' This application under section 561-A, Cr.P.C. Has been moved by the applicant challenging the order, dated 26-3-1998 passed by the learned Additional Sessions Judge, Kandiaro whereby while dismissing his revision application, he maintained the order of the learned Judicial Magistrate, Kandiaro, dated 29-8-1997 forfeiting an amount of Rs,40,000 of the applicant/surety from the surety bond of Rs,50,000 executed by him for accused Zulfiqar son of Allah Dino in Crime No,22 of 1994, Police Station, Mehrabpur.
' I have heard the learned counsel for the applicant; who submits that the applicant stood surety in the sum of Rs,50,000 for accused Zulfiqar son of Allah Dino in Crime No,22 of 1995 of Police Station Mehrabpur for an offence under section 381, P.P.C. In the Court of Resident Magistrate, Kandiaro on 4-1-1997. The accused continued to attend the said Court, however, subsequently, the case was transferred to the Court of Judicial Magistrate, Kandiaro where the accused attended the Court on certain dates of hearing but subsequently, absconded, resulting in issuance of notice under section 514, Cr.P.C. To the applicant. Since the applicant failed to produce the accused in Court, therefore, the transferee Court of Judicial Magistrate, Kandiaro imposed a penalty of Rs,40,000 on the applicant. The applicant challenged that order before the learned Sessions Judge, Kandiaro but remained unsuccessful and, therefore, he has approached this Court through this criminal miscellaneous application.
' The learned counsel contends that since the applicant stood surety for the accused in the Court of Resident Magistrate, Kandiaro, therefore, he was bound to produce him only before that Court and after transfer of the case to the Court of Judicial Magistrate, Kandiaro if the accused absconded away no penalty could be imposed on the applicant, as the transferee Court was not competent to do so. He placed his reliance on the case-law reported as Amanullah and another v.
The State 1997 PCr.LJ 1927 and another case of Mir Barkat Ali and another v. The State 1997 SCM R
571. Lastly the learned counsel also contended that the applicant had stood surety for the accused only on humanitarian ground and, therefore, the trial Court was not justified in imposing such a huge penalty on the applicant.
' The learned counsel for the State has opposed this application and submitted that from the terms of the surety bond, executed by the applicant it is clear that he stood surety for the accused for his attendance, not only before the Resident Magistrate, Kandiaro but before any transferee Court too and, thus, the trial Court was competent and has rightly imposed penalty on the applicant.
However, the learned counsel submitted that if the amount of penalty is reduced from Rs,40,000 to Rs,30,000 he will have no objection for the same.
' I have considered the contentions of the learned counsel for the parties and also perused the case-law cited at the Bar. The case-law cited by the learned counsel for the applicant goes against him as it has been observed in the case of Mir Barkat Ali v. The State 1997 SCM R 571 that the surety is bound by the Penal Code (XLV of 1860)- ----S. 302/34---Criminal Procedure Code (V of 1898), S.417(1)---Appeal against acquittal---Dying declaration of the deceased was not believable---Narration in the F.I.R. Seemed to be the outcome of consultations and deliberations---Grove of trees existing in-between the place of occurrence and the eye-witnesses, they could not see the occurrence on account of lack of visibility and their credibility was doubtful---Investigation conducted in the case was not honest and the F.I.R.
Appeared to have been lodged after preliminary investigation---Abscondence of the accused, being merely a corroborative piece of evidence by itself, could not advance the prosecution case- --Finding of Trial Court acquitting the accused was neither perverse nor fanciful---Appeal against acquittal of accused was dismissed accordingly. [p. 1536] A & B Ghulam Hur Khan Baloch for the State. Gohar Zaman Kundi for the Complainant.
Dost Muhammad Khan for Respondents.
Date of hearing: 8th December, 1998.
' ABDUR RAUF KHAN LUGHMANI, J.--- State through instant appeal filed under section 417, Cr.P.C., has sought the indulgence of this Court to set aside the acquittal order passed by the learned Additional Sessions Judge, Bannu, dated 18-1-1994, in case F.I.R. No,107, dated 31-5-1988 of Police Station Ghoriwala, registered under section 302/34, P.P.C. Vide: which Sarfraz Khan and Mazullah Khan, respondents herein, were acquitted from the charge of murder of deceased Pir Ghulam.
2. Facts of the prosecution case in brief are that on the eventful day, i,e, 31-5-1988 at 10-45 hours, deceased Pir Ghulam, then injured, was brought to the Police Station Ghoriwala, wherein he reported that on the same day he was present in his land known as Darga; when the accused/respondents, together with their absconding co-accused named Mir Qad Ayaz, emerged at the scene duly armed with .12 shotguns and simultaneously fired at him with which he was got hit. The crime was stated to have been witnessed by his brothers, namely, Said Ghulam and Mir Sadin, along with Mir Janat Gul. Motive for the offence was disclosed to be a loan dispute.
Subsequently, the injured breathed his last at 11-00 a.m., where after the accused were charged for his murder under section 302/34, P.P.C. By treating his report as his dying declaration.
3. In order to prove its case, the prosecution produced eleven witnesses in all, out of whom P.Ws.8 and 9 furnished eye-witness account of the occurrence.
4. P.W.5, Doctor Mehboob-ur-Rehman, had conducted autopsy on the dead body of deceased and on its external examination, found ten entry wounds, six exit and one graze on various parts of his body. On internal examination, walls of the abdomen, peritoneum, stomach, pancreas, small and large intestines, liver and spleen were found injured. In his opinion, the deceased had died due to fire-arm injuries to the liver, spleen, producing hem peritoneum shock and ultimately death.
5. Mr. Ghulam Hur Khan Baluch, learned counsel for the State, vehemently contended that the impugned conclusion of the Court below is the result of incorrect appraisal of the prosecution's evidence as, according to him, the prosecution's case fully stood proved by the dying statement of the deceased, ocular testimony of the two eye-witnesses, medical evidence of the deceased and abscondence of the accused after the occurrence.
6. Mr. Dost Muhammad Khan, learned counsel for the accused/ respondents, supported the impugned judgment of the learned trial Judge on variety of grounds.
7. After going through the record of the case and considering the arguments advanced at the Bar, we are, however, of the views that the verdict of the Court below needs no interference. According to the F.I.R., the incident had taken place at 9-00 a.m., while its report was lodged at 10-45 a.m.
Time of death in the post-mortem report and also in statement of the doctor (P.W.5) is given to be 11-00 a.m. The doctor has further conceded that the deceased, after receipt of injuries, would have gone into comma within an hour meaning thereby that by 10-00 a.m. He was not in a position to talk. All these circumstances make the dying declaration of the deceased unbelievable and the narration in the F.I.R. Seems to be the outcome of consultation and deliberation. So far as the statements of the eye-witnesses are concerned, perusal of the site plan makes it crystal clear that there is a bunch of trees in between the place of occurrence and the eye-witnesses, wherefrom visibility is not possible and, therefore, their credibility is doubtful. Besides, the investigation conducted in the case does not appear to be honest and the report seems to have been lodged after preliminary investigation. In this connection, there is an admission of ' P.W.9 to the effect that he was examined by the Investigating Officer at the spot at about 10-30 a.m. Having discarded the evidence of P.Ws. 8 and 9, ascendance alone would not advance the cause of the prosecution, because it is merely a corroborative piece of evidence. The findings of the learned trial Court are, therefore, neither perverse nor fanciful.
8. Resultantly, we find no merit in this appeal which is hereby dismissed.