' ABDUR REHMAN KHAN, J.--- This State appeal impeaches the legality and accuracy of the judgment of the learned Additional Sessions Judge, dated 15-1-1985 whereby the accused- respondents were acquitted of the offences under section 302/307/325/323/34, P.P.C.
2. Ali Asghar the deceased himself is the first informant of this case and his dying statement recorded at 8-15 on 18-10-1981 contained in the F.I.R. When rendered into English would read as thus:-- "Today in the morning, I went out of my cattle shed. There I noticed Jilani son of Hamidullah, Shcra son of Muhammad Zaman, Shahzada son of Hamidullah, Raja son of Jilani. Out of them Jilani was armed with shotgun, Shera with axe, Shahzada and Raja were having sticks. Jilz ni fired at me with the shotgun with the intent to kill me and the aot injured me on my right hip. On my commotion and with the sound c the shot Mir Afzal son of Sultan, Sultan son of Gulab and Mst. Mel- nod Jan wife of Sultan came running to the spot. When they reached tea spot Shera injured Mir Afzal with axe while Sultan was given heating with stick by Raja and Mst. Mahmoud Jan was beaten with stick by Shahzada. They also witnessed the incident. Besides them, Banaras and Wali Muhammad also saw the occurrence and rescued us. Motive for the crime is a dispute over a water channel in land."
3. It will be helpful to give the relation inter se of the accused named in the F.I.R. Ghulam Jilani is father of Raja while he is brother of Shahzada and Sher Bahadur alias Shera is brother-in-law of Ghulam Jilani.
4. The same day Ghulam Jilani at 9-30 a.m. While filing the F.I.R. In the police station gave the following counter-version of the happening. In his report he stated that he and his son (who was present with him at the time of report) proceeded for sowing wheat. When they came out of the village they noticed Kala and Ali Asghar deceased standing on a pathway. Kala had a. .12 bore shotgun while Ali Asghar was having a stick. Kala threatened him and Ali Asghar moved forward to beat him and in the meantime Kala fired with the shotgun but they were not hit. Raja Khan, his son, disarmed Kala while he was about to reload the gun, gave him beating with the butt. Thereafter, Mir Afzal was attracted who gave him stick blows on the head and similarly Anwar and Muhammad Banaras who also arrived there, beat his son Raja over his head and other parts of the body.
Mohkam Din and Muhammad Ishaq were named as eye-witnesses. Cause of the dispute was shown as a quarrel with Kala over a water channel 2/3 days prior to the incident. The shotgun snatched by his son from Kala was also produced to the police at that time.
5. Both these cases of cross version were tried by the learned Additional Sessions Judge and the accused in both the cases were acquitted.
6. In order to have a clear picture and understanding of the episode, it would be proper to give an abstract of the relevant evidence that was examined at the trial.
7. P.W.4 Ghulam Mehdi Khan A.S.I. Is the scribe of both the reports. This witness stated that Ali Asghar was brought in injured condition to the hospital and he wrote his report according to his dictation and that at that time he was in full senses and was free from prompting. He also found P.Ws. Mir Afzal, Sultan and Mst. Mehmood Jan injured and after preparing their injury sheets, sent them for medical examination. When cross-examined, he admitted the registration of the cross- case at the instance of Ghulam Jilani and the preparation of the injury sheets of Ghulam Jilani and his son Raja Khan, who had come to the police station in injured condition. He also took into possession .12 bore shotgun produced by Ghulam Jilani. P.W.6 is Mst. Sakina wife of Kala Khan, who gave the following relation of the P.Ws. Inter se. P.W. Kala was stated to be her husband while P.W.
Khalid her son. The deceased Ali Asghar and P.W. Banaras are the sister's sons of her husband. P.W.
Sultan is brother of her husband while P.W. Mir Afral is son of Sultan and P.W. Mst. Mehmood Jan is wife of Sultan. Regarding the incident she said that in the morning she and her daughter P.W.
Gulshan Bibi were present in the house when she heard noise from the side of the cattle shed and when she went there she saw the four accused-respondent, abusing Ali Asghar. Out of them Jilani was armed with shotgun, Shera with axe while the other two Raja and Shahzada had sticks.
Ghulam Jilani fired at the deceased, Shera gave axe blows to Mir Afzal while Raja and Shahzada beat Mir Afzal Khan, Mst. Mehmood Jan and the witness while her son Khalid Mehmood was beaten with sticks by all the four accused. P.W.7 Kala Khan, while giving details of the incident, stated that at 7 a.m. He was going to his house from the mosque and when he reached the well lying near the cattleshed of the deceased, he found the four accused armed in the manner as given by the other P.Ws. And were abusing Ali Asghar. The witness charged Shera and Raja for his injuries, Shahzada was held responsible for the injuries of Banaras and Sakina while Shera was said to have caused injuries to Mst. Mehmood Jan, Mir Afzal and Sultan. Mir Afzal deposed as P.W.8 and described the same weapons with the accused as given by other P.Ws. And held Shera responsible for his own injuries with axe while Shahzada and Raja were also charged for causing him injuries and Jilani was charged for firing at Ali Asghar. Muhammad Banaras P.W.9 is the elder brother of the deceased and while making his statement it was stated that while going to his cattle shed he saw the four accused abusing the deceased. When the deceased asked them not to abuse, he was fired at by Jilani while Shera gave axe blows to P.W. Mir Afzal, accused Shahzada beat Mst.
Mehmood Jan with sticks and that none else from his side received any injuries. P.W.10 is Mst.
Gulshan, who on hearing the noise, took the gun licensed in the name of her husband alongwith one cartridge to the spot. There she noticed her father Kala Khan lying on the ground, therefore, she fell on him. However, the accused snatched the gun from her. She saw accused Jilani armed with another gun and found her father, Ali Asghar and Mir Afzal lying in injured condition there. S.H.O.
Sardar Muhammad Yagoob Khan P.W.11 took into possession a small of the gun produced by Mst.
Gulshan Bibi through recovery memo. Exh.P.W.11/1 and by recovery memo. Exh.P.W.11/2 a licence copy in the name of Gulzar husband of Gulshan Bibi was taken into possesion. P.W.13 is Khalid Mehmood, who is son of Kala Khan, while narrating the incident stated that at about sunrise time he and his mother were in the house, when they heard commotion from the side of the wall and they went there and saw the four accused abusing Ali Asghar. Jilani then fired at Ali Asghar which hit him, Shahzada beat Mst. Mehmood Jan with stick while Raja and Shera gave beating to Kala Khan. The other injured were taken to the hospital while he, his mother and father remained at the house. The next eyewitness Mst. Mehmood Jan appearing as P.W.14 deposed that at sunrise time she heard noise and she all alone went there and saw the accused-respondents abusing Ali Asghar. Jilani then fired at Ali Asghar, Shahzada accused gave the witness beating with stick while Shera gave axe blows to Mir Afzal. Thereafter Kala reached but she expressed ignorance as to who injured him. P.W.15 is Sultan who is the last eye-witness and who stated that he resides near the spot and when he came out of the house he saw the accused abusing Ali Asghar. Thereafter Jilani injured Ali Asghar with fire shot, while Raja gave him stick blows and Shera heat Mir Afzal and Mst.
Mehmood Jan with stick and when Kala came there all the four accused gave him beating. P.W.16 is Dr. Noor Wahab, who examined All Asghar and found the following:-
(1) Fire-arm entrance wound 3" x 3" on the lateral side of the upper of right hip. Charring marks were there.
(2) Fire-arm exit wound 1/2" x 1/2" on the right side of hypogastrial.
' Both the injuries were caused by fire-arm, grievous in nature and inflicted within 4/5 to 6 hours duration. On the same day he examined Mir Afzal and found the following:--
(1) Incised wound 2" x 1/4" x 1/2" between the left ear and head.
(2) Incised wound 4" x 1/2" x bone deep on the left side of head.
(3) Wounds with abrasion/swelling on the back of left forearm.
(4) Multiple bruises on the back of both sides of chest. On the same day the doctor also examined Sultan and found the ' following:--
(1) Abrasion 1/3" x 1/4" x scalp deep on the left side and posterior part of the neck.
' The same doctor, on the same day, examined Arif Mchmood and found the following:--
(1) Lacerated wound 1-1/2" x 1/3" x bone deep on the back of right thumb.
(2) Swelling 4" x 1" on the back of upper part of right upper arm.
(3) Bruise with swelling 1-1/2" x 1-1/2" on the right side of forehead.
(4) Bruise 1" x 1" on the upper part of left upper arm, on the front. On the same day the doctor also examined Kala Khan and found the following:--
(1) Lacerated wound 2" x 1/3" x scalp deep on the top of head.
(2) Lacerated wound 1-1/2" x 1/3" x scalp deep on the right side and interior part of the head.
(3) Bruise with swelling 2" x 2" on the right side of the chest.
(4) Swelling on the back of the face of the left index finger.
(5) Bruise and abrasion 2" x 1" on the right side of the chest in front.
' P.W.17 is Lady Dr. Mrs. Mumtaz Khattak, who examined Mst. Mehmood Jan wife of Muhammad Sultan and found the following:--
(1) Bruise, swelling 1-1/2" x 1" on right forearm with obvious deformity. On the same day she also examined Mst. Sakina Jan and found the following:--
(1) 1" x 1-1/2" lacerated wound on left side of skull, scalp deep. Advised X-ray.
(2) 3" x 2" bruise on the top of right shoulder, advised X-ray.
(3) 6" x 4" bruise on left buttock.
(4) Complains of pain in upper teeth.
(5) 6" x 1" bruise on left side of back.
' Wajid Khan A.S.I. Appeared as P.W.18 and deposed about the various steps taken by him in the investigation of the case.
8. In his examination under section 342, Cr.P.C. To a question as to what is your statement and why are you charged, Jilani accused gave the following version of the incident:-- "I am innocent and falsely charged. In fact as sequel to the incident a day earlier, Kala, his son and other relatives waylaid me and my son on our way to the field when Kala armed with shotgun and the others with sticks started beating me and my son. There was an uproar. Ali Asghar deceased whose house is close by was close to me. When Kala fired a shot at me it hit All Asghar deceased.
The shot was fired from a close range. Kala P.W. Was trying to reload the gun when my son who was also injured snatched the gun from him which I produced before the Investigating Officer at the time of lodging the report. The fight was initiated by Kala and his companions by giving blows to me and my son on account of the earlier incident between me and Kala over the diversion of water a day earlier, when we were given blows, the Abadi closed by, persons from the vicinity, including men and women from both sides were attracted to the spot, there was stone-throwing and the use of other weapons. I had no against Ali Asghar deceased and there could he no motive for me to fire at him. I had no fire-arm with me nor my son had any. All Asghar deceased is the son of the sister of Kala and the whole tragedy enacted by Kala and his companions has been given a false color in consultation with the relatives to save his skin. Kala, Mir Afzal, Anwar and Banaras who arc closely related inter se are accused in the cross-case lodged by me. The gun should have been sent by the police to expert to ascertain whether it was fired from or not and this fact has purposely been suppressed by the prosecution. I am innocent. Shahzada accused was not present at all."
9. In support of the appeal, Mirza Abdullah Jan, Advocate argued that the first information report was lodged by the deceased himself and this dying declaration is the best and confidence inspiring evidence in the case against the accused. According to the learned counsel, the veracity of the dying statement has not been discredited in any manner and even the scribe of the F.I.R. And the doctor who examined the deceased, then injured, have not been questioned on these lines to show that the accused had either doubted the capacity of the deceased to make this report or that he made a false statement. It was next urged that the incident occurred in daylight and there could not be any doubt about the identity of the assailants. It was stressed that there were no material discrepancies in the deposition of the ocular witnesses and those found by the trial Judge are insignificant and do occur during the lapse of time between the occurrence and giving the evidence as human memory is liable to err in re-counting details of the episode. It was also urged that the witnesses in this case are entirely disinterested and that there appears no justification to discard their testimony. The learned counsel was of the view that the trial Judge has legally erred in disbelieving the testimony of the witnesses who had received injuries in the fight. The counter- version of the crime by the other side was described as afterthought, fallacious and improbable.
On the other hand, the learned counsel pleading for the accused highlighted the difference in appeal against conviction and that against acquittal and supported his contention by various precedent cases. He also referred to various pieces of evidence to justify the acquittal of the respondents.
10. We studied the record in the light of the submissions made at the Bar and to verify the correctness of the reasons given by the trial Judge in his impugned judgment for acquittal.
11. The distinctive feature of dealing with the appeal against acquittal is to give due weight to the appreciation of evidence by the acquitting Court and not to lightly dislodge the presumptions in favour of the acquitted persons which have accrued to him on account of his acquittal. It is also a salutary principle in dispensation of criminal justice that the Court hearing the acquittal appeal should not substitute its finding for that of the trial Court if the decision of the latter Court is also reasonably possible and that it is better to err in acquittal then in conviction. The acquittal order is to be scrutinized in the light of these recognized principles.
12. The prosecution relies on the dying declaration of the deceased Ali Asghar which is contained in the F.I.R. And the statements of some injured and some non-injured witnesses. The injured witnesses are of two categories; one those named in the F.I.R. And the other not so named. Those named are P.W.14 Mst. Mehmood Ja-n, her husband Sultan P.W.15, her son Mir Afzal P.W.8 and Banaras P.W.9 while the others are the P.W.6 Sakina Jan, her husband Kala Khan P.W.7, Khalid Mehmood her son P.W.13 and her daughter Mst. Gulshan Bibi P.W.10. It will be relevant to give the relations of these P.Ws. Inter se and with the deceased. The deceased Ali Asghar was the sister's son of P.W.7 Kala Khan and P.W.15 Sultan. P.W. Muhammad Banaras is brother of the deceased. The other relationship has been indicated above. It is also pertinent to mention that the accused had no towards the deceased and it was rather Kala Khan P.W. Who had quarreled with the accused Ghulam Jilani and the prosecution has failed to explain as to what prompted the accused to attack the deceased. In appreciating the present case, the counter-version of the incident given by accused Malik Ghulam Jilani and Raja Khan in the cross F.I.R., statements in Court of the said two accused under section 342, Cr.P.C. Are to be considered side by side with the evidence on record of this case. As much stress was laid on the dying statement, therefore, it is to be seen as to how far this can be made basis of conviction. There is no doubt that the deceased was able to make the statement but that alone will not be sufficient for its credibility as it is also to be seen whether the statement was not actuated or goaded by the relations, whether it intrinsically appears true and whether it is supported by the surrounding circumstances. The authenticity of the dying declaration should be determined after careful scrutiny of all physical circumstances appearing from the evidence on record. It would not be in accord with the safe dispensation of justice and no rule of universal applicability can be laid that a person under immediate apprehension of death would speak nothing but truth. It is a matter of record that dying declaration in this case was recorded in the presence of the close relations by a Police Officer in spite of the fact that with little efforts it could have been recorded through a doctor or any other responsible person. It is in the report that after the deceased was fired at the three injured witnesses named therein appeared and were also injured by the accused. There is no reference in this report as to how the other witnesses happened to arrive at the spot and how they were wounded while against this the witnesses have stated that the incident occurred in their presence. The evidence given by the witnesses is so conflicting with one another and is so inconsistent, improbable and unreliable that it can hardly be considered sufficient as worthy of belief. It was stated by P.W. Sultan, `when I reached the spot, nobody else except the four accused and the deceased was present on the spot and again. 'It is correct that when I wanted to separate the deceased from the accused, I received stick blow' and again, 'It is correct that at the time of fire-shot I was standing on one side because I have received injuries.... It is correct that when the deceased was injured and also when I received the injuries after that the remaining P.Ws. Came to the spot and received the injuries'. P.W.6 Mst.
Sakina stated that before the occurrence, she and her daughter Mst. Gulshan Bibi were present in the house and on hearing the noise she went to the spot and in her presence Mir Afzal, Kala, Khalid Mehmood and Mst. Mehmood Jan were injured but she was not shown present on the spot in the F.I.R. It also stated, 'I have seen when accused Raja snatched the gun from my husband Kala. Her husband Kala Khan appeared as P.W.7 and contrary to his wife he deposed to have seen all the injured including his wife being beaten by the accused. P.W. Mir Afzal's statement indicates that in his presence no one else was injured except the deceased by the fire of Jilani. Banaras only described the injuries to the deceased and Mir Afzal and none else when he said, 'No one else from our side was injured in my presence'. P.W.10 Mst. Gulshan Bibi contradicts her mother Sakina by saying that she was in the fields, from where she was attracted to the spot by the brawl. She had something unique to tell, 'I came to the house and took the gun and one cartridge with me and on reaching the spot I saw that my father was lying on the ground, therefore, I fell on him. The gun was snatched by the accused in this process'. Khalid Mehmood P.W. Is son of Mst. Sakina who also gives a different version of the incident than her mother and sister Bibi Gulshan. We need not refer to the other statements of the other P.Ws. Which would reveal that they were not in conformity with the deposition of the other P.Ws. As this would make this judgment unnecessarily too lengthy. There is a counter-version of the incident as referred to in the earlier part of the judgment. It is correct that the injuries on the person of the two accused and the snatching of the gun from Kala Khan P.W.
Have been concealed by the prosecution. The injuries of the deceased had charring marks, whereas the statement of the P.W. Shows that these were suffered beyond that range.
13. The learned trial Judge has taken note of all these relevant evidence on record and has arrived at a reasonable conclusion and, therefore, we have not F been convinced and persuaded to hold otherwise.
14. This appeal is, therefore, dismissed.