1. SALAHUDDIN AHMED, J.-This appeal by special leave is from the order of a Division Bench of the then High Court of West Pakistan, Peshawar Seat, maintaining the convictions of the three appellants under section 302, read with section 34 of the Pakistan Penal Code and the sentences of transportation for life passed on each of them thereunder. They were tried by the learned Additional Sessions Judge, Peshawar. Appellants Nos. 1 and 2 Azam Khan and Bahadur Sher are first cousins, and appellant No. 3 Fazal Rehman is their tarbur. They are residents of village Surezai Payan, Police Station Badaber, District Peshawar. Amir Shah deceased also belonged to the same village.
2. The occurrence took place on the 8th of February, 1964, at about 9 a.m. And a first information report, which was later treated as the dying declaration, was lodged at 10-05 a.m. By Amir Shah deceased himself at Police Station Suburb, Peshawar City, which is nearer than Police Station Badaber. As the occurrence took place within the jurisdiction of Police Station Badaber, P. W. 2 Mehr Muhammad, Muharrar Head Constable of the former Police Station conveyed on the same day the contents of the first information report over the telephone to P. W. 1 Muhammad Tahir, Muharrar Head Constable of the latter Police Station, and the latter recorded the report Exh. P. A. At 11-15 a.m.
3. Exh. P. A. Reads as follows :------ "I am employed as a helper at Tahkal in the Electricity Department. Today at about 9 o'clock in the morning I started from my house for duty. When I reached near Wand known as Topehaka a path leading to the hujra of Mian Hazrat Amir, on the path Azam Khan, son of Zaman, Bahadur Sher, son of Rehman and Fazal Rehman, son of Gut Rehman were standing. When I reached near them by 20/25 paces, all the three of them who were armed with Topaks simul--taneously started firing at me. With the fires I received injuries on the right hand wrist, navel and close to right buttock on the upper side and fell down. Muhammad Din Shah, son of Noor Shah, Sabir Shah, son of Qasim Shah and Feroz Shah, son of Ismail, residents of Surezai Payan, witnessed the occurrence. The motive is that a year ago I had given on loan Rs. 300 to Azam Khan who in spite of repeated demand was refusing. In this connection, there have been quarrels a number of times, but the matter did not culminate in filing a report etc. I charge Azam Khan, son of Zaman, Bahadur Sher, son of Rehman and Fazal Rehman, son of Gut Rehman, for my injuries. All the three above-mentioned fired at me in order to kill me."
4. P. W. Mehr Muhammad prepared the injury report and sent Amir Shah to the Lady Reading Hospital where the latter died on the operation table at about 1 p.m. The same day. P. W. 5 Dr. Mujahid Akbar Khan, Medical Officer of the Hospital, first examined Amir Shah when he was alive on they 8th February 1964, at 11 a.m. And found the following injuries :----
(1) Fire-arm entry wound over the left side of the abdomen 2' to the left and -- " below the unbilicus.
(2) Exit wound over the right iliac crest in the mid axillary line. Abdomen was rigid and tender. Cut corresponding to wound No. 1 on shirt and jacket and wound No. 2 on shalwar present.
(3) Lacerated wound 1' x --' x skin deep horizontal over the front of right fore-arm 4' below the elbow joint.
5. On the same day he held the autopsy and found the following injuries;----
(1) Peritoneum pierced at two places opposite to the external wounds Nos. 1 and 2. Full of blood and faecal matter.
(2) Stomach.-About 2" long stitched wound over the greater curvature of stomach and other small stitched wounds in the interior wall near the lesser curvature contained fluid.
6. Small intestine.---Extensive damage to the terminal two feet of ilium caecum ascending colon.
7. Semi-solid contents. Right urator disrupted.
8. According to the Medical Officer death was due to extensive damage to the internal viscera, internal haemorrhage and shock.
9. It may be noted here that of the three injuries found on the deceased, No. 1 was a firearm entry wound, No. 2 was the exit wound, and No. 3 was a lacerated wound over the front of right fore-arm.
10. The doctor is silent about the weapon that caused injury No. 3. Furthermore that whoever caused the injuries caused them from the front or left side of the deceased.
11. P. W. 14 Sikandar Khan, S. H. O., Police Station Badaber, visited the spot on the same day and prepared the site plan. In course of the preliminary inquiry he discovered a bullet hole on the wall running along the path on which the deceased was walking at the time of the incident. He, however, found no spent bullet on the spot. He also did not say whether he recovered any blood from the spot although it seems probable that some blood from the exit wound over the right iliac crest and from the lacerated wound over the right forearm might have fallen.
12. Appellant Azam Khan, too, appears to have lodged a first information report on the same day at 10-55 a.m. Stating that Muhammad Din Shah (P. W. 10 in the present case), and Zahir Shah, brother of P. W. 11 Sabir Shah, had effectively fired at the appellant at 8-30 a.m. On the 8th February 1964. P.
13. W. Dr. Mujahid Akbar Khan has stated in his evidence that he also examined Azam Khan, son of Zaman Khan the appellant herein), and found a lacerated wound over his left thigh with a bullet lodged at the base of the wound.
14. The appellants pleaded not guilty to the charge, and stated that they were falsely implicated on account of enmity and of the fact that the witnesses were closely related to the deceased. Further- -more that Zahir Shah, brother of P. W. Sabir Shah having been charged by the appellant Azam Khan with firing at and injuring him the said two witnesses falsely implicated the appellants.
15. Leave to appeal was granted to consider whether the High Court was right in arriving at the finding about the veracity of the eye-witnesses without having first taken into consideration a number of other factors such as the non-explanation of the injury on appellant Azam Khan, the genuineness of the dying declaration, and the effect of the medical evidence upon the veracity of the oral testimony and the reliability of the dying declaration.
16. In support of its case, the prosecution relied on the dying declaration of Amir Shah deceased and the ocular evidence of P. W. 10 Muhammad Din Shah and P. W. 11 Sabir Shah, and the corroborative evidence of P. W. 13 Hazrat Shah. Another eye-witness, namely, Feroz, was given up by the prosecution on the ground that he had been won over by the accused party and was not likely to support the prosecution case. He was, accord--ingly, examined as a Court Witness, but did not support the prosecution case.
17. P. W. Muhammad Din Shah belongs to the same caste as the deceased. He denied having any relationship with the deceased. He was charged along with Zahir Shah, brother of P. W. Sabir Shah by appellant Azam Khan for having fired at and injured the appellant. The case was till then pending. The witness, therefore, is likely to harbour ill-feeling against appellant Azam Khan. P. W.
18. Sabir Shah is the brother of Zahir Shah, who, too, is an accused in appellant Azam Khan's case, and P. W. Sabir Shah is also likely not to be free from bias against the appellant. Zahir Shah has married a daughter of deceased Amir Shah. A sister of P. W. Sabir Shah and Zahir Shah is married to another prosecution witness, namely, P. W. 13 Hazrat Shah. The said three witnesses are, therefore, not disinterested. Both the eye-witnesses have categorically stated that Amir Shah was fired at by all the appellants from the shaftal field. In the first information report, Exh. P. A., however, which has since been treated as the dying declaration, it has been stated that the accused persons stood on the path, and fired at the deceased from the front. There is, thus, a material discrepancy 43 to the place wherefrom the appellants fired at the deceased.
19. According to the site plan the deceased was fired at and hit at point No. 1. The witnesses first saw the three appellants at point No. 2 which is 40 paces away from point No. 1. The appellants then turned to the shaftal field and fired from point No. 3, which was on the right side of the place where the deceased was standing, and at a distance of 27 paces from point No. 1. The deceased was walking at point No. 1 facing towards east and he was fired at from his right. The medical evidence, however; shows that the deceased was fired at from his left as he had a fire-arm entry wound over the left side of the abdomen, and an exit wound over the right iliac crest. Evidently the missile travelled from left to right.
20. The learned Additional Sessions Judge, accordingly, held that the injuries on the deceased could not have been caused by shots fired from point No. 3 as alleged by the two eye-witnesses. He preferred the statement of the deceased as contained in Exh. P. A. To that of either of the two eye- witnesses, and held that the appellant fired at the deceased while both of them were on the path.
21. On the contrary, the learned Judges of the High Court preferred the evidence of the eye-witnesses to the statement of the deceased on this point and in affect held that the appellants fired from point No. 3 in shaftal field. The learned Judges of the High Court, however, have made no reference to the inconsistency between the ocular version and the medical evidence as has been pointed out by the learned Additional Sessions Judge. The benefit of this divergence should have gone to the appellants instead of to the prosecution, for the onus was on the latter to prove its case beyond any reasonable doubt. The High Court could not have proceeded to maintain the convictions of the appellants until it had successfully resolved this inconsistency.
22. Again, according to the ocular evidence all the three appel--lants simultaneously fired at the deceased and hit him. The medical evidence shows only one entry wound upon the deceased, and it is silent as to the third injury. The possibility of both these wounds having been caused by only one shot cannot also be ruled out. In these circumstances, the medical evidence does not support the eye-witnesses when they say that all the three appellants had fired at and hit the deceased. It is apparent that at the most only two shots hit the deceased and not three. This demolishes the prosecution case that all three fired simultaneously at the deceased, and he was hit. At any rate this raises a doubt that all three fired at the deceased. If all the three did not fire the question arises who fired. Without a resolution of this question it was, indeed, difficult to maintain the convictions of the appellants.
23. It is necessary to mention that P. W. Hazrat Shah, who said he saw the three appellants running away, did not say he saw any weapon in their hands. All these support the view of the learned Additional Sessions Judge that no implicit reliance could be placed on the eye-witnesses. The result is that their evidence alone could not be regarded as a safe basis for the convictions of the appellants.
24. So far as the learned Additional Sessions Judge is concerned, he based the conviction of the appellants mainly upon the dying declaration. His reliance upon the evidence of the two eye-- witnesses was only by way of corroboration. His rejection of the version of the eye-witnesses as to the place wherefrom the appellants fired at the deceased showed that their evidence was not worthy of implicit reliance. The learned Additional Sessions Judge having had the advantage of looking at the witnesses and examining their demeanour his views about them particularly when they were supported by the medical evidence were entitled to careful consideration by the High Court. The learned Judges of the High Court, however, although they noticed the apparent conflict between the version of the eye-witnesses and that of the deceased, preferred to accept the version of the eye-witnesses without adverting to the medical evidence, and without having first upset the finding of the learned Additional Sessions Judge on cogent reasons. It may be mentioned here that the learned Judges of the High Court are wrong when they say that the deceased had received two fatal injuries. The medical evidence is that only one injury was fatal.
25. A material omission in the judgments of the trial Court and the High Court is the failure on their part to notice the absence of recovery of blood from the spot. There is no evidence that any blood was recovered from the spot. This should have been taken notice of by the two Courts, for the absence of blood tends to throw doubt upon the place of occurrence which the prosecu--tion was bound to prove without any reasonable doubt.
26. There is another important and vital omission and that is the omission to consider the admissibility of the alleged dying declaration, or whether it was proved. Learned counsel Sh. Muhammad Shafi, appearing on behalf of the appellants has strenuously contended that the prosecution failed to prove the dying declaration. Although the prosecution has categorically stated that a dying declaration was recorded in Police Station Suburb, this was never produced before any authority or Court at any point of time. The explanation now furnished for this omission is that according to the rules the dying declaration was destroyed after two years of its recording. It is, thus, evident that although the daily diary recording the dying declaration was available for full two years, it was never seized and brought on record by the police officers concerned or the prosecution agency.
27. This is, indeed, very unfortunate. In the absence of the production of the written dying declaration the only way in which the declaration could be proved was by examin--ing the person, namely, P.
28. W. Mehr Muhammad, who had recorded the declaration, as to what the deceased had actually told him. It is not merely enough for this witness to say : "I entered the report in the daily diary which was read over to him and he admitted it to be correct and thumb-impressed the same. As the case related to the Police Station, Badaber, I conveyed the contents of the report on telephone to the Police Station, Bada--ber, which was recorded in the F. I. R." This does not satisfy the requirement of section 63 of the Evidence Act, which provides that oral accounts of the contents of a document must be given by some person who has himself seen it. It is, indeed, significant that none of the witnesses says that the deceased made any statement after he had been injured. The likelihood of the alleged dying declaration having been prompted cannot, therefore, be excluded.
29. The prosecution has also led no evidence to show that the deceased was conscious, and could speak. Obviously, the benefit of all these omissions must go to the appellants. In a case where the sheet anchor of the prosecution is the dying declaration, the necessity of proving the declaration strictly according to law can hardly be emphasised. As has been noticed already, the trial Court based the convictions upon the dying declaration and adverted to the ocular evidence merely for the purpose of obtaining support for the declaration. That being so, on the failure of the prosecution to prove the dying declaration the very basis of convictions so far as the trial Court is concerned falls. And if the trial Court could not convict, it was doubtful whether the High Court would have interfered with and converted the acquittal into conviction. In the circums--tances of the case Exh. P. A. Could only be used as a first information report, and no more.
30. So far as the High Court is concerned, it is, indeed, difficult to say whether in the absence of the dying declaration it could still have maintained the convictions of the appellants solely on the evidence of the two eye-witnesses, particularly when the story given by them has been found by the trial Court to be incon--sistent with the medical evidence, and this finding has not been even noticed by the High Court. The High Court has not said that the two eye-witnesses are worthy of implicit reliance and it has, therefore, not interfered with the view of the trial Court that they cannot be relied on implicitly.
31. The prosecution has also failed to give any explanation as to how appellant Azam Khan was injured.
32. If I may sum up the prosecution has failed to prove the place of occurrence and the manner in which the deceased was injured by his assailants beyond any reasonable doubt.
33. The prosecution has also failed to prove beyond any reason--able doubt that the deceased had actually made any dying declaration. Assuming that the declaration was made the prosecution has further failed to prove the contents of the declaration.
34. In the facts and the circumstances of the case and having regard to the fact that the witnesses are not altogether disinterested, their evidence alone could not afford a safe basis for the conviction of the appellants. And if the dying declaration is excluded from consideration there is hardly anything left to corroborate the ocular evidence.
35. For the reasons stated above, I would give the benefit of doubt to the appellants, allow their appeal, set aside their convictions and sentences and direct that they be set at liberty forthwith, if not required in connection with any other matter.
36. Before I part with this case I feel it my duty to bring it to the notice of the authorities concerned that the prosecution agency including the police officers concerned appear to have been grossly negligent in the performance of their duties. According to the prosecution the dying declaration of the deceased recorded in the daily diary at the Suburb Police Station remained available for a period of two years and yet nobody thought it necessary to do the obvious, namely, to secure the declaration and bring, it on record. There also appears to be inordinate delay in bringing the accused persons to trial, and this has to a certain extent affected the prosecution. The accused persons as well as the eye-witnesses of the occurrence were mentioned in the first information report and all the accused were arrested almost soon after the occurrence. It should not have taken almost three years and a half to start the trial. Needless to say it is such indifferent attitude of the functionaries of the State, which brings the entire system of administration of justice into disrepute.
37. Let a copy of this order be sent to the Chief Secretary to the Government of N.-W. F. P. To enable the authorities to take such action against the officers found responsible for dere--liction of duty as they may be advised.
38. HAMOODUR RAHMAN, C. J.-I agree.
39. ANWARUL HAQ, J.-I agree.
40. MUHAMMAD GUL, J.-I agree.