SHAFIUR RAHMAN, J.---Leave to appeal was granted against one of three accused convicted persons to examine whether the High Court had correctly acquitted him not considering the dying declaration and the ocular testimony creditworthy.
2. The prosecution case was that on 1-7-1979 at about 8-00 p.m. Falak Sher (deceased) was driving in the company of Saee Khan (P.W.8) and Bagga (P.W.9) a tractor to his village from Basirpur where they had gone to get a tyre puncture repaired. While on way back they saw in the light of the tractor in front of them the respondent Munawar armed with a .12 bore gun in the company of Falak Sher and Asghar acquitted accused, who were empty-handed and they raised a Lalkara that they would not forgive him for their disgrace. As soon as the tractor reached near them, Munawar fired with his gun causing the injuries as hereunder:-- "(1) A fire-arm wound 3 c.m. x 2 c.m. Rounded in shape on left side of back of abdomen and lower part of left chest about 8 c.m. Lateral to midline.
(2) Multiple scattered fire-arm wound each 1/4 c.m. x 1/4 c.m. Rounded in shape in and area 8 c.m. x 4 c.m. Above wound No,1. Total 28 in number.
(3) Multiple small scattered wound each 1/4 c.m. x 1/4 c.m. Rounded in shape about 22 in total in area 6 c.m. x 4 c.m. Lateral to and below wound No,1 on back of left abdomen.
(4) Multiple small scattered wound varying in size from 1/4 c.m. x 1/4 c.m. To 1/4 c.m. x 1/4 c.m. In an area of 8 c.m. x 6 c.m. In about 16 in total on the left lateral side of abdomen and lower chest.
Lateral to wounds Nos.2 and 3.
(5) A rounded wound 1/2 c.m. x 1/4 c.m on the left side of chest about 5 c.m. Above upper margin of No,4.
(6) Small bruises in an area of 12 c.m. x 4 c.m. On the left lateral side of chest and abdomen varying in size from 1/4 c.m. x 1/4 c.m.
(7) Small scattered wounds 1/4 c.m. x 1/4 c.m. Each, 7 in number in an area of 6 c.m. x 6 c.m. Of flexer aspect of elbow-joint and upper arm."
3. The motive given out for the occurrence was that a few years before the occurrence, the deceased had married the divorced wife of Falak Sher acquitted accused.
4. The injured Falak Sher was taken to the Police Post Basirpur at about 10-15 p.m. And a report was lodged. It was recorded by Mulazam Hussain (P.W.11). Two empties were recovered from the spot which were found to match with the gun recovered from the respondent.
5. The respondent Munawar denied having participated in the occurrence or to have caused the death of Falak Sher by firing at him. He denied recovery of the gun and made the following explanatory statement.-- "I have been involved in this case due to enmity with the complainant party. All the eye-witnesses are closely related inter se and are hostile to me and to my co-accused. The Investigating Officer Mulazam Hussain ASI joined hands with the complainant party and did not honestly investigate the case. All the eye-witnesses as well as the recovery witnesses arc closely related inter se and no independent witness had been cited or produced by the porsecution The gun has been planted on me after it was produced by the complainant party. As a matter of fact I appeared before the police on 2-7-1979 alongwith other co-accused. My co-accused were, however, sent to judicial lockup on 4-7-1979 but I was kept by the Investigating Officer at the Police Post Basirpur. The reason for keeping me at the Police Post was that the Investigating Officer Mulazam Hussain had asked the complainant party to bring a double-barrel gun so that it could be planted against me.
The complainant party had brought the gun on 13-7-1979. The Investigating Officer had fired two shots from that gun and had taken into possession that gun and the empties and had planted the recoveries falsely against me at the instance of the complainant party."
6. The trial Court believed the prosecution case in its entirety, rejected the defence version, convicted all the three accused under section 302/34, P.P.C. Munawar was sentenced to death, Falak Sher and Asghar were sentenced to life imprisonment. This was apart from fine and compensation ordered to be paid.
7. On appeal, and while seized of the confirmation of the death sentence, the High Court reappraised the entire evidence afresh and found the motive given .For the occurrence "very weak" and inconsistent with the immediately preceding conduct of the parties. The matching of the gun with the empties recovered from the spot was not believed. The evidence of recovery of the gun (Exh.P7) was found doubtful and the matching was doubted because the empty and gun were despatched together. Reliance for this was placed on Sher Bahadur and another v. The State (1972 SCM R 651) and Muhammad Shafi and another v. The State (PLD 1968 Lahore 869). The dying declaration was also not considered reliable for various reasons and the ocular evidence as also dying declaration was found to be inconsistent with the medical evidence. The Court concluded as hereunder:- "The deceased according to the prosecution case was brought to the Police Post Basirpur where he made statement at 10-40 p.m. He was produced before a doctor for medical examination and treatment at 11-30 a.m. On the next day at Hujra Shah Muqeem. If the deceased was at P.P. Basirpur at 10-40 p.m., the P.Ws. Who were relations of the deceased in spite of the help and assistance of the Police who were seized of the matter and before whom the deceased is stated to have appeared in injured condition, could not have afforded to keep the deceased without any medical aid for more than 13 hours: ' It finding the case against all the three accused not proved beyond reasonable doubt acquitted them. Leave to appeal was granted by this Court only against respondent, Munawar.
8. After hearing the learned counsel for the appellant (Khawaja Sultan Ahmad), the learned counsel for the accused/respondent (Mr. Aftab Farrukh) and the learned counsel for the State (Mr. Irshad Ahmad), we find that there are numerous reasons given for recording the acquittal of the respondent and some of them though not all, are substance and hold good. Independently of the motive attributed for the crime, the parties had serious litigation and are inimical. The witnesses were clearly interested. The actual occurrence is said to have taken place in a situation where the deceased was driving a tractor, had occasion to see ahead of him the three accused one of whom was armed with a .12 bore gun he had two companions on his tractor sitting with him on both sides on mudguard. In this situation, the witnesses have stated' that the deceased drove on the tractor uninterrupted and after he had passed the respondent/accused, he was fired at by the respondent from behind. The doctor was of the opinion that the shot was fired from a distance of one foot. Both these witnesses claimed that it was fired from a distance of ten to twelve feet. One of them at the trial came round to one foot. Intrinsically, this does not appear to be a sound statement because such waiting till the tractor has passed the accused, could not afford them any advantage but was clearly a disadvantage to them who had not only been identified but also could be dealt with effectively by the two persons on tractor during the time interval and in the darkness.
9. The dying declaration could certainly be accepted notwithstanding the fact that it was not made under apprehension of imminent death and without the certificate of doctor about the fitness of the maker thereof provided it is inspiring and was consistent with the attending circumstances. The doctor has stated that there must have followed profuse bleeding after the injuries received by the deceased. He was able to reach the Police Post two hours after the occurrence though it was at a distance of a mile from the spot and a tractor was available for taking him there. If the eye- witnesses were present at the time of occurrence, the normal course would have been to get the F.I.R. Registered on the report of one of the eye-witnesses rather than the injured person himself who had such serious injuries and was in great agony. He may have survived for a few days after these injuries but his capacity to make a coherent intelligible statement is doubtful. This conclusion is reinforced by the fact that in spite of the injured being available till 5-7-1979 when he died no attempt was made to get a formal dying declaration recorded by a magistrate.
10. The appearance of the accused/respondent of his own armed with a gun at the Police Post on 13-7-1979 when all his associates had appeared much earlier would also appear to be implausible and remains unsupported by any independent evidence, At the trial it was stated that one Muhammad Hassan Watoo produced him but the recovery memo. Exh.PJ does not mention the fact.
11. We find that the acquittal of the respondent by giving him benefit of doubt is not open to interference on the material on record and is quite consistent with the safe administration of criminal justice. Hence., the appeal is dismissed and the respondent discharged Of his bail bond.