' SARDAR MUHAMMAD DOGAR, J.-- The respondents were tried by Sessions Judge, Sialkot, along with Muhammad Ashraf and Zulfiqar, for having murdered Muhammad Boota their co-villager. The occurrence had taken place on 24-7-1986 at 4-30 p.m. In the village Abadi Salloki, within the area of Police Station Daska. Muhammad Boota had died, as a result of the injuries suffered on that date, in the hospital, on 19-10-1986.
2. According to the F.I.R., Muhammad Akram respondent was armed with a Chhuri at the time of occurrence and had given three blows to the deceased while Zulfiqar and Muhammad Ashraf had also caused injuries with the Chhuris, with which they were armed Muhammad Yousaf respondent was stated to be armed with a Dang and had raised a Lalkara. The learned trial Judge vide judgment, dated 10-12-1987 convicted Muhammad Ashraf and Zulfiqar under section 302/34, P.P.C.
And sentenced both of them to death, plus to pay a fine of Rs,20,000 each, in default whereof to undergo R.I. For two years each. Whole of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased. The respondents were acquitted vide the same judgment.
' Not feeling satisfied, the State has challenged the acquittal of the respondents.
2. The learned trial Judge acquitted Muhammad Akram considering the fact that according to Rana Shaukat Hayat, Inspector/S.H.O., Muhammad Akram was found innocent, as plea of alibi taken by him from the very beginning of being at Daska at the relevant time was found to be true; while Muhammad Yousaf respondent was acquitted for the reason that his plea of not being present at the spot at the relevant time was supported by Hafiz Ghulam Muhammad, Khatib of the mosque and that even according to the prosecution he did not cause any injury to the deceased.
3. Rana Shaukat Hayat, Inspector was examined as D.W.1 while Hafiz Ghulam Muhammad was examined as D.W.2.
' Rana Shaukat Hayat stated that Muhammad Akrarn had taken up the plea of being at Daska and had produced a number of witnesses in support of his alibi. He also stated that the offer made by Muhammad Akram respondent to the complainant party tliat if any respectable states on oath that he had participated in the occurrence, he may be held guilty and he would not defend himself, was not accepted by the complainant party. During cross-examination, he stated that Muhammad Akram had offered himself also to take oath of his innocence. He stated that three persons were also named by Akram specifically to take oath about his participation.
' Hafiz Ghulam Muhammad (D.W.2) stated that he was Khatib of the main mosque and that on the day and time of occurrence, Muhammad Yousaf respondent was with him in the mosque and had not participated in the occurrence. He stated that he himself had gone to the spot on hearing about the injuries caused to Muhammad Boota.
4. Learned counsel for the appellant criticized the judgment of acquittal of the respondents and contended that the learned trial Judge after believing the prosecution witnesses against the co- accused of the respondents, erred in acquitting the respondents on the basis of insufficient evidence of alibi. Learned counsel particularly criticized the acquittal of Muhammad Akram respondent on the basis of the opinion formed by the Investigating Officer. He also referred to the statement of Muhammad Boota deceased (Exh.P.P.) recorded by the Investigating Officer during investigation and produced at the trial as a dying declaration, wherein he had named Muhammad Akram to have inflicted him injuries. Learned counsel also contended that the motive set up by the prosecution was also accepted by the trial Judge and so he should not have entertained any doubt about the participation of the respondents in the occurrence.
5. Muhammad Yousaf respondent, according to the prosecution, was armed with a Sota. No injury with blunt weapons was found on the body of the deceased. In fact, none of the witnesses had stated that he had used the Sota in inflicting any injury to the deceased. The Khatib of the mosque, who appeared as D.W.2, in support of his plea of alibi, had no animosity with the complainants nor was he connected in any manner with Muhammad Yousaf. In our view, therefore, the acquittal of Muhammad Yousaf on the basis of the testimony of D.W.2 and on account of the fact that there was no corroboration of the ocular account against him is not questionable.
6. Although allegation was levelled at the trial against Muhammad Akram of having caused injuries to the deceased with the Chhuri but no Chhuri was recovered at his instance. It is not a case where no weapon of offence was recovered. Herein Chhuris were recovered at the instances of the convicted accused. The non-recovery of Chhuri from Muhammad Akram, therefore, is a significant matter, which cannot be lost sight of.
' With regard to the alleged dying declaration the learned trial Judge has observed that the District Attorney while arguing the case himself had not pressed the same. The dying declaration being relied upon by the learned counsel for the appellant is the statement of the deceased recorded during investigation by the Investigating Officer under section 161, Cr.P.C. The deceased obviously had no apprehension of death at that time and so the sanctity, which is attached generally to a dying declaration, for the reason that nobody would make a false statement apprehending that he will be leaving this world to face the Almighty Allah, cannot be attached to the statement made by the deceased in this case. He was not only fit when his statement was recorded but also he had remained alive for about three months thereafter too. There was, therefore, enough time for the prosecution to have got his statement recorded under section 164, Cr.P.C. From a Magistrate.
' The ocular account stated by the two witnesses stood dented because of the finding of innocence in favour of Akram respondent based on the statements recorded during investigation. The view formed by the learned trial Judge that in the circumstances of this case it would not be safe to convict Muhammad Akram, in our assessment, does not call for any interference, as the principles warranting interference in the judgments of acquittal are not attracted.
' The appeal is, therefore, dismissed in limine being without force.