P L D 1980 Supreme Court 201 Present : Dorab Patel, Muhammad Haleem, G (PLP)

"External Injuries: (1) An inlet wound ' x in size 6 above the middle of right poplitel fossa. (,2) Corresponding vutlet wound 1/3" X 2/3' in size 5' inner to wound No. 1 on the right leg. (3) An inlet wound 1/3' x 1/3' in size on the left leg, on its medial side 6` below left knee-joint. (4) Corresponding outlet wound on the lateral side of left leg 6' below left knee joint. (5) An inlet wound 1/3" x 1/3' in size at the posterior medial side of left knee joint. (6) A bullet lying under the skin at the posterior lateral side of left knee joint was recovered. This corresponds to inlet wound No.

5. Wounds Nos. 1, 2. 3, 4, and 5 bear corresponding rent marks on shalwar. (7) An inlet wound 1/3" x 1/3' in size at the back portion of left elbow joint 1 J' leftward from upper end of left ulna. (8) A corresponding outlet wound to No. 7 1 x I' in size at the medial end of left cubital fossa. (9) An inlet wound 1/3" x 1/3' into abdomen deep in size 2' below lower end of sternal bone. (10) An inlet wound 1/ 3" x 1 /3' abdomen deep in size. 3' below lower end of sternal bone. (I1) An inlet wound 1/3" x 1/3' in size 2 " backward to right superior iliac spine. Wounds Nos. 7, 8, 9, 10 and 11 bear corresponding rent mark on shirt. (12) A bullet lying under the skin 4' rightward from third lumber vertebra which was recovered. Internal examination: (1) Chest: All the organs of chest were healthy and intact. (2) Abdomen.-Abdomen wall, peritonium were wounded. One feet of small intestine (ileum) was resejected, and to end an estomosis was present. Second part of duodenum present. Half feet of transverse colon was resejected. Stomach was healthy and intact and empty." Even the dying declaration of deceased Rashid Khan seems to be doubtful. In view of the said injuries suffered by him; he must indeed have been in a shock if not altogether unconscious. In fact in the cross-examination of Doctor Hasham Daraz Khan, it is said that "the patient was not drowsy but he used to close his eyes after sometime" meaning thereby that he was not in full control of his faculties. In this view, it is impossible to believe that 'he could have got recorded the details of then occurrence in so precise a manner as not even omit any of the necessary and relevant details-such as the type of arms which each one of the appellants was carrying; the names of the eye-witnesses; and the name of Siddiq son of Qayyum owing to whom the whole unfortunate episode had in the first place been triggered. The additional reason for which we have doubted the genuineness of the dying declaration is that two responsible doctors, namely, Doctor Mohabbat Khan and Doctor Hasham Draz Khan, as well as the solitary eye-witness Abdullah Khan are in disagreement with each other in respect of certain crucial and fundamental aspects of the case of the prosecution. Now all the said three witnesses are unanimous that the dying declaration o the deceased had been recorded on the operation table; that they, as well a the deceased Rashid Khan belong to Bannu and consequently spoke to each other in Banochi Pashto; and that the dying declaration in question was recorded by S. H. O. Khalilur Rehman Khan (P. W. 20) when the said two doctors were busy attending to the deceased. The evidence of Doctor Hasham Daraz Khan. (P. W. 3), however, is that Khablur Rahman Khan S. H. O. had recorded the dying declaration on the dictation given to him by Doctor Mohabbat Khan. But in his own evidence. Doctor Mohabba Khan has repudiated the said suggestion saying that "I did not give the dictation to the Investigating Officer of the words uttered by Rashid Khan injured as I was busy giving emergency treatment at that time". Strangely, however, Khalilur Rehman, who is also a Banchi Pashto speaking person has supported the version given by .Doctor Hasham Daraz Khan to the effect. "The statement was given by Rashid in Pashto. Mohabbat Khan~ doctor used to translate- it in Urdu for me". Now'this being the state of evidence of four responsible persons, to which on attention was paid in the High Court, it cannot be said that the dying declaration of deceased Rashid Khan was of the type whose genuineness should have been readily accepted. Furthermore, the usual certificate which an Investigating Officer invariably obtains from a doctor before recording ,the dying declaration of an injure person, was not obtained in this case by S. H. O. Khalilur Rehman, admittedly the said certificate was appended to the dying declaration of the deceased subsequently and signed by the said two doctors. In his dying declaration, Rashid Khan has involved the three brothers as well as their friend, Farman Ali. But the medical evidence and the evidence of the Ballistic Expert do seem to cast doubt on his veracity. The evidence of Doctor Muhammad Kamal, who had conducted autopsy on the dead body of Rashid Khan' is that the size of inlet of all the wounds suffered by him was the same meaning thereby that he had been shot from one or mote than one weapon of the same calibre. it is in she evidence of the Ballistic Expert, however, that the- four empties sent to him for examination' were found to have been fired through .32 bore pistol which was also sent to: him . by the: Investigation. Officer. It would therefore follow that Rashid Khan had been shot through a pistol and certainly not through a rifle with which Farman Ali is said to have been armed. It is true that according to the prosecution each one of the three appellant brothers was armed with a .32 bore pistol: But the type of injuries suffered by Rashid Khan rather suggest that it was the work of one man. It is common knowledge that .32 bore pistol is an automatic weapon carrying in its charger seven bullets. The fact that the deceased was found to have suffered seven inlet wounds, three of them in his left Knee joint, one on his left elbow, two in his abdomen and one in backward direction to his right supericr iliac spine, the inlet -size of all of which is said to be the same, would go a long way to show that this could as well be the work of a single person and not of the three appellants. There. is no evidence on the record to show, however, as to which one of the three had caused him the said injuries, therefore, no option is left but to hold that the prosecution has failed to bring home its case against any one of the appellants. We have also not been impressed with the eye-witness account of Abdullah Khan. Mr. Brohi, the learned counsel for the appellants taken us through his evidence and the same was found by us to be full of contradictions, omissions as well as improvements, the details of which however, need not be mentioned. Besides he was the personal servant of Rashid Khan deceased, therefore, true to the adage .of more loyal than the king he realizing the infirmity of the motive given by the deceased in his dying declaration improved upon the same by deposing in the trial Court that while accompanying the deceased to the Hospital in the tonga, the latter told him that the actual reason for which the appellants had fired upon him was because a few days ago he had admonished them as they were teasing the young girls of the locality. There remains against the three brothers appellants the evidence of abscondence. But in the absence of any other evidence against them, abscondence by itself, as held in a series of judgments by this Court would be of no avail to the prosecution. When examined in the Court of the H Sessions Judge, appellant Umar Khan was 26 years old, Muhammad Ahmed 23 years old, and Muhammad Tahir Khan 20-21 years old. It is, therefore, obvious that being young and inexperienced they may as well! have made themselves scarce no sooner they found that they were named for the murder of Rashid Khan. By going through the judgment of the High Court, as well as the evidence on record we are satisfied that the prosecution has failed to prove its case against the appellants beyond reasonable doubt; therefore, this appeal is allowed; the conviction and sentences of the appellants are set aside and it is directed that the appellants shall be released forthwith unless required in connection with some other case. S. A. H. Appeal allowed.