' TARIQ PARVEZ KHAN, J.--- Appellant Faqir Ali son of Zawar Hussain aged 19/20 years resident of Chakar Kot Bala, District Kohat, stands convicted vide judgment, dated 15-6-1995 of learned Additional Sessions Judge, Kohat. He, on being found guilty under section 302/34, P.P.C. Has been sentenced to imprisonment for life with a fine of Rs,40,000 in default of payment of fine to undergo further two years' R.I. Half of the fine if recovered, is to be paid to the legal heirs of the deceased as compensation amount under section 544-A, Cr.P.C. The benefit of period during which the appellant remained as under-trial prisoner has also been extended under section 382-B, Cr. P . C .
2. Crime is said to have been committed on 29-7-1990 at Digar Qaza Wela, the report whereof was made on the same date at 24-00 hours (midnight). The complainant now dead is Kausar Ali son of Yusuf Ali aged 50 years who, while in injured condition has reported the matter to Khial Zamir, A.S.-I.
In Liaqat Memorial Hospital (L.M.H.) Kohat.
3. The report of Kausar Ali, which later became dying declaration on his death was recorded as Exh.P.A./1, the contents whereof are briefly given below:-- "Mst. Gul Bibi who is my daughter-in-law is residing with her father Zawar Hussain due to strained relations. I, in order to see my granddaughter Mst. Nasim Fatima generally go to the house of my daughter-in-law and through one of my small sons I call Nasim Fatima and take her along for walk. Today as well I had called out Mst. Nasim Fatima through my son Qaisar Abbas from her house and had taken her for walk. Having reached Imam Bara adjacent to the shop of Mohib Ali, Zawar Hussian and Zakir Hussain sons of Abid Ali came there and caught hold of me. Irshad Hussain son of Ahmad Faqir Ali of my village was also present. Zawar Hussain ordered his son Faqir, 'do not wait and fire with Tamacha at him'. Faqir Ali fired two shots with his Tamacha as a result of which I was hit on my right and left leg on different parts. I got injured and fell down. Accused decamped after the occurrence. Motive is that my daughter-in-law Mst. Gul Bibi had been retained by her father Zawar Hussain in his house."
4. After recording the report, Khial Zamir, A.S.-I. Who was then H.C. In Police Station Ustarzai prepared the injury sheet Exh.P.C. Of Kausar Ali and referred the injured to the doctor for medico- legal opinion which opinion is Exh.P.C./1 and is reproduced below:-- ' D.O.A.: 29-7-1990. Arrival: 11-45 p.m. Detail of injuries.
' The patient is drowsy. Semi-unconscious. B.P. 80/60 MMHG. Pulse 120 per minute.
(1) Entry wound at anteriomedial aspect of right thigh size 1/8" x 1/8".
(2) Exit wound at lateral aspect of right thigh, size 1/4" x 1/4".
(3) Entry wound on front of left knee joint, size 1/8" x 1/8".
(4) Exit wound on medial side of popliteal fossa size, 1/4" x 1/4".
(5) Entry wound on interiomedial aspect of left thigh size 1/8" x 1/8".
(6) Exit wound on posterior medial aspect of left thigh size 1/4" x 1/4".
' Adv. (1) X-Ray advised, right and left thigh.
(2) X-Ray left knee joint AP and lateriol view.
' Kind of weapon: F.A.
' Kind of injury: Grievous.
' Duration 6-7 hours.
5. The Investigating Officer dispatched the Murasila (Exh.P.A.) to the police station for registration of the case, which was accordingly incorporated in the police station as F.I.R. No,191 as Exh.P.A./1. On reaching the spot, bloodstained earth was recovered and taken into possession vide Memo.
Exh.P.D. In the presence of marginal witnesses. Site plan Exh.P.B. Was prepared on the potation of Irshad Hussain P.W. While on spot the Investigating Officer received a shirt (P.2), Shalwar (P.3) belonging to Kausar Ali deceased and prepared Memo. Exh.P.G./1 in this respect. During house search on 30-7-1990 of one Mumtaz Ali, accused Zakir Hussain was arrested alongwith shot gun single barrel which was taken into possession. Zawar Hussain accused was also arrested from his house on the said date. Faqir Ali appellant, however, could not be arrested. As such warrant of arrest under section 204; Cr.P.C. And later proclamation notices under section 87, Cr.P.C. Were obtained against him.
6. The injured was originally treated in L.M.H. Kohat but as his condition deteriorated he was finally shifted to C.M.H. Rawalpindi, where he died on 20-8-1990. In this respect the death summary was placed on file as Exh.P.K. Alongwith photo copies of all other relevant documents of his stay and treatment in C.M.H.
7. Accused appellant Faqir Ali was arrested on 23-12-1990 when his pre-arrest bail was not confirmed by the learned Sessions Judge, Kohat. The bloodstained articles consisting of earth and garments of the deceased were sent to the Chemical Examiner whose report is Exh.P.R.
8. On completion of investigation complete challan was filed against all the three accused. Their case was sent up for trial to the Court of learned Sessions Judge, Kohat who entrusted the same for disposal to Additional Sessions Judge. The charge was framed on 16-9-1990 in which the appellant and the other accused pleaded not guilty and claimed trial.
9. To prove the case, the prosecution produced ten witnesses. P.W.1. Mst. Asra Jan widow of deceased Kausar Ali appeared to reiterate the charge against the appellant and others in confirmation of the accusation made by het deceased husband. Zarwali Khan, A.S.-I. (P.W.2) submitted complete challan against the accused in the capacity of S.H.O. Police Station Ustarzai and has also placed on record the report of the Chemical Examiner. Akhtar Ali D.F.C. (P.W.3) was entrusted the service of warrants and execution of the proclamation notices. Akhtar Munir (P.W.4) is witness to Memo. Exh.P.C. In respect of shotgun recovered from the possession of Zakir Hussain. Jan Sher (P.W.5) is another police official who has altered the section of law from section 307 into 302, P.P.C. On 21-8-1990, having received the information about the death of Kausar Ali. Daftar Ali (P.W.6) is formal witness to Memo. Exhs.P.D. And P.D./1 pertaining to the recovery of blood-stained earth and garments. P.W.7 Dr. Munirn Shah, Medical Officer, L.M.H. Kohat has examined the deceased while in injured condition and has prepared his report which has been reproduced in the earlier part of this judgment. P.W.8 Hawaldar Muhammad Aslam from Pakistan Army is a Nursing Assistant posted at C.M.H. Rawalpindi who has brought on record Exh.P.K., the death summary, prepared by Dr. Khaqan Jehangir Janjua. As, the said doctor was not available and this P.W. Being conversant with his handwriting and signature has also proved the contents of Exh.P.K. P.W.9 is Khial Zamir, A.S.- I. Who during the days of occurrence was Head Constable and has recorded the Murasila/dying declaration and later conducted the entire investigation. The last witness Irshad Hussain (P.W.10) has furnished ocular account of the occurrence by claiming that it was Zawar Hussian and Zakir flussain'who caught hold of the deceased Kausar Ali and Zawar Hussain then asked Faqir Ali to fire, who accordingly made two shots at Kausar Ali as a result of which he got hit and fell to the ground.
According to this witness the injured was taken to C.M.H. Kohat for treatment and after having obtained first aid was then shifted to L.M.H. Kohat in order to make the report before the police and later on was shifted to C.M.H., Rawalpindi where he died.
10. The learned trial Court after the close of the prosecution evidence examined the accused appellant and two co-accused namely Zakir Hussain and Zawar Hussain. Their plea was of total denial. The learned Additional Sessions Judge feeling convinced of the evidence led by the prosecution came to the conclusion that Faqir Ali appellant was guilty of the offence under section 302/34, P.P.C. While the other two accused were extended the benefit of doubt and were acquitted.
11. The appellant has assailed his convicted and sentence and in that the learned counsel for the appellant argued that there is inordinate delay in lodging the report. He also contended that the investigation is dishonest and that the Murasila (Exh.P.A.) recorded by Khial Zamir (P.W.9) is a fabricated document because according to the defence the deceased while taken to the hospital.
At L.M.H. Kohat was unconscious and incapable of making a statement. It was also argued that the so-called dying declaration is not only false, fabricated but also is not corroborated from any independent source and that in fact the same is contradicted by the medical evidence.
Highlighting this argument it was submitted that the deceased in the so-called dying declaration has categorically stated that he was fired at with two shots by the appellant whereas per medical report there were three entry wounds of the same dimension and at different parts of the body and on no hypothesis location of three injuries could be explained to be the result of two shots. It was also submitted that the doctor namely Dr. Munim Shah (P.W.7) has in very expressed words stated that the deceased while injured was brought to him at 11-45 p.m. And at that time he was semi- unconscious. The doctor has also stated in the cross-examination that the deceased while injured was incomplete shock and hence was unable to answer any question.
12. Criticizing further, the learned counsel submitted that no post-mortem has been conducted in this case and in absence thereof the cause of death is not known. He also referred to the evidence of P.W. Irshad Hussain and submitted that he being the sole witness and closely related to the deceased his presence on the spot has not been reasonably explained. It was also contended that the sole witness of the prosecution who appeared in support of the dying declaration has put the so-called declaration in doubt by admitting a suggestion to the effect that the deceased while injured and when being taken to the hospital was moaning and was not able to make conversation. Lastly he submitted that mere ascendance cannot be taken as coloration of guilt unless there is other cogent reliable evidence through which an accused could be connected with the commission of the offence.
13. The learned Assistant Advocate-General assisted by counsel for the complainant while refuting the arguments of the appellant submitted that the so-called delay in lodging of F.I.R. Has been explained in the dying declaration itself because the deceased while injured was first taken to C.M.H. Kohat and thereafter to L.M.H. It was also submitted that there is no serious enmity between the parties rather they are closely related, hence in the absence of animosity the delay in lodging the report, if any is never considered fatal and cannot react on the case of the prosecution. It was submitted that the dying declaration is supported by medical evidence as fire-arm injuries were found on the person of the deceased and also that another independent witness namely Irshad Hussain (P.W.10) has appeared and testified on oath confirming the fact as deposed to by the deceased in his F.I.R. They were of the view that the venue of the occurrence cannot be disputed as blood was recovered from the spot. Replying to the dishonest investigation, it was stated that in the absence of any malice on the part of the police no dishonest intentions can be attributed to the investigation. In their view the prosecution has established its case beyond shadow of doubt by proving the dying declaration duly supported by medical evidence and finding corroboration from the testimony of Irshad Hussain coupled with motive and ascendance.
14. We have heard the arguments of learned counsel for the parties and have carefully scrutinized the whole evidence. The occurrence took place on 29-7-1990 at Digar Qaza Wela. In the month of July the approximate time of Qaza Asr prayer would be round about 7-00 p.m. And if taken from this angle there is a delay of five hours. It is the case of the prosecution that the deceased while injured was immediately shifted first to C.M.H. Kohat and then to L.M.H. And rightly so because the kith and kin of the injured would like to take him as quickly as possible to the nearest and better hospital for treatment. In A these circumstances there appears to be delay in making the report which has not been explained.
15. The dying declaration, no doubt can be made the sole basis of conviction provided it rings true and is corroborated by some. Independent source. In this case this dying declaration is defective both in the form as well on facts. The deceased while injured was first taken to the C.M.H. No attempt appears to have been made to record the statement then, he was available at 11-45 p.m.
In L.M.H. Kohat as the doctor examined him at this time, yet no statement was recorded by the doctor. It was only at 12-00 hours (midnight) when Khial Zamir (P.W.9) appeared at the scene and recorded the report that too in the presence of Irshad Hussain (P.W.9) as is evident from the statement of Irshad Hussain itself. The deceased remained alive for sufficient long time as he has died on 20-8-1990 that is after about more than 20 days of the occurrence. No attempt appears to have been made by the Investigating Agency to record the statement of the deceased during this period in the presence of any doctor or a Magistrate. The sanctity which normally attaches to the dying declaration is backed by the proposition that generally a dying man out of fear of God thinking his death to be imminent speaks truth but such proposition cannot be generalized in the social set up and the moral values as are prevailing today. In order to wash of all possible tampering/fabrication on the part of the Investigating Agency the Legislature has taken precautions and has laid down the procedure for recording of a dying declaration. In this respect a reference to Police Rules of 1934 appearing under Chapter XXV under the heading of Investigation Rules 25-21 is reproduced below:-- "25-21 Dying declarations.--- (1) A dying declaration shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by a Medical Officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no Magistrate can be obtained, the declaration shall when a gazetted Police Officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the Police Department and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more Police Officers.
(5) A dying declaration made to a Police Officer should, under section 162, Code of Criminal Procedure, be signed by the person making it."
As observed, no such attempt has been made during the entire investigation to comply with the aforesaid rules which are, though not mandatory but still provide safeguard to exclude all reasonable possibilities of fabrication.
16. Dr. Munim Shah (P.W.7) has received the patient at 11-45 p.m. And at that time the blood pressure recorded was 80 x 60 MMHG while pulse 120 per minute. The patient was noticed to be drowsy and semi-unconscious. (There appears to be some mistake in the paper book that we have and also in the original case file of the learned Additional Sessions Judge in respect of the statement of Dr. Munim Shah about the condition of the patient. What is recorded in his statement in Court is "the patient is drowsy, seems unconscious" so is recorded in the paper book). We have checke'd the original medico-legal report (Exh.P.C./1). It is "semi" and not "seems".
17. Dr. Munim Shah (P.W.7) has admitted in the cross-examination without reservations that the injured was in complete shock and was unable to answer any question. This factual position has not been challenged by the prosecution at the trial by re-examining the doctor. This statement is not part of his opinion but is factual observation because from this statement it appears .That questions were asked by the doctor to which the deceased then injured could not reply. The matter does not end here. The sole witness appeared in support of this dying declaration namely Irshad Hussain (P.W.10) who has also categorically admitted the fact that the deceased while injured and being taken for treatment was not able to make conversation. From this discussion of ours, when there is overwhelming evidence led by the prosecution itself about the condition of the injured, that at the relevant time namely at 11-45 p.m. When the doctor was examining him and even earlier than that when Irshad Hussain (P.W.10) was accompanying the injured to the hospital the deceased was incapable of talking. How it became possible that at 12-00 (midnight) when the Investigating Officer reaches the hospital the injured gained all such powers under his command to make a detailed dying declaration even describing the parts of body on which he was hit. This dying declaration as such is not above board and is to be taken out u of consideration.
18. Irshad Hussain (P.W.10) has already been dealt with while discussing the dying declaration.
Admittedly he resides at a distance of 150 paces from the place of occurrence and has tendered no plausible explanation as to why and how he happened to be present at the crucial time on the spot. A bare reading of his examination-in-chief would show that as if he is narrating the facts of the occurrence in second form. He has nowhere said that he was present at the scene of occurrence nor he has claimed to have seen the occurrence. May be, it is an omission on the part of the learned Public Prosecutor or the counsel for the complainant while leading this witness at the trial. Otherwise too this witness is belied by the medical evidence as according to him, the accused-appellant fired two shots while there are three entry wounds on the person of the deceased. It is there in the statement of the Investigating Officer that when he reached the spot this P.W. Was not present there and was called by him. This wintess when asked a question in the cross-examination has stated that he was called by the Investigating Officer at 2-30 a.m. (night).
On the one hand he claims to be present with the injured in the hospital and on the other in his house at his village. His sister is married to Kausar Ali deceased which makes him a related witness and keeping in view the background of the strained relationship between the parties he can be termed as an interested witness. No empty or spent bullets were recovered from the spot although according to this witness the accused- appellant has used a .30 bore pistol. It is a question of common knowledge that a pistol when fired ejects empties. Except bare statement of this witness we do not find any corroboration of his testimony. He being closely related,. Is belied by the medical evidence and when he could not furnish any explanation about his presence, he can be termed as a typical chance witness and his statement does not carry any weight.
19. Having reached the conclusion that the dying declaration is doubtful and so is the statement of Irshad Hussain (P.W.10) the motive and abscondence G are of no avail to the prosecution both being pieces of corroborating evidence and not evidence in itself. The period of abscondence is also not that long. However, applying the case-law as laid down by the august Supreme Court of Pakistan in a case reported as Taj Muhammad v. Pesham Khan and others 1986 SCMR 823 and two judgments of this Court delivered in cases titled Ghulam Habib v. State PLD 1986 Pesh. 141 and Obaidullah and another v. State PLD 1986 Pesh. 150, where it has been held that ascendance by itself is no evidence. The two cd-accused who were also charged along with the appellant H stand acquitted and no appeal against their acquittal has been filed nor a revision.
20. Having considered the entire case of the prosecution, from all dimensions, that is dying declaration, the ocular account and the so-called corroborative evidence, we in our mind are left with no doubt to say that the prosecution has miserably failed to bring home the charge against the appellant. Consequently, we set aside the judgment of conviction and sentence awarded by the learned Additional Sessions Judge, Kohat, dated 15-6-1995, accept the appeal and acquit the appellant. Vide our short order, dated 28-5-1997 we have directed that the appellant be set at liberty if not required in any other case and we have also dismissed the revision for enhancement of the sentence. Above are the detailed reasons in support of our aforesaid short order.