2018 PLP 822 (MLD)

MUHAMMAD ALAM, J.

Through this criminal appeal, appellants have challenged judgment/order dated 29-06-2012, passed by the learned Sessions Judge Diamer. Learned trial court passed the following order:-- 46. "The conclusion of the above discussion is that the prosecution case is full of doubt, suffering with lack of evidence as the I.O. has failed to collect the evidence which in the circumstances of the case was necessary for conviction.

47. In the light of what has been discussed above, I acquit accused Faqir Alam from the charge under section 302/34, P.P.C.

48. Accused has been arrested on 21-06-2010 and since then he is in Judicial lock up. Till now, he has suffered more than two years in jail.

49. Accused Faqir Alam is convicted under section 13 A.O. and sentenced for the period already he has suffered in jail and fined Rs.8000/-. The fine amount be deposited in Govt. treasury through proper challan. The five shot rifle of 7.62 bore now lying in police Malkhana Chilas is confiscated in favour of State vide FIR No.28/2010 of Police Station, Darel.

50. Accused Faqir Muhammad is proclaimed offender, hence the case to his extent will be tried and decided after his arrest and is brought before court for trial. Therefore, the case property and all exhibits be kept in-tact till further order."

2. At about 1:30 pm, on 21-06-2010, police of PS Darel chalked FIR, Exh.PW-1/B, on written application, Exh.PW-1/A, of Mr. Jan Khan, PW-1. In the said application (Exh.PW-1/A), said PW disclosed the circumstances in which the occurrence of murder of deceased Lal Bahadur took place. On the day of occurrence, PW-1 and deceased Lal Bahadur set out to go to the pasture, along with their cattle. One Jahan Shah and Lal Mohammad were also coming along with their cattle. At place called Jaduli Bridge in Gabbar, PW-1, deceased, Lal Mohammad and Jahan Shah joined each other and, from there onwards, went together to the pasture. When said persons reached near the school building at Gabbar, respondent Faqir Alam and his co-accused Faqir Mohammad were already there. Accused Faqir Alam had stolen a goat of PW-1, but the dispute was settled by Jargah decision. The said Jargah had paid Rs.5000/- to the PW-1 as price of the said goat. Accused Faqir Alam demanded the said amount but on refusal of PW-1, respondent and his co-accused opened fire resulting to bullet injuries to deceased Lal Mohammad. PW-1, Shah Jahan and Lal Mohammad shifted the deceased to hospital but from Jaduli Bridge, PW-1 went to the PS Darel and lodged the report, Exh.PW-1/B.

3. On this, police of PS Darel conducted investigation of the case and submitted their challan/charge sheet in the trial court. Learned trial court framed charges, wherein, the respondent pleaded not guilty while his co-accused went underground. Learned trial court acquitted the respondent, after completing the trial proceedings. Feeling aggrieved from the same, appellants filed the appeal in hand.

4. We have heard learned Deputy Advocate General and learned counsel for respondent. Obviously, prosecution is bound to establish the guilt of the respondent/accused beyond any reasonable doubt. The important pieces of prosecution evidence which are very important and worth discussion are the alleged dying declaration (Exh.PW-5/A) of the deceased and the statements of the two PWs, who are directly charging the respondent and his co-accused in their statement before police.

5. We have noted that prosecution did not examine PW Abdul Shakoor and the doctor, in whose presence the deceased gave his statement, termed as dying declaration. PW Abdullah, PW Abdul Shakoor and the doctor are witnesses of the dying declaration. Prosecution opted to record the only statement of PW Abdullah to establish the dying declaration as correct. From plain perusal of the dying declaration, which the learned trial court has marked as Exh.PW-5/A, it is evident that the deceased has taken name of only PW-1, Jan Khan, who was accompanying him, while prosecution has cited PW-2 also as eye-witness of the occurrence. Prosecution examined PW Abdullah as PW-5 while opted not to examine PW Abdul Shakoor and the doctor. In his statement, PW-5 has charged only respondent Faqir Alam for the occurrence, while Exh.PW-5/A shows that both the said accused were responsible for opening fires on the deceased. These kinds of contradictions in the statements of so important witness and in the dying declaration (Exh.PW-5/A) of the deceased are material contradictions. In our opinion, based on the above material contradictions, prosecution has failed to establish the dying declaration.

6. The second part of prosecution evidence is the direct evidence comprised of statements of PW-1, and PW-2. In the last sentence of his statement, PW-1 has stated that:-- "It is correct that Lal Bahadur had died falling from the mountain not by the firing of the accused." It is an admitted fact that police recorded statement of the PW-2, two days after the occurrence. There is no explanation, whatsoever, for recording statement of PW-2, two days after the occurrence. So the question arises that why police recorded statement of PW-2, two days after the occurrence, if he was an eye-witness of the occurrence? In these circumstances, we hold that statements of the two eye-witnesses are also doubtful.

7. We, therefore, hold that appellants failed to point out any defect in the impugned judgment. We, therefore, dismiss this appeal finding the same meritless. This file be consigned to record. JK/28/GB Appeal dismissed.