' SARDAR MUHAMMAD RAZA, J.--- Ilyas son of Afzal resident of village Ferozia, Matta District Swat, has filed this appeal against the judgment dated 5-9-1996 of the learned Sessions Judge/Zilla Qazi Swat whereby the appellant was convicted under section 302, P.P.C. For the murder of Muhammad Zeb son of Muhammad Nazeer and was sentenced to death.
2. This is with reference to F.I.R. No,66, dated 21-2-1991 of Police Station Matta Swat which was lodged by Muhammad Zeb deceased himself at 20-40 hours before the Police at the Emergency Ward of Civil Hospital Matta. The Murasila recorded in the hospital gives the details of occurrence to the effect that Muhammad Zeb deceased-complainant at Khuftan prayers time on 21-2-1991 was present in front of his house when Ilyas Khan appellant came running towards him holding fire-arms. He fired one shot at Muhammad Zeb with which he got hit on the right side of his abdomen and at right arm. He rushed inside his house to take shelter. He claimed to have had identified the assailant in the moonlight and further claimed that the occurrecne was witnessed by his mother Mst. Bacha Iran and two sister Mst. Shahe Ranra and Mst. Shah Paristan.
3. Motive for the occurrence is furnished to the effect that one Bakhtiar of village Gul Shah had been murdered a year prior to the present occurrence for which Muhammad Zeb deceased/complainant and Afzal, the father of the accused Ilyas, were charged. Ilyas accused was of the view that as his father Afzal was charged alongwith the deceased and in connection with the enmity of the deceased; hence, the accused family be compensated. The latter refused the demand and hence he was killed.
4. The learned trial Judge while convicting the appellant relied upon the statement of Muhammad Zeb considering it to be a dying declaration in addition to the ocular testimony of Mst. Shahe Ranra the sister of the deceased and the circumstantial evidence furnished by Mst. Bacha Iran, the mother of the deceased. One Abdur Rahim son of Faujoon, an uncle of the deceased was also examined (P.W.4) to the effect that when he visited the injured Muhammad Zeb in the hospital, there too the injured named Ilyas as assailant before his uncle. Anyhow, the material relied upon by the prosecution is the report of the deceased taken to be as dying declaration and the ocular testimony of Mst. Shahe Ranra (P.W.3). The other sister Mst. Shah Paristan was abandoned.
5. After having heard the learned counsel on either side and after having gone, time and again, through the record we feel confronted with a very complicated situation of appreciation of evidence. What we have to determine in the instant case is firstly, the genuineness or otherwise of the dying declaration and the question of visual identification, as such. For this we would refer to the evidence as well as the circumstances.
6. A dying declaration, as it is settled by now, is a weak type of circumstantial evidence on which the conviction should not be singularly based unless the declaration is supported by strong evidence, oral or circumstantial. In this connection the first thing that is to be seen is as to whether the declarant was physically in a position to make a statement. One usually relies in this behalf on the post-mortem report to see as to what was the nature of injury. In the instant case, there is no post-mortem report so that we could be satisfied as to the nature of injury and also to the quantum of damage caused to the injured including various parts of the body involved. From medico-legal report, it appears that the place of injury was such that it was likely to damage certain vital parts of the body like kidneys, spleen and even the liver but as we have no evidence to that effect in the shape of post-mortem report, we observe that any doubt arising therefrom should go and should have gone to the accused because it is the prosecution which is laking in that behalf.
7. No blood is recovered from the spot where the injured got hit. N,o blood is found in the Veranda where the injured fell down before his mother and hence we are not sure as to where he practically got hit. The reason given by the prosecution that the blood was washed away from the floor of the house is again something which the prosecution lacks and not the defence.
8. The place of occurrence is mountainous area where people seldom go out in the month of February and at "Khuftan" prayers time. The injured/ deceased in his Murasila has not given any reason if why he was out. When this shortcoming was realised by the Investigating Agency, it tried to cover the circumstance to the effect that the deceased had gone out to urinate and that as there was enmity, the sisters also came out to the roof of their Baithak to take care of the deceased. This factum of urinating brought by the witnesses subsequently, is not mentioned by the deceased himself in his declaration. The reason of the deceased being out of his house seems to be after thought.
9. There is a damaging routine in Swat/Malalcand area that the postmortem examination is avoided. The prosecution happens to lose one strong piece of evidence and, therefore, the Investigating Officers are supposed to be over conscious of the fact and are further supposed to investigate the other aspects in a manner so as to equalise the aforesaid shortcoming. What we want to assert is that the Investigating Officer, who recorded the Murasila, should have been very diligent in that behalf while knowing full well that subsequently he would not be having any support of the post-mortem examination. It was, therefore, incumbent upon him to have had taken the view of the doctor in writing as to whether the deponent was in a position to make a statement. It is admitted that while the statement of injured was being recorded, the doctor was present and was busy treating the injured. A certificate regarding the condition of the injured was, therefore, required to be obtained from the doctor, but it was not.
10. The declaration which otherwise is in detail lacks the type of weapon in the hands of the assailant. If he was able to sufficiently identify the assailant to the extent of the latter's features as well, it is not known as to how he failed to identify weapon in his hand and mentioned the same as "Aslaha Aatesheen" despite the fact that during subsequent investigation it turned out to be a shotgun which is a sufficiently large weapon and should not have been missed. This is attempted once again to be covered through the statement of Mst. Shahe Ranra (P.W.3) who stated that she could very well see shotgun in the hands of the assailant. According to site plan the victim is located near to the assailant as compared to the witness and hence it cannot be believed as to why the deceased failed to identify the weapon. The possibility cannot be ruled out that the weapon was introduced after the medical report.
11. Various circumstances which might have led to support the dying declaration, one of them is the recovery of crime weapon i,e, the shotgun. This shotgun though shown to have been recovered from the accused was never even produced in Court.
12. The deceased declarant has fallen into a material discrepancy by saying in his statement that the occurrence was witnessed by his mother in addition to his two sisters. The mother Mst. Bacha Iran while appearing in the witness-box contradicted the statement of Muhammad Zeb deceased by denying to be an eyewitness and by saying that she saw the injured inside the house only when he entered after having been hit. It appears that the prosecution has tried to subsequently cover up many weaknesses that could have been attributed to the dying declaration. The deceased died thirty hours after the occurrence and it is alleged that once again in the hospital, he named the accused-appellant before his uncle Abdur Rahim who was examined as (P.W.4). There is no format of report under section 173, Cr.P.C. (challan) wherefrom we could have ascertained the truth of his being a witness for the prosecution. His association as witness also seems to be doubtful and after thought. We hold that in the circumstances of 'the present case all material circumstances which might have led to support the dying declaration, are missing.
13. Now, we advert to the most important aspect of the present case i,e, the visual identification. The strong points to be noted are that it is a night occurrence and the time is that of Khuftan prayers. It is a mountainous area where the shadows cast are always thick and dark. The moon on the night of occurrence is of the fifth day and might at the time of occurrence have been near the horizon.
The question arises as to whether in the given distance of 48 feet, was it possible for the deceased or for the witnesses to have had identified the assailant by features. This is further to be appreciated in the wake of the fact that the assailant and the deceased never entered into any dialogue with each other. The assailant also never stayed on the spot for a long time. He came running fired a shot at the deceased and immediately rushed back towards his house. This is also to be appreciated in the wake of normal human conduct that whenever an assailant chooses the night time for committing an offence, the object that rests in his mind is always to conceal his identity.
14. The Investigating Officer has given the distance between the victim and the assailant as 16 paces. He further added that his single pace is of 3 feet, meaning thereby that the distance can be calculated to more or less 48 feet. Modi, in his medical Jurisprudence and Toxicology Edn.1963 p.60, has laid down that best known persons in the clearest moon light (obviously of 14th) cannot be identified in the range of 17 yards. In the instant case, though there is a slight difference between 17 yards given by Modi and 48 feet in the instant case yet we should also be alive to the fact that the light of fifth Shaaban at the given time and conditions is much lesser than that of a clearest moon light. Modi was further of the opinion that at a distance greater than 12 yards (36 feet) only stature and outline alone of a figure can be identified, and further, that to define the features, even at a shorter distance is practically impossible by moon light.
15. In case Mali v. State 1968 PCr.LJ 1077 the Court relied on the same principle. In Anara v. State 1988 M LD 237-B the identification was considered impossible from a distance of 10/12 Karams though it was a moonlit night of 9th; Muhammad Shafi v. The State 1984 PCr.LJ 1850 was a case where the identification was done in moonlit night. The viewer had only a momentary glimpse of the assailant and though the torches also were available yet the identification was considered impossible.
Amanullah v. State PLD 1978 Kar. 792 is another case where the occurrence had taken place on the 18th of moon which must have been shoulder high and which must have been larger than the moon of fifth in the instant case yet an identification made from a distance of 52 to 70 feet was considered impossible. Almost identical was the case in Jehangir v. State 1983 PCr.LJ 979 where identification in a quarter moon was considered not possible.
16. All the aforesaid decisions of the High Courts are akin to the principle laid down in Muhammad Arshad v. The State by the Honourable Supreme Court in PLD 1995 SC 475. The Supreme Court followed its own principle already ruled in PLD 1995 SC 1 that evidence of visual identification is one of the categories of "suspect evidence". It bears scanty evidentiary value and ordinarily it is not safe to convict the accused on the basis of such evidence without corroboration.
17. As discussed above, the visual identification in the instant case at the relevant time, in the specific location and on the fifth of moonlit night seems to be impossible. It required strong corroboration which is lacking including the circumstantial evidence of a dying declaration which, to us, seems to be equally suspect evidence. In these state of affairs, we doubt very much the identification of accused either by the deceased or by his sister who appeared in the witness-box.
The dying declaration as well as the visual identification are not at all safe in the instant case so as to base conviction thereon and that too in a matter of capital charge. We hold that the appellant is and was entitled to be given the benefit of doubt.
18. While parting, we may refer to the statement under section 342, Cr.P.C. Of the accused where he had opted to give statement on oath. Due to various adjournments thereafter, his statement on oath was not recorded and he was also not examined to the effect that he no more wanted to be so examined. We summoned the accused from jail and asked him if he wanted to be examined on oath. He replied in the negative and his statement was reduced into writing on 4-12-1997.
19. As a sequel to what has been discussed above, the appeal is accepted and the appellant Muhammad Ilyas son of Afzal is hereby acquitted of charge under section 302, P.P.C. The conviction recorded and the sentence imposed by the learned Sessions Judge Swat vides his judgment, dated 5-9-1996 is hereby set aside. The murder reference made under section 374, Cr.P.C. Is answered in the negative.