' SYED IBNE ALI, J.--- Accused Qadeem Khan was tried under section 302, P.P.C. By the learned Additional Sessions Judge, Nowshera for the murder of Jamshed Khan by firing at him. He was found guilty of the offence and on conviction sentenced him to death and a fine of Rs,20,000 or in default, R.I. For three years. The fine, on realising, was ordered to be paid to the heirs of the deceased vide judgment, dated 30-6-1991.
2. The convict feels aggrieved, therefore, he has filed this appeal questioning the legality of his conviction and sentence.
3. Briefly, the prosecution case is that while in injured condition, the deceased had made dying declaration charging the accused for his injuries by firing at him. The report was allegedly recorded by A.S.I. Saida Mir Khan (P.W.7) in form of "Murasila" (Exh.PA./1) at 8-00 a.m. On 7-9-1988 in the hospital. The report is in vernacular and its English translation is as under:-- "I am running a shop for selling ice, in the Muslim Bazar. At the time of occurrence, I was present in my shop. Meanwhile, Qadeem son of Shamroz resident of Mohallah Zaman Khel, came armed with "Topak" and fired at me with intention to kill me. With fire, I was injured below the navel. After the occurrence, the accused decamped. Farmanullah and Muhammad Nabi were present on the spot, who witnessed the occurrence. Motive for the offence is that some while before the occurrence there was altercation between my cousin Jamil and the accused."
' The A.S.I. Thereafter sent the "Murasila" to the police station for registration of the case, where Mir Asghar Khan, A.S.I. Registered the F.I.R. (Exh.PA.) against the accused. P.W. Said Amir Khan, A.S.I.
Thereafter prepared the injury sheet of the complainant (Exh.PA./2) and referred the patient to Dr. Sabz Ali (P.W.4) for treatment, who examined him and found the following injuries on his person:--
(1) The patient was in a shock state but conscious, responding to vocal command.
(2) A fire-arm entry wound with size 2-1/2" x 2-1/2" with intestine lying outside the wounds with hypogestrium. ' treatments were provided, referred to L.R.H. Peshawar. The report is Exh.P.M."
' The deceased expired on the way to L.R.H. Peshawar. The dead body was then brought back to Civil Hospital, Nowshera for post-mortem examination:
4. S.I. Muhabat Khan (P.W.8) investigated the case. He prepared injury sheet and inquest report of the deceased. He prepared site plan (Exh.P.B.). He recovered blood-stained earth from the spot; vide recovery memo. Exh.P.F. He also took into possession blood-stained clothes of the deceased and one phial containing five pellets, vide recovery memo. Exh.P.G. He further took into possession a bulb from the shop .Of Muhammad Nabi and another bulb from the shop of Abdul Qayyum. He also recorded the statements of witnesses. Dr. Muhammad Afzal (P.W.2) conducted autopsy on the dead body and found the following injuries:- External examination:
(1) A large inlet fire-arm wound at the lower in front part of abdomen just above the pubic symphsis and a size was 1" x 1".
(2) A large fire-arm outlet wound at the level of the last large lumber vertebrae and its size was 1/2" x 1/2" in area.
' Note: A metallic piece of pellet recovered from the outlet fire-arm wound. Internal examination: ' Abdomen wall injured alongwith peritoneum. Stomach was normal with semi-digested food.
Small and large intestines were found injured. Bladder was also injured."
5. Death in the opinion of the doctor was caused due to extensive damage to the lower abdominal viscera and blood vessels as well as haemorrhage and shock caused by fire-arm injuries. Probable time between injury and death was given 3/4 to 1 hour and time between death and postmortem from nine to ten hours.
6. In support of its case, the prosecution relied upon the dying declaration allegedly made by the deceased and ocular account of Farmanullah (P.W.5) and Muhammad Nabi (P:W.6). It also relied upon the medical evidence as well as on the alleged motive for the offence.
7. The accused denied the charge against him saying that he was innocently involved in the case.
He denied that he had lodged a report against Jamil and others for ineffectively firing at him. When asked as to why the witnesses have deposed against him, he stated:-- "P.Ws. Farmanullah is the first cousin of the deceased while ' Muhammad Nabi is his uncle. They have falsely deposed against me on account of their close relation and also the village rivalry."
' He produced no evidence in defence and also declined to be examined on oath.
8. We have heard the learned counsel for the accused and the learned State Counsel and gone through the record. We fmd the prosecution case bristling with serious contradictions and discrepancies in material particulars, therefore, the conviction awarded to the accused by the learned trial Judge cannot be sustained and is liable to be set aside.
9. A.S.I. Said Amir Khan (P.W.7) has recorded the "Murasila" (Exh.PA./1). He stated that he was present in the police station. He learnt that some injured person was brought to the Civil Hospital, Nowshera. He went there and found the deceased in injured condition in the emergency ward. The deceased reported the occurrence to him at 8-00 a.m. Which he recorded in the form of "Murasila"
(Exh.PA./1). He added that the deceased was in full senses at the time of making report.
10. Dr. Sabz Ali (P.W.4) examined the deceased in injured condition at 7-54 p.m. In the hospital. He stated in unequivocal terms that the patient (deceased) was very much in serious condition when he was brought to the hospital. The doctor further stated that:-- "As the condition of the patient was very much serious, therefore, after all the emergency treatments were provided, referred to L.R.H. Peshawar."
11. In view of this statement of the doctor, there can be no cavil with the proposition that the moment the deceased was brought in injured condition to the hospital, the doctor at once attended to his examination and treatment and this feature contradicts the statement of A.S.I.Said Amir Khan (P.W.7) that:-- "I first recorded the report of the complainant, now deceased and then prepared the injury sheet and entrusted him to the doctor for medical check-up. I started recording the report at 20-00 hours (8 p.m.) and it took me about one hour to record the report including the preparation of the injury sheet."
12. The statement of Said Amir Khan A.S.I. That he started recording report of the deceased at 8-00 p.m. And the report took half an hour i,e. Until 8-30 p.m. Is also contradicted by Dr. Muhammad Afzal Khan (P.W.2) who performed autopsy on the dead body of the deceased as well as by the "Murasila" at page 26 of the paper book recorded by S.I. At Police Post, Nowshera. According to the doctor, the death of the deceased would be at about 8-15 p.m. In the "Murasila" it is also noted that the deceased died at 8-15 p.m. Now as the deceased died at 8-15 p.m. There can be no truth in the statement of the A.S.I. That the report of the deceased lasted until 8-30 p.m. When he, according to the doctor and "Murasila", was already dead.
13. The doctor has even stated in his presence the A.S.I. Has never recorded the report of the deceased. This also belies the A.S.I. That: "I first recorded the report of the complainant/now deceased and then prepared the injury sheet and entrusted him to the doctor for medical check- up". Further there is nothing on the record to show that when the deceased was brought to the hospital in injured condition, the doctor was not available at that time. There is no such suggestion in this behalf. On the other hand, the doctor shows his presence at that juncture in the hospital. He says that he was present in the hospital when the deceased was brought to the hospital in injured condition. As according to the doctor, the deceased was in "very much serious condition", it was but natural for him to attend to his examination without any loss of time. It may be observed that in criminal cases, while the Police Officer is recording the report of an injured person in the hospital, usually he first secures a certificate from the doctor that the injured is in proper senses and can talk coherently. In the present case it is conceded that the A.S.I. Has not secured any such certificate. In cross-examination the doctor stated that by using expression "vocal command" in his medico-legal report, he meant that such command would also mean response by gesture to any vocal inquiry from the injured person. Similar suggestion made to the doctor in the cross- examination will not enure to the prosecution in any case; firstly the doctor has not pointedly stated that the deceased was in proper senses when he was brought to the hospital and; secondly as the A.S.I. Has never recorded the report of the deceased in his presence. The suggestion made to the doctor would in no way advance the prosecution case. Thus, from whatever angle the statement of A.S.I. Said Amir Khan is looked at, it gives a lie at every step and stage. Therefore, the statement of A.S.I. Is nothing but a concoction. It is, therefore, clear to us that A.S.I. Said Amir Khan (P.W.7) has never recorded the dying declaration of the deceased in the form of "Murasila"
(Exh.PA./1) at the hospital.
14. Having excluded the so-called dying declaration allegedly made by the deceased from consideration, we now proceed to examine the ocular account furnished by Farmanullah (P.W.5) and Muhammad Nabi (P.W.6). P.W. Farmanullah stated that the occurrence took place at 6-30 p.m.
While according to P.W. Muhammad Nabi at 6-45 p.m. But they are contradicted by the F.I.R. As well as by the medical evidence. In the F.I.R. The time of occurrence is shown 7-30 p.m. Dr. Muhammad Afzal Khan (P.W.2) who performed postmortem examination on the dead body of the deceased stated that the time between injury and death would be about 45 minutes. This means that in view of the statements of the two eye-witnesses the deceased died sometime at 7-15 or 7-30 p.m. But this is not correct with reference to the evidence of Dr. Sabz Ali (P.W.4), who stated that he examined the deceased for his injuries at 7-54 p.m. In view of the statements of the two eye- witnesses, the deceased at 7-15/7-30 p.m. Would be dead. But according to the doctor, he had not yet expired, as he had examined him in injured condition at 7-54 p.m. It is thus clear that the occurrence had not taken place at 6-30 p.m., as stated by the eyewitnesses. They are also not supported by the F.I.R. In which the time of occurrence is recorded as 7-30 p.m. In their statements under sections 161 and 164, Cr.P.C. The two witnesses further stated that the deceased died on the way to the hospital. They have not stated that the deceased was first taken in injured condition to the Civil Hospital, Nowshera and thereafter while taking him to the Lady Reading Hospital, Peshawar, he succumbed to his injuries on the way. This would show that their statements were just a hearsay or their guess, they had not witnessed the occurrence and learnt about the occurrence after some lapse of time.
Further, in their said statements they exclude the presence of one another on the spot at the time of occurrence. Moreover, at the trial, P.W. Farmanullah stated that the police examined him on the spot after post-mortem examination of the deceased. P.W. Muhammad Nabi contradicts him on this point. He says that both were examined by the police in the hospital. P.W. Farmanullah further stated that one Shan All was deputed to inform the police about the occurrence. P.W. Muhammad Nabi says that the police met them in the way, while they were taking the deceased in injured condition to the hospital. The "Thanedar", he added, advised them to take him to the hospital instead of police station. The "Thanedar" has not made such statement to support them.
15. Thus, the evidence of the eye-witnesses, discussed above, is replete with contradictions and discrepancies and on crucial features of the case, they have spoken differently which adversely recoils on the prosecution case. The two witnesses are, therefore, not trustworthy, and so it will not be safe to rely upon their testimony. It may be pointed out that according to the record, the two witnesses are closely related to the deceased. No independent witness has come forward to support the prosecution case. The occurrence had taken place in the busy bazar. In the absence of independent witness, an adverse inference can be drawn that the prosecution had no way out but to procure and introduce the two witnesses but as their evidence is not credible to warrant conviction, we have no option but to reject it.
15-A. Now once the prosecution fails to produce ocular and circumstantial evidence of reliable character, the motive itself would lose its evidentiary value. In the present case, even the motive attributed to the accused is not such as to assume significance. Per F.I.R., some while before the occurrence, there was allegedly altercation between. The accused and Jamil, cousin of the deceased. At the trial, the case of the prosecution was that on the day of occurrence, the accused had charged Jamil for ineffective firing at him. The report of this occurrence was, however, not brought on record. The learned trial Court was not legally justified to go into this asptct of the case, unless he had full picture before him in the shape of record of that case. Even if it is granted that there was a quarrel between Jamil and the accused, yet this is not the prosecution case that the deceased had played any role in the quarrel on the side of Jamil which agitated the accused against him. Thus, there is nothing to show as to what prompted the accused to take the life of the deceased when the quarrel was between Jamil and the accused and the deceased had not participated in the quarrel. Further Jamil was not produced to tell as to how the accused spared him and made the deceased target.
16. For the reasons stated above, this appeal succeeds, consequently, we set aside the conviction and sentence awarded by the learned trial Court to the accused and acquit him. He shall be released forthwith if not required in any other case.
17. The death sentence is not confirmed.