2002 PLP 1698 (MLD)

BASHIR A. MUJAHID, J.‑‑‑Through the instant appeal judgment dated 10‑10‑1997 passed by learned Sessions Judge, Mianwali has been assailed whereby accused were acquitted of the charge. Wafadar and Zulfiqar sons of Muhammad Nawaz were tried under section 302/34, P.P.C. in case F.I.R. No.101, dated 2‑7‑1996 registered with Police Station Piplan, District Mianwali, at the instance of Muhammad Iqbal, P.W. 8 for murder of Murid Abbas, brother of the complainant on 1‑7‑1995 at 10‑00 a.m. in village Harnoli. The brief facts of the prosecution case as narrated in the F.I.R. are that on 1‑7‑1995 Murid Abbas, brother of the complainant (deceased) alongwith his sister Mst. Waziran (wife of Muhammad Khan) were coming to their house from Harnoli Bazar, when at 8‑00 a.m. near bungalow of Muhammad Nawaz, Wafadar, accused armed with pistol .12‑bore caused fire‑arm injury at him hitting on his left side of chest, while Zulfiqar accused raised Lalkara as they suspected illicit relations of deceased with their sister Mst. Bashiran. Murid Abbas was removed to Civil Hospital, Mianwali in injured condition. The occurrence was also witnessed by Khan Shirin, P.W.9. After completion of the investigation, the challan was submitted against both the accused Wafadar and Zulfiqar. The accused denied the allegations and claimed their trial. During the trial, the prosecution examined as many as 11 witnesses. The ocular account was furnished by Muhammad Iqbal complainant, P. W.8 and Khan Shirin, P. W .9. Both of them claimed to be the eve‑witnesses of the occurrence. Dr. Arshad Mahmood, P.W.6 had medically examined Murid Abbas on 1‑7‑1995 at 11‑00 a.m. and found as many as 11 fire‑arm injuries on his person. Murid Abbas succumbed to the injuries in the hospital at 5‑00 a.m. on 4‑7‑1995 and the same doctor conducted the post‑mortem examination on dead body of Murid Abbas, deceased and found 15 injuries on the dead body. Dr. Maqbool Mubarak P.W.7 had signed the application Exh.P.H. moved by Ghulam Shabbir, S.‑I. P.W.11 to enquire about whether Murid Abbas injured was fit to make statement and this witness stated on 3‑7‑1995 that he was fit for statement. Raja Azmat Hayat, S.‑I. P.W.10 initiated the investigation of the case and received information about the death of Murid Abbas. Ghulam Shabbir, S.‑I. P.W.11 had investigated the case at initial stage after registration of the case and recorded the statement of Murid Abbas, deceased under section 161, Cr.P.C. Exh.P.N. The statements of the accused under section 342, Cr.P.C. were also recorded towards the end of the trial. The trial culminated into acquittal of the accused vide the impugned judgment Muhammad Iqbal complainant filed the instant appeal against the acquittal of the accused and this Court vide order dated 21‑10‑1998 dismissed the appeal against Zulfiqar, respondent/accused but issued notice against Wafadar, respondent/accused Learned counsel for the appellant has argued that it was a day light occurrence and there was no previous enmity between the parties for false implication or substitution of the accused. The delay in lodging F.I.R. was explained in the F.I.R. The prosecution case has been established by ocular account furnished by Muhammad Iqbal complainant, P. W.8 and Khan Shirin, P. W.9. Both the witnesses were also related to the accused. Their presence at the spot was natural and they were truthful witnesses, It is further argued that statement of Murid Abbas, deceased recorded under section 161, Cr.P.C. was brought on record in accordance with law and itself was sufficient to record conviction against the accused by treating it as dying declaration. Learned counsel has placed reliance on 1981 SCMR (sic) titled Niamat Ali v. State and PLD 1991 SC 923 titled Muhammad Akbar and 2 others v. State to argue that the statement of the deceased in the form of F.I.R. treated as a dying declaration is very strong piece of evidence and no further corroboration through any independent source is necessary to convict the accused. It has been prayed that the appeal be accepted and the respondent/accused Wafadar be convicted under the law. Conversely, the appeal has been opposed by the learned counsel for the respondent/accused, who has supported the impugned judgment. We have given due consideration to the contentions raised at the bar and perused the record minutely. The occurrence took place at 10‑00 a.m. on 1‑7‑1995 while the case was registered at 4/5 p.m. on 2‑7‑1995. Muhammad Iqbal complainant P.W.8 has explained the delay in lodging the F.I.R. as the respectables of the village had been trying for compromise between the parties after he received the medico‑legal certificate from the doctor, but copy of M.L.R. Exh.P.E/1 shows that Murid Abbas, injured was got admitted in the hospital by one Ghulam Shabbir, his cousin who also received the medico‑legal certificate from the doctor. The defence plea was that the complainant was employed at Peshawar in Civil Aviation and was not the eye‑witness of the occurrence. He arrived after receiving the information about the occurrence, therefore, F.I.R. was lodged after consultation and with deliberation. The claim of the complainant was that during the days of occurrence he was on leave but the certificate for grant of leave placed on record Exh.P.W.8/8 issued on 27‑7‑1995 shows that he was granted leave from 2‑7‑1995 to 24‑7‑1995, therefore, in our view, the learned Trial Judge has rightly concluded that the occurrence was not witnessed by the complainant and the F.I.R. was lodged after his arrival from Peshawar. The presence of Khan Shirin, P.W.9 at the spot was also doubtful as he was first cousin of the deceased and as per his own admission in his cross‑examination that he did not accompany the injured to the hospital and has also not visited/seen him in the hospital till his death. His conduct was unnatural and his statement is not' confidence‑inspiring. As far as the argument of the learned counsel that the statement of Murid Abbas, deceased recorded under section 161, Cr.P.C. should have been treated as dying declaration and was sufficient to record the conviction even without any corroboration from independent source is concerned, there is no cavil to this legal proposition but in the instant case it has been found by the Trial Judge that on comparison it looks nothing more than a verbatim copy of F.I.R. and the Investigating' Officer did not ask the Allaqa Magistrate to record the statement of the injured. According to rule 25.21 of the Police Rules, 1934 mode for recording the dying declaration it has been provided that whenever possible, the dying declaration should be recorded by Magistrate and if the Magistrate is not available, the injured be examined by a Medical Officer to ascertain the fact that he. was fit to make the statement and if Magistrate could not be obtained and a Gazetted Police Officer is also not present, then the statement should be recorded in presence of two or more reliable witnesses unconnected with the parties to the case and if presence of two independent witnesses is not possible then it should be recorded in presence of two or more police officials, but in the instant case the statement of injured was not recorded even in the presence of the doctor. It is true that conviction can be based on dying declaration alone, provided it is true and free from prompting from outside. To accept such statement without considering the surrounding circumstances of the case as why the police did not procure the attendance of a Magistrate to attest the dying declaration, it is not safe administration of justice to convict the accused merely on the basis of so‑called dying declaration. Reliance can be placed on 1997 SCMR 449 titled Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another. After deep reappraisal of the evidence we are convinced that the reasons recorded by the learned Trial Judge for acquitting the accused are supported from the record. The appraisal of evidence made by the learned Trial Judge is according to the standard and norms laid down by the superior Courts. We do not find any perversity of the reasons, illegality in the impugned judgment, or misreading of evidence leading to miscarriage of justice to be interfered with in exercise of jurisdiction under section 417(2), Cr.P.C. Resultantly, the appeal is dismissed having no force. H.B.T./S‑448/L Appeal dismissed.