' ABDUR REHMAN KHAN, J.---This appeal under section 417 of the Criminal Procedure Code has been filed by the State through Advocate-General to challenge the legality and correctness of the judgment dated 15-10-1985 of the learned Additional Sessions Judge, Mardan whereby the accused-respondent was acquitted of the charge under section 302, P.P.C.
2. Ghulam Rafique, the complainant (who later succumbed to his injuries) himself made a report in the police post of the event which resulted in his wounds. In the F.I.R. He stated that he alongwith Haji Akbar were present near the shop of Banaras when Murad Ali accused came armed with shotgun, 9911State v. Murad Ali altercated with him and suddenly fired at him which injured him. It was disclosed that he had no previous enmity with the accused Initially, a case under section I 307, P.P.C. Was registered and when the informant died later in the day, then the charge was altered to section 302, P.P.C.
3. It is proper to give a brief resume of the relevant evidence examined at the trial. PW 1 Azad Khan is marginal witness to the various recovery memos. He stated that in his presence bloodstained earth was recovered through memo. Exh. P.D. Vide recovery memo. Exh. P.D./1, a pellet and a cardboard were taken into possession. Similarly, in his presence the I.O. Took into possession shirt and shalwar of the deceased which had corresponding cuts and a sealed bottle containing 4 pellets through Exh.P.D/2. The witness owned his signatures on all the said memos. P.W. 2 has submitted supplementary challan against the accused while P.W. 3 stated that he arrested the accused on 29-4-1980 in his house during raid. P.W. 4 had accompanied the dead body and on return had brought the clothes of the deceased and a sealed bottle and handed over these articles to the I.O. Naik Mohammad Khan, P.W.5, who had prepared the inquest report and injury sheet of the deceased. Haji Akbar, P.W.7, furnished eye-witness account of the incident as he stated that on that day he was present in front of the shop of one Banaras in between "Peshin" and Degar" time. At that time he saw Ghulam Rafique, deceased sitting in front of the said shop. In the meantime the accused came there armed with shotgun, fired at the deceased and injured him. He further stated that the deceased was then taken by the villagers to the P.P. Where he lodged the report while in full senses in his presence. The Police Officer who appeared as P.W. 9 had partially investigated the case. He deposed that the deceased, then injured, when came to P.P. For report was completely in his senses and could make an articulate statement and so, he recorded his report, Exh.PA./1, which was read over to him which he thumb-impressed and, thereafter, the same was sent to the Police Station for registration of the case. The injured was sent to the hospital after preparing his injury sheet. He then proceeded to the spot and took into possession bloodstained earth but could not prepare the site-plan as it was dark. He also recorded the statement of Haji Akbar. Nishat Khan, P.W. 10, was then S.H.O. Of the P.S. Concerned and he also conducted partial investigation in this case. This witness stated that he reached the spot at 7-15 a.m., the next day, and took charge of the investigation from Masai Khan, A.S.I. He first prepared the site-plan, Exh.PB, at the instance of Haji Akbar. Two pellets and two cardboards were taken into possession by this witness through recovery memo. Exh.D1, and through another memo, Exh. D.2 he took into his control the various clothes of the deceased and a bottle containing 4 pellets. The accused was not available for arrest and so he completed the proceedings under sections 204 and 87, Cr.P.C. And on completion of investigation submitted challan under section 512, Cr.P.C. Against the accused.
4. The accused in his statement under section 342, Cr.P.C. Pleaded complete innocence and false implication by the police. The learned trial Judge acquitted the accused-respondent as he discarded the dying declaration on the grounds; firstly, that there was inordinate delay in making it.
Secondly, the time of causing injuries as given by the doctor does not coincide with the one shown in the report as in his medical examination of the deceased, then injured, conducted at 7 p.m., the doctor opined that the injuries were caused within 1-1/2 hours whereas the time of inflicting of injury has been described as 3 p.m. In the dying statement. Thirdly, there was prompting by the relations as according to P.W. Haji Akbar the relation of the deceased were present at the time of recording the report. The evidence of the only eye-witness Haji Akbar was rejected on those grounds:--
(i) he is the uncle of the deceased;
(ii) his statement is in conflict with that of Misal Khan, P.W.9, as this witness stated that his statement was recorded in the P.P. Whereas Misal Khan P.W.9, in his statement showed this place the science of occurrence.
(iii) his statement is not supported by Nishat Khan, P.W.10, as according to him the site-plan was prepared at the instance of this PW whereas this witness stated that neither the site-plan was drawn at his instance nor he was present at the relevant time.
(iv) Because of many other improvements. (But curiously those alleged improvements were not pointed out.)
5. The learned Assistant Advocate-General appearing in support of the appeal described the reasons for acquittal as incorrect, inconsequential, flimsy and conjectural, as he was of the opinion that the dying-declaration in this case could be relied upon because it was a truthful narration of the incident by a person who was in no way prejudiced against the accused. He also submitted that there was no delay in making the report and that unnecessarily too much importance has been given to the statement of the doctor in matter of the causing of injuries. Similarly, the learned counsel was also critical about the rejection of the deposition of Haji Akbar, as according to him mere relation would be no ground to disbelieve a witness and that the so-called contradictions were entirely of insignificant nature and which do occur during a period of 5 years that elapsed in between the incident and the recording of this statement in Court.
' The learned counsel for the accused-respondent opposed these submissions and supported the judgment.
6. As is apparent from the above narration, the prosecution relies on the dying-declaration, the statement of Haji Akbar and the abscondence of the accused for a period of one year and three months. It is proved and also conceded that neither the deceased nor any of his relations had any grudge, ill-feeling or enmity with the accused or his relations. The probative weight of the dying statement is to be judged in the light of this peculiar feature of the case. There is no denying the fact that the incident occurred at day time and that the deceased and the accused being of the same village were known to each other. Therefore, the possibility of any difficulty in the identity is not there. There can be no argument about any ambiguity in the dying-declaration as it has been made in a very clear-cut, definite and explicit manner. The learned trial Judge has dubbed the dying declaration as doubtful because of the alleged delay in making it without realising that in absence of any enmity and also in absence of any proof that the time in between was consumed in any deliberation, nothing can turn on the delay and, therefore, it cannot be stretched to the extent to make the otherwise truthful dying declaration as distrustful and unbelievable. Even otherwise, there appears no excessive delay in lodging the report when all the facts and circumstances are taken into consideration. The opinion of the doctor that, "time between injury and death about 1-1/2 hours", also weighed much with the learned Additional Sessions Judge in disbelieving the time of occurrence and then on this calculation holding the report having been delayed, as according to this the time of the episode would come to 5-30 p.m. The learned trial Court legally erred in this respect as it rather considered this opinion as more reliable than the positive assertion in the confidence inspiring dying-declaration. It is a salutary principle that expert's evidence cannot be given overriding effect upon oral evidence which comes from unimpeachable source and the evidence of an expert cannot be so effective so as to overthrow the deposition of a witness who has furnished eye account, which cannot be easily denied.
7. Masal Khan, P.W.9, in his statement stated, "the deceased then injured was in his full senses and could talk coherently the same was read over and explained to him which was thumb-marked by him in token of its correctness". The evidence of this witness has not been in any manner discredited or shaken in the cross-examination and except a few suggestions regarding the capacity of the deceased to speak, there is no other serious challenge in the cross-examination to the testimony of this witness in examination-in-chief so as to belie his statement. It is curious that the defence did not question the doctor regarding the mental status of the deceased to discern as to whether he could speak, which points to the fact that the defence did not doubt the ability of the deceased to make a statement. It is thus fully established that the deceased was in a position to make a statement at the time his dying declaration was recorded. Even if the presence of the relation at the time of making the dying declaration is proved, even then it would not reduce its evidentiary value. As has been observed earlier that there was no emit of the deceased with the accused and, therefore, there was no occasion for him to be prompted or for his relation to activate him. It is incomprehensible that the deceased would have spared the real culprit and instead would have involved the accused in such a heinous crime. It is not a rule of universal application that a dying declaration which lacks corroboration cannot at all be adopted for convictism. There is no legal bar to accept or rely upon a dying declaration of the nature which is made by a person, who or whose relations are not involved in any enmity with the accused and which otherwise appears truthful as such a dying declaration would not need any corroboration in order to act upon it. However, in the case in hand, the dying statement finds support from the excessive and unexplained abscondence of the accused for more than an year. The statement of the eye-witness P.W.7 Haji Akbar has also been discarded on flimsy and artificial grounds. The mere fact that he is uncle of the deceased would not be sufficient to disbelieve his evidence becuase on this score he cannot be declared as 'interested', in view of the fact that neither he nor his deceased nephew had any enmity with the accused. This is by now settled that the evidence of a witness cannot be rejected solely on the ground of his relation with the victim. The alleged conflict in between the statement of this witness and those of the Investigating Officers of the nature which has been made basis for acquittal are not that much material and significant to disbelieve his entire statement. Moreover, such contradictions in the statements of the witnesses do occur when they are examined after sufficient time, as in the instant case the statements were recorded in Court after more than 5 years. The learned trial Judge was, therefore, not justified to overthrow the statement of this witness on account of the alleged inconsequential contradictions.
This statement can also be used in corroboration of the dying-declaration.
8. The appeal is accordingly allowed, the judgment of the learned trial Court is set aside and the accused-respondent is convicted under section 302, P.P.C. And is sentenced to imprisonment for life with a fine of Rs,5,000 or in default thereof to undergo further one year R.I. The accused- respondent is also held responsible for payment of Rs,5,000 in terms of section 544-A, Cr.P.C. Or in default to six months' R.I. And this fine, if realised, shall be paid to the legal heirs of the deceased.
We avoided imposition of normal penalty of death, as prosecution has not been able to give any motive for the murder and it appears that something between the accused and the deceased had happened at the spot which led to this unfortunate incident. The benefit of section 382-B, Cr.P.C. Is also given to the accused-respondent.