' TARIQ PARVEZ, J.--- Appellant, Shawar Gul, and his co-accused Mumtaz Khan and Sahib Jan have stood the trial. The latter two stand acquitted through judgment dated 7-3-1998 by Judge, Special Court, Lakki, whereas appellant has been found guilty, of Qatl-e-Amd and has been sentenced to life imprisonment with a fine of Rs,50,000 or in default to undergo five years' S.I. Hence this appeal.
Amir Jan, another co-accused, is still at large.
2. Occurrence took place on 29-1-1985 at noon time which was reported at 16-00 hours on the same day by Akhto Jan then injured, deceased of the case whose report was recorded in the shape of Murasila in Police Post Shahbaz Khel by Sakhi Zaman, A.S.-I. (P.W.14).
' It was reported that deceased/complainant in the company of Gul Marjan, his brother and Najibullah (P.IW.12) his nephew were proceeding to the fields known as Chak Pai Wala for cutting grass but when reached their destination, the four accused named above emerged. Shawar Gul appellant fired a shot with which he was hit and fell down. Thereafter, the remaining accused fired at the complainant deceased and his companions but they escaped.
' Motive for the occurrence stated was previous blood-feud enmity.
3. The deceased then injured has made this report in Police Post Shahbaz Khel and from thereafter preparing his injury sheet was sent to Civil Hospital, Bannu for treatment. However, the injured succumbed to the injuries on 31-1-1985 at 4-00 a.m. While in the hospital.
4. On the death of injured-complainant, his statement recorded by the police under section 154, Cr.P.C. Has assumed the status of dying declaration which would be admissible in evidence under Article 46 of Qanun-e-Shahadat Order, 1984.
5. At the trial, the prosecution produced fourteen witnesses. Ocular account has been furnished by Najeebullah (P.W.12). Accused Mumtaz was acquitted by the trial Judge being a boy of tender age and a student of 8th class and because he has been attributed the role of ineffective firing whereas Sahib Jan was acquitted being a man of advance age who can hardly stand as per observation of the trial Court and also because the role attributed to him was also of ineffective firing.
6. Judgment of conviction and sentence has been challenged on the ground that the dying declaration has been found to be false as same has been disbelieved as against the two acquitted co-accused, that the dying declaration is again belied by the medical evidence, because according to the dying declaration the injured was hit on his abdomen, whereas according to the medico-legal report he has sustained fire-arm injury wound on the left renal region posteriorly with corresponding exit wound on the abdomen. It is also argued that the dying declaration is also inconsistent with the site plan, because according to the dying man they were proceeding to their fields whereas according to the site plan deceased was hit when he was in the middle of the field and not on a thoroughfare. It is argued that the deceased was allegedly hit at Point No,1 and has fallen down at Point No,8 at a distance of 360 paces but no blood was recovered at Point No,1 nor there was trail of blood between the two points.
' Statement of Najeebullah is being criticized on the ground that if the dying declaration is taken out of consideration for the reasons given above, and because the name of this witness find mention therein, his statement should also be excluded. It is argued that the Investigating Officer has recovered only one sickle belonging to the deceased and if this P.W. Was present, he should have also carried a sickle for cutting the grass, in absence thereof it should be inferred that he was not present. Learned counsel for the defence also highlighted certain portion of cross-examination of this witness where he has shown his ignorance as to the identity of the weapon used, also as to how many shots were fired and that the duration of firing could not be given.
7. Learned counsel for the State and the learned counsel for complainant, however, argue that single accused has been given the role of effective shot in the F.I.R.-cum-dying declaration, therefore, substitution would be rare phenomenon, that acquittal of the two co-accused who were given minor role would not effect the case of the prosecution as against the present appellant, that the occurrence took place on 29-1-1985, whereas appellant was arrested on 14-7-1994, therefore, this prolong abscondence would go a long way to corroborate the guilt of the appellant.
8. No doubt that the report was made by Akhto Jan deceased who later died and there is sufficient time-gap between the occurrence and his death which would support the fact that the deceased while injured was capable of making statement. What is to be seen is what is stated by the deceased in his report is true or false.
' Two persons, namely, Mumtaz Khan and Sahib Jan have been acquitted by the trial Judge and their acquittal has not been challenged by the prosecution or by the State. Without reference to ground of acquittal, but because their names were given in the F.I.R.-cum-dying declaration and they were attributed the role of firing though ineffective but they could be held vicariously liable for the commission of the crime. Their acquittal has proved that the dying declaration has been disbelieved qua their participation.
' It is stated in the report and very specifically that Shawar Gul appellant fired one shot with which the deceased/complainant received injury on front of his abdomen, whereas according to the medico-legal report, the injury sustained by the deceased was on his back with corresponding exit wound on the abdomen. Where a single fire-arm injury is received by a victim on his back, there would always be doubt as to the identity of the assailant particularly where more than one accused are charged. In this case although the deceased has attributed the effective shot to Shawar Gul appellant which has landed on his back but because he has also attributed firing to the acquitted co-accused as well as the absconding accused although ineffective but because of the back injury specification by him regarding effective shot would be open to serious doubt.
' According to the site plan, Points Nos.4 to 7 are the respective positions of the accused and appellant is shown at Point No,4. It is admitted by the Investigating Officer, namely, P.W.13 Muhammad Ayaz, S.-I. That in between the place of the victim and the point where appellant was present, there was a Bana (raised plateform) 2/3 feet high and there was also sufficient high wheat crop. It is in the statement of Najeebullah, eye-witness, that Shawar Gul had fired at the deceased while in sitting position. This would mean that there was enough place for the assailant to take shelter behind the Bana and because firing is attributed while sitting would mean that assailant whosoever he was taken precaution to conceal his identity.
9. A dying declaration which stands disbelieved qua participation of the two acquitted accused and where sole injury received is at the back of, the deceased and where victim is fired at by the assailant from sitting position and from behind a Bana, there will be definite doubt on the part of the victim of the crime to identify the assailant.
10. The presence of Najeebullah P.W. On the worth of his own statement would show that he could not specifically account for his presence. An eye-witness who claims his presence on the spot must satisfy the mind of the Court through some physical circumstance or through some corroborative evidence in support of his presence. For example, where a witness claims that he was going to the field for cutting grass he could be equipped with some cutting instrument like sickle and should be possessed of a Chaddar/rope or any other container for carrying the grass which should be either asserted and should be recovered by the Investigating Officer during the course of investigation. In this case we do not find any corroboration from any such circumstance confirming the presence of P.W. Najeebullah on the spot. He has himself stated that the deceased was ahead and he was following him and that Shawar Gul appellant was sitting when he fired and the Investigating Officer has noticed a Bana of 2/3 feet high in between which will make the identity of the assailant doubtful. He has also twisted the story as given by the deceased in F.I.R. By stating that after the shot fired by Shawar Gul complainant was hit, fell down and again got up and started running and that ultimately he fell at Point No,8. In support of such oral statement, no blood has been found at Point No,1 where according to him the injured initially fell down. In view of exit wound on the abdomen if the deceased had fallen down at Point No,1, there should have been blood at such point.
' Admittedly, the parties are inimical towards each other, therefore, if there was motive to commit the crime, there will be equally E motive on part of the complainant either to falsely charge or to charge by exaggerating.
11. The net result of our discussion and anlysis of the dying declaration as well as statement of eye- witness is that the prosecution has failed to bring home the charge against the appellant.
This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge. He shall be set at liberty forthwith if not wanted in any other cause.