' ALI HUSSAIN QAZILBASH, J.--Muhammad Shahzada alias Shada (in Criminal Appeal No, 62 of 1988) and Inayat Khan (in Criminal Appeal No,63 of 1988) have challenged the order of a learned Division Bench of the Lahore High Court, dated 14-6-1987.
2. As per report Ex.P.C, lodged on 26-12-1980 at 1:45 a.m. By Saleem Ullah Khan, it was alleged that he came home at about 10 p.m. Where he found his cousin Muhammad Naeem present. His father told him that his younger brother Shuja Ullah Khan had gone in the morning with Muhammad Bashir son of Haji Subhan Mir, resident of Bhabra Bazar and has not returned as yet. The complainant and his cousin Muhammad Naeem left in search and in the process they saw two boys, namely, Inayat and Shahzada residents of Bhabra Bazar coming towards them and they were followed by Sohail who was also coming from the street No,7. Each of them was repeatedly asked as to what was the matter and in reply they said that nothing had happened and left hurriedly. When the complainant and Muhammad Naeem went further in the street, they heard certain cries. On this they hurriedly proceeded towards the place wherefrom the cries were coming and saw Shuja Ullah Khan lying injured in his belly near house No, 274. On his being asked, the injured who was then in his senses informed the complainant and his companion that he has been injured by Muhammad Bashir, Inayat, Shahzada and Muhammad Sohail. Thereafter the injured lost his senses, who was then picked up and taken to the house of the complainant and then was rushed to the hospital where he succumbed to his injuries.
3. Leaving the deceased in the hospital, the complainant went to the police station where he lodged the report, which was recorded by Ejaz Hussain Shah, Sub-Inspector, who then proceeded to the Civil Hospital, Rawalpindi, where the injury sheet and the inquest report of the deceased was prepared and the deadbody was sent to the mortuary for post mortem examination. After the postmortem examination, Ghulam Sarwar F.C. Produced before him the last worn clothes of the deceased consisting of Articles P1 to P7 which were taken into possession as per memo. Ex.PA. Ejaz Hussain Shah P.W. Then visited the spot and took into possession one shoe P.9 belonging to the deceased. He then recorded the statements of the witnesses. On 28-12-1980, the site plan was prepared. On 3-1-1981 this witness arrested Muhammad Bashir who was declared as an approver and tendered pardon. Shahzada and Inayat were arrested on 4-1-1981, and on the third day of his arrest Inayat led the police party to the recovery of knife P.8 which was taken into possession vide memo Ex.P.B. A separate case under section 13/20/65 of the Arms Ordinance was registered against Inayat Khan. Sohail was placed in column 2.
4. After the completion of the investigation, the appellants and the acquitted accused Sohail were put to trial where the prosecution in support of its case produced as many as 15 witnesses including Dr. Abdur Razak (P.W.11).
5. The post-mortem examination was conducted by Dr. Abdur Razak (P.W.11) who at the trial deposed that on 26-12-1980 he conducted the postmortem examination of the deceased at 3-40 p.m. And found that the deceased had an incised stab wound 2.5 c.m. x 1/2 c.m. x abdomen cavity deep on the left side of abdomen, 3 c.m. Below and outer to umblicus at 5 O'clock position. A loop of small intestines was lying outside the wound. The peritoneum was found perforated under injury No,1, the stomach was healthy and contained 150 grams of digested food. All the other organs were found normal and healthy. According to the opinion of the doctor, the deceased had died of shock and haemorrhage caused by injury No,1 which was sufficient to cause death in the ordinary course of nature. The injury was the result of pointed weapon.
6. The defence taken by the appellants and the acquitted co-accused was that of a bare denial.
Shahzada appellant pleaded alibi and Inayat deposed that he did not obtain any passport from Regional Office, Rawalpindi. In defence as many as five witnesses were produced but their version was not accepted. The trial culminated in the conviction of the appellants under section 302/34, P.P.C. Inayat was sentenced to death and a fine of Rs,5,000 or in default to two years' further R.I. The fine on recovery was ordered to be paid to the heirs of Shuja Ullah Khan deceased under section 544, Cr.P.C., Shahzada was, however, sentenced to life imprisonment and a fine of Rs,5,000 or in default to two years' R.I. The fine on recovery was ordered to be paid to the heirs of the deceased.
Sohail was, however, acquitted. The appeals filed by Inayat and Shahzada were dismissed by the High Court through the impugned judgment.
7. Leave in this case was granted to reappraise the evidence in the interest of justice.
8. We have heard the learned counsel for the parties and have gone through the record. The learned Judges of the High Court upheld the conviction of the appellants under section 302/34, P.P.C. With the following observations: The contentions raised on behalf of the appellants have been thoroughly considered and fully analysed. Even if we take the alleged verbal dying declaration allegedly made by the deceased Shujaullah Khan before Saleemullah Khan and Khawaja Muhammad Naeem out of consideration, the direct evidence comprising of the testimony of Pir Faqir Ali Shah P.W.6 furnishing the eye- witness account of the occurrence, which is corroborated by the testimony of Muhammad Bashir Mir approver, whose statement is not tainted with any exculpatory elementaries is sufficient to establish the charge against the appellants beyond any reasonable doubt. Evidently Pir Faqir Ali Shah, the eyewitness and Muhammad Bashir Mir, the approver, have no motive for false involvement of the appellants on a capital charge. The approver could be apprehended on the 3rd of January 1981. By that time, the Investigating Officer was not aware of the fact that any eye- witness had also seen the occurrence. Therefore, in his application addressed to the District Magistrate he mentioned that there was no direct evidence in the case, but after recording the statement of the approver he learnt about the fact that the occurrence was witnessed by Pir Faqir Ali Shah P.W.6. The said witness at that time had gone to Lahore to pay homage at the Shrine of Data Sahib. On his return his statement was recorded under section 161, Cr.P.C. And he disclosed that he witnessed the occurrence. In the presence of direct evidence and the approver's statement, no corroboration is required in the form of recovery of weapon of offence. In the present case the recovery was allegedly effected on 7-1-1981, i,e. About 13 days after the occurrence. It certainly does not sound to reason that for about a fortnight the appellant would keep the blood-stained knife in his box to be presented as souvenir to the police. The recovery of blood-stained knife is, therefore, not believable. The offence, however, as observed earlier, has been fully brought home to the appellants by direct evidence furnished by Pir Faqir Ali Shah, the eye-witness and the statement of the approver."
9. On our reappraisal of the prosecution evidence in the light of the arguments of the learned counsel for the appellants we do not find ourselves in agreement with the conclusion arrived at by the learned appellate Court. The prosecution has raised the edifice of its case against the appellants on the oral dying declaration made by the deceased, the statement of Muhammad Bashir Mir, the approver, and the ocular version of the incident given by Pir Faqir All Shah (P.W.6). On our analysis of the above pieces of evidence, we find that they neither support nor corroborate each other. In the dying declaration it was deposed that Shuja Ullah Khan deceased after receiving the injuries at the hands of the appellants and their co-accused was lying at the spot and taken to the house on a motorcycle by his brother Saleem Ullah Khan and his cousin Kh. Muhammad Naeem P.Ws. And from there to the hospital where after a shortwhile he succumbed to his injuries.
But this has been totally contradicted by Pir Faqir All Shah (P.W.6) who deposed at the trial that Shuja Ullah Khan after having received the injuries raised cries and died at the spot. In the alleged dying declaration, Sohail, the acquitted co-accused, was also named as one of the assailants but at the trial all the alleged eye-witnesses, namely, Saleem Ullah Khan (P.W.7), Kh. Muhammad Naeem (P.W.8) and Muhammad Bashir Mir, approver and even Pir Faqir Ali Shah (P.W.6), have conveniently omitted to accuse him of the offence. These discrepancies on material points have made the authenticity of the oral dying declaration extremely doubtful and thus it cannot be relied upon. Pir Faqir Ali Shah (P.W.6) is, of course, an independent witness. He has alleged to have seen the occurrence but then he did not move his little finger in assisting the other P.Ws in taking the deceased to his house or accompanying them to the hospital or the police station, but allegedly left for Lahore to pay homage to Data Darbar. He came back home after 12 days of the occurrence when his statement was recorded by the police. This attitude obviously is absolutely unbecoming of a witness who was alleged to be an independent eye-witness. Further, strangely enough excepting Muhammad Bashir Mir, the approver, none of the alleged two eye-witnesses, namely Saleem Ullah Khan (P.W.7) and Kh. Muhammad Naeem (P.W,8), has shown the presence of Pir Faqir Ali Shah P.W. At the spot at the crucial time. Further again, according to the application Ex.D.F., Ijaz Hussain Shah (P.W.14) had brought to the notice of the District Magistrate that there was no eye- witness of the occurrence. The appearance of Pir Faqir Ali Shah as an eye-witness all of a sudden after 12 days of the occurrence is, therefore, nothing but a very crude form of concocting evidence on the part of the prosecution and, therefore, cannot be relied upon at all.
10. As for the statement of Muhammad Bashir Mir, the less said the better in that there are lot of contradictions in his statement recorded at the trial and made thrice during the investigation (Exs.
D.E., D.D. And D.C.). He has also omitted Sohail as one of the accused in the case. Furthermore, his statement has not at all been corroborated by any other circumstantial evidence. Therefore, his version of the occurrence cannot be relied upon at all. In this case the prosecution has also failed to explain about the absence of blood at the spot and also that the deceased was having one shoe only on his left foot. The contention of the learned counsel for the appellants that the deceased was done to death somewhere else by somebody and thrown at the place of occurrence has assumed significance. It, therefore, cannot be said with certainty that he was done to death at the place where his deadbody was found.
11. The overall effect of the above, therefore, is that the case set up by the prosecution against the appellants is not free from doubt. The appeals are, therefore, accepted and the appellants are acquitted of the delict. They are to be set at liberty forthwith if not required in any other case.