1984 P Cr (PLP)

9. The learned Advocate for the appellant in support of the above appeal submitted as under:- (a) That P.W.1 Mst. Malookan, P.W.8 Ghulam Rasool, the alleged eye witnesses of the incident were disbelieved by the learned trial Court. (b) That the dying declaration of the deceased ought to have been discarded by the learned trial Court, in view of character of the deceased as brought on record through P.Ws. as well as on account of the fact that before recording of the dying declaration no certi ficate from the medical officer was obtained by the Magistrate. In addition to this the learned Magistrate has admitted, in his statement before the learned trial Court, that a relation of the deceased was with the deceased at the time of recording of his dying declaration and as such it cannot be ruled out, that the said dying declaration was prompted by such relation, specially in the face of admitted enmity between the parties. In support of these contentions the learned Advocate for the appellant relied upon cases reported in P L D 1970 S C 13, P L D 1977 S C 612, 1979 P Cr. L J 496 and P L D 1978 Kar. 710. (c) That since the prosecution eye-witnesses were disbelieved by the learned trial Court and rightly so their statements regarding what they were told by the deceased ought not to have been taken into consideration by the learned trial Court. In support of this contention the learned Advocate for the appellant relied upon case reported in P L D 1958 S C 242. (d) That the condition of the deceased according to the medical evidence on record, was not fit and as such no reliance ought to have been placed on the dying declaration of the deceased. In support of this contention the learned Advocate for the appellant relied upon case reported in 1981 S C M R 132. (e) That the recoveries ought, to have been discarded, as P.W. Gul Sher was the son-in-law of the complainant and co-Mashie Abdullah though not examined, was also related as both these Mashirs were not the residents of the locality and admittedly they were staying four miles away from the place of recovery in view of the fact that the village in which the. appellant resided consists of more than 100 houses and as such respectable independent Mashies of the locality could have been available, but the police made no attempt even to call them. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1974 P Cr. L J 37 and 1980 S C M R 1. (f) That the empty recovered from the Vardat was not sent separately to the Ballistic Expert, but admittedly said empty was sent together with the gun in question and as such no reliance can be placed on the Ballistic Expert's report. In support of this contention the learned Advocate for the appellant relied upon case reported in P L D 1968 Lah. 869.

10. The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment and in addition to this the learned Advocate for the State submitted as under:- (a) That the learned trial Court erroneously discarded evidence of three eye-witnesses, without realising that on account of the lapse of time discrepancies in thier statements were not unusual in ordinary course of circumstances. In support of this contention the learned Advocate for the State relied upon case reported in P L D 1977 S C 557. (b) That the statement of P.W. Mst. Malookan, the mother of the deceased against whom- no enmity is alleged is straightforward and convincing and as such the same has been wrongly discarded and could have formed the basis of the conviction of the appellant. (c) That the dying declaration of the deceased was recorded by the learned Magistrate, against whom no enmity is alleged and as such the same has been rightly acted upon by the learned trial Court and the authorities cited by the learned Advocate for the appellant are based on different facts and as such not at all applicable to this dying declaration. (d) That the recoveries made from the appellant had been fully supported by P.W.7 Gul Sher, and the mere fact that he is related to both the parties, by itself is no ground for discarding his statement, specially as the same has been fully corroborated by 1.0. The case reported in P L D 1968 Lah. 869, cited by the learned Advocate for the appellant is not at all applicable to the present case. (e) That there is nothing on record to show, that the deceased was of a bad character and furthermore the alleged conviction of the deceased in certain cases is not proved, as no certified copies of the said judgments have been produced and as such the authorities cited by the learned Advocate for the appellant in respect of the dying declaration are not at all applicable to the present case.

11. I have carefully considered the above submissions made by the learned Advocate, before me and have gone through the R & P of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocates before me.

12. I find from the impugned judgment, that the learned trial Court has duly appraised the statements of alleged three eye-witnesses and for cogent reasons discarded their statements. The contention of the learned Advocate for the State, that the statement of these three eye-witnesses were wrongly discarded by the learned trial Court, as discrepancies and contradictions in their statements, brought on record were due to lapse of time in my opinion has no force at all. The case reported in P L D 1977 S C 557, on which the learned Advocate for the State has relied is not applicable to this case, as facts of the said case were quite different from the facts of the present case, on the basis of which their statements have been discarded by the learned lower Court.

13. I have carefully gone through the dying declaration of the deceased as well as cross-examination of P.W.1 Malookan, in which she has admitted, that deceased was previous convict. Deceased in his said dying declaration has also admitted enmity with the appellant over previous case, which was according to him motive of the incident. The learned Magistrate, before recording dying declaration did not obtain certificate of Doctor, about the fitness of the deceased to make such statement. In addition to this, at the time, when deceased is alleged to have given dying declaration, his relative was with him, according to learned Magistrate. I further find from 164, Cr.P.C. statement of P.W. Ghulam Rasool, which has been brought on record as Exh. 26, that in cross-examination, this witness had stated, that he had accompanied deceased to hospital and remained with him till he died and during this time deceased did not regain consciousness in hospital. In view of all these facts on record. In find great force in the contention of the learned Advocate for the appellant that no reliance can be placed on such dying declaration and cases cited by the learned Advocate for the appellant in this connection are applicable to this dying declaration, in my opinion. In view of this, I see no force in the contentions of- the learned Advocate for the State, that learned trial Court has rightly relied upon the said dying declaration.

14. I also find great force in the contention of the learned Advocate I for the appellant, that no reliance can be placed on allege recovery of gun, as Mashirs of said recovery were not the residents of the locality, on their own admission, besides being related to the complainant side. It is obvious, that mandatory provisions of section 103, Cr.P.C. were violated by 1.0. for which he has given no cogent reasons and as such cases cited by the learned Advocate for the appellant in this connection are fully applicable to these recoveries and as such in my opinion no reliance can be placed on such recoveries. In addition to this, it is admitted position that empty recovered from vardat, was not sent immediately and separately to the Ballistic Expert and consequently case reported in P L D 1968 Lah. 869 relied upon by the learned Advocate for the appellant is fully applicable to the said report.

15. In view of my above conclusions in respect of dying declaration and recoveries, the very basis of the conviction of the appellant, by impugned judgment disappears.

16. Therefore, I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant, in above appeal. M. Y. H. Appeal allowed.