' Aslam Masih alias Affi and Maqsood Masih alias Baggu were charged and tried by the learned Additional Sessions Judge, Faisalabad for the offence under section 302/34, P.P.C. For committing the murder of Younas Masih son of Barkat Masih petitioner and were acquitted of the charge by the learned trial Court vide judgment dated 22-3-1988 after giving them the benefit of doubt.
2. The Government did not file any appeal in this Court for the acquittal of the accused/respondents but Barkat Masih complainant of the case has filed a revision petition under section 435/439, Cr.P.C. Against the judgment, dated 22-3-1988 passed by the learned Additional Sessions Judge, Faisalabad challenging the acquittal of both the accused-respondents with a prayer to remand this case to the trial Court for fresh trial.
3. Barkat Masih, complainant (P.W.8) lodged F.I.R. (Exh.P.C.) wherein he stated that on 1-7-1985 at about 6-45 p.m. He and his son Younas Masih were proceeding towards Mohallah Sharif Pura in order to fetch milk and when they reached near the ditch of Katchi Abadi, Aslam Masih armed with a Rambi and Maqsood Masih alias Baggu armed with a Chhuri came there. Aslam Masih gave Rambi blow to Younas Masih which hit him towards the right side of his abdomen and then Maqsood Masih alias Baggu gave a Chhuri blow which hit Younas Masih on his right flank. After that both the accused/respondents gave successive blows to Younas with Rambi and Chhuri on the different parts of his body. The occurrence according to Barkat Masih, was witnessed by Abdur Rehman, Muhammad Safdar and Pervez Masih P.Ws. Besides the complainant. After the occurrence both the accused ran away from the spot and the complainant took Younas Masih to the Civil Hospital and got him admitted there.
4. Regarding motive it was stated that Younas Masih deceased was having illicit relations with Mst.
Shad and on account of that suspicion both the accused/respondents in furtherance of their common intention had launched a murderous assault on Younas Masih. Initially the F.I.R. Was registered under section 307/34, P.F.C. And when Younas Masih died in the Hospital section 302, P.P.C. Was substituted.
5. The defence plea raised by both the accused was that they were involved in this case due to enmity with the deceased and his father and they took up the plea of denial simpliciter.
6. Mr. T.S. Gill, Advocate, appearing on behalf of the petitioner contended that. The sole statement of Barkat Masih, complainant/petitioner (P.W.8) is sufficient to record the conviction of the accused as the same is supported by the dying declaration of Younas Masih deceased Exh.P.K. Which had been attested by Dr. Tajammal Hussain Cheema on 2-7-1985. It was argued that there is no reason as to why he should have falsely implicated them in this case when he had no enmity with them and why he was to substitute the accused persons in place of real culprits. It was also argued that the F.I.R. In this case was lodged with promptitude and there was no room left for consultation and concoction. It was submitted that the Court must have waited for the return of doctor who had attested the dying declaration and his non-examination by the learned trial Court has caused the miscarriage of justice. It was contended that Muhammad Sadiq A.S.I. (P.W.12) has fully, supported the case of the prosecution on the point of dying declaration and in the absence of the doctor the reliance should have been placed on his statement. It being a day time occurrence, it was asserted that there was no question of any mistaken identity of the culprits. It was lastly argued that there was neither any suggestion on behalf of the accused/respondents of the existence of any illwill, spite or hostility of the P.Ws. Against the accused nor there was any reason for the police officer to create false dying declaration involving the accused. It was also added that Muhammad Tauqeer Hayat, D.S.P. (P.W.11) had made the recoveries of Rambi (Exh.P.3) and Chhuri (Exh.P.4) at the hands of the accused which furnished corroboration to the ocular account furnished by the eye- witnesses. It was stated that the motive in the case had fully been proved which tends to satisfy the mind of the Court that the murder was committed by the accused/respondents in furtherance of their common intention.
7. Conversely it was argued on behalf of the accused/respondents that it was a case of no evidence when all the eye-witnesses except Barkat Masih complainant did not support the case of the prosecution and they have either been given up or resiled from their statements. Regarding Barkat Masih, it was argued that he made dishonest improvements in his statement while appearing before the trial Court. Many discrepancies, contradictions and improvements were highlighted by the learned counsel appearing on behalf of the respondents. In the statement of P.W.8 it was specifically argued that the petitioner while appearing in the trial Court absolutely changed the motive which he had set up in the F.I.R. So the conviction cannot be passed on the basis of the sole statement of this interested witness. Regarding the dying declaration (Exh.P.K.) it was submitted that so many opportunities were given to the prosecution to produce the doctor who had attested the statement of the deceased but he was not produced, so the opinion of Dr. Tajammal Hussain Cheema or his attestation of the dying declaration was not proved. It was also argued that P.W.12 Muhammad Sadiq A.S.I. Has admitted during his cross-examination that Exh.P.K.
Was neither signed by him nor it was dated; he also admitted that the doctor had asked him to record the statement of the patient, to put the questions to Younas Masih and the answers were being dictated to him by the doctor. Anyhow he admitted that he had actually recorded the statement of the deceased under the dictation of the doctor. So in view of these circumstances the so-called dying declaration cannot be relied upon having not been recorded in accordance with law.
8. The learned counsel for accused/respondents also highlighted many infirmities of the prosecution case and also the fatal discrepancies in the statement of Muhammad Sadiq, A.S.I.
Regarding recoveries it was argued that the provisions contained in section 103, Cr.P.C. Were violated and not even a single respectable of the locality was made to join the recovery proceedings when the Mohallandars were present there. It was claimed that it was an unwitnessed occurrence and the respondents were named in the case after due consideration. Regarding motive it was pointed out that the motive set up in the F.I.R. Was absolutely changed by Barkat Masih (P.W.8) while appearing in the Court. So in such a situation when the earlier motive has not been established so the prosecution must suffer for the same.
9. I have given my earnest consideration to the arguments advanced by all the sides and have also gone through the total evidence with the able assistance of the learned counsel for the petitioner. I find that the prosecution in this case examined only two eye-witnesses. One is Barkat Masih, the complainant, and the father of the deceased but he has tried to effect dishonest improvements in his statement which make him a doubtful witness; while P.W.9 Muhammad Safdar resiled and he was cross-examined by the D.DA. In order to prove the single statement of Barkat Masih strong corroboration was required because his statement was discrepant and could not have been accepted as a whole truth. In the FIR. He had given an absolute different motive while in his statement as P.W.8 he changed the motive. In the F.I.R. He nominated Abdur Rehman as one of the eye-witnesses but when he appeared as P.W.8 he did not mention his name. There are also many other discrepancies regarding taking of Younas Masih to the Hospital and other facts which make his statement not worthy of belief.
10. The main stress was laid by the learned counsel for the petitioner for the acceptance of dying declaration Exh.P.K. Of the deceased which was made by him when he was expecting the death and was attested by the doctor. I have given my anxious consideration to this part of the prosecution case and find that there is no evidence on record to the effect that the deceased was in senses when the statement Exh.P.K. Was recorded by A.S.I. Muhammad Sadiq. A.S.I. (P.W.12) has specifically stated that it was not Younas Masih deceased who made the statement before him rather it was Doctor Tajammal Hussain Cheema who dictated the statement to the A.S.I. I also find that Exh.P.K. Is just a faithful reproduction of F.I.R. And therefore, in view of the judgment reported as Liaquat Hussain and others v. Abdul Majid and others 1986 SCMR 1906 it was not of unimpeachable quality to be relied upon in a case of capital charge. Moreover the doctor who had attested this dying declaration has not been examined as a P.W. For the reason that the prosecution was unable to trace him and even his name was not traced out when number of opportunities were granted by the learned trial Court for this purpose. If for the sake of arguments it may be presumed that the deceased had made any such dying declaration the same alone cannot be made basis of conviction when all the eye-witnesses have resiled except the complainant.
11. So far as the medical evidence is concerned that can serve as a corroborative piece of evidence, if the ocular account fully supports the case of prosecution. In this case when not even a single eye-witness named in the F.I.R. Has come forward to support the petitioner, so the medical evidence cannot be considered of any benefit to the complainant. At the hands of respondents the recovery of Rambi (Exh.P.3) and Chhuri (Exh.P.4) which are the weapons of offence in this case is also doubtful. The recovery witnesses and the police officer are not reconciling with each other on the point of time of recoveries. Even otherwise there are many inconsistencies and infirmities in the prosecution evidence which cannot be gone into while deciding the revision petition. Lastly while dealing with the arguments that why the complainant was to falsely implicate the accused persons for that it is suffice to say that the prosecution has to stand on its own legs and the prosecution has to prove positively that it was the accused who committed the offence.
12. Resultantly I hold that no exception can be taken to the acquittal recorded by the learned trial Court against the accused/respondents and I hold accordingly. In the circumstances no case has been made out to set aside the judgment dated 22-3-1988 and to remand the same for fresh trial.
The revision petition filed by the petitioner against the accused/respondents is, therefore, dismissed.