' Zahid Mahmood Raja, 8.Sc. LL.B (1--Ions) Advocate High Court Sabir Hussain son of Hasham (40) along with his brother Khadim Hussain and 6 others were reported against with Police Station Sarai Alamgir on 21-8-1981 for the murder of Muhammad Fazil. Sabir Hussain with his brother Khadim Hussain absconded, therefore, their co-accused were tried by Additional Sessions Judge, Gujrat who vide judgment, dated 16-9-1984 acquitted them. Subsequently Sabir Hussain and Khadim Hussain were arrested and challan was submitted against them in Court. During trial Khadim Hussain again absconded, therefore, present appellant Sabir Hussain alone was tried and vide judgment, dated 4-3-1991 Additional Sessions Judge, Gujrat found him guilty under section 302/149, P.P.C. And sentenced to imprisonment for life with a fine of Rs,25,000, or in default of payment of fine undergo S.I. For six months. It was directed that the amount of fine if recovered, shall be paid to the legal heirs of the deceased as compensation. He was also convicted under section 148, P.P.C.
And sentenced to one year's R.I. With a fine of Rs,500, or in default of payment of fine undergo S.I.
For one month. The convict has appealed. This judgment shall dispose of the same.
2. Prosecution story in brief as disclosed in F.I.R., dated 21-8-1981 registered on the statement of Muhammad Fazil deceased was to the effect that on 21-8-1981 at about 6 a.m. He with his son Abdul Aziz P.W.7, and nephew Muhammad Latif (P.W.8) was going towards their fields for sloughing the land. Suddenly appellant armed with mauser along with his co-accused also armed, emerged out of the nearby fields. Khadim Hussain and Fazal Karim, co-accused of the appellant, fired two shots each which hit the first informant who fell down. After the occurrence the accused decamped, whereupon first informant's son Abdul Aziz and nephew Muhammad Latif came. Motive for the occurrence was that two months before registration of the case Fazal Karim accused with others went to the house of one Nizam for theft in which Maqsood got injured on account of fire, therefore, a case was registered against the first informant and others for the said incident.
Therefore, the present case.
' First informant after recording his statement died, therefore, F.I.R. Exh.P.W.10/1 was treated as dying declaration as well.
' Occurrence in this case took place on 21-8-1981 at 6 a.m. In the fields situated in village Dandi Lohar, 7 miles from Police Station Sarai Alamgir, District Gujrat. F.I.R. Exh.P.W.10/1 was registered the same day by Muhammad Afzal, A.S.-I. P.W.10 on the statement of Muhammad Fazil, deceased.
' Muhammad Afzal, A.S.-I., P.W.10 had recorded the statement of Muhammad Fazil at Head Jaggu, which was thumb-marked by Muhammad Fazil, deceased. He prepared injury statement Exh.P.W.10/2 and sent the injured to hospital for medical examination. He learnt about the death of Muhammad Fazil, therefore, he prepared inquest report Exh.P.W.10/3 and injury statement Exh.P.W.10/4 and sent the dead body to mortuary. Thereafter, he visited the spot and secured blood-stained earth vide memo. Exh.P.W.7/1 along with four empties P.5 to 8 and three empty cartridges P.9 to 11 vide memo. Ddi.P.W.7/2. He recorded the statements of witnesses and got the site plan Exhs.P.B. And P.B./1 prepared from the Draftsman. Last-worn bloodstained clothes of the deceased were also secured by him vide memo. Exh.P.W.5/1. After usual investigation he challaned the accused.
3. Prosecution in support of its case produced 11 witnesses. P.W.1 Atta Ullah the then M.H.C. Recorded formal F.I.R. And kept parcels, handed over to him, in the Malkhana. Nabi Ahmad, the then A.S.-I., P.W.3 had arrested the appellant on 6-8-1985. P.W.4 Barkat Ali, Patwari had prepared site plan Exhs.P.B. And P.B./1. P.W.5 Muhammad Aslam, Constable, had escorted the injured to the Hospital.
Muhammad Hanif P.W.6 had also accompanied the injured to hospital. Ocular account was furnished by Abdul Aziz and Muhammad Latif P.Ws.7 and 8, son and nephew respectively of the deceased. P.W.9 Dr. Muhammad Afzal, the then Medical Officer, T.H.Q. Hospital, Kharian, had conducted the post-mortem examination on the dead body of Muhammad Fazil. Muhammad Afzal, Inspector, the then A.S.-I. Had conducted the investigation. P.W.11 Allah Ditta, F.C., was entrusted with non-bailable warrants of arrest of Sabir Hussain appellant who was not available.
The witnesses not discussed are formal in nature.
' At the conclusion of prosecution evidence, appellant was examined without oath. He refuted the prosecution .1legations and pleaded innocence. In answer to a question he stated that he had never absconded but had gone to Karachi with his family to work there.
4. It was contended by learned counsel for the appellant that the prosecution has not been able to prove its case at all. Submitted that no reliance on the dying declaration or the ocular account could be placed because in another judgment whereby six co-accused of the appellant were acquitted the same set of evidence was not relied upon. Argued that the presence of the eyewitnesses at the spot was highly doubtful. The contentions were opposed by learned counsel for the State.
5. I have heard the learned counsel and gone through the evidence with their assistance. The prosecution in order to establish its case has mainly relied upon the evidence of dying declaration, absconding of the accused and the ocular evidence. As far as the dying declaration is concerned, statement by Muhammad Fazil, injured, was made before the Investigating Officer when he was being transported to hospital. The evidence with regard to the injuries on the person of Muhammad Fazil deceased was that he was profusely bleeding. A glance at the injuries and the report of Dr. Muhammad Afzal, P.W.9 leaves no room for doubt that Muhammad Fazil after receiving the injuries could not be in a state to make a statement because thorax pleura on right side was ruptured so was the right lung. Abdomen valve was punctured, peritoneum on one side was also ruptured, so was liver and right kidney. It is abundantly clear that if a person whose abovementioned organs are ruptured by means of fire-arms cannot remain in a fit state for long.
According to the statement of Abdul Aziz, P.W.7, the injured was placed on a cot while he was profusely bleeding and they covered a distance of two miles before his statement was recorded.
There is no explanation available why the statement of the son of the injured or his nephew was not recorded by the Investigating Officer. In these circumstances, I feel it would be difficult to place reliance on the dying declaration.
' Ocular account was furnished by Abdul Aziz and Muhammad Latif P.Ws.7 and 8, respectively, son and nephew of the deceased. They have given a detailed account of the occurrence by stating that after the deceased was injured they got a cot and proceeded with the injured towards the hospital. On the way they met the Investigating Officer who recorded the statement of Muhammad Fazil injured and thereafter started for the spot. Both the eye-witnesses left the injured therewith Muhammad Hanif, P.W.6 and accompanied the Investigating Officer. This on the face of it is highly improbable and unnatural on the part of both the eye-witnesses. There is no explanation available why the real son and nephew of the injured left him and went away. In the absence of any explanation the only conclusion that can be drawn is that both the eye-witnesses were not present at the spot. This finding gets further support from the fact that the Investigating Officer in his statement admitted that at the spot before he could do anything he received information about the death of Muhammad Fazil and proceeded to hospital without recording the statement of the eye-witnesses who had accompanied him there. As the prosecution had asserted that Muhammad Fazil died at the hospital and thereafter information was sent to the Investigating Officer this process must have taken at least an hour or a half. The prosecution has not explained what was done by the Investigating Officer during this period. Had the eye-witnesses been present he would have recorded their statements at least. Both the eye-witnesses were confronted with their statements made earlier when six co-accused of the appellant were being tried. I have noticed that they made number of improvements and contradictions with which they were duly confronted. Even the time of death of Muhammad Fazil is not clear. The doctor who conducted the post-mortem examination also does not know when the I deceased breathed his last.
' For what has been discussed above, it is held that the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, extending the benefit of doubt the appeal is accepted, conviction and sentence of the appellant is set aside. He shall be released forthwith if not required in any other case: