SARDAR MUHAMMAD RAZA KHAN, J.---Firdaus Khan son of Dilawar Khan, 25/26 of Mira Khel Charsadda, on 18-7-1980 at 15-15 hours was standing on thoroughfare in front of the shop of Ubaidullah in the village when Nasrullah son of Muhammadullah came out from his house armed with a rifle. The moment he saw Firdaus Khan, he fired a shot with which Firdaus Khan got hit on the back and fell injured. Jan Parvez and Alif Khan, his co-villagers, were present on the spot who witnessed the occurrence. The motive is stated to be some dispute over a wall that had taken place about eight days prior thereto.
2. The above disclosures were made by the injured Firdaus Khan himself at Police Station Parang before Abdul Sattar Khan A.S.I. Who got his signatures on the F.I.R., Exh.PA, prepared his injury sheet, Exh.PC, and sent the injured to Civil Hospital, Charsadda from where he was immediately referred to Lady Reading Hospital, Peshawar, the condition of the injured being serious. On 23-7-1980 the injured succumbed to his injuries and thus the offence was changed from section 307, P.P.C. To that of murder under section 302, P.P.C.
3. The accused went into abscondence and it was about 7-1/2 years thereafter, on 7-12-1987 that he got arrested under section 13, Arms Ordinance but again absconded after when got released on bail. It was lastly on 21-9-1990 that he had been apprehended again and thus was regularly tried and subsequently sentenced to death by the learned Sessions Judge, Charsadda who also fined him Rs.20,000 out of which half was to be paid to the legal heirs of the deceased and in default of payment whereof he was to undergo R.I. For three years. Nasrullah Khan convict has preferred this appeal against such conviction dated 14-9-1992. There is a Murder Reference No.15 of 1992 made under section 374, Cr.P.C. And a Criminal Revision No.121 of 1992 filed by the complainant party for the enhancement of fine/compensation. All have been heard together.
4. Before we advert to the merits of the case, it may be pointed out that the sentence of fine of Rs.20,000 is quite illegal the manner in which it is described. Fine is a punishment which is awarded under section 302 of the Pakistan Penal Code in default of payment of which any sentence can be passed subject to the restrictions laid down in section 65 of P.P.C., whereas, a compensation is altogether a different thing awarded under section 544-A, Cr.P.C. In default of payment of which the imprisonment cannot exceed a period of six months with the exception of course, that such amount remains otherwise recoverable as arrears of land revenue. The sentence of fine-cum- compensation awarded by the learned Sessions Judge is, therefore, illegal.
5. Turning to the merits of the case, there were two eye-witnesses in the case whose statements under section 161, Cr.P.C. Were recorded on the same day, i.e. 18-7-1980. They were examined by a - Magistrate under section 164, Cr.P.C. Two days later, i.e. On 20-7-1980. As the accused had been absconding, therefore, both these witnesses were also examined before the Additional Sessions Judge, Charsadda on 15-2-1981 under section 512, Cr.P.C. It so occurred that these witnesses supported the prosecution in their first two statements under sections 161 and 164, Cr.P.C. But changed the version before Additional Sessions Judge during evidence under section 512, Cr.P.C.
The first two statements in brief were to the effect that the assailant came to the scene of occurrence and straightaway fired with which the injured got hit, while, in their statements under section 512, Cr.P.C. They deposed to before the Court that the assailant came to the scene of occurrence in front of the shop of Ubaidullah where the ice was being distributed. Some altercation took place between the two whereupon the deceased Firdaus Khan drew out a pistol. He was about to fire at Nasrullah appellant when the latter took the lead and fired a shot before time. As this version gave a clear right of self-defence to the accused, therefore, the witnesses were considered to have been won-over and were abandoned at the trial. The trial Court was thus left with the,-only version given by the deceased Firdaus Khan in the F.I.R., Exh.PA. The same was considered as a dying declaration and also considered true and hence the conviction was based on the solitary version of the deceased taken to be a dying declaration. The learned trial Court also seemed to be impressed by the following words used in Zarif v. The state PLD 1982 Pesh. 148 that gave sanctity to the dying decleraction:- "It must be remembered that when words are scarce they are hardly spent in vain and they usually speak the truth who breath their words in pain."
Almost all the materials on record were considered by the learned trial Court to be the supporting circumstances in favour of the dying declaration and the version of the prosecution that the two eye-witnesses, namely, Jan Parvez and Alif Khan had been won-over, was taken for granted as gospel truth. In these circumstances, we are left with two matters to be settled. First, if the dying declaration is true and if the eye-witnesses had really been won-over so as to justify their abandonment.
6. About three doctors have appeared in the instant case, therefore, each, with reference to the relevant time, carries his own importance. Doctor Fayyaz Naeem has stated in the cross- examination that in view of the injuries mentioned in the post-mortem report of the deceased, the patient could have gone into shock at once. This is quite believable as well because the pancreas of the deceased was damaged, the spleen was so much damaged that spleenectomy had to be performed and it had to be removed. The right kidney was also absent. In these circumstances and after having travelled for one and a half mile from the spot of occurrence to the police station, it does not appeal to reason that the injured would not have gone into shock both, because of severe pain and profuse bleeding. This has raised a suspicion in our minds that the dying declaration might not have been prompted one. The suspicion is further increased when we see that the injured was already in shock when he reached the doctor at Lady Reading Hospital. His condition was serious and resuscitative measures were taken. He was so serious that Doctor A.I Gohar Khan could not have the time to prepare any medico-legal report, that he deemed it unwise to waste the time. Anyhow when the patient reached Peshawar his wounds were found dressed or already at Charsadda. This reveals that so long as Doctor A.I Gohar Khan, dressed up the wounds, he was with the patient not as a lay-man but as a Doctor. Still it is unbelievable to accept from his mouth that he did not remember whether the patient was in shock or not. This is the only thing which he omits to remember because this is most important for both the prosecution as well as the accused. Whatever doubt is arising in this behalf, the benefit thereof must go to the accused.
7. We have observed another document on file in the shape of injury sheet, Exh.P.C., which is prepared by Abdul Sattar Khan, A.S.I. Parang who had recorded the report of Firdaus Khan. It appears that the condition of the deceased was so precarious even before that A.S.I. That he had no time even to properly have a look at the injuries. The visible injuries on his person were two wounds at the back, one entrance and the other exit distinctly visible but in the injury sheet only one wound is shown and that too at the abdomen. This clearly indicates that even the A.S.I. Had no time to resort to formalities and he observed the wounds simply from the blood on the clothes or from the general statement that only one shot was fired on the spot.
8. All these were the circumstances under which it became an intriguing question to solve as to why the two independent eye-witnesses allegedly mentioned by the deceased in the very F.I.R. Had been abandoned. Were they really won-over or if their expected version was suspected of doing some mischief to the line adopted by the prosecution. We, therefore, thought it to be in the interest of justice to summon both Jan Parvez and Alif Khan as Court witnesses. When examined in Court they followed their earlier statement before Additional Sessions Judge, Charsadda and clearly gave a right of self 'defence to the appellant. Now the question is as to whether the statement under section 164, Cr.P.C. Of the witnesses can be preferred over that recorded before the Court under section 512, Cr.P.C. This can be straightaway answered in the negative. .
The statements under section 164, Cr.P.C. Are almost the copy of those recorded under section 161, Cr.P.C. While those under section 512, Cr.P.C. Were of course recorded in the open Court. Quite interesting it is to note that almost identical statements of two witnesses had come on record but the Public Prosecutor who was present in Court had cross-examined Alif Khan with permission of the Court but had omitted to cross-examine Jan Parvez. In Nisar Muhammad v. Khan Zali PLD 1959 Pesh. 115, it was observed that a statement under section 164, Cr.P.C. Is no evidence against the accused. Yaroo alias Yar Muhammad v. The State 1969 PCr.LJ 1580 was a case where it was reiterated that the appraisal of evidence of a witness making concessions before the Sessions Court cannot be made in context of their statements recorded under section 164, Cr.P.C. The use of statement under section 164, Cr.P.C. Was disallowed against the accused. Haliman and Mahabir were witnesses examined under section 164, Cr.P.C. In case of Brig. Bhushan Singh v. Emperor AIR 1946 PC 38, whose statements were relied upon but it was depreciated by the Privy Council calling it to be an improper use of such statement. No doubt a statement under section 164, Cr.P.C. Can be used for cross-examining the witness who made it and a result can be achieved accordingly but the mere recording thereof does not establish that whatever the witness stated was true.
9. The law regarding the sanctity attached to a dying declaration has undergone a considerable change. Once it used to be considered that a person who is about to meet his Lord, cannot be expected to tell lie. Precious were and gone are the good old days when the words if scare were hardly spent in vain and they usually spoke the truth who breathed their words in pain. The time has changed, the values have changed and the morals have gone to such degeneration that the Courts are bound to observe in a different manner. Far back in Tawab Khan and another v. The State PLD 1970 SC 13 it was observed that the dying declarations do have sanctity but no rigid rule can be laid down that the person under immediate apprehension of death would utter nothing but truth. The Honourable Judges of the Supreme Court went on to observe that a dying declaration, like statement of any interested witness, requires close scrutiny.
10. This scrutiny becomes all the more necessary when the victim is so seriously injured as he is in the instant case and when the eye-witnesses are present in the hospital around him. The prompting in this circumstance was never ruled out from consideration by the Supreme Court in Muhammad Latif and another v. The State PLD 1970 SC 406.
11. The learned trial Court has not attached any importance to all these circumstances and has not even for a moment doubted the abandonment of the two eye-witnesses who were mentioned in the F.I.R. The learned trial Court relied upon the solitary statement of Abdul Sattar Khan, A.S.I.
Regarding the dying declaration, altogether ignoring the fact that when once the declaration is assailed, the only party interested in it remains the one who allegedly recorded it. It was in these circumstances that the Court ought to have looked for independent corroboration and also as to whether the police officer obtained the opinion or attestation of any Doctor Altaf and others v. The State 1986 PCr.LJ 1598 can be referred to as precedent. The learned trial Court also failed to observe a very strong circumstance given in favour of the accused qua the abandonment of the eye- witnesses. It may be noted that the eye-witnesses had deposed in favour of the accused at a trial which was conducted in the late 1992 whereas this very version the witnesses had given about 11- 1/2 years back on 15-2-1981 during the evidence under section 512, Cr.P.C. If one presumes that the witnesses had been won-over prior to their statements dated 15-2-1981 (under section 512, Cr.P.C.), then there was no sense for the appellant to have had remained in abscondence till 7-12-1987 when he got arrested in a case under section 13, Arms Ordinance and there was no sense for once again going into abscondence after having been released on bail and till 21-9-1990. After all witnesses are won-over only to benefit the accused and to bring an end to the agony of trial and arrest. If it was so done prior to 15-2-1981, it was folly on the part of the appellant to have had remained in the agony of abscondence. These are the circumstances under which it appears that at the time of deposition under section 512, Cr.P.C. Jan Parvez and Alif Khan were not won-over but have been withheld by the prosecution so that the truth in detail should not come on record. It appears that the "sanctity" of the injured-deponent was limited to only those "words" which favoured the accused and which gave him the right of self-defence. Simply that a statement is true because it is being given by a dying man, is not correct.
12. We are of the firm view that the two eye-witnesses were wrongly abandoned by the prosecution as won-over and whatever they deposed as court witnesses is correct and in accord with what they had uttered 11-1/2 years ago. In the instant case there is no other witness to be relied upon and even if there had been one, he could not have been preferred over a court-witness. In Yunis Qureshi v. Ghulam Sabir 1974 SCMR 251 it was observed that a Court-witness was to be given preference over the other prosecution witnesses. This, no doubt, depends upon the circumstances of each case and intrinsic value of each witness irrespective of his being a Court --witness but, in the instant case, we have already discussed in detail the circumstances under which the abandonment of the eye-witnesses should not have been taken for granted and a dying declaration should not have been accepted as true merely because it was made by a person who subsequently died.
13. Consequently we are of the view that the two eye-witnesses mentioned in the F.I.R. Had not properly been abandoned and their version as Court-witnesses is accepted. The appellant is given the benefit of right of private defence. The appeal is accepted, his conviction and sentence is set aside. Criminal Revision No.121 of 1992 is dismissed and Murder Reference No.15 of 1992 is answered in the negative. If not required to be detained in any cause, the appellant Nasrullah is directed to be released forthwith.