MUHAMMAD BASHIR KHAN JEHANGIRI, J.--- In the F.I.R. Of occurrence Haibat Khan convict, his son Muhabat Khan absconding accused, Masoom Khan convict and his son Munawar Khan absconder, were charged for the murder of Shah Alam Khan, Haibat Khan and Masoom Khan, were sent up to stand their trial and were convicted of an offence under section 302/34, P.P.C. By the learned Additional Sessions Judge, Bannu, at Lakki Marwat, by the judgment, dated 28-8-1988 and sentenced to imprisonment for life and a total fine of Rs.20,000 or in default to suffer further imprisonment for one year. Being dissatisfied they have come up in appeal to this Court which was argued before us by S. Zaffar Abbas Zaidi, on their behalf, whereas Mr. Muhammad Ibrahim Khan Alizai, Advocate, represented the State.
2. The record would show that Shah Alain himself had reported the occurrence at Civil Hospital, Lakki where he was taken by a pick-up in injured condition, in which he narrated the occurrence thus: "That about 5/6 months prior to the occurrence Munawar Khan (absconder) had a quarrel with me over a boy named, Salim, but it was not reported to the police. It had nevertheless created bad blood between us. Today I was going to my field of melons at 20-00 hours followed at some distance by my father Habib Khan and one Mir Ahmad. As they reached near our Chowk on the main street, I saw the two appellants alongwith Muhabbat Khan and Munawar Khan absconding accused. I was shouted at by a proverbial `Lalkara' that I would not escape after which the absconding accused Muhabbat Khan fired a shot with which I was .Hit and fell down. Subsequently the two appellants and Munawar Khan absconding accused also fired."
The motive mentioned by him in his report is his leave; affair with Saliva aforesaid.
3. The evidence of Ghulam Yasin A.S.I. (P.W.7) is that during the days of occurrence he was attached to Police Station Lakki; that on receiving a telephonic message from Civil Hospital, Lakki, that an injured had been brought, he proceeded to the Emergency Room of Civil Hospital, Lakki where Shah Alam Khan in injured condition reported him the occurrence at 9-45 p.m. That he recorded his report Exh.PA./1. His evidence proceeds that he then prepared his injury sheet Exh. P.F.
And left the injured in the hospital for treatment; that he then sent the relevant papers alongwith the case diary to Police Station Ghazni Khel, the concerned police station, for further investigation.
4. The evidence of Breshna Gul S.I. (P.W.9) is that during the days of occurrence he was attached to Police Station Ghazni Khel; on 16-6-1985 he received Murasila Exh.PA./1, from Police Station, Lakki on the basis of which F.I.R. Exh. P.A. Was drawn up at 24-00 hours, thereafter he himself proceeded to the spot reaching there in late hours of the night and conducted cursory inspection of the spot; he searched the houses of the accused in the morning and again went to the spot and prepared the site plan Exh. P.B.; he collected the blood-stained earth and sealed it into a parcel; in the meantime Shah Nawaz (actually Raza Khan) (P.W.1) brought from the hospital blood-stained Shalwar and the post-mortem report; that he took these items into possession through the recovery memo. Exh.
P.D.; that thereafter he recorded the statements of P.Ws. Under section 161, Cr.P.C. Breshna Gul went on to depose that on learning that Shah Alam had succumbed to the injuries in District Headquarter Hospital, Bannu on 7-7-1985, he altered the earlier offence under section 307/34, P.P.C.
To one under section 302/34; that as all the 'accused were absconding he initiated against them proceedings under sections 204 and 87, Cr.P.C.; that in the meantime the appellants were arrested on 10-7-1985 whereas the two absconders were declared proclaimed offenders. The remaining investigation was handed over by him to the S.H.O.
5.' Safdar Hussain of Police Lines, D.I. Khan (P.W.5) who was then attached to the Police Station Lakki, prepared inquest report Exh P.H. Of the deceased on learning that his dead body had been received in Civil Hospital, Lakki.
6. It is not denied that deceased Shah Alam died an unnatural death. He was examined on 16-6- 1985 at 9-45 p.m. By Dr. Hidayatullah (P.W.6) in injured condition and found the following injuries on his person:
(1) One fire-arm inlet wound 1" x 1" on the right buttock.
(2) Two fire-arm inlet wounds 1/8" x 1/8" each just posterior to the anus.
He was bleeding severely from the anus. He was then referred to the D.H.Q. Hospital, Bannu, where he died on 7-7-1985. He performed autopsy on his dead body on the same day when it was received in Civil Hospital, Lakki.
On his internal examination he found his peritoneum cavity, pelvic colon and rectum injured. The cause of death was injuries to the large intestines, perforation, peritonitis and toxaemia, X-Ray of Pelvis showed one pellet in the lit hip joint. Time between injuries and death was 21 days while that between death and post-mortem was 2 to 4 hours.
7. The following pieces of evidence have been led by the prosecution,, in support of its case: (i)Ocular evidence of Habib Khan (P.W.4)
(ii)Dying declaration incorporated in the F.I.R., (i.e)Absence of the appellants from their houses from 16-6-1985 to 10-7-1985.
(iv)Motive.
8. The appellants, when examined under section 342, Cr.P.C., denied their guilt. While admitting their relationship with the absconders to be their sons and `Tarburs' inter se, the appellants maintained that they have been falsely implicated due to the earlier quarrel between Munawar Khan (absconder) and the deceased. Haibat Khan appellant had set up the plea of alibi in an answer to a question qua his abscondence and has stated as under: "I did not remain absent. I am employee as A.L.M. In Lakki Sub-Division in WAPDA Department and was available in the places where I am normally required to be present. On coming to know of the false charge is against me, I voluntarily appeared before Court. Immediately, on my surrender to Police, I explained my whereabouts and also produced the was certificate from my Incharge Line Superintendent, according to which 1 was on my official duty from 16-6-1985 till next date that is 17- 6-1985. The genuineness of this certificate was duly enquired by Abdul Jalil Khan A.S.I. But to withhold this information from the Court the said A.S.I. Has been abandoned so that he is, not in a position to give out these fact in my favour."
The other appellant namely, Masoom Khan, merely proclaimed his innocence. In an answer to a question about his absence from 16-6-1985 to 10-7-1985, he explained that he had remained in the places where he was normally available and on coming to know that he had been falsely implicated in this case, he had voluntarily surrendered to the police.
9. The learned trial Judge believed the prosecution evidence in toto and convicted and sentenced the appellants in the manner stated above.
10. Habib Khan (P.W.4), is the father of the deceased and his evidence is that on the day of occurrence at about 8-00 p.m. He alongwith his deceased son, Shah Alain and P.W. Mir Ahmad (abandoned by the prosecution) left their house and were on their way towards the field of melons, which had been cultivated by the deceased on behalf of one Zarwali. His son was ahead of them and when they entered the field of melons, he was challenged by the appellants and absconding accused who were duly armed with Topaks that he would not escape, whereas he and Mir Ahmad (P.Ws.) stopped there and then. According to Habib Khan, when the deceased turned his face towards the accused, he was fired at by Muhabat Khan, (absconding accused) as a result of which he was hit and fell down. It is alleged that, thereafter, the two appellants and Munawar Khan (absconder) also fired a shot each at the deceased with which he was also hit. Then, the accused are stated to have decamped from the spot. Habib Khan and Mir Ahmad (P.Ws.) when went near Shah Alam, who was lying injured, found him in senses. The injured was then taken to the Civil Hospital in a Datsun pick up where the police party also arrived to whom his son reported the occurrence himself. After this, his injured son was shifted to District Headquarters Hospital, Bannu.
The Investigation Officer, namely, Breshna Gul, (P.W.9), prepared the site plan (Exh. P.B.) at his instance. He had also stated the same motive which had been set up by the deceased in his report (Exh.P.A./1).
11. S. Zafar Abbas Zaidi, the learned counsel appearing on behalf of the convict-appellants, had serious criticism to the dying declaration, Exh.PA./1, and the evidence of Habib Khan (P.W.4).
According to him, the dying declaration having been made by the deceased in the police station in the presence of his father and brothers was not worthy of credence. In support of this contention, reliance was placed on: Ghulam Farid v The State PLD 1966 SC 264 and Wahiduddin v. Allah Ditta 1977 SCMR 72. He further maintained that the dying declaration, Exh. PA./ 1, was undoubtedly of an interested person, which in the facts and circumstances of the case in hand, required strong corroboration, which was lacking in the instant case and, therefore, it could not be relied upon for sustaining conviction of the convict-appellants. In support of the proposition that if the dying declaration is recorded in the presence of other people, the possibility of prompting by the relatives could not be ruled out, the learned counsel placed implicit reliance on Sher Bahadur v The State 1972 SCMR 651. The dying declaration, Exh.P.A./1, was also assailed on the ground that the injury to which the dying declaration related, was not shown to be direct cause of the deponent's death and, therefore, such a statement, on the authority of Kakkai v. The State 1977 P Cr. L J 608, was not admissible in evidence in terms of section 32(1) of the Evidence Act, 1872 (corresponding to Article 46) of the Qanun-e---Shahadat, 1984 and on this account too, the dying declaration should be discarded. In so far as the evidence of Habib Khan (P.W.4) is concerned, he urged that being an interested witness, it required strong corroboration from independent source which, in the instant case, was not forthcoming. The learned counsel then submitted that the solitary witness, who was the real father of the deceased, having animus to falsely implicate as many persons of the accused's family as possible, has improved upon the case of the prosecution when he appeared in the witness-box. Reference was made to his assertion that after the deceased fell down, Habibat Khan, Masoom Khan and Munawar Khan (absconder) fired a shot each at his deceased son who was also hit by the said firing. His last contention was that Habib Khan was not in a position to identify the assailants including the appellants due to darkness that had set in and further that he was wearing glasses having undergone a cataract operation.
12. As against this, Mr. Muhammad Ibrahim Khan Alizai, Advocate, appearing on behalf of the State, defended the order of conviction and argued that the occurrence had taken place in tile village Abadi and being the month of late June, there was sufficient for identification of the assailants, particularly when they were the co-villagers of the complainant's party. He also submitted that the F.I.R. In this case was promptly lodged by the deceased in injured condition and, therefore, the possibility of consultation and deliberation was completely out of place. The learned counsel for the State maintained that although the active has been ascribed only to Muhabat Khan, nonetheless, it would not militate against me complicity of the appellants.
13. In the F.I.R. Treated as dying declaration, the deceased was categorical that on receipt 0' lire shot az the hands of Muhabat Khan, he dropped to the ground after which Haibat Khan, Mas Khan and Munawar Khan also fired a shot each at him, without elaborating as to whether these fire effective or not. From this it follows that had the deceased been hit by the fire shots of the appellants, he would certainly have clearly stated so in his report, Exh.PA./1. Be that gas it -nay, this improvement made by Habib Khan (P.W.) is clear contradiction with the medical evidence, which showed that the deceased had received three pellet injuries which were the result of only one fire shot which was admittedly ascribed to Mohhabat Khan absconder.
14. We have decided to refrain from determining the veracity of the dying declaration in detail for fear of expression of opinion one way or the other, lest it should adversely affect the case of the prosecution against the absconders. Nonetheless, notice may first be taken of the report, Exh.PA./1, in which the deceased had positively asserted that the two appellants had also fired at him, but without elaborating as to whether he was or was not hit. Habib Khan (P.W.) had also positively asserted that the fire shots of the appellants and Munawar Khan (absconder) had also hit the deceased This part of the dying declaration as also of the testimony of Habib Khan (P.W.) is in clear contradiction with the medical evidence furnished by Doctor Hidayatullah Khan (P.W.6) who has clearly stated that the injuries sustained by the deceased could be the result of only one fire shot.
In so far as the dying declaration itself is concerned, we are satisfied that the deceased could have been able to make it, but then in view of his exaggeration, it would be imprudent to accept this part of the dying declaration. So, is the case with the evidence of Habib Khan (P.W.). Had the appellants who were also alleged to be armed with lethal weapons, fired at the deceased, he would certainly have sustained other injuries, particularly when he was lying injured.
15. As far as the absence of the appellants from the date of occurrence to the date of their arrest on 10-7-1987 and 17-6-1987 respectively is concerned, it would not alone be sufficient to saddle them with the liability of the commission of the instant crime.
16. In view of what has been discussed above, it is clear to us that in view of the facts and circumstances of this case, the dying declaration, Exh.PA./1, recorded by Ghulam Yaseen, A.S.I.
Cannot be wholly accepted. The appellants appear to have been implicated in the case in hand due to their close relationship with the absconders with a view perhaps to stop them from prosecuting the case of the absconders or else following the tradition of the area to implicate as many persons of the accused party as possible. This false implication is also in accord with the tendency in this part of the country to throw a were net around the guilty as well as innocent persons to equal their scores.
17. The result is that the prosecution has not been able to bring home the charge against the appellants beyond any shadow of doubt and, consequently, extending the benefit of doubt to them, they are acquitted of the offences with which they have been charged. They are in custody and shall be released forthwith if not required in any other case.
18. By a short order dated 7-5-1990, we had allowed the appeal and acquitted the appellants.
Above are the reasons for the said order.