MUHAMMAD BASHIR KHAN JEHANGIRI, J: --This appeal is directed against the order of Mr. Abdul Rahman Khan, Additional Sessions Judge, Bannu, dated the 24th of September, 1989, by which he convicted Khan Sardar, son of Mir Jaffar Khan, aged about 61/62 years, under section 302/34, P.P.C.
And sentenced him to imprisonment for life. The benefit of section 382-B, Cr.P.C. Was also extended to him. Umar Sardar, son of the convict-appellant Khan Sardar, who was also tried alongwith him, was given the benefit of doubt and was acquitted. Muhammad Farooq Khan, complainant, has also filed Criminal Revision No.16 of 1989 for enhancement of sentence from imprisonment for life to that of death. Both these matters being inter-related are being disposed of by this judgment.
2. On the 29th June, 1986, at about 19-45 hours, Muhammad Arif Khan was effectively fired at near his house situate in Mohallah National Bank, Bannu City. He was taken to Civil Hospital, Bannu, in injured condition where he himself reported the occurrence. Since Muhammad Arif Khan succumbed to the fire-arm injuries in the hospital, his report Exh.PA. Was treated as dying declaration under Article 46 of the Qanun-e-Shahadat, 1984 corresponding to section. 32 of the Evidence Act, 1872. The case set up in the dying declaration when rendered into English would read as under:-- "That a little while ago, I alongwith my brother Muhammad Farooq were standing near our house. In the meantime, Muhammad Sultan, son of Khan Sardar duly armed with 'fire-shot rifle alongwith his father Khan Sardar reached the venue. Khan Sardar exhorted his son Mahmood Sultan, to kill upon which the latter fired three successive shots at him which hit him and he fell down in injured condition. The accused after the occurrence decamped from the spot.
Motive for the offence is that yesterday there was an altercation between me and Mahmood Sultan. I charge Mahmood Sultan, Khan Sardar and Umar Sardar."
3. The Murasila Exh.P.A. Not only was thumb impressed by the injured butte it was duly witnessed by Muhammad Farooq (P.W.8) and Shafiullah Khan (P.W not examined) as a writer.
4. The Murasila Exh.P.A. Was taken down by Muhammad Khan, the then S.H.O. Police Station, Bannu City (P.W.9) who had reached the hospital on learning about the occurrence. The Murasila Exh.P.A.
Was duly incorporated in the relevant register by Muhammad Khan, S.H.O. (P.W.9) in F.I.R. Exh.PA./1/1, and prepared the injury sheet Exh.P.B. Of Muhammad Arif then injured and reached the spot where he searched for the accused but they were not available. The S.H.O. Then prepared the, site plan Exh.P.D. He took into possession from points 3 and 4 in the site plan Exh.P.D., two empties P.1 of 7 mm giving out fresh smell of discharge and blood-stained earth vide memo. Exh.P.E. And sealed them into separate parcels. After recording the statements of P.Ws. Under section 161; Cr.P.C. He initiated against the accused proceedings under section 87/88, Cr.P.C. And then obtained warrants under section 204, Cr.P.C. And entrusted them (to) Bakht Jamal, F.C. (P.W.1). Since the accused were reported to have gone into hiding in the tribal territory warrants were thus returned with the endorsement accordingly. He also obtained medical-certificate Exh.P.W.10/2 to the effect that Muhammad Arif Khan was capable of making coherently his statement.
5. The appellant as well as the acquitted co-accused, Umar Sardar, his son, were arrested by Nawab Ali Khan (P.W.4), the then Additional S.H.O. Of Police Station City Bannu, on 11-10-1986.
6. Doctor Asmatullah Khan (P.W.11) medically examined at 8-15 p.m. The deceased while he was still alive on 29-6-1986 and found on his person the following injuries:--
(1) Fire-arm entrance wound in the right hypochondrium 3" from the midline measuring 1/2" x 1/2".
(2) Fire-arm entrance wound in the right lumber area, 1/4" x 1/4".
(3) Fire-arm exit wound in the hypogastrium above symphsis pubis measuring 1/2" x 1/2".
(4) Fire-arm entrance wound on the anterior and upper 1/3rd and lower 2/3rd junction of the left thigh.
(5) Three fire-arm exit wounds on the anterior part of lower 1/3rd of left thigh 3" x 2", l /2" x 1 /2" and 1 /4" x 1 /4".
(6) Fire-arm exit wound on the anterior part of left thigh just above knee joint 1/2" x 1/2".
Necessary treatment was given but the patient expired on the same night at 1-00 a.m. On 30-6- 1986: The same Medical Officer conducted post-mortem examination and noted on his person the same injuries. On opening the abdomen, he found the walls, peritoneum, stomach, pancreas, small and large intestines and liver injured. Spinal cord and membrane were also found injured. Stomach was empty. Inferior vena cava were found injured and first and second lumber vertebrae were found fractured. Left femur was also found injured. In his opinion, the deceased died as a result of injuries to the bones, big vessels (inferior vena cava), bleeding and shock. Time between injuries and death, according to the doctor, was 5-45 hours and between death and post-mortem 4 hours and 15 minutes. He testified to the correctness of the certificate Exh.P.W.10/2 regarding the capability of Muhammad Arif Khan to make statement coherently.
7. The appellant in his statement before the trial Court totally denied having participated in the occurrence and explained his abscondence from 29-6-1986 to 11-10-1986 in the following words:-- "I am running a vegetable shop in Qayum Market, Bannu City. On the eventful day I was present as usual in the said shop, when I learnt about the occurrence and false charge against me at `Digarvela'. It created a terror and fear in my mind for the first time in my life. I was to deal with the situation like the one in hand. I could not face the torture of police and the ordeals of the proceedings and it was only when I gained courage that I decided to surrender to the police alongwith my son Umar Sardar voluntarily. I did not abscond at all:'
8. The prosecution in order to support its case relied on the dying declaration, Exh.P.A./1 the ocular evidence furnished by Muhammad Farooq Khan (P.W.8); medical evidence of Doctor Asmatullah Khan (P.W.11), and abscondance of the appellant from the date of occurrence on 29-6-1986 to the date of his arrest on 10-11-1986.
9. The ocular evidence of Muhammad Farooq Khan (P.W.8), as stated earlier, was seriously relied upon by the prosecution, who after giving out his relationship with the deceased and that of the accused inter se, stated that during the days of occurrence, the parties were living in the same street as neighbours. At the time of occurrence on the eventful day, he alongwith his brother, Muhammad Arif Khan, were standing in the street near their house. In the meantime, Khan Sardar appellant, his son, Umar Sardar (since acquitted) and his another son Mahmood Sultan (absconder) appeared at the scene of occurrence. Of them, Mahmood Sultan was armed with a .5 shot rifle. According to Muhammad Farooq Khan (P.W.8), Khan Sardar appellant ordered Mahmood Sultan absconder to fire at the deceased upon which the latter fired three successive shots at his brother with which he was hit and fell to the ground. His evidence further is that he alongwith his brother Shafiullah Khan rushed to the Emergency Room of the Civil Hospital, Bannu, where after a short-while, Muhammad Khan S.H.O. (P.W.10) arrived. Since Muhammad Arif Khan was possessed of senses and could talk coherently, the S.H.O. In the presence of Muhammad Farooq Khan and Shafiullah recorded his report Exh.PA. Which was thumb-impressed by the deceased, then injured, which was also signed by him. After some time, Muhammad Arif Khan was stated to have succumbed to the injuries in the hospital. He deposed to the same motive as set up in the dying declaration Exh.P.A.
10. The learned trial Judge believing the prosecution evidence in toto, convicted and sentenced the appellant in the manner stated above. He, however, gave the benefit of doubt to Umar Sardar accused and acquitted him.
11. S. Zafar Abbas Zaidi, the learned counsel appearing on behalf of the appellant, contended that the dying declaration Exh.PA. And the evidence of Muhammad Farooq Khan (P.W.8) were not sufficient to bring home the guilt to the appellant and like his son Umar Sardar, he should also have been acquitted. In this context, he maintained that the dying declaration having been made in the presence of Muhammad Farooq (P.W.8) and other relatives was not worthy of credence and placed reliance on: (1) Ghulam Farid v. State PLD 1966 SC 264 and (2) Wahiduddin v. Allah Ditta 1977 SCMR 72. He further criticised the dying declaration Exh.P.A., on the ground that it was undoubtedly of an interested person which in the facts and circumstances of the case required strong corroboration which was lacking in the instant case and, therefore, it could not be relied upon for sustaining conviction of the appellant. In support of the proposition that if the dying declaration is recorded in the presence of the close relations, the possibility of prompting by the relatives could not be ruled out, the learned counsel placed reliance on Sher Bahadur v. State 1972 SCMR 651. In so far as the evidence of Muhammad Farooq (P.W.8) is concerned, he argued that being an interested person, it also required strong corroboration from independent source which was also lacking in the instant case. The learned counsel then submitted that the solitary witness who was the real brother of the deceased having animus to falsely implicate as many persons of the accused's family as possible could not be relied upon.
12. As against this, Mr. Muhammad Salim Khan Gandapur, Advocate appearing on behalf of the State, argued that the occurrence has taken place within the street where the complainant party and appellant were living and being the month of late June, there was sufficient light for identification of the assailants particularly when they were the neighbours of the complainant's party. He also submitted that the F.I.R. In this case was promptly lodged by the deceased himself in injured condition and, therefore, the question of consultation and deliberation was completely out of place. He further argued that although the motive has been ascribed only to Muhammad' Sultan absconder, nonetheless, it would not militate against the complicity of the appellant.
13. In the F.I.R. Treated as dying declarations, the deceased was categorical and on this point Muhammad Farooq (P.W.8) has also supported him that the charge against the appellant was one of exhortation and he had obviously not used any arm because he and his son Umar Sardar, his co-accused, were empty handed. Looking to the age of the appellant and his relationship with the absconder, being his father, it does not sound reasonable that he would have ordered his son to kill the deceased. Admittedly there was no blood-feud enmity between the two families. The question of redeeming the family honour of the appellant is also not involved. These factors taken together cast serious doubts on the prosecution case that the appellant would have raised customary Lalkara in pursuance of which the absconder would have fired three shots at the deceased.
14. The learned trial Judge has described the dying declaration of the deceased as the most important category of evidence against the appellant. He has, on the one hand, accepted the dying declaration in its entirety and convicted and sentenced the appellant as stated above, while on the other, he has acquitted Umar Sardar, co-accused and son of the appellant, although his presence has also been recorded at the spot and at the time of occurrence. From this it follows that the learned trial Judge has followed the principle of divisibility of the dying declaration. He also seems to have beer confused over the evidentiary value of the dying declaration. The law in regard to the judicial effect of the dying declaration has, from time to time, been considered by their Lordships of the Supreme Court. In this respect, we may refer to: (1) Abdur Razaq v. State PLD 1965 SC 151 and (2) Tawaib Khan v. State PLD 1970 SC 13. In the case of Abdur Razaq referred to above, it has been observed by their Lordships of the Supreme Court that the dying declaration being the only evidence available, it is the duty of the Courts to decide whether or not they can believe it. The principle enunciated in this case was that only after most careful scrutiny applied to all the physical circumstances as they appear from the evidence, it is possible to decide whether it can be said with the degree of certainty, which is made obligatory for reaching a conclusion of guilt, that the account given by the deceased of the manner in which he met his death is worthy of belief. In the case of Tawaib Khan, late Sajjad Ahmad, J., as his Lordship then was, dealt with the degree of sanctity attached to the dying declaration under the law in this country. We can do no better than to reproduce the following observations from the report in the case cited above:-- "In the same line, there are the dying declarations of the deceased which have a degree of sanctity under the law, being the statements of a dying man, on the belief that he Being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charges. But, I consider that in the matter of the administration of criminal justice, taking in view the present state of our society, the assessm ent of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical enviornments and circumstances to rind out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case:"
15. Respectfully following the dictum from the Supreme Court cited above, we would reiterate that the dying declaration should be believed against that accused only if it is corroborated by any other evidence which, by itself, would be quite credible and bring the guilt home to the accused satisfactorily. The learned counsel for the State, in this context, contended before us that this dying declaration-should be believed against the appellant as it was corroborated by the evidence of Muhammad Farooq Khan (P.W.8) who is not shown to have got any animus to falsely implicate the appellant in the case in hand. We have already observed elsewhere in this judgment that the testimony of Muhammad Farooq (P.W.8) qua the involvement of the appellant in the instant case for raising customary Lalkara was exaggerated. In this country, it is unfortunately quite common that people do add innocent persons alongwith the guilty to satisfy their sense of revenge and to put the other side to the utmost grief.
16. In the present case, judging from the dying declaration of the deceased and the ocular account furnished by Muhammad Farooq (P.W.8) and in the light of tendency in our country to involve as many persons of the accused party as possible, we are of the considered opinion that the case against the appellant is not free from doubt. It appears to us to be the result of exaggeration with a view to add innocent persons of the accused's family alongwith the guilty to satisfy their sense of revenge.
17. In view of what has been discussed above, it is clear to us that in view of facts and circumstances of the case, in hand, the dying declaration Exh.P.A. Recorded by Muhammad Khan Sub-Inspector (P.W.9), cannot be accepted in toto. The appellant, it appears to us, has been implicated in the instant case due to his close relationship with the absconder in order perhaps to disable him from pursuing the case of the absconder or else following the tradition of the country to implicate as many persons of his family as possible.
18. The result is that the prosecution has not been able to bring home the charge against the appellant beyond shadow of doubt and, consequently, by way of abundant caution, we would extend the benefit of doubt to the appellant and acquit him of the offence with which he has been charged. He shall be released forthwith if not wanted in any other case. Consequently, the Criminal Revision No.16 of 1989 fails and is dismissed accordingly.
N.H.Q./1137/P