1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,62 of 1994 filed by Muhammad Nazir, appellant, through jail, who v' as convicted under section 302 (b), P.P.C.
2. And sentenced to death with the further direction to pay Rs,10,000 as compensation, in default three months' S.-I. By learned Sessions Judge, Islamabad vide his judgment, dated 26-4-1994.
3. Murder Reference No,164 of 1994 for confirmation of the death sentence or otherwise of Muhammad Nazir convict shall also be replied through this single judgment.
2. Occurrence in this case had taken place at a distance of 12/13 K.Ms. From Police Station Secretariat, District Islamabad at 10-30 p.m. On 4-5-1991 while the matter was reported to the police through complaint fach. P.E. By Fazal Karim at 11-15 p.m. On the same day and the formal F.I.R. Exh.P.E./1 was recorded by Maqsood Ahmad, A.S.-I.
3. Briefly stated the facts of the case are that Fazal Karim complainant has constructed a house near Burma Chowk. He had one son and two daughters. Abdul Rashid aged 30/31 years son of the complainant was married one having four kids and used to do tailoring work at Dhok Kala Khan. On 4-5-1991, in the morning Abdul Rashid went to Dhok Kala Khan on his bicycle but did not return till 8/9 p.m. Some relatives of the complainant lived in Dhok Kala Khan. One month or 1-1/2 months prior to the occurrence, Muhammad Nazir son of Allah Ditta who was first cousin of the complainant had abducted Mst. Nasreen wife of Shabbir. The abductee Mst. Nasreen and her husband were closely related to the complainant and due to this reason the complainant and his son got back Mst. Nasreen from Muhammad Nazir and Bashir husband of Nasreen had brought her to his house at Burma Chowk. Both were living in the house of the complainant. Muhammad Nazir had grudge for that which he had disclosed to son of the complainant at his shop many times which fact was also told by Abdul Rashid to his father, the complainant. On the day of occurrence, Abdul Rashid had gone to Dhok Kala Khan as usual when at 10-30 p.m. Muhammad Fazal infcrmed the complainant at this house that Nazir had fired at Abdul Rashid. Upon this, the complainant went to Polly Clinic Hospital, where the injured informed his father that he was fired at by Muhammad Nazir.
4. ' After registration of the formal F . I . R. Muhammad Bash , S. -1. P.W. 14 made an application to the doctor as to whether the injured was in a position to make the statement or not and on the certificate of the doctor he recorded statement of Abdul Rashid in the presence of Dr. Muhammad Amir, Dr. Zahid and Maskeen P.W.. He obtained thumb-impression of Abdul Rashid while signatures of Dr. Muhammad Amir, Dr.Zahid and Maskeen. The M.L.R. Exh.P.C. Of Abdul Rashid was handed over by Dr.Zahid, then the Investigating Officer left for the spot, took into possession cycle P.5, vide memo. Exh.P.L, also took into possession crime empty P.4, vide memo. Exh.P.J. Blood-stained earth was taken into possession vide memo. Exh.P.K, at 6-50 a.m. Abdul Rashid expired, the Investigating Officer prepared inquest report Exh.P.O. And arrested Muhammad Nazir appellant on 11-5-1991 and pistol P.6 was taken into possession from the Dub of his Shalwar vide memo. Exh.P.N. And incomplete challan was submitted by Sadaqat Ali, Inspector P.W.12.
5. ' At the trial, prosecution in order to prove its case produced 15 witnesses in all, then the learned D.A.
6. Tendered in evidence, report of the Chemical Examiner Ekh.P.P., report of the Serologist, Exh.P.U., report of the. Forensic Science Laboratory Exh.P.V. And closed the prosecution case, thereafter, the statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded innocence and claimed false implication due to enmity.
7. ' Learned counsel for the appellant after having read the entire prosecution evidence and other relevant material available on record submits that it was an unwitnessed occurrence, first informant is not an eyewitness in this case, in fact both the eyewitnesses are chance witnesses, one witness is brother-in-law of the deceased, meaning thereby that he was an interested witness, the so-called dying declaration Exh.P.B. Is concocted one because the deceased was not in a position to make the statement after receipt of the injury and that recovery has been planted upon the appellant. Concluding his submissions, learned counsel submits that prosecution has miserably failed to prove its case against the appellant.
8. ' On the other hand, learned counsel for the State submits that the appellant is named in the dying declaration because the deceased was in a position to make the statement as certified by the doetors. Further submits that ocular account is corroborated by medical evidence and that the eye-witnesses have got no enmity against the appellant.
9. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. The motive behind the occurrence was that Nazir appellant had abducted wife of Shabbir P.W.11 namely Mst. Nasreen. Through the efforts of the deceased Mst.
10. Nasreen was returned to her husband, at the time of occurrence she was living in the house of the deceased. The appellant had grudge against the deceased for bringing back Mst. Nasreen from him. The said Shabbir Ahmad husband of Mst. Nasreen was examined by the prosecution as P.W.11.
11. We have gone through his statement. His statement was recorded five months after the occurrence. He never approached the police for recording his statement. He had made lot of improvements in his statement. We are not going to accept the motive set up by the prosecution because delay of five months in recording the statement of Shabbir Ahmad P.W. Whose wife namely Mst. Nasreen became a cause of motive, loses it significance.
12. ' The first informant namely Fazal Karim is father of the deceased and is not an eye-witness in this case. The prosecution has produced two eye-witnesses namely Afzal Hussain P.W.8 and Muhammad Maskeen P.W.9. Maskeen is brother-in-law of the deceased. We have gone through the medico-legal report of the deceased Exh.P.C. In column "name of relative or friend" name of none of the person including first informant or the two eye-witnesses is mentioned. According to eye-witnesses they passed through the place of occurrence on a Suzuki Wagon, when they heard a fire shot they stopped there. They were having a Suzuki Wagon but they did not take the deceased who was in an injured condition to the hospital. They never reported the matter to the police. In these circumstances, we also disbelieve the presence of eye-witnesses at the time and place of occurrence.
13. ' Now we take up the dying declaration Exh.P.B. From the perusal thereof, it is proved that the thumb-impression of the deceased was taken on a blank paper, thereafter, it was written, the name of Maskeen P.W., Dr. Amir and Dr. Muhammad Zahid were inserted later on, it also seems to be ditto copy of the F.I.R. Which relates to the occurrence in this case, Dr. Zahid, who had conducted M.L.R. Of Abdul Rashid deceased was not produced having gone to U.S.A. And in his place Dr. Arshad had appeared, who had identified the handwriting of Dr. Zahid, when the so-called dying declaration was recorded both the eyewitnesses were present in the hospital, so the possibility of the dying declaration to be tutored one cannot be ruled out. As far as, post-mortem examination is concerned, that was, conducted by Dr. Muhammad Arshad P.W.15, who found the following injuries on his person:---
(1) External Injuries: (1) Wound of entry 0.7 c.m. Diameter in the epigastria area, slightly towards the left side, three inches above the cumblicus. Blackening at the margins of wound.
(2) Wound of exit 1 c.m. Diameter ors right lumber back 1-1/2 inches right from the mid of spine.
(3) Injunctions marks were present on the right and left elbows.
14. ' According to the opinion of the doctor, the cause of death was extensive damage of aorta resulting in an internal heamorrhage, the injury was sufficient to cause the death, it also caused an exit wound which was right from the mid of spine. In our opinion, the impact of the injury received by the deceased was that the deceased jumped into a severe shock because of excessive heamorrhage which rendered him incapable of making his statement. The dying declaration is thus, ruled out of consideration rather it cannot be said to be a dying declaration.
15. ' So far as recovery is concerned, according to prosecution that was effected at the time of arrest of the appellant. It matched with the empty recovered from the spot. The recovery witnesses are Muhammad Hussain and Aurang Zaib. No witness from locality has been produced, there is clear violation of section 103, Cr.P.C. Moreover, merely on recovery of weapon of offence no person can be convicted under section 302, P.P.C.
16. The golden principle for dispensation of criminal justice is that the prosecution has to prove its own case and not to rely upon the weakness of the defence. Applying the said principal, when in the instant case motive has not been proved, presence of the eyewitnesses has also not proved, the dying declaration has been held by us to be a forged document, recovery has been disbelieved and the occurrence having taken place in the dark hours of night, we are of the considered view, that the case of the prosecution is full of doubts. The benefit of doubts has to go ungrudgingly to the accused. Resultantly, we accept this appeal, set aside the conviction and sentence recorded against the appellant and acquit him from the charge. He shall be released forthwith if not required to be detained in any other case. His death sentence is not confirmed. Murder reference is replied in the negative.