer distance. This is such an important circumstance that the complainant could not miss it in the F.I.R. Consequently, it is an after-thought and thi circumstance has been introduced in the evidence for the first time, to make him an eye-witness of the occurrence. Actually, he had not seen the occurrence. Moreover, no motive of any kind has been disclosed against him justifying the accused to fire at him. This first part of the occurrence pertaining to ineffective firing on this witness and the motive therefor is also not proved. The learned Sessions Judge rightly disbelieved the evidence of both these witnesses and we agree with him for the aforesaid reasons.
8. The motive for the offence, as disclosed in the F.I.R. Does not find support from the evidence recorded during the trial. Actually the prosecution came out with two different motives for the commission of the offence. The evidence recorded shows that the deceased had lent some money to Zarwali brother of accused Sardood and the same was demanded back by him and accused Sardood got enraged and committed the offence. This motive is not at all disclosed in the F.I.R.
According to which the cause for the commission of the offence was local political rivalry between the parties. This alleged cause for the commission of the offence was not at all adverted to in the evidence produced in the Court. Then the deceased disclosed another motive in his alleged dying declaration according to which the offence was committed due to previous blood fued enmity between the parties. This motive, as disclosed in the dying declaration, does not find any support in the evidence. The prosecution did not insist on the motive as disclosed in the F.I.R. And the motive as disclosed in the dying declaration. A complete voile face was made during the trial by introducing altogether a new motive. No doubt, the prosecution is not bound to allege or show any motive for the commission of an offence and many an offence are committed without any motive or the motive for the commission of an offence may be in the mind of the deceased or the culprits.
But, if any motive is advanced for the commission of an offence then it becomes the duty of the prosecution to prove that motive, and failure to do so would be fatal for the prosecution. However, in the present case, the prosecution has been shifting its stand in regard to the motive for the commission of the offence and on top of all, none was proved by any evidence worth the name.
This circumstance further weakens the case of the prosecution. The Courts would, therefore, be constrained to draw an adverse inference if a motive is alleged but is not proved.
9. The learned Sessions Judge has accepted, the dying declaration of deceased Najibullah Khan and has convicted the four appellants on the basis of this solitary evidence. However, Mr. Muhammad Ishaq Khan K undi, learned counsel for the appellants, invited our attention to many circumstances which make the genuineness of the dying declaration highly, doubtful. Firstly, it is not known as who is scribe of this dying declaration, the signatures of the scribe on the original of this documents are not legible. No person was produced in evidence at the time of trial who could own the writing of this document. Secondly Mir Abbas, one of the marginal witnesses, was also abandoned and there remains only the Doctor who supports its contents, but his testimony, in this regard, is also not worthy of any credit. Thirdly, this witness being a Doctor, did not certify that the deceased was in a fit condition to talk, this point becomes all the more important in the light of the evidence produced to the effect that the deceased was unconscious after receiving the injury and he remained in the same state when he was taken to the hospital the Investigating Officer had prepared his injury sheet in the bus and at that time he was unconscious when he reached the hospital he was in a state of shock and died in the same condition, most probably shortly after his arrival at the hospital ; he was unconscious till the time of his death, it is, therefore, highly improbable that he could sensibly make a dying declaration. Fourthly the dying declaration is in clear contradiction with the F. I. R. It does not disclose that the deceased and his companion were firstly in effectively fired at and then they took refuge in the Khola and Chowk Shah Sahib, respectively, it does not show the presence of P.W. Taj Muhammad at the time of occurrence ; it does not name accused Watan Khan as one of the accused, as mentioned in the F. I. R. It does not charge all the accused as in the F. I. R. For effectively firing at him at charge only accused Sardood and his borther Sheikh Hassan sons of Sayed Hassan for firing at him, although accused Adam Khan and Misal Khan were also present there ; it gives a motive different than the F. I. R. For the commission of the offence ; it charges both the aforesaid accused for effectively firing at him, but the medical evidence shows that he received only one injury and is thus clear contradiction with the medical evidence ; it also does not disclose that the occurrence had taken place inside the Khola. Fifthly, it names one accused Adam Khan son of Gullab Khan who is not mentioned in the F. I.
R. And does not mention accused Watan Khan who is mentioned in the F. I. R. It shall thus be seen that the dying declaration is lacking in man y important facts and is also not supported by any other testimony. The non-production of the scribe and other marginal witness, at the time of trial, the non-existence of certificate by the Doctor that the deceased was in a fit condition to talk and make the dying declaration, casts further doubt on its credibility. A dying declaration is no longer regarded as sacrosanct and it is to be scrutinised like statement of any other interested witness as it is comparatively of a lesser value having not been tested by a cross-examination, as held in Abdul Ghani and 3 others v. The State . The evidentiary value of a dying declaration is to be determined in the light of the other circumstances of the case. In this respect, reference may be1 made to Ghulam Jillani and 6 others v. The State . The deceased sustained only one injury but he has charged four persons, out of whom two have been charged for effectively firing at him. It was held in Tawaib Khan and another v. The State that dying declaration has sanctity under law but no rigid rule can be laid down that person under immediate apprehension of death would utter nothing but truth and dying declaration like statement of interested witness require close scrutiny.
It was also held in Zarif Khan v. The State , that dying declaration was a weaker type of evidence than evidence subjected to cross-examination. A dying declaration may be considered as a genuine documents under section 32 of the Evidence Act to prove the statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, provided it rings true. Is supported by other ocular testimony, is proved by the scribe and the marginal witnesses and the maker thereof should also be proved to be in a condition to coherently talk and in possession of senses. Only then it could form the basis of conviction. It shall thus be seen that dying declaration of the deceased in this case was neither true, nor satisfactorily corroborated, nor properly proved according to law, thus could not form basis of conviction of the accused in this case. All the aforesaid ingredients of a dying declaration are missing in this case. The learned Sessions Judge was, therefore, in error is relying upon the dying declaration as a sole piece of evidence for conviction of the accused in this case.
For the aforesaid reasons, we would accept this appeal, set aside the conviction and sentences of all the appellants and would acquit them of the offence with which they have been charged. They shall be set at liberty forthwith if not wanted in any other case. The criminal revision No, 19/D of 1983, filed by complainant Taj Muhammad for enhancement of the sentences of the appellants, consequently fails and stands dismissed. PLD 1979 Lah. 490 PLD 1970 Lah. 73 PLD 1970 SC 13 PLD 1977 SC 612