1. AMANULLAH KHAN YASINZAI, J.---This appeal is directed against the judgment dated 30-9-1999, passed by learned Special Judge, S.T.A., Loralai, whereby the appellant has been convicted under section 302(b), P.P.C. And sentenced to suffer R.I. For life imprisonment.
2. Briefly the facts are that, complainant P.W.1 Barkat Ali lodged report with Police Station, Saddar, Loralai vide F.I.R. No.23 of 1994, on 18-3-1994, under section 302, P.P.C., stating therein that, he is a resident of Killi Tajabad residing with his family, adjacent to his house, Muhammad Mir Aehakzai (appellant) is residing with his two wives and children, the said house has been rented out to him by one Bashir Ahmed.
3. It was further stated that, on the previous night at about 12-30 a.m. He heard gunshot reports from the house of appellant and in the meanwhile, he also heard hue and cry. He went towards the house of Muhammad Mir, where he saw a person in an injured condition who disclosed his name as Muhammad Yar alias Buddo and in the meanwhile his neighbourer Khan Gul also reached at the place of incident. Muhammad Yar informed him that. Muhammad Mir fired at him with Kalashnikov, from behind the door and the bullet after piercing through the door, hit him. In the meanwhile, people also gathered there and Muhammad Yar succumbed to the injuries.
4. After registration of F.I.R. (Exh.P.I-A), investigation of the case was initiated by P.W.6 Muhammad Akbar, I.P. He inspected the place of incident, on the pointation of complainant Barkat Ali, prepared sketch (Exh.P.6-A). He also examined the dead body and prepared inquest report (Exh.P.6-B), secured blood-stained earth vide memo. (Exh.P.6-C) and also recovered empty cartridge of Kalashnikov from the house of appellant Muhammad Mir vide memo. (Exh.P.6-D). He also took into possession the last-worn clothes of deceased vide memo. (Exh.P.6-E). After completion of investigation challan was submitted before the learned Special Judge, S.T.A., Loralai.
5. Record reveals that the appellant could not be arrested, he absconded and was arrested on 8-12- 1998. Thereafter identification parade was held, where in presence of Magistrate, he was identified by P.W.1 and challan was submitted, before the S.T.A. Court.
6. Charge was framed on 7-4-1999, which was refuted by the appellant. Thus to prove its case prosecution examined the following witnesses:--
(1) P.W.1 Barkat Ali. He is complainant and reiterated the contents of the F. I. R.
(2) P.W.2 Dr. Anwar Khan, examined the deceased and issued Medical Certificate Exh.P.2-A, wherein the following injuries were noted:--
(a) Injury No. 1. Entrance wound of bullet on the left side thigh and was 2 c.m. In diameter.
(b) Exit wound of bullet below the scrotum on the right side about 4 c.m. In diameter.
(c) Entrance wound on the right scrotum with exit wound.
7. These wounds were caused with fire--arm weapon.
(3) P.W.3 Khudai Dad, in his presence the Investigating Officer recovered a Bandolier alongwith 30 live cartridges of T.T. Pistol which were taken into possession vide memo. Exh.P.3-A. During the house search of the appellant, search memo. Exh.P.3-B was prepared. The dead body was also searched and nothing was recovered from the clothes of deceased and in this behalf memo.
8. Exh.P.3-C was prepared.
(4) P.W.4 Abdul Jabbar. In his presence identification parade of the appellant was held on 17-12- 1998 and memo. Of identification parade Exh.P.4-A was prepared.
(5) P. W.5 Mst. Gul Bakhat is the 'were of Barkat Ali. She narrated about the incident and deposed that, after hearing gunshot reports, her husband went to enquire about the same and her statement was also recorded under section 164, Cr.P.C. However, she did not support the prosecution and was declared hostile.
(6) P.W.6 Muhammad Akram. He is the first Investigating Officer of case. He investigated the case and thereafter submitted challan.
(7) P.W.7 Nazar Muhammad, S.-I. He arrested the appellant and arranged his identification parade and thereafter submitted final challan Exh.P.7-A.
(8) P.W.8 Mehmood, Assistant Commissioner. He recorded the confessional statement of P.W. Mst.
9. Gul Bakhat Exh.P.8-A.
(9) P.W.9 Nadeem Tahir, Tehsildar. He recorded confessional statement of P.W. Mst. Rukia Bibi and Mst. Hajira Bibi wives of Muhammad Mir vide memo. Exhs.P.9-A and 9-B (both the aforesaid witnesses were not produced).
10. Thereafter the prosecution closed its side and appellant was examined under section 342, Cr.P.C.
11. Wherein he denied the prosecution case and pleaded innocence. However, he did not opt to give any statement on oath nor produced any defence.
12. On the conclusion of trial, learned Special Judge, S.T.A., Loralai, convicted and sentenced the appellant, vide judgment dated 30-9-1999, as specified hereinabove.
13. It may be pointed out that after the incident, one Taj Muhammad was also arrested and was tried by the learned Sessions Judge, Loralai in the same offence being Sessions Case No. 15 of 1995 and was ultimately acquitted of the charge. In the said case, P.W.1 Barkat Ali, was also examined on 30- 7-1995, wherein he had not stated that, deceased had informed him that, appellant Muhammad Mir had fired upon him, from behind the door. In view of the above statement, an application was filed under section 428, Cr.P.C. Before this Court for re-examination of P.W.1 Barkat Ali to confront him (P.W.1) with his previous statement recorded in the said case. The said application was allowed vide order dated 27-1-2000 and learned Special Judge, S.T.A., Loralai, was directed to re-examine P.W. Barkat Ali. Accordingly, under the directions of this Court, P.W. Barkat Ali was re-examined by the learned Trial Court and' thereafter the record was sent to this Court. The subsequent statement of P.W.1 was recorded on 22-3-2000 and in his examination-in-chief, he has stated that, when, he reached the deceased, he informed him that' Muhammad Mir had fired upon him. He, further stated that, on enquiry deceased told him that, he had been shot by the occupant' namely Muhammad Mir and in his cross-examination, when P. W .1 was confronted with his previous statement recorded in! Sessions Case No.15 of 1995, he admitted that, deceased had not disclosed to him about that he had been shot by Muhammad Mir, further stated that, he himself had not seen any firing.
14. We have heard Mr. Basharatullah, learned counsel for appellant and Mr. Sultan Mehmood, learned A.A. -G. For the State.
15. Learned counsel for appellant contended that, appellant has only been convicted, on the solitary statement of P.W. Barkat Ali and the trial Court has believed him to the extent that, he was informed by the deceased that, appellant Muhammad Mir fired at him. The statement of deceased was considered as a dying declaration. Learned counsel pointed out that, in re-examination of the witness, he admitted that, deceased had not disclosed to him; as to who fired at him. Learned counsel argued that, statement of P.W.1 being inconsistent with his previous statement, is not worthy of reliance. Learned counsel emphasized that this Court can take judicial notice of his previous statement in view of Article 151(3) of the Qanun-e---Shahadat Order, 1984.
16. Mr. Sultan Mehmood, learned A.A.-G., however, strongly opposed the appeal.
17. It may be observed that, entire prosecution case hinges on the solitary statement of P.W.1 Barkat Ali.
18. It is pertinent to note that, admittedly P.W.1 is not an eye--witness of the incident. As per his own deposition, he was attracted to the place of incident, after, hearing gunshot reports and heard the deceased making hue and cry. On his query, deceased informed him that, he has been shot by appellant Muhammad Mir, from behind the door. He also lodged the F.I.R., making the same statement. However, co---accused Taj Muhammad, was arrested in the instant case, and said P.W.
19. Barkat Ali was also examined in this case on 3-7-1995 and in that statement, witness did not state that, soon after incident, deceased informed him that, he has been shot at by the appellant. Thus, taking into consideration the aforesaid circumstances and to remove the ambiguity, this Court allowed the application under section 428, Cr.P.C. To confront P.W.1 Barkat Ali with his previous statement so that the truth be unearthed. In his cross---examination, witness admitted that deceased has not informed him; as to who had fired at him.
20. Considering both the statements, one recorded subsequently recorded in the instant case and the previous statement recorded in Sessions Case No. 15 of 1995, both are contradictory to the statement which has been made basis of conviction. In the subsequent statement, recorded by the trial Court, P. W.1 was not even declared as hostile. It may be observed that this Court allowed application under section 428, Cr.P.C. To elicit the true facts. Taking into consideration the first statement recorded in Sessions Case No.15 of 1995 and the one recorded in instant case, an ambiguity cropped up; whether P.W.1 Barkat Ali was informed by the deceased that, he had been fired at by appellant Muhammad Mir. Article 151(3) of the Qanun-e-Shahadat Order, 1984, permits, that a witness can be confronted with his previous statement, if the same is found inconsistent, with his former statement and also to test the credibility of the witness and further, if any ambiguity or confusion has cropped up, both the parties can re-examine the witness, to bring the true facts on surface, so that complete justice may be dispensed with.
21. A bare perusal of both the statements would show that the later statement is inconsistent with the previous statement, wherein witness admitted that, deceased has not disclosed to him the name of appellant and also did not state that, as to who fired at him. Besides, the statement of P.W.1 Barkat Ali, there is no other evidence to connect the appellant with the commission of offence.
22. There is no cavil to the proposition that, if there are two versions in a criminal case, the one favouring the accuses is to be accepted. In the case in hand, the prosecution case only hinges upon the sole testimony of P.W.1 Barkat Ali, who is not even an eye-witness, in view of the above discussion, and for safe dispensation or criminal justice, if is not safe to rely on his statement without any independent corroboration, that too in a case where punishment is death.
23. Yet additionally, it may be pointed out, that, even if the statement of P.W.1 is taken into consideration, the same cannot be relied upon, as it has been time and again held that, dying declaration is a weak type of evidence and it can only be taken into consideration, if there is some corroborative evidence, supporting the same. In the case in hand, in the F.I.R., P.W.1 stated that he when he was attracted to the place of incident and he saw that, deceased was lying in an injured condition, his neighbour Khan Gul also reached there, in his presence deceased informed him that, he was fired at by appellant Muhammad Mir. Khan Gul has not been produced. Admittedly it was a dark night and it was not further disclosed that, as to how deceased recognized Muhammad Mir, from behind the door, who allegedly fired at him with Kalashnikov. This aspect of the case was overlooked by the learned trial Court, who lost sight of the same and fell in error by accepting the dying declaration of the deceased. Thus on merits as well, the prosecution has failed to prove the case against the appellant beyond any reasonable doubt.
24. Consequently as a result of the above discussion, in our considered estimation, the prosecution has failed to prove its case beyond any shadow of doubt and thus by extending benefit of doubt to appellant, he is acquitted of the charge. He be set at liberty, if not wanted in any other case.