' QAZI MUHAMMAD FAROOQ, J.--- This criminal appeal arises from the judgment, dated 15-2-1994 of the learned Additional Sessions Judge Charsadda whereby the appellant Muhammad Rafiq, aged about 28 years, having been found guilty of committing the murder of one Muhammad Jan was convicted under section 302, P.P.C. And sentenced to imprisonment for life with benefit under section 382-B, Cr.P.C. And a fine of Rs,10,000 or two years' further S.I. In default of payment of fine.
Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation within the import of section 544-A, Cr.P.C.
2. Muhammad Jan was a resident of Kandi Tariq Abad Village Utmanzai and the occurrence had taken place on 1-9-1976 at about 9 p.m. Near the village mosque. After the occurrence the deceased was taken in injured condition by his sons Sahib Jan and Muhammad Rafiq and one Javed Khan, in the latter's car, to Civil Hospital Charsadda and from there to the Casualty Ward of the Lady Reading Hospital, Peshawar where at about 10 p.m. His dying declaration was recorded by Dr. Mir Haider and subsequently his second dying declaration was recorded in the shape of a Mursila by Tehrizuddin, A.S.I. In presence of Dr. Mir Haider who had also signed it. The second dying declaration was despatched to Police Station, Charsadda on the basis of which a formal F.I.R. Was drawn up under section 307, P.P.C. And the section of law was altered to 302, P.P.C. When the deceased expired in the Hospital. The appellant had made himself scarce after the occurrence. He was declared a proclaimed offender and was arrested from Village Sher Garh, Mardan on 19-4- 1991.
3. According to the dying declaration of the deceased the genesis of the incident was an altercation between the appellant and the deceased which had taken place in the village mosque over timings of "Taraveeh" prayers. It discloses that on the fateful night the deceased had gone to the village mosque alongwith his sons Sahib Jan and Muhammad Rafiq for offering "Taraveeh" prayers. The appellant, who is son of a "Paish Imam", declared that "Taraveeh" prayers shall be offered at 8 p.m. While the deceased took the stance that it should be offered at 8-15 p.m. On which they altercated with each other and exchanged abuses. The appellant forthwith left for his house and fetched a .32 bore pistol from which he fired 4/5 shots at the deceased as a result of which he sustained injuries on the left side of his belly, left arm and palm of the right hand.
4. The deceased had expired in the Lady Reading Hospital on 2-9-1976 at 8-30 p.m. And autopsy on his dead body was performed by Dr. Mir Haider (P.W.2) who found the following:- ' External examination:
(1) A circular wound of entrance on left side of lower portion of chest. (near abdomen) 1/4" x 1/4".
(2) A circular wound of entrance on right upper arm 1/4" x 1/4".
(3) A circular wound of entrance on left palm 1/4" x 1/4". Internal examination: Thorax. Left of chest lower portion injured.
' Abdomen. Walls, peritonium injured. Stomach empty and healthy. Small intestine perforated at 10 places and found stitched after operation. Large intestine perforated by fire-arm injury at seven places found stitched during operation.
' In his opinion the deceased had died due to fire-arm injury, to abdomen which had caused entera abdominal haemorrhage and shock. Time between injury and death was about 24 hours and between death and post-mortem about 12 hours.
5. To prove its case, the prosectition examined as many as 11 witnesses including Dr. Mir Haider and Tehrizuddin, A.S.I. (P.W.11). Of the remaining witnesses while Muhammad Rafiq (P.W.5) and Sahib Jan (P.W.6) furnished ocular evidence and Maulana Muhammad Saeed (P.W.8), Paish Imam of the mosque, deposed that on the eventful night an altercation had taken place between the appellant and Muhammad Rafiq (P.W.5) over the timings of Taraveeh prayers and the appellant had left the mosque without offering prayers, Jalil-ur-Rehman S.H.O. Police Station, Charsadda (P.W.1), who had submitted supplementary challan against the appellant, Bahader Sher (P.W.2), who signed the recovery memo. In regard to the garments of the deceased received from the hospital as a marginal witness, Muhammad Islam A.S.I. (P.W.3), who had arranged transfer of the appellant from Mardan to Charsadda, Shakirullah, A.S.I. (P.W.4), who was entrusted with warrant of arrest of the appellant under section 204, Cr.P.C. And proclamations under section 87, Cr.P.C. Muhammad Iqbal S.H.O. (P.W.7), who had arrested the appellant at Sher Garh, Mardan, Ahmad Bakhsh, Inspector (P.W.9), who had conducted the investigation partly gave evidence of formal nature. The statement of the Investigating Officer, namely, Mir Dad Khan recorded during the proceedings under section 512, Cr.P.C. Was transferred to the file of the case on account of his death.
6. The appellant when examined at the trial denied the allegations levelled against him by the prosecution and professed innocence.
7. Assailing the prosecution case the learned counsel for the appellant argued that it was an unwitnessed occurrence, the identification of the assailant was not possible as the occurrence had taken place at 9 p.m., both the dying declarations attributed to the deceased were fabricated and worthless in that the one recorded by Dr. Mir Haider was not only laconic but was also not attested by any member of the paramedical staff or supported by a fitness certificate and the other recorded by Tehrizuddin, A.S.I. Had made improvements on the first one without making any reference to it and besides both were recorded in presence of the two sons of the deceased who had taken him to the hospital, the ocular evidence furnished by the sons of the deceased was fraught with discrepancies, contradictions, improvements and was also incompatible with the dying declaration, the incident had not occurred at the place or in the manner described by the so-called eye-witnesses as no blood was recovered from the spot and the presence of the deceased in the mosque did not find mention in the statement of Maulana Muhammad Saeed and the motive alluded to in the dying declaration of the deceased was false as according to Maulana Muhammad Saeed altercation over timings of Taraveeh prayers had taken place between the appellant and the deceased's son Muhammad Raifq.
8. On the other hand the learned counsel appearing for the State contended that the accusation against the appellant was fully supported by the dying declaration of the deceased to which sanctity was attached, the ocular evidence which did not suffer from any infirmity and his long abscondence for which no plausible explanation had been furnished. It was further contended that substitution of the real culprit is a rare phenomenon when a single accused is nominated as the murderer by a close relative of the deceased.
9. After giving the arguments addressed at the bar our careful and anxious consideration and scanning the record thoroughly we have come to the conclusion that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt and as such he is entitled to the benefit of doubt.
10. It is true that sanctity is attached to a dying declaration because a dying man is not expected to tell lies but being a weak kind of evidence it requires close scrutiny and corroboration. Some of the well-known tests for determining the genuineness of a dying declaration are as to whether it rings true, whether the dying man was capable of making it, whether it is free from outside prompting and is not inconsistent with other evidence and facts and circumstances of the case and whether there is no chance of mistake by the dying man in identifying or naming his assailant. The deceased had allegedly made two dying declarations but none of them satisfies the requisite conditions. The first dying declaration, Exh.P.Q., which was recorded by Dr. Mir Haider is incomplete inasmuch as it does not disclose the venue of occurrence and the weapon of crime. It is also not attested by any witness or supported by a fitness, certificate. Besides, it is not properly signed by its author. The second dying declaration Exh.PA,/1 which was recorded by Tehrizuddin, A.S.I. In the shape of a Murasila is not only altogether silent about the first dying declaration but is also touched up as it specifies the mosque as the venue of occurrence, .32 bore pistol as the weapon of crime and contains a distinct motive. Both the dying declarations are inconsistent with other evidence and facts and circumstances of the case because the occurrence had not taken place inside the mosque, the Paish Imam namely, Maulana Muhammad Saeed has not confirmed the presence of the deceased in the mosque and the altercation over timings of Taraveeh prayers or offering of Nafals lad taken place between the appellant and the deceased's son Muhammad Rafiq and not between the deceased and the appellant.. The absence of the fitness certificate and the admitted reluctance of the doctor concerned to treat the deceased in the Civil Hospital Charsadda go a long way to suggest that the condition of the deceased was precarious and he was not capable of making a dying declaration. Admittedly, both the dying declarations were recorded in presence of the sons of the deceased who had taken him in an injured condition to the Lady Reading Hospital, Peshawar, therefore, the possibility of outside prompting cannot be ruled out. The evidence available on record makes it manifest that the occurrence had taken place at 9 p.m. In a street having no electric or any other artificial light, therefore, the identification of the assailant was not possible and in any case the possibility of mistaken identity cannot be ruled out.
Another intriguing circumstance which reflects on the genuineness of the dying declaration is that the thumb-impression of the deceased on the first dying declaration is bigger in size than his thumb-impression on the second dying declaration. Last but not least the c dying declaration is not corroborated by any independent piece of evidence and in any event no corroborative evidence howsoever strong it may be can cure its patent and latent defects and infirmities.
11. Coming to the ocular evidence we find that both the eye-witnesses are not natural and probable witnesses and their testimony is remarkable only in improvements, discrepancies and contradictions. Both of them disowned the assertions made by them in their police statements and whatever one admitted the other denied. So much so that while Muhammad Rafiq denied having accompanied the deceased to the Civil Hospital Charsadda and Lady Reading Hospital, Sahib Khan admitted that he had accompanied them to Charsadda as well as Peshawar. None of them had cared to lodge a report about the incident although the spot of occurrence and Police Station, Charsadda are only three miles apart. We are convinced that had they witnessed the occurrence they would have definitely taken some step to set the machinery of law in motion against the appellant. Even if they were in the company of the deceased at the crucial time they were not in a position to identify the assailant as the occurrence had taken place at 9 p.m. In a street having no artificial light, they were walking ahead of the deceased and the assailant was behind the deceased. Their testimony is also incompatible with the dying declaration of the deceased because according to the dying declaration the occurrence was motivated by an altercation between the deceased and the appellant over timings of Taraveeh prayers but according to them the motive for the occurrence was that the appellant had objected to their offering Nafals before Taraveeh prayers. Besides, the occurrence had not taken place at the spot and in the manner indicated by them for the simple reason that no blood was recovered from the spot and neither the crime empties recovered from the spot were produced at the trial despite repeated orders of the trial Court nor any of the marginal witnesses of recovery memo. Exh.P.C. Was examined to prove the recovery. Both of them are closely related to the deceased, therefore, their testimony requires corroboration which is lacking. It is scarcely necessary to mention that abscondence of an accused cannot be treated as corroborative evidence unless the ocular evidence is strong enough to sustain conviction.
12. As regards the abscondence of the appellant it would be enough to say that it can neither cure the inherent defects of the dying declaration of the deceased and the ocular evidence nor can sustain conviction by itself. Same is the case with the dictum cited by the learned counsel appearing for the State in regard to single accused.
For the foregoing reasons this appeal is accepted, the conviction and sentences of the appellant are set aside and he is acquitted of the charge levelled against him, He be set at liberty forthwith if not required in any other case.