' MUHAMMAD ISHAQ KHAN, J.--- Asal Khan, accused-appellant, has filed this criminal appeal against the judgment, dated 3-4-1988 of Mr. Miftahuddin Khan, Additional Sessions Judge, Nowshera, whereby he was convicted under section 302, P.P.C. And awarded sentence of life imprisonment with a fine of Rs,10,000 or in default thereof to suffer further 2 years' R.I. Half of the amount of fine, if realised, was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. The prosecution case as disclosed in the First Information Report, Exh.P.A. Is that on 27-5-1986 at 11-45 p.m., Fazle Raziq (P.W.9), brought the dead body of Mian Musharraf Shah son of Mian Sahib Shah, in a truck to Police Station Nowshera Cantt. And lodged a report in the following manner:-- "Mian Musharraf Shah, my brother-in-law, is residing with me in village Badrashi. 'I was present in my house when Mir Aadat son of Said Malal, resident of Badrashi came and informed me that Mian Musharraf Shah has been fired at and injured by Asal Khan. On this information l went to the spot and found Mian Musharraf Shah injured on his chest. On enquiry he told me that he was fired at and injured by Asal Khan son of Saifullah, resident of Badrashi with a shotgun."
' The complainant further stated in his report that motive for the commission of the offence, as told by the deceased to him, was that the deceased had sold his Suzuki and a sum of Rs,20,000 was kept as `Amanat' with Asal Khan, accused and on the eventful night when the deceased asked him for the return of the said amount, Asal Khan accused allegedly fired at the deceased effectively with a D.B. Shotgun licensed in the name of Musharraf Shah deceased. According to the maker of the report he was taking the deceased Mian Musharraf Shah to police station but on the way he succumbed to his injuries.
3. Niaz Ali, A.S.I. (P.W.7) recorded the report of the complainant vide F.I.R. (Exh.PA.). He also prepared the inquest report (Exh.P.7/1) and injury sheet (Exh.P.W.7/2) of the deceased.This witness also conducted personal search of the deceased and recovered one licence copy (Ddi.P.2) in the name of Mian Musharraf Shah (deceased) for .30 bore pistol and 3 sheets of transfer letter (Exh.P.3) pertaining to Suzuki No, ADA-2623, which articles were taken into possession by the Investigating Officer in presence of the marginal witnesses vide recovery memo. (Exh.P.C./3). Thereafter he despatched the dead body to the mortuary for post-mortem examination under the escort of Sardar Ali, .F.C. (P.W.1) and himself proceeded to the spot. During spot inspection he recovered blood-stained earth (Ex.P.1.) vide recovery memo. (Exh.P.C.) in presence of the marginal witnesses, namely, Mir Aadat (P.W.10) and Amir Khisro Khan, A.S.I. (P.W.2). The Investigating Officer also conducted the house search of the accused and during house search recovered a licence copy No,226-1/ACN (Exh.P.6) and an Identity Card No,138-47-376524 (Exh.P.7), belonging to Musharraf Shah deceased, and a D.B. Shotgun bearing No, 38205 (Exh.P.8), which was broken into 3 pieces, vide recovery memo. (Exh.P.C./1) in presence of the marginal witnesses, namely, Amir Khisro, A.S.I.
(P.W.2) and one Fazal Karim. He also prepared site plan (Exh.P.B.) at the instance of the complainant. At this stage (P.W.7) Niaz Ali, A.S.I., handed over the remaining investigation of the case to Aftab Ahmad Noor, S.H.O. (P.W.12), after the arrest of the accused.
' Aftab Ahmad Noor (P.W.12) on taking over the investigation prepared another site plan (Exh.P.B./1) at the instance and pointation of accused Asal Khan. Pointation Memo. (Exh.P.C/5) at the instance of the accused was also prepared by this witness. He was still busy in the investigation of the case when F.C. Sardar Ali (P.W.1) brought with him from the mortuary blood-stained shirt (Exh.PA), Shalwar (Exh.P.5) of the deceased and produced the same to the Investigating Officer, who took into, possession these articles vide recovery memo. (Exh.P.C./4). The Investigating Officer also recorded the statements of the P.Ws. And sent the recovered shotgun to the Arms Expert for opinion vide his application (Exh.P.W.12/2). After completion of the investigation, he submitted complete challan against the accused in the present case.
4. Dr. Muhammad Arshad (P.W.8) conducted the post-mortem examination on 'the dead body of Mian Musharraf Shah deceased on 28-5-1986 at 7-30 a.m. And found the following on external examination:--
(1) A fire-arm entrance wounds at upper part of the front of right side of the chest 1/2" x 1/2".
(2) A fire-arm exit wound at the back of the right side of the chest 2" x 1-1/2" oval in shape-.
(3) Two more fire-arm entrance wounds 1/4" x 1/4" around wound No,1 in an area of 2".
' On internal examination the doctor found the thorax walls, ribs, plurae, right side lung and blood vessels of the deceased injured. The stomach was healthy which was containing semi-digested food. Muscles of the chest walls were also injured. Two ribs on the right and three at the back sides were also found fractured alongwith scapula.
' In the opinion of the doctor the death was the result of shock and haemorrhage to the vital organs of the chest received by the deceased through fire-arm injuries. Probable time between injuries and death was one hour while between death and post-mortem examination within 12 hours.
' In cross-examination the doctor disclosed that the shock was very severe and the possibility of talking of the deceased is excluded.
5. At the trial the prosecution examined as many as 12 witnesses in support of its case. Accused Asal Khan was also examined at the trial who denied the allegations and professed innocence.
6. During the course of hearing of the instant appeal today, our attention was drawn to the omission of the question from the accused in his statement regarding the dying declaration of the deceased. The accused was, therefore, summoned from jail and his statement was recorded under section 342, Cr.P.C. Which is placed on file. In his statement the accused-appellant stated that as a matter of fact the deceased had made no dying declaration and it is a fabricated one.
7. We have heard Khawaja Muhammad Khan, Advocate, on behalf of the accused-appellant and Mr. Amjad .Zia, Law Officer for the State and with their assistance have also carefully gone through the record of the case.
8. As the occurrence had taken place at night time and there was no eyewitness account to the same, therefore, the entire prosecution case hinges on the alleged oral dying declaration of the deceased coupled with the recovery of double barrel shotgun licensed in the name of the deceased Musharraf Shah during the house search of the accused.
9. Fazle Raziq (P.W.9), Mir Aadat (P.W.10) and Said Amin (P.W.11) are the witnesses of the alleged dying declaration in whose presence Musharraf Shah, deceased, then alive, charged Asal Khan, accused-appellant for causing him gunshot injuries. The sister of the deceased is the wife of Fazle Raziq (P.W.9) while Mir Aadat and Said Amin, P.Ws. 10 and 11, are brothers inter se. In an authority of this Court reported in Ashiq Mir and 4 others v. The State 1987 P Cr. L J 2101 the following observations have been made:-- "S.32--Dying declaration--Main tests for determining genuineness of a dying declaration---Court would carefully scrutinize all physical circumstances as they appeared from evidence to reach a conclusion with a degree of certainty that account given by deceased of manner in which he met his death was worthy of belief and credence--Some of the main tests for determining genuineness of a dying declaration were whether maker had physical capacity to make a dying declaration; whether maker had an opportunity to recognize his assailant(s); whether there were chances of mistake on part of dying man in identifying and naming his assailant(s); whether it was free from prompting from outside quarter; whether witnesses who heard deceased making statement had heard him correctly and whether their evidence could be relied upon---Dying declaration which stood the test could by itself be a strong piece of evidence to record conviction."
' In the instant case, the medical evidence available on record seriously casts doubt on the possibility of making oral dying declaration by the deceased. Though, the doctor has given the time between injuries and death as one hour in his report but at the same time in his evidence before the Court he has also excluded the possibility of talking of the deceased due to the severeness of the shock caused to the deceased by fire-arm injuries. The learned trial Judge has, however, relied on that part of the medical evidence in which the doctor has disclosed the time between injury and death as one hour and has not taken into consideration the other part of the evidence in which the doctor has deposed that 'the shock was very severe and the possibility of talking of the deceased is excluded'. It is well-established principle of law that in criminal matters when there appears to be two different versions in the statement of a prosecution witness--the one going in favour of the prosecution and the other in favour of the accused--then the duty of the Court is to confront the version going in favour of the prosecution with the other available circumstantial evidence of the case and if that is not in line with the circumstantial evidence, the same should therefore, be rejected.
' The medical evidence further shows that no charring was present around the wounds of the deceased. Admittedly, the occurrence took place at night time when the identity of a person from a far distance becomes difficult. There is also no direct evidence on record to the effect that either the appellant was present with the deceased at the time of incident or that the appellant was last seen in the company of the deceased on the night of occurrence. The mere fact that the appellant was serving the deceased day and night would not necessarily mean that at the relevant time the appellant was in the company of the deceased. The record of the case is also silent about any previous enmity between the deceased and the appellant except the one advanced at the trial which has been totally discarded by the trial Court. At the same time the record of the case also reveals that the C deceased had enmity in his own village Ziarat Kaka Sahib. Mukammil Shah (P.W.6), brother of the deceased, in his statement before the Court has stated the following:-- "It is a fact that one Saeed of Ziarat Kaka Sahib was murdered and my deceased brother Musharraf Shah was charged for that. After the trial the deceased was acquitted and then he started living in village Badrashi with his sister."
' On the other hand it is also in the evidence of Fazle Raziq (P.W.9) that the deceased had brought up the appellant as his son.
' As stated earlier, in this case Fazle Raziq (P.W.9), Mir Aadat (P.W.10) and Said Amin (P.W.11) are the witnesses to whom the deceased, then injured, had narrated the occurrence. After going through their evidence we have, however, noticed so many contradictions/improvements in their statements.
' P.W.10 Mir Aadat has stated in his statement that he was present in his house when he heard hue and cries outside his house. On this he came out and saw Mian Musharraf Shah (deceased), then injured, near his house. Musharraf Shah asked him that he should inform his relatives. He, therefore, informed P.W. Fazle Raziq and accompanied him to the spot. He has further stated that in his presence Musharraf Shah told P.W. Fazle Raziq that he was fired at by accused Asal Khan with his own shotgun. A perusal of the above statement would, however, reveal that the witness was asked by the deceased to inform his relatives about him and after informing P.W. Fazle Raziq when he came alongwith him, the deceased in his - presence told P.W. Fazle Raziq that he was fired at by accused Asal Khan with his own shotgun. There is neither any mention in the statement of this P.W.
That the deceased while asking him to inform his relatives had also stated that he was fired at by Asal Khan, appellant, nor it is the case of the prosecution because the dying declaration was made by the deceased after the arrival of Fazle Raziq (P.W.9). The statement of this witness thus totally contradicts the version given by the complainant in the First Information Report. A look at the F.I.R.
Of the case would show that P.W. Mir Aadat was in the know of name of the assailant even at the time of giving information to the complainant. Keeping in view the above state of evidence it can there be said that the story of making an oral dying declaration by the deceased is nothing but a concocted piece of evidence.
' From the contents of the F.I.R. It is further evident that on receipt of the information by P.W. Fazie Raziq about the occurrence he left for the spot alongwith the informant P.W. Mir Aadat. But at the trial, the complainant has made improvement to the effect that he left for the spot in the company of Mir Aadat P.W., Shaheen driver of the truck and one Bakht Munir, his nephew, alongwith some other persons. As against this, P.W. Fazle Raziq in his statement has only shown presence of the driver of the truck and has said nothing about others. The relevant portion of his statement runs as follows:-- "I and Fazie Raziq straightaway came to the spot. No one met us in the way but the driver of the truck was taken alongwith us while we were going to the spot."
10. Similarly, the evidence of the other witness, namely, Said Amin is also not worth reliance. He was examined by the police on the next day of the occurrence at 11-30 a.m. And in his statement under section 161, Cr.P.C. He totally excluded the presence of his brother P.W. Mir Aadat at the time of occurrence. At the trial he stated that on hearing hue and cry he alongwith P.W. Mir Aadat came out of the house and saw Mian Musharraf Shah in injured condition. He has further stated in his statement that in his presence the deceased told that he was fired at and injured by accused Asal Khan and that the injured also asked his brother to inform P.W. Fazie Raziq. This statement however, contradicts the deposition of P.W. Mir Aadat.
11. Besides this, P.W. Fazie Raziq has disclosed the time of arrival of P.W. Mir Aadat as 11-15 p.m. While Mir Aadat has stated that the house of Fazie Raziq is at a distance of more than one furlong from his house and it might have taken about 20 to 30 minutes in order to inform Fazie Raziq about the occurrence. P.W. Fazie Raziq has further stated in his statement that it took him 10/15 minutes when he reached from his house to the spot. Thus, the complainant might have reached there at 11-30 p.m. The time of the report in the F.I.R. Is 11-45 p.m. So, in the remaining 15 minutes the P.Ws. Heard the statement of the deceased; boarded him in the truck; and took him to the Police Station Nowshera Cantt., the distance of which has been given in the F.I.R. As 2 miles from the spot.
12. After having given our thoughtful consideration to the evidence of the alleged eye-witnesses regarding the dying declaration of the deceased, we are of the firm view that they have not stated the truth as the circumstantial evidence in the case suggests that the deceased had not made any oral dying declaration before them because according to the medical evidence the deceased was not capable to talk. In Muhammad Banaras v. Shah Fakhar Zaman and others 1985 SCMR 505 it has been held that:-- "S. 302--Appreciation of evidence--Dying declaration--Medical Officer testified that 'it was possible that due to injury on the brain, deceased may not have been capable to talk after receipt of said injuries'--Testimony of witnesses of dying declaration found to be doubtful as eye- witnesses of occurrence--Basing conviction on strength of such dying declaration, was, held, to be highly unsafe in circumstances?
13. Before discarding the dying declaration in this case, we would also like to point out that the other site plan (Exh.P.B./1), prepared at the instance and pointation of the accused-appellant, seems to be a fabricated one having not been supported by recovery of any empties/cardboards from the place where the deceased was allegedly fired at. Similarly, no trail of blood was found in the vicinity of the spot.
The oral dying declaration of the deceased, in the light of our above discussion, therefore, stands discarded.
14. The other strong piece of evidence against the appellant is the recovery of a double barrel shotgun, belonging to the deceased, from the house of the appellant. However, the alleged recovery is highly doubtful, for the marginal witness to the recovery in question, namely, Fazal Karim, has not been produced at the trial; the recovery was not effected in presence of the appellant; there is no mention in the recovery memo. That the gun in question was giving smell of fresh discharge; and that the sending of the gun in question to the fire-arms expert was only for ascertaining as to whether the gun is foreign or country made. In Alam Khan v. Ghauns Muhammad and others 1969 SCMR 269 it has been held that:-- "S. 302 Recovery of crime weapons not made in presence of accused--Has no corroborative value."
' In Muhammad Naeem v. The State 1985 P Cr. L J 477 the following observations have been made:- "S. 302--Appreciation of evidence--Recovery--Crime weapon (pistol) recovered at instance of accused but no empty recovered from place of occurrence--Recovery of crime weapon, held, of no consequence for not having been connected with crime in any manner."
The recovery in question is thus not of any corroborative value and the same is lj liable to be brushed aside from consideration.
15. The nutshell of the above discussion is that the prosecution has failed to establish its case against the accused-appellant beyond any shadow of reasonable doubt, as the testimony of the alleged witnesses to the dying declaration stand contradicted by the medical evidence as well as the other circumstantial evidence of the case. We, therefore, accept this appeal, set aside the conviction and sentences of the appellant under section 302, P.P.C. And acquit him of the charge.
The accused-appellant shall be released forthwith if not wanted in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.