1999 P Cr (PLP)

ABDUR RAUF KHAN LUGHMANI, J.‑‑‑ State through the instant appeal filed under section 417, Cr.P.C., has sought the indulgence of this Court to set aside the acquittal order passed by the learned Additional Sessions Judge, Bannu, dated 18‑1‑1994, in case F.I.R. No.107, dated 31‑5‑1988 of Police Station Ghoriwala, registered under section 302/34, P.P.C. vide: which Sarfraz Khan and Mazullah Khan, respondents herein, were acquitted from the charge of murder of deceased Pir Ghulam.

2. Facts of the prosecution case in brief are that on the eventful day, i.e. 31‑5‑1988 at 10‑45 hours, deceased Pir Ghulam, then injured, was brought to the Police Station Ghoriwala, wherein he reported that on the same day he was present in his land known as Darga; when the accused/respondents, together with their absconding co‑accused named Mir Qad Ayaz, emerged at the scene duly armed with .12 shotguns and simultaneously fired at him with which he was got hit. The crime was stated to have been witnessed by his brothers, namely, Said Ghulam and Mir Sadin, alongwith Mir Janat Gul. Motive for the offence was disclosed to be a loan dispute. Subsequently, the injured breathed his last at 11‑00 a. m., whereafter the accused were charged for his‑murder under section 302/34, P.P.C. by treating his report as his dying declaration.

3. In order to prove its case, the prosecution produced eleven witnesses in all, out of whom P.Ws.8 and 9 furnished eye‑witness account of the occurrence.

4. P.W.5, Doctor Mehboob‑ur‑Rehman, had conducted autopsy on the dead body of 'the deceased and on its external examination, found ten entry wounds, six exit and one graze on various parts of his body. On internal examination, walls of the abdomen, paritonium, stomach, pancreas, small and large intestines, liver and spleen were found injured. In his opinion, the deceased had died due to fire‑arm injuries to the liver, spleen, producing hemoperitonium shock and ultimately death.

5. Mr. Ghulam Hur Khan Baluch, learned counsel for the State, vehemently contended that the impugned conclusion of the Court below is the result of incorrect appraisal of the prosecution's evidence as, according to him, the prosecution's case fully stood proved by the dying statement of the deceased, ocular testimony of the two eye‑witnesses, medical evidence of the deceased and abscondence of the accused after the occurrence.

6. Mr. Dost Muhammad Khan, learned counsel for the accused/ respondents, supported. the impugned judgment of the learned trial Judge on variety of grounds.

7. After going through the record of the case and considering the arguments advanced at the Bar, we are, however, of the views that the verdict of the Court below needs no interference. According to the F.I.R., the incident had taken place at 9‑00 a.m., while its report was lodged at 10‑45 a.m. Time of death in the post‑mortem report and also in statement of the doctor (P.W.5) is given to be 11‑00 a.m. The doctor has further conceded that the deceased, after receipt of injuries, would have gone into comma within an hour, meaning thereby that by 10‑00 a.m. he was not in a position to talk. All these circumstances make the dying declaration of the deceased unbelievable and the narration in the F.I.R. seems to be the outcome of consultation and deliberation. So far as the statements of the eye‑witnesses are concerned, perusal of the site plan makes it crystal clear that there is a bunch of trees in between the place of occurrence and the eye‑witnesses, wherefrom visibility is not possible and, therefore, their credibility is doubtful. Besides, the investigation conducted in the case does not appear to be honest and the report seems to have been lodged after preliminary investigation. In this connection, there is an admission of P.W.9 to the effect that he was examined by the Investigating Officer at the spot at about 10‑30 a.m. Having discarded the evidence of P.Ws. 8 and 9, abscondence alone would not advance the cause of the prosecution, because it is merely a corroborative piece of evidence. The findings of the learned trial Court are, therefore, neither perverse nor fanciful.

8. Resultantly, we find no merit in this appeal which is hereby dismissed. E N.H.Q./305/P? Appeal dismissed.