1999 P Cr (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.‑‑‑ This is an appeal filed by Muhammad Arif who is convicted under section 302, P.P.C. and sentenced to imprisonment for life, payment of fine of Rs.50,000 and compensation of Rs.50,000 under section 544‑A, Cr.P.C. by the learned Sessions Judge, Haripur vide his judgment, dated 9‑12‑1996. Complainant Shakeel Ahmed has also filed Criminal Revision No. l of 1997 for the enhancement of sentence. Both shall be decided through this single order.

2. Muhammad Aslam son of Fazal Khan aged 48/49 was an employee of Telephone Industries of Pakistan, Haripur. Not far away from the Industries is Mohallah Raja Abad where he resided. On 21‑12‑1994 his shift was to start early in the morning and hence he started for the Telephone Industries. There is a tube well near the Industry. At 6‑00 hours when he reached near that tube‑well, somebody opened fire at him from behind. He stopped to look behind and saw Muhammad Arif son of Shah Wali Khan of Mohallah Afzal Abad standing in front of him armed with a pistol of .30 bore.

2. Muhammad Aslam made an effort to snatch the pistol from Muhammad Arif whereupon the latter fired still another shot which, obviously, hit Muhammad Aslam in the front on his belly. The victim fell down to the ground. His son Shakeel Ahmed who was accompanying the father, also going to join the duty, saw the occurrence. The injured was managed to be conveyed to Civil Hospital, Haripur where in the Emergency Ward at 7‑00 hours the injured himself lodged the report before Abdul Aziz Khan, A.S.‑I. Police Post Telephone Industries of Pakistan who had happened to reach the hospital after hearing about the occurrence.

3. The report is reduced into Murasila Exh.P.A./1 which bears simple attestation by Dr. Muhammad Humayun Khan also who treated the injured at the first instance. This version is relied upon by the prosecution as dying declaration because the injured subsequently on 23‑12‑1994 at 17‑50 hours succumbed to his injuries and the case F.I.R. No.926 registered at Police Station City Haripur under section 324, P.P.C. was converted to section 302, P.P.C. Abdul Aziz, A.S.‑I. after recording the declaration made by the deceased, then injured, prepared his injury‑sheet which was verified by the doctor. As the nature of injuries is material with reference to the merits of the case in hand, therefore, the injuries are reproduced as follows:‑‑ (1) A fire‑arm entry wound right upper buttock of size 1/4 x 1/4" x 3" deep charring present. (2) A fire‑arm entry wound left side buttock in middle of size 1/4" x 1/4" x 3" deep charring present. (3) A fire‑arm entry wound on coxygeal region of size 1/4" x 1/4" x 2" deep charring present. (4) A fire‑arm exit wound right upper thigh of size 1/2" x 1/2" x 3" deep. (5) A fire‑arm exit wound left iliac fosae of size 1/2" x 1/2':x 2" deep. (6) A fire‑arm exit wound hypogastrium 3" above base of penis of size 1/2" x 1/2" x 2".

4. The injured Muhammad Aslam on 23‑12‑1994, as stated earlier, had died and on the same day accused Muhammad Arif was arrested. On 26‑9‑1994 accused Muhammad Arif while in police custody led the A.S. ‑1./Investigating Officer to his house and produced a pistol of .30 bore Exh,P.4 which was taken into possession, packed and sealed into parcel vide memo. Exh.P.W.7/2. There was no licence in the name of the accused. This is relied upon by the prosecution as discovery under section 40 of Qanun‑e‑Shahadat..

5. During trial the important witnesses examined by the Court were Shakeel Ahmed, the son of the deceased who claimed to be an eye‑witness, Dr. Muhammad Humayun who at the first instance examined the injured and Abdul Aziz, A.S.‑I. Police Station City who investigated the case. Rest of the witnesses examined were riot as important while other important witnesses namely Amjad and Akhtar who were immediately attracted to the spot had been abandoned by the prosecution as having been won‑over.

6. During investigation and even during formation of the case before the trial Court the prosecution relied upon three important aspects of the case; one being the ocular testimony provided by Shakeel Ahmed the son of the deceased, the other being the dying declaration of Muhammad Aslam deceased in the shape of Murasila Exh.P.A./1 and the third being the discovery of .30 bore pistol made at the pointation of the accused. When the case was argued before us, the third piece of evidence i.e. the discovery of pistol was abandoned by the prosecution because according to the report of Fire‑arms Expert Exh.P.W.7/6 the empty recovered from the spot was not fired from the pistol recovered from the house of the accused. We are now left only with two facets of the case; one depending upon the ocular testimony of Shakeel Ahmed and the other, the dying declaration made before Abdul Aziz Khan, A.S.‑I.

7. Taking the ocular testimony of Shakeel Ahmed, the only witness produced as eye‑witness, his presence with his father at the very outset is not natural unless it is proved that he also is an employee of the factory. There is no evidence on record that Shakeel Ahmed is an employee of Telephone Industries. Even if it is presumed that he is an employee, it was incumbent upon the prosecution to have proved the fact that his shift also was to start alongwith his father at 6‑00 hours in the morning. This was a matter which was capable of being proved not only through oral but positively through documentary evidence to be procured from the offices of the Telephone Industry. No such evidence at all was examined to that effect either and hence we consider his presence alongwith his father as doubtful. $. Had he been present with his father he would not have wasted full one hour in taking his father to the hospital which was hardly 3/4 kilometres from the spot where the conveyance was comfortably available. His house was also close to the spot and he admits in his Court‑statement that he took his father to the hospital alongwith one of the witnesses namely Amjad and Akhtar while one of them was sent home to convey the information of occurrence. Despite this promptitude, he wasted full one hour. This also throws doubt on his presence.

9. The most glaring factor telling upon his presence at the spot is the undisputed medical report. It may be recalled that the deceased in his statement (Exh.P.A./1) before Abdul Aziz Khan, A.S.‑I. had stated that he after receiving two fire shots had turned around and had grappled with the assailant whereupon the latter fired a third shot at his abdomen. The same version is given by Shakeel Ahmed his son in his statement under section 161, Cr.P.C. It subsequently dawned at every one after examining the medical report that the injury on the abdomen was not entry wound but undisputedly an entry wound. Confronted with this physical phenomena P.W. Shakeel Ahmed changed his version at the trial and confined himself to grappling alone, omitting altogether the fact as to where the third shot landed. Had P.W. Shakeel Ahmed been present with his father, he would not have needed to follow rte track of the dying declaration and to have straightaway mentioned as to where the third shot landed. As he was not present on the spot, he followed the version of his father up to the stage of the recording of his statement under section 161, Cr.P.C. Subsequently when the glaring contradiction came to the notice of every one, he made improvements in the Court statement. This also indicates his absence from the spot.

10. Police Post Telephone Industries of Pakistan is located few paces away from the spot and it is admitted on record that while going to the hospital, the police post fell on their way. No report was lodged at the police post despite the fact that the A.S.‑I. who subsequently recorded the report belonged to the same police post. Had Shakeel Ahmed been present on the spot, he would have first resorted to the Police Post Telephone Industries of Pakistan. His not resorting to the post is also indicative of the fact that he was not present at all and it also is indicative of the fact that the report was lodged after consultations and deliberations. The occasion to consult and deliberate had arisen only because it was an unwitnessed occurrence. The abandonment of Amjad and Akhtar who had immediately reached the spot, is another circumstance indicative of the fact that disinterested witnesses were withheld. Had they been produced in Court, the presumption is, that they would have deposed against the prosecution and against the presence of P.W. Shakeel Ahmed. We have no doubt in our minds that P.W. Shakeel Ahmed was not present on the spot. It was an unwitnessed occurrence.

11. Next is still more important evidence of dying declaration which requires to be thoroughly scrutinized. The occurrence had taken place on the 21st of December, 1994. According to the diaries, the sunrise time on the eventful day was 7‑00 hours, the report being lodged also at the same time. The occurrence had taken place at 6‑00 hours i.e. one hour before the sunrise time. It is a matter of common observation that one hour before sunrise time is always pitch dark. The said time was chosen by the assailant only and only in order to conceal his identity. That is why he fired from behind causing all the three inlet wounds at the back side of the body which also contained charring marks.

12. As the injured Muhammad Aslam was not in a position to identify the assailant in that pitch dark hours of the morning, he introduced the factum of turning around and grappling with the assailant. In order to give perfection to his story, he categorically claimed that he received the third shot on his abdomen. This factum is completely negated by the medical report, reproduced earlier which clearly indicate that the injury caused in the abdomen was an exit wound of course corresponding to an entrance wound at the back. This major contradiction brought about by physical phenomena is a proof of the fact that a declaration made by the injured did not ring true. No doubt, the statement given by a person about the cause of his death is admissible in evidence but the sanctity attached to it as dying declaration cannot be attributed when the statement does not ring true and is glaringly controverted by physical/scientific phenomena on record. We have become apprehensive about the truth of the dying declaration and are fully convinced of the fact that the truth did not dwell upon the lips of the dying man in question.

13. It is admitted by Abdul Aziz Khan, A.S.‑I. who recorded the F.I.R. that many relatives of the deceased were present at the time when his report was being recorded. It is a settled principle of law that a dying declaration made in presence of the relatives be always taken with a pinch of salt. Thus, the presence of the relatives around, is another circumstance that renders the dying declaration doubtful.

14. The present one is not the case where there was mere presence of the relatives around but it is provenly a case where such relatives had been actively prompting the injured to name certain accused. As stated earlier Abdul Aziz, A.S.‑I. has admitted the presence of relatives. Dr. Humayun Khan who also was present at the time of the recording of report is another witness of the prosecution who has been examined as P.W.4. During his cross‑examination the doctor admitted that due to excessive loss of blood though the patient was still in senses but he was not talking coherently. Another doctor Jaafar Iqbal trainee Medical Officer while appearing as P.W.8 has reiterated the above fact to the effect that the injured was though conscious yet he was in a shock. In this state of affairs, Dr. Humayun Khan further admits that large number of persons were present with the deceased at the time of his statement to the police and that the relatives were suggesting names of 2/3 persons for nominating them as accused. He further admitted that the relatives of the deceased were suggesting names of Irshad and other brothers of the accused and they also suggested that Arif, the present accused be also charged. What else could be needed to shatter the veracity of present dying declaration Exh.P.A./1, in the wake of the settled principle of appreciation of evidence that no sanctity can be attached to a dying declaration where the relatives are present around and where the names of accused are prompted by such relatives. In the instant case the relatives were not only present around but provenly been interrupting from time to time to ask the declarant to nominate as many as two to three different persons as accused. We are of the confirmed view that the present dying declaration is worthy of no credence at all because it was not true at the first instance and because it was wholly prompted, at the second.

15. When the prosecution has miserably failed to prove Shakeel Ahmed as an eye‑witness and when the prosecution has miserably failed to prove the veracity as well as the sanctity of the statement of the deceased made before the police disclosing the cause of his death, no conviction at all could be or could have been based on such destitude evidence. Consequently, the appeal is accepted, the impugned conviction recorded and the sentence imposed by the learned Sessions Judge, Haripur through his judgment, dated 9‑12‑1996 is set aside and the appellant Muhammad Arif son of Shah Wali Khan is hereby acquitted of the charge under section 302, P.P.C. The counter‑Criminal Revision No. l of 1997 for the enhancement of sentence etc. is hereby dismissed. If not required to be detained in any other case, Muhammad Arif appellant is directed to be released forthwith. Q.M.H./M.A.K./237/P Appeal allowed