1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,120 of 1998 filed by Zafar Shah and Lal Shah, appellants who were convicted and sentenced by the learned Additional Sessions Judge, Layyah vide judgment, dated 28-3-1998 as under:--- {{TABLE}} ' Zafar Shah Death and to pay compensation of Rs,50,000 in default six months' S.I. Under section 302(b), P.P.C. For causing the death of Hanif. 4 years' R.I. Under section 324, P.P.C. For causing injuries to Fateh Sher. One year's R.I. Under section 337-F(iii). Both the little sentences were ordered to run concurrently. Lal Hussain 10 years' R.I. As Ta'zir and to pay Shah. Rs,2,29,000 as Diyat under section 308, P.P.C. {{TABLE}} ' Murder Reference No,I23 of 1998 for confirmation of death sentence or otherwise shall also be disposed of through this single judgment.
2. ' Occurrence in this case had taken place at 9-15 a.m on 5-10-1995 within the revenue estate of Chak No,95/TDA at a distance of 20 K.Ms. From Police Station Karor, District, Layyah while the matter was reported through complaint Exh.P.A. By Muhammad Hanif at 10-30 a.m. On the same day at Tehsil Headquarter Karor, and the formal F.I.R. Exh.P.A/1 was recorded at 10-40 a.m. By Muhammad Afzal Head Constable.
3. ' Brief facts of the case are that Muhammad Hanif complainant (deceased) alleged that he was watering his land in Chak No,93/TDA when at about 9-15 a.m. Lal Shah armed with a carbine, Zafar Shah armed with carbine Iqbal empty-handed, Manzoor Hussain armed with rifle and Fida Hussain empty-handed came there. Fida Hussain Shah raised lalkara that the complainant would be taught a lesson for having a quarrel with them. In the meanwhile, the accused started firing, fortunately, the complainant was not hit and he ran towards Pull Dorata, where the accused also reached. Muhammad Hanif was accompanied by Fateh Sher. Zafar Shah fired with his carbine which hit on the left side of abdoman of Hanif. The second shot made by Lal Shah hit on the left leg of Hanif. On hearing the noise of firing, Naseer Ahmad brother of Hanif reached at the spot. Fateh Sher stepped forward to rescue Hanif, upon whom Lal Shah issued a fire hitting on left hand of Fateh Sher. Then Zafar Shah fired which hit on the right hand of Fateh Sher. During the interregnum the accused fired at Naseer but he luckily escaped. On reaching many persons at the place of occurrence the accused ran away by causing injuries to Hanif and Fateh Sher.
4. ' The motive alleged was pendency of old litigation.
5. ' On receipt of information, Ghulam Shabbir Inspector P.W.10 reached T.H.Q, Hospital, Karor, recorded the statement of Muhammad Hanif in the presence of Fateh Sher, Naseer Ahmad and Dr. Mahboob Hussain, on the basis of said statement F.I.R. Was registered, then the Investigating Officer prepared injury statement of Fateh Sher Exh.P.M. And of Muhammad Hanif as Exh.P.N, on the same day, he visited the spot secured blood-stained earth vide memo. Exh.P.J, on 7-10-1995 information was received about the death of Hanif in Nishter Hospital, Multan, then the Investigating Officer proceeded to Hospital, prepared injury statement Exh.P.F., Inquest Report Exh.P.G of Muhammad Hanif, during the course of investigation, Manzoor Hussain, Iqbal and Fida Hussain were found innocent, on 28-10-1995 Zafar got recovered pistol 12 bore P.3 and similarly Lal Shah got recovered 12 bore Pistol P.4, both were taken into possession vide memos. Exh.P.H. And Exh.P.I. On 14-11-1995, Patwari produced the site plan of place of occurrence Exh.P.D, on 5-10-1995, the Investigating Officer asked the doctor through Exh.P.W/9/A whether Muhammad Hanif injured was able to give his statement, statements of the witnesses were recorded and on 11-11-1995 incomplete challan was prepared, investigation was also conducted by Amir Abdullah Khan Inspector and Azmat Hussain Shah, S.D.P.O. After completion of the investigation all the accused were challaned to face the trial.
6. ' At the trial, prosecution in order to prove its case produced 10 witnesses in all, then the learned ADA tendered in evidence report of the Chemical Examiner Exh.P.P., report of the Serologist Exh.P.Q.
7. Give up Dr. Azmat and Inspector Amir Abdullah as being unnecessary and closed the prosecution case, thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication. After conclusion of the trial, Fida Hussain, Manzoor Hussain and Iqbal were acquitted while the present appellants were convicted and sentenced as stated above.
8. ' Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that Exh.P.A. The so-called dying declaration is a forged document, in the F.I.R. Five accused were named but three were found innocent by the police, occurrence has not taken place at 9-15 a.m. As alleged by the prosecution but in fact had taken place in early hours of the morning so it was an un witnessed occurrence, the Investigating Officer had admitted during the cross-examination that in his first zimine, he has mentioned the names of eye-witnesses as Bashir Ahmad and Fateh Muhammad instead of Naseer Ahmad and Fateh Sher, both Naseer Ahmad and Fateh Sher were not present at the spot, they are cooked up witnesses, they have made lot of improvements in their statements, before the learned trial Court, in their statements Exhs.D.A., D.B and Exh.D.C., they have given the distance between the accused and the injured P.Ws. As five karams but after the post-mortem report of the deceased and medico-legal examination of the injured P.W. They have improved their version and have stated that the fire was shot from 2 to 3 feet in order to make it in lime with the distance given by the doctor, had these two witnesses been present at the spot including so-called injured P.W. Fateh Sher, one of them must have become the first informant when the condition of the deceased Muhammad Hanif was very precarious, injuries on the person of Fateh Sher are self-suffered, the duration given by the doctor also do not coincide with the time given by the prosecution, Naseer Ahmad P.W.8 had stated that the Investigating Officer had taken into possession the bench which was blood-stained but the Investigating Officer contradicted the same, Naseer Ahmad and Fateh Sher P.Ws are not the resident of place of occurrence rather they are resident of places two miles and 2-1/2 miles away from the place of , occurrence, their presence at the spot is doubtful, in the scaled site plan, names of the eye-witnesses are not mentioned, the so-called dying declaration is a weak type of evidence because it did not stand to the test of cross-examination, occurrence took place at 9-15 aim matter was reported to the Police in Hospital at 10-30 a.m., and the formal F.I.R. Was lodged in the Police Station at 10-40 a.m. While the doctor on the written request of the Investigating Officer gave his opinion about the fitness of the deceased to make a statement at 11-00 a.m which is Exh.P.W.9/A so the F.I.R. Was not lodged as stated by the prosecution and that the prosecution case is full of doubts. In support of his submission learned counsel has relied upon 2000 SCM R 1758 (Sarfraz alias Pappi and others v. The state.
9. ' On the other hand, learned counsel for the State submits that the appellants are named in the F.I.R. With specific roles, the dying declaration of the deceased cannot be ruled out of consideration and that the prosecution has proved its case against the appellants beyond any shadow of doubt.
10. In nutshell he supports the judgment of learned trial Court.
11. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. A bare perusal of the dying declaration from the original record clearly shows that last 4/5 lines which start from motive, those have been inserted later on. Dr. Mahboob Hussain, who conducted the postmortem examination on the dead body of Hanif and medically examined Fateh Sher injured P.W. Had stated that the duration between injury and time of occurrence is six hours. The case of the prosecution is contradicted by the statement of the doctor.
12. Moreover, doctor has also admitted that his signatures were obtained on a blank paper and the statement of the deceased was not recorded in his presence. This so-called dying declaration is a patent fabrication and is ruled out of consideration. The injuries on the person of Fateh Sher the so- called injured P.W. Are of such a minor in nature that they seem to be self-suffered to accommodate himself as an eye-witness. No reliance can be placed upon his testimony. Had he been present at the spot, he must have become complainant. Naseer Ahmad another eyewitness is real brother of the deceased. He did not become the complainant in spite of the fact that he had reached the hospital and the condition of Muhammad Hanif deceased was precarious. In fact, both the witnesses were not present at the spot. Moreover, both the eyewitnesses are resident of 2 and 2-1/2 miles away from the place of occurrence. Five accused were named in the F.I.R.. During the investigation, three were found innocent by the police. From the medico legal reports of both the deceased and injured P.W., it is proved that the occurrence had not taken place at 9-15 a.m. But in early hours of the morning, when the deceased was alone and no eyewitness was present. It is also admitted by the Investigating Officer during the cross-examination that in the first Zimine he had mentioned the name of Bashir Ahmad and Fateh Muhammad eye-witnesses but later on he converted those names as Naseer Ahmad and Fateh Sher in order to make them false witnesses in this case. The investigation was conducted in a dishonest manner. In site plan Exh.P.D. And Exh.P.D/1 prepared with scale the name of the eye-witnesses are not mentioned, it casts doubt upon the prosecution story. At point six in the site plan distance between the assailants and the deceased is given as five karams but later on the two eye-witnesses improved their statements and gave the distance as 2/3 feets to make it in line with the medical reports. In this regard, they were duly confronted with their statements Exhs.D.A, D.B and Exh.D.C.
13. ' Apart from the dying declaration the doctor who had conducted the medico-legal examination on the person of Muhammad Hanif had demolished the entire prosecution case by stating that he was not present at the time of recording of the dying declaration and his signatures were got on a blank paper. According to the prosecution case, occurrence took place at 9-15 a.m. Matter was reported to the police at 10-30 a.m. In the hospital and the formal F.I.R. Was recorded at 10-45 a.m.
14. While the written request made by the Investigating Officer P.W.9/A was made at 11-00 a.m. If the doctor gave his opinion that the deceased was fit to make the statement at 11-00 a.m. How the complaint/ dying declaration could have been recorded at 10-30 a.m.
15. ' For all that has been stated above, we are fully convinced that prosecution case is full of doubts and the defence has been able to create dents in the case set up by the prosecution. It is settled law, that the benefit of doubt has to be extended in favour of the accused. So, by extending the benefit of doubt we accept this appeal set aside the conviction and sentence recorded against the convict appellants and acquit the of the charge. Both the appellants are in jail. They shall be released forthwith if not required to be detained in any other case. Death sentence of Zafar Shah appellant is not confirmed. Murder Reference is answered in the negative.