1. MUHAMMAD HALEEM, C. J.-- This appeal, by leave, arises from the judgment of the Lahore High Court, Lahore, dated 9th of December, 1978, by which respondents Sher Khan and Muhammad Amir were acquitted for the murder of Salim Khan.
2. These respondents were tried along with Adam Khan, Muhammad Nawaz, Muhammad Khan, Habibullah and Faizullah, but they were acquitted by the High Court. A revision filed against their acquittal was also dismissed by the same judgment. This appeal seeks to challenge the acquittal of respondents Sher Khan and Muhammad Amir.
3. Leave to appeal was granted to consider whether the dying declarations could be accepted corroborated as they were, by the medical evidence and motive.
4. Deceased Salim Khan himself lodged the F.I.R. At 8-00 a.m. On 1-5-1975 at Police Station, Moosa Khel, District Mianwali, stating therein that he along with others owned 64 Kanals of land situate in Wandha Ladho Khelanwala Dakhli, Moosa Khel, over which there was protracted litigation with the respondents who had taken forcible possession of it, which was finally resolved in favour of the complainant party by the High Court. According to the revenue procedure he was given possession of the disputed land. Today at sunrise time while he was ploughing the land and his companions Khan Mir, Sultan Khan and Sher Dil were there, the respondents, whose Dera was nearby, came armed with fire-arms, and proclaimed that today he would not be spared. Having said so, Sher Khan fired a shot which struck him on his arm, Muhammad Amir next fired and the pellets hit him on the right leg, and thereupon, he fell down. The others who were armed with fire-arms fired at randum and taking him to be dead, they all decamped from there. The deceased was then taken to the District Headquarters Hospital, Mianwali, and there his second statement was recorded by a Magistrate of the First Class, who also certified him to be in senses while narrating his account of the incident. This was further certified by the Medical Officer. The deceased, however, expired at 10- 50 p.m. The same day.
5. The prosecution the ocular evidence of Khan Mir (P.W. 11), a cousin of the deceased in the second degree, Sultan Khan (P.W. 12) , a son of Khan Mir and Sher Dil (P W. 13) , the paternal-uncle of the deceased, and also relied on the dying declarations of the deceased recorded at the police station and the hospital. The evidence of the recovery of guns was also led to corroborate the participation of the respondents.
6. The trial Court accepted the motive that there was serious dispute between the parties over the possession of the land which was purchased by the deceased and the others from Azhar Abbas but its possession was with the respondents as they had forcible dispossessed the complainant party. It was, therefore, that the motive for the attack was on the side of the respondents who were retaining the possession of the land. The trial Court next held that there was a conflict between the ocular testimony and the medical evidence. Another improbable feature noticed by the trial Court was that although 20 to 25 shots were fired nonetheless none of the prosecution witnesses were injured and the deceased only received fire-arm injuries from the two shots fired from a close distance. The trial Court next held that all the three eye-witnesses were inimically disposed towards the respondents after a detailed appraisal of the evidence. The other features which stood out were: that neither a plough was found nor any cutting implements secured to corroborate their version that they were engaged in clearing the bushes, and that the land itself also did not show any signs of having been ploughed. This version of the deceased and prosecution witnesses was, accordingly, held to be untenable. Therefore the trial Court in its ultimate analysis held that the presence of the prosecution witnesses was doubtful, and for that reason no reliance could be placed on their testimony. The trial Court, however, accepted the dying declarations as it was of the view that no one could have prompted or tutored the deceased to give his narration, and that he was in senses when the statement was recorded. As for the independent corroboration of the dying declarations the trial Court was of the view that the recovery of guns did not lend any support to it, nor was it established that the blood-stained earth was collected from the land, which was said to have been purchased by the deceased and the others. The eye-witnesses were also held not to corroborate the dying declarations as their presence at the spot was highly doubtful. The trial Court, however, found corroboration of the dying declarations from the medical evidence and thus relied on it for establishing the guilt of Sher Khan and Muhammad Amir on the charge of murder. As for the others, the trial Court held that their participation was uncertain. The reasons given were: firstly, that none of them were injured although their version was that 3 to 4 shots were fired at each of them; secondly, that no empty cartridge was recovered from the spot although there was every likelihood of the cartridges having been discarded at the spot; and, thirdly, that there was seriously enmity between the parties, therefore, almost all the major male members of the respondents were implicated in the case which was itself an unusual feature and did not exclude the possibility of false implication in the context of only two shots having been fired at the deceased while none of the prosecution witnesses were injured. They were, accordingly, given the benefit of doubt and acquitted.
7. The High Court disbelieved the dying declarations holding: "It appears that the deceased was a man of violent temperament. He was involved in two different murder cases and the relatives of the murdered man in one of the cases were after his blood. He was also involved in some cases of murderous assaults and in one of them, he was also convicted.
8. He was on inimical terms with the appellants and the respondents. His statement, therefore, cannot be accepted without reservation. In fact the learned Sessions Judge rejected his statement in so far as it related to the participation of the respondents in the occurrence. The State has not cared to prefer any appeal against the acquittal of the respondents. It also cannot be said with any measure of certainty that he was in fact hit by two shots. A perusal of the post-mortem report indicates that possibly he was hit by one shot at a time when he was bending down with his right forearm in front of him. For this reason the doctor could not exclude the possibility that all his injuries were the result of one shot.
9. 13.In the circumstances we do not think that we can act on the dying declarations of the deceased without independent corroboration. No corroboration is available on the record. Therefore, we do not think that it would be safe to uphold the conviction and sentences of the appellants on the evidence before us."
10. And as there was no other evidence to sustain conviction, the two convicted were also acquitted.
11. Having examined the reasons given by the Courts below for the acquittal of the respondents, we find no justification to interfere with that conclusion. The trial Court having rejected the version of the prosecution witnesses in toto not only for the reason that it was unfounded but also that it emanated from the ocular testimony of the three witness whose presence was highly doubtful, yet placed reliance on the dying declarations of the deceased which it found duly corroborated by the medical evidence while convicting Sher Khan and Muhammad Amir. This approach was totally wrong as medical evidence can only corroborate the weapon used but cannot fix the identity of the assailants. The trial Court next failed to notice that the rejection of the ocular testimony resulted in the total destruction of the authenticity of the statements of the declarant and this by itself rendered the dying declarations unworthy of any credence. If then there was strong enmity, false implication of the other respondents, the version being highly unreliable and the presence of the witnesses being doubtful, there could not be any reconciliation of these findings with the version given in the dying declarations. The High Court was, accordingly, correct in not placing any reliance on it while seeking independent corroboration which was not available.