' NAZIR AHMAD BHATTI, J.-- This appeal filed by the State under section 417, Cr.P.C. Challenges the judgment dated 20-12-1979 of Mr. Muhammad Ayub Khan, Additional Sessions Judge, Kohat whereby he acquitted respondent Izzat Noor alias Izzat Khan of the charge under section 302/34, P.P.C.
2. The case against the respondent is based on F.I.R. No,2 of Police Station Karak recorded at 10 a.m.
On 7-1-1978. Complainant Niaz Manan was taken to the Police Station in injured condition at a 'cot' by Banaras Khan, Sadaqat Ali, Parvez Zaman and Sahib Zali Khan where the injured reported that on the said day at morning time he was going to Karak from his house for shopping, when he reached village Gandhao he was confronted by Kamal Khan and Izzat Khan sons of Hazrat Noor, armed with axes. Both the accused followed him and accused Izzat Khan gave an axe blow on his head and he fell down on the ground and then accused Kamal Khan gave him axe blows on left hand and back, which injured him. According to this report, son of Noor Janan resident of Lakki Gandaki, whose name was not known to him, had seen the occurrence. The cause of enmity was that about 13/14 years ago, father of the accused was beaten by 'tarboors' of the complainant.
' Initially the accused were charged under section 307/34, P.P.C., but the injured Niaz Manan died in the hospital on the same date at 10.30 p.m. And the charge was substituted by section 302/34, P.P.C.
' Both the accused absconded after the occurrence but the respondent herein was arrested on 20- 3-1978 while his co-accused Kamal Khan is still absconding. The respondent was charged by the learned trial Judge on 30-8-1979 for the murder of Niaz Manan but he pleaded not guilty and claimed trial.
3. The State produced eight witnesses in proof of the prosecution case while the learned trial Judge recorded statements of Banaras Khan, Parvez Khan and Sabz All Khan, who had taken the injured on a 'cot' to the hospital, as Court witnesses. The, respondent in his statement under section 342, Cr.P.C. Denied the commission of the offence. He also contradicted that his father had been beaten by 'tarboors' of the deceased. He denied that he had absconded and alleged that no process was served upon him. He further stated that he had been falsely charged on account of a suit about land brought against his grandfather by Sakhi Sarwar, father of the complainant. He did not produce any defence. The learned trial Judge did not believe the dying-declaration and the ocular testimony and acquitted the respondent.
4. The case of the prosecution is based on the first information report which was lodged by the deceased himself, which became a dying declaration, and ocular testimony of P.W .4 Atiqur Rahman and P .W .5 Azad Khan. P .W .3 Dr. Muhammad Iqbal had examined the complainant on 7- 1-1978 at 10.45 a.m. He found the following injuries on his person:-
(1) Linear lacerated wound 2" long x approximated edges x scalp muscles deep, directed anterior posteriorly on the top of the scalp.
(2) Linar lacerated wound Y-shaped on the left side of the scalp, 2" long x approximated edges, directed anterior posteriorly 2" to the left of wound No,l. Scalp muscles deep.
(3) Diffuse haematoma (swelling) present on posterio lateral aspect of scalp on left side.
(4) Linear lacerated wound 1/2" long x skin deep, directed transversely on the posterio superior aspect of scalp.
(5) Only tenderness present on right buttock and right knee. Definite swelling or colour changes present.
(6) Contusion red blue colour irregular on the right scapula posteriorly, 3" x 5" area.
(7) Contusion red blue colour on the vertibral column in the middle posteriorly.
' The doctor has further stated that the injured was conscious and in senses, and that the injuries were caused with blunt means within a duration of 3 to 4 hours. The injured died at 10.30 p.m. The same day and this doctor conducted post-mortem examination on the dead body on 8-1-1978 at 9.30 a.m. The post-mortem examination revealed that scalp was fractured and brain and membrane were also damaged,meningeal vessels were found injured. According to the opinion of the doctor death occurred due to concussion and haemorrhage of the brain with blunt means. In cross-examination, the doctor admitted that the words "injured is conscious and in senses" are written in a margin of his medico-legal report, Exh.PM although these words were recorded by him at the time of examination of the injured. The doctor gave the reason that there was no specific space left in the certificate. The doctor denied the suggestion that he had recorded these words after preparation of this report. P.W.8 Rasool Khan, S.H.O. , recorded the F.I.R., Exh.PA., at the instance of the deceased who was brought to the Police Station in injured condition. According to this witness, the injured was in control of his senses and he could talk and speak coherently. The F.I.R., Exh.PA, was read over to the injured and he admitted it correct and then thumb impressed it. He prepared the injury sheet of Niaz Manan and sent him to the hospital for medical treatment- and then he handed over the investigation to A.S.I. Farid Hussain. On receipt of the information about the death of Niaz Manan, he instructed the Muharrir to register the case under section 302/34, P.P.C., and then he went to the spot at 10.30 a.m. On 8-1-1978 and took over the investigation. He had recorded the statement of P.W.5 Azad Khan under section 161, Cr.P.C. On 9-1-1978. He denied the suggestion that Niaz Manan was lying in the lorry Adda Karak unattended and he happened to go there by chance and the Court witnesses brought him to the Police Station at his instance. He also denied the suggestion that Niaz Manan was unable to talk at lorry Adda.
' Although P.W.4 Atiqur Rahman is mentioned as an eye-witness in the F.I.R. But, appearing as a witness in the trial Court, this witness stated that he had seen Niaz Manan lying at the spot and blood was coming from his head and he told him that he was beaten by the accused with an axe and a stick. This witness has further stated that the respondent had beaten the injured with an axe and absconding accused Kamal Khan had used a stick, but in cross-examination he stated that Niaz Manan had told him that the accused had injured him with axes. His statement was recorded by the police 7/8 days after the occurrence. Although he had pointed out to the I.O. The place where he had seen the injured but that is not mentioned in the site plan.
' P.W.5 Azad Khan is not mentioned as an eye-witness in the F.I.R. But according to his own statement he was walking when he saw from a distance of 200 paces that two men were beating another person, out of whom one was armed with an axe and the other with a stick. When this witness approached them at a distance of 20/30 pates, the two men left the other man and started coming towards this witness and when they passed by him, he identified them as the respondent, armed with an axe and accused Kamal Khan with a stick. This witness was examined by the police 3 days after the occurrence.
5. All the three Court witnesses have stated that they saw the injured lying on a 'cot' in the Bus stand, Karak at early morning time and they alongwith a fourth person took him to the hospital where they were directed to take him to the Police Station. All the three have further stated that during all this period, neither they talked to the injured nor he had talked to them. C.W.3, Sabz Ali Khan has further stated that when they took the injured to the Police Station, they were made to wait outside for half-in-hour/one hour approximately and then they were again called inside the Police Station and their names were noted whereafter they took the injured to the hospital.
' The other witnesses are formal in nature.
6. From the evidence recorded in the case it has been proved that deceased Niaz Manan was found lying injured on a 'cot' in the bus stand Karak from where he was first taken to the hospital, then to the Police Station and then again to the hospital by persons not connected with the occurrence or the witnesses in any way. Three out of the said four persons, who were examined as Court witnesses, neither talked to Niaz Manan nor he talked to them. The only presumption which can be drawn from this aspect of the matter is, that Niaz Manan was not conscious and in his senses at that time otherwise he would have definitely narrated as how the occurrence took place and who were his assailants. This circumstance does not appear to be a natural human behaviour.
In this ordinary course of human conduct, whenever a person is found injured, the first question asked from him is as how did it take place and by whom he was injured. The statements of these three Court witnesses would prove that Niaz Manan was unconscious when he was discovered by them and so they first took him to the hospital where they were directed to take him to Police Station as it appeared to be a medico-legal case. The dying declaration shows that Niaz Manan was given axe blows by both the assailants and he sustained one injury on the head and injuries to his left hand and back, whereas the doctor found three injuries on the head and other injuries on other parts of the body but all were inflicted with blunt means. The prosecution has also not shown as how the injured was taken to the bus stand. The aforesaid circumstance would show that the dying declaration was not genuine and honestly made. Moreover it is also not corroborated by the medical evidence. The condition of the injured as mentioned by the doctor in the medico-legal report appears to be an after thought and this circumstance further overclouds the genuineness of the same. Niaz Manan had sustained 3/4 injuries on the head causing fracture of the scalp and damage to brain and membrane. Such injuries in the ordinary course are fatal and the injured cannot be expected to be in senses. It shall thus be seen that the dying declaration was neither made by the injured nor it was honestly recorded by P.W.8 Rasool Khan S.H.O. In fact, the injured was not in his senses right from the time when he was discovered lying in the bus stand and he died in the same condition. He could not have made a dying declaration. The learned trial Judge did not believe the genuineness of the dying declaration and we agree with him for the aforesaid reasons. The learned Assistant Advocate-General appearing on behalf of the appellant stated that no motive for a false charge has been disclosed and that the injured was found in proper senses by the I.O. And the medical officer and that the contents of the dying declaration were honest and forthright. In this connection he has relied upon the case of Zarif Khan v. The State PLD 1977 SC 612.
The following circumstances may be of help in determining the genuineness of the dying declaration made in this case:
(a) Whether the declarant himself made the statement or he was prompted by others;
(b) Whether the declarant was in a position to identify his assailants;
(c) Whether the dying declaration is corroborated by other circumstantial or ocular evidence; and
(d) Whether it was honestly recorded by the police officer.
' In so far as point (a) is concerned, the circumstances narrated earlier would show that injured Niaz Manan could not be expected to be in senses when he was discovered lying injured in the Bus stand Karak. The Court witnesses who took him to the hospital and then to the police station have all stated that they did not talk to him nor he conversed with them about the occurrence. When he was brought to the P.S., the four persons who had taken him there were made to sit outside the P.S. The prosecution has not produced any evidence except the statement of P.W.8 Rasool Khan S.H.O.
To show that the injured had himself made the statement. The statement of P.W.8 Rasool Khan is not worthy of any credit because it is not supported by any other evidence. It cannot, therefore, be presumed that the declarant had himself made the dying declaration. In regard to (b) it may be mentioned that it has been proved beyond any reasonable doubt that the injured was not in his senses when he was brought to the P.S. Or taken to the hospital. He may have recognized his assailants when he was attacked but as he was not in his senses at the time of making the report it cannot be said that he had himself named his assailants in the dying declaration. In regard to (c) it may be stated that the dying declaration mentions of only one injury to the head whereas the doctor found three injuries on the head, all dangerous to life. The dying declaration mentions that the assailants caused all the injuries with axes while the doctor found all the injuries to have been caused by blunt means. The dying declaration discloses P.W.4 Atiqur Rahman as an eye-witness of the occurrence but the latter deposed that he had not himself seen the occurrence. Moreover this witness has stated that he was informed by the injured that he was injured by an axe and a stick whereas the dying declaration shows that all the injuries were caused by axes. The dying declaration does not show the presence of P.W.5 Azad Khan at the time of occurrence whereas this witness states that he had seen the occurrence. These circumstances would show that the dying declaration is not corroborated by the circumstantial and ocular evidence. In regard to point (d) it may be said that the injured was unconscious and not in his senses when he was taken to the police station. Obviously the police officers could not have recorded the dying declaration at the instance of the injured. In this respect the opinion of the doctor is also doubtful. Although the doctor has mentioned that the injured was conscious and in his senses but these words were added in the medico-legal report afterwards by him. There was much space left in the page of the medico- legal report and the explanation of the doctor at justification is not believable. The condition of the injured was of paramount importance and it should have been clearly indicated in the medico- legal report. The insertion of these words in a corner of the report would only prove that this opinion was given by the doctor after he had already completed the medico-legal report. In this report the possibility of prompting to the doctor by relatives of the injured can also not be excluded. The circumstances attending condition of the injured when he was brought to the P.S. Indicate without any shadow of doubt that he was unconscious. It cannot, therefore, be said that the dying declaration was honestly recorded by the police officer. We are, therefore, of the considered opinion that no reliance can be placed on the dying declaration in this case.
7. In so far as the ocular evidence is concerned, although P.W.4 Atiqur Rahman has been mentioned as an eye witness in the F.I.R. But extracts from his evidence, as mentioned earlier, prove that he had not seen the occurrence himself. On the contrary, he has stated that he had been told of the same by the injured whom he had seen lying at the spot with blood coming out from his head. He is, therefore, not an eye-witness of the occurrence. The authenticity of his statement is further marked by the fact that he was available to the I.O. Immediately after the occurrence but his statement was recorded 7/8 days afterwards. In so far as P.W.5 Azad Khan is concerned, his testimony is not worthy of any credit for the simple reason that he is not mentioned as an eye- witness in the F.I.R. It appears that the injured was in possession of his senses when he was lying at the spot and if this witness had met him at that time, he would have been mentioned in the F.I.R. As having seen the occurrence. He was examined after three days of the occurrence and that circumstance further throws a shadow of doubt on his testimony. In the case of Khalil v. The State PLD 1956 (W.P.) Lah. 840 it was held that the Court may be inclined to consider the statement of a witness whose name does not appear in the First Information Report as truthful, but the safer course is to keep his statement out of consideration. The learned trial Judge was perfectly right in disbelieving the ocular version of the case. In the case of State v. Lois Kowach 1981 P Cr.L J 102 the Sind High Court did not accept the appeal against acquittal on the ground that the trial Court had considered evidence produced in support of the prosecution case in detail and conclusion reached about it was not found perverse or foolish. In the case of State v. Muhammad Hussain and 8 others 1981 P Cr. L .1 129 it has been held that innocence of accused becomes stronger by acquittal order and the same cannot be lightly interfered with by the High Court. We are in respectful agreement with the aforesaid judgments.
8. The net result of the above discussion is that we would dismiss this appeal. The bail bonds of the respondents are discharged.