' NASIR-UL-MULK, J.--- Zafar Khan and Rahim Gul sons of Malay Khan, residents of Sirki Khel, District Bannu were tried by the Sessions Judge, Bannu for the murder of Muhammad Hanif, murdered on 29-9-1984. Rahim Gul accused was acquitted whereas Zafar Khan was discharged by the Sessions Judge on 1-4-1989. A revision petition was filed by Ghulam Habib, brother of the deceased, before this. Court against the acquittal of the two accused (Criminal Revision No,5 of 1989). The revision was allowed on 13-11-1991, the judgment and order of acquittal was set aside and the case remanded to the learned Sessions Judge for rewriting the judgment after hearing the parties in the light of the evidence already recorded. The judgment and order of this Court were assailed before the Supreme Court by the two accused. The appeal of Zafar Khan was accepted and his order of discharge was converted into acquittal whereas the appeal of Rahim Gul was dismissed, however, the order of this Court was modified to the extent that retrial was ordered. Accordingly Rahim Gul was retried by the Sessions Judge, Bannu. Once again he was acquitted by the Sessions Judge on 14-2-1994. The State has now filed appeal against the acquittal of Rahim Gul.
2. The report in the case was lodged by Muhammad Hanif himself, who was then alive. He reported that on 29-9-1984 at "Roti Vela" he was going to his land known as Hinduwala where his brothers were busy ploughing the field. When he reached near the land he noticed that his nephev, Awalyaz Khan was carrying food and also proceeding towards the land. When the nephew had reached the complainant, Zafar Khan and Rahim sons of Malay Khan surprised them. Zafar Khan commanded Rahim Gul to attack. Rahim Gul obeyed and fired with his gun. The fire hit the complainant in his stomach. He fell to the ground whereas the accused decamped. The occurrence was stated to have been witnessed by Awalyaz Khan as well. Motive for the offence was dispute over the land "Hinduwala" in that the accused claimed that they had purchased the land whereas the complainant asserted their possession of it. The case was registered vide F.I.R. No,159 at Police Station, Domel at 10-30 a.m. Whereas the report was made at 10-00 a.m. At the police station. The informant Muhammad Hanif died on 6-10-1984 and, therefore, the contents of the F.I.R. Became his dying declaration.
3. Dr. Karim Khan, Medical Officer, District Headquarters Hospital, Bannu examined Muhammad Hanif on 29-9-1984 at 11-10 a.m. And found one entrance wound size 3/4" x 3/4" on the right side of abdomen in the mid-axillary line 1" above the right iliac crest, and one exit wound 1" circular below the umbilicus. Dr. Nafees-ud-Din Khan, Medical Officer of the same hospital conducted the autopsy of the deceased Muhammad Hanif on 6-10-1984 at 10-00 a.m. And besides confirming the wounds already mentioned in the medico-legal report opined that the deceased died of shock and hemorrhage caused by the fire-arm injuries and operation.
4. Both the accused Rahim Gul and Zafar Khan absconded after the occurrence. Zafar Khan was arrested on 10-11-1984, the Investigating Officer, however, recommended the cancellation of case against him under section 169, Cr.P.C. Rahim Gul was not arrested until 13-1-1987. Thereafter, supplementary challan was submitted against both the accused. The main stay of the prosecution case before the trial Court was dying declaration, the ocular testimony of Awalyaz Khan (P.W.10), existence of a motive for the commission of the crime and abscondence of the accused. In the first trial 13 prosecution witnesses were examined and after remand only one witness Dr. Nafees-ud- Din, who had conducted the autopsy and was not available during the first trial, was examined.
Both the accused also testified under section 340, Cr.P.C. Rahim Gul accused in his statement under section 342, Cr.P.C. Admitted the motive but stated that the dispute over the land was between two tribes of Sirki Khel and not restricted to the accused and the complainant party. In response to another question Rahim Gul had stated that the deceased had received a stray bullet fired from the direction of the accused in the cross-case and nobody had seen the persons firing.
5. The trial Judge disbelieved the statement of Awalyaz. Khan because, inter alia, he was closely related to the deceased, being school going student he should have been in the school rather taking meals to the field and other infirmities appearing in his statement regarding the manner in which the occurrence took place. The narration in the dying declaration was doubted because it was materially inconsistent, with the testimony of Awalyaz Khan and intrinsically untrue because the deceased had claimed to have heard from a distance of 213 paces the command given by Zaffar Khan accused to Rahim Gul to fire when the two accused were only five paces away from each other. The testimony of another witness Ghulam Habib (P.W.2), brother of the deceased was excluded from consideration because he was neither examined by the police nor his statement could be considered as substantive piece of evidence. The witness had testified at the trial that the dying man had repeated to him the allegations in the F.I.R. When he visited him in the hospital the day following the occurrence. The motive was disbelieved by the trial Court because according to P.W.2 Ghulam Habib the dispute over the land was between the accused and one Duranay.
6. The learned counsel representing the complainant made submissions on behalf of the appellant. The learned counsel referred to the cross-examination of P.W.11, Said Akbar, A.S.-I. Who had recorded the statement of Muhammad Hanif deceased and contended that his statement regarding the correctness of the dying declaration had gone unchallenged. Further, reference was made to the statement of Dr. Karim Khan (P.W.1), who had examined the deceased after he received injury, wherein it was stated that the patient was in full senses. Even otherwise, it was argued, that the petitioner must have been in his senses as injury received by him was in the abdomen and that he lived for eight days after receiving the injury. It was, thus, submitted that the validity of the dying declaration could not be doubted. The learned counsel pointed out that the accused had in his statement recorded under section 342, Cr.P.C. Admitted the motive, that is, dispute over the land. It was, thus, submitted that the case against the accused-respondent stands established in view of the dying declaration, duly corroborated by the motive and the long ascendance of three years. The learned counsel, however, did not rely upon the testimony of the only eye-witness, Awalyaz Khan. For his contention the learned counsel sought support from Zabta Khan v. The State PLD 1963 (W.P.) Pesh. 66, Lal Zarif v. The State PLD 1982 Pesh. 148, Zarif Khan v. The State PLD 1994 Pesh. 176, Habib-ur-Rehman v. The State 1992 SCMR 1625.
7. The learned counsel for the accused-respondent on the other hand, maintained that being an appeal against acquittal the impugned judgment and order can only be set aside if the same are unreasonable or perverse and not because this Court might come to a different conclusion on reappraisal of the evidence, more particularly in the present case when the accused-respondent has been acquitted twice by the trial Court. It was contended that the acquittal of Zafar Khan co- accused has a direct bearing on the case against the accused-respondent as the role of command attributed to Zafar Khan cannot be considered in isolation because it was an integral part of the occurrence for the dying man claimed to have heard the command, and this was disbelieved by the trial Court. As regards the dying declaration the learned counsel submitted that there is no evidence that the dying man was capable of speaking and that the recording of the dying declaration does not conform to the provisions laid down in Rule 25.21 of the Police Rules, 1934. Even otherwise, it was argued, that dying declaration has always been considered by the Courts as weak evidence. It was argued that the non-reliance on the testimony of P.W. Awalyaz Khan by the prosecution leaves the dying declaration, uncorroborated, which is even otherwise not worthy of reliance. The learned counsel placed reliance upon Feroz Khan v. Fateh Khan 1991 SCMR 2220, Dilshad v. State 1995 PCr.LJ 248 and Mst. Ghulam Zohra v. Malik Muhammad Sadiq 1997 SCMR 449 and the Police Rules, 1934. The foundation of the prosecution case is the dying declaration of the deceased, which is also the first information report. However, before examining the dying declaration, it will be appropriate to discuss two other aspects of the prosecution case, that is, the acquittal of the co-accused Zafar Khan and the testimony of the eye-witness Awalyaz. These matters have a bearing on the dying declaration.
8. Zafar Khan accused was exonerated by the Investigating Officer under section 169, Cr.P.C. And the application of the Investigating Officer to that effect was accepted by the Magistrate under section 173, Cr.P.C. Nevertheless he was charged and tried by the trial Court. However, when this fact came to light the Sessions Judge in the first order of acquittal on 1-4-1989 discharged Zafar Khan on the ground that he could not have been charged in the first place because of the cancellation of case against him under section 173(3), Cr.P.C. This Court while allowing the criminal revision against acquittal and remanding the case for retrial also held that the order of discharge of Zafar Khan was illegal and if no evidence was found against him he ought to have been acquitted. The august Supreme Court hearing the appeal against the remand order, while upholding the retrial of Rahim Gul accused held, "as there is no substantial evidence against Zafar Khan appellant all the learned counsel have agreed that it would be a mere procedural exercise to remand the case to the learned Sessions Judge for passing an order of acquittal. In these circumstances, we accept the appeal of Zafar Khan and acquit him of the charge". It was in these circumstances that Zafar Khan, the co-accused, was eventually acquitted by the Supreme Court of Pakistan.
9. The presence of P.W. Awalyaz at the scene of occurrence was doubted by the trial Court. Though his testimony was not pressed into service by the learned counsel for the complainant while making submissions in support of the appeal, yet we will have to examine his testimony because it was taken into consideration by the trial Court when acquitting the accused-respondent. Awalyaz was disbelieved by the trial Court because he was an interested witness being nephew of the deceased; that being a student he should have been in school at 9/10 a.m. Rather than going to the fields to take food. The trial Court also found it unbelievable that Awalyaz should be concerned about returning the food to the house through an unnamed child when his uncle received a bullet injury and needed attention. The Court thought that this story was made up to explain the non- recovery of the food from the spot by the Investigating Officer. In these circumstances the trial Court has rightly found Awalyaz to be a chance witness.
10. We now advert to the dying declaration of the deceased. In the case of Zabta Khan v. The State, (ibid), the Peshawar Bench of the High Court of West Pakistan while holding that a dying declaration if genuine and true can be acted upon without corroboration for convicting a person for murder, laid down three tests for determining the genuineness of dying declaration; (1) Whether intrinsically it rings true; (2) Whether there is no chance of mistake on the part of the dying man in identifying or naming his assailant and (3) whether it is free from prompting from any outside quarter and is not inconsistent with the other evidence in circumstances of the case. The dying declaration in the present case does not pass the first test of being intrinsically true. The dying man had named Zafar Khan accused as the person who commanded Rahim Gul to fire. But Zafar Khan accused was not only found innocent by the police but acquitted by the Supreme Court with the concurrence of the counsel for all the parties. Secondly, the doubtful presence of Awalyaz P.W., as stated above contradicts the dying declaration in which the deceased had claimed his presence at the spot at the time of occurrence. And thirdly the finding of the trial Court that the deceased could-not have heard Zafar Khan accused commanding Rahim Gul accused from a distance of 213 paces away when the two accused were only shown to be 5 paces away from each other. The learned counsel for the complainant tried to overcome this reasoning by presiding into service the rule laid down in Zarif Khan v. The State, (ibid), that site plan is not substantive piece of evidence but only those matters have evidentiary value which are the result of observation of the Investigating Officer as opposed to those entered at the instance of an eyewitness. The learned counsel had argued that since the distance in the site plan have been recorded at the instance of Awalyaz the distance of 213 paces between the deceased and the accused shown in the site plan should not be considered as substantive piece of evidence. Even if this argument is accepted the distance is established from other circumstances. The point where the deceased was hit (1-A) stands established by the recovery of blood therefrom by the Investigating Officer. The deceased in his dying declaration had stated that the deceased had fired as soon as they emerged from the house of Mir Ali Khan. In the site plan the accused had been shown near the said house. The distance between the house of Mir Ali Khan, marked "A", and point "1-A", which is to its South, has not been indicated in the site plan. However, the distance between point "A" and point 4, where Rahim Gul accused is shown, and which also is to the North of point "1-A", is 22 paces. Thus, the house of Mir Ali Khan would also roughly be around 200 paces from point 1-A because points "A" and 4 are almost equidistant from point A-1. Obviously point "A" has been marked in the site plan on the basis of the Investigating Officer's own observations. Thus, the distance between the accused and the deceased at the time of firing stands establish independently of the potations given by P.W.
Awalyaz. For these reasons the dying declaration cannot be considered to be intrinsically true.
11. Next comes the motive. No doubt the accused-respondent in his statement recorded under section 342, Cr.P.C. Has admitted dispute over land but he had explained that the dispute was not between him, and his co-accused brother Zafar Khan, and the complainant party but it was between the two tribes of Sairki Khel. The brother of the deceased P.W. Ghulam Habib stated in his testimony that there was no other enmity between accused party and the deceased except that Zafar Khan accused has purchased property in possession of the cousin of the deceased Duranai and Zafar Khan had threatened the deceased Muhammad Hanif, 3/4 days prior to the occurrence, with dire consequences if Duranai did not give up possession of the property. The dispute, therefore, was between Duranai, cousin of the deceased, and the accused but there was no direct motive of the accused against the deceased. There was no reason why the accused should have planned the murder of the deceased and not Durranai.
12. The ascendance of the accused-respondent Rahim Gul undoubtedly has been established by his own statement recorded under section 340, Cr.P.C. In cross-examination he admitted that he was a school teacher and that he had obtained four days leave from 27th to 30th September, 1984 and had gone to the tribal territory where he owned land. He conceded that he gained knowledge of the charge against him on 30-9-1984 but stayed in the tribal area, on account of fear of torture by the police, till his surrender on 13-1-1987. Thus, his more than three years abscondence stands established.
13. It follows from the above discussion that the dying declaration cannot be relied upon because the truth of its contents are not free from doubt. In any case it is settled that great caution is to be taken before placing reliance on a dying declaration because it is a weak piece of evidence as its maker is not subjected to cross-examination. The ocular testimony of Awalyaz is also excluded from consideration. There is no direct motive for the accused to have taken the life of the deceased. In these circumstances abscondence of the accused-respondent loses significance for the prosecution. In any case being an appeal against acquittal the impugned judgment and order can only be set aside if is perverse, illogical or manifestly wrong. Seen in the light of this well-settled criteria we do not find that the impugned order and judgment of acquittal warrants interference.
The appeal is, therefore, dismissed.