P L D 1995 Peshawar 144 (PLP)

(ii) That out of the accused, Banaras and Sadiq were armed with shot guns whereas Ayaz and Fiaz had sticks with them. Akbar was armed with an axe. (iii) That it was accused Sadiq, who opened the assault in the first instance and fired, hitting and injuring Ali Aksar Shah (P.W.9) on the head. He was followed by accused Banaras who opened fire at Fida Hussain Shah deceased and injured/wounded him. Accused Ayaz and Fiaz and accused Akbar inflicted injuries to Abbas Shah (P.W.10) by sticks and axe respectively. (iv) That the occurrence was witnessed not only by Shabbir Shah and Imtiaz Shah but was also by other co‑villagers. The motive given for the offence was quarrel between the children of the rival parties. (v) That all the injured persons were shifted to Civil Hospital, Haripur, where, in its Emergency Ward, Ali Aksar Shah (P.W.9) lodged a report (Exh.PA/1) with the S.H.O. i.e., Nisar Muhammad Khan (P.W.11) on his arrival there, at 6 P.M., on the fateful day, stating the abovementioned facts in substances. This, in short, is the prosecution story. (vi) That the S.H.O. after recording the Murasila (Exh. PA/1) sent the same to the Police Station, Haripur, where on its basis a case was registered vide F.I.R. No. 407 (Exh. PA) under section 302/307/148/149, P.P.C. (vii) That on the same day, at 6.30 P.M., Muhammad Banaras convicted accused also lodged a report in the Emergency Ward of the Civil Hospital; Haripur with the S.H.O. which was reduced in the shape of Murasila (Exh.P.W.1l/D‑1) and on its basis a counter case was registered against the deceased, Abbas Shah, Haider Shah and Ali Aksar Shah under section 307/34, P.P.C. It may be mentioned that both the cases were registered by the Additional Station House Officer, Ashiq Hussain Shah (P.W.12). (viii) That thereafter the S.H.O. prepared the injury sheets of Ali Aksar Shah (P.W.9), Abbas Shah (P.W.10), Fida Hussain Shah (deceased) which are Exh.P.C., Exh.P.D. and Exh.P.E. respectively. Likewise the S.H.O. prepared injury sheets Exh.P.W.11/D‑2 and Exh.P.W.11/D‑3 in respect of accused Banaras and Akbar respectively. (ix) That the deceased and his companions were medically examined by Dr. Muhammad Tariq (P.W.7) whereas the two injured accused were examined by Dr. Hamayun (D.W.1). The medical examinations were conducted on 13‑5‑1988. (x) That on the very next day, the S.H.O. inspected the spot and prepared the site plan (Exh.P.B.). He picked up blood‑stained earth and pebbles, with cotton, in the presence of marginal witnesses, including Abdul Aziz (P.W.4) and packed these articles in parcel vice recovery memo. Exh.P.W.4/1. (xi) That on the day of occurrence at 7‑15 P.M., Fida Hussain Shah expired in the D.H.Q. Hospital, Abbottabed and in pursuance of the information received in this behalf, A.S.I. Iftikhar Ahmed (P.W‑8) proceeded to Abbottabad, under the instructions of the S.H.O. After his arrival in the D.H.Q. Hospital, the said A.S.I. prepared the injury sheet (Exh.P.W.8/1) and inquest report (Exh.P.W.8/2) in respect of the dead body of deceased and then despatched it to the mortuary for post‑mortem examination. On the identification of Ibrar Hussain Shah (P.W.2) autopsy was conducted by Dr. Nisar Ahmed (P.W.13). Blood?stained Shalwar (Exh.P‑1) and shirt (Exh.P‑2) belonging to the deceased were also taken into his possession by the same A.S.I. in the presence of Altaf Hussain Shah (P.W.1) vide recovery memo. Exh.P.W.l/1. (xii) That op 16‑5‑1988 one Iltaf produced shot gun No.160915, with its licence in the name of Banaras convicted accused before the S.H.O., who took the same into his possession and packed the same in a parcel vide recovery memo. Exh.P.W.6/1. This was done in the presence of H.C. Khurshid Ahmed (P.W.6). (xiii) That on 7‑6‑1988 F.C. Mumtaz produced a parcel containing 16 pellets Exh.P‑1 (a) sent by the Doctor of D.H.Q. Hospital, Abbottabad, before the S.H.O., who took the same into his possession vide recovery memo. Exh.P.W.3/1, in the presence of Raja Imtiaz, Madad Moharrir. The blood‑stained articles were then sent to Chemical Examiner for analysis. He then submitted his report in this behalf which is Exh.P.F. Significantly, Dr. Muhammad Tariq (P.W.7), for the first time, referred to and produced in Court the dying declaring of Fida Hussain Shah deceased. It may be noted that he did not inform either the Ilaqa Magistrate or the S.H.O. concerned about this document prior to this. After the completion of the investigation, the local police submitted charge‑sheets against both the rival sets of the accused to the Ilaqa Magistrate, who, in turn, sent the same to the Court of Additional Sessions Judge, Haripur for trial. (xiv) That at the trial the accused pleaded not guilty, claimed innocence and ascribed the case to religious differences with pre‑emptive attack by the complainant party. (xv) That in order to establish its case, the prosecution produced and examined as many as 12 witnesses, almost all mentioned above.

6. In the main, reliance has been placed on the direct evidence of Ali Aksar Shah (P.W.9) and Abbas Shah (P.W.10), dying declaration (Exh.P.W.5/1) and the motive. Let us proceed to discuss these one by one. The ocular evidence is taken up in the first instance.

7. The eye‑witness account is furnished by Ali Aksar Shah (P.W.9) and Abbas Shah (P.W.10). Both are brothers inter se and the latter is a co‑accused alongwith the deceased and two others in the counter‑case registered under section 307/34, P.P.C. in the circumstances, therefore, their evidence requires to be subjected to close and critical examination, scrutiny. Both of them have stated that when they came outside the mosque at the relevant time, Sadiq accused fired at Ali Aksar Shah (P.W.9) with .12 bore shot gun hiting him on the head. They also stated that accused Akbar and accused Fiaz and Ayaz assaulted Abbas Shah (P.W.10) with axe and sticks respectively. They further alleged that Banaras accused fired at Fida Hussain Shah deceased with .12 bore shot gun. Putting this aspect of assault in juxta‑position to medical evidence, we find that Ali Aksar Shah (P.W.9) has not sustained any fire‑arm injury on his heard. This is duly confirmed by the presence of lacerated wound which is usually caused by a blunt object, as has been deposed by Dr. Muhammad Tariq (P.W.7). Likewise Abbas Shah (P.W.10) has received three incised wounds skin/scalp deep on his head. He also received two bruises, one on the right side of pelvis and the other on the right wrist. The nature and the depth of incised wounds would, at once, show that these injuries could be caused by a knife and not by an axe, which if used, would have caused extensive damage injuries to the head which in turn could have been devastating fatal. It may be noted here that both the injured witnesses have not received injuries, at the hands of their assailants, in the manner and with the weapons attributed to them. In other words Sadiq, Akbar, Ayaz and Fiaz have been involved/charged falsely from the very outset and both eye‑witnesses stand contradicted by the medical evidence, in respect of their participation in the occurrence. This conflict contradiction between the medical evidence and the ocular testimony, being irreconcilable, has shattered the veracity of the ocular testimony which has become highly doubtful.

8. Apart from the above, the record of the case, which is before us, shows that Muhammad Akbar and Banaras accused have shared between themselves five injuries each. Both of them received two incised injuries on their heads which were bone deep. Dr. Hamayun Khan was produced by the accused in his defence and was examined as D.W.1. Not a single question was put to him as to whether any of the five injuries found on the persons of these two accused were self‑inflicted or were caused by friendly hands. In other words, his observation testimony was accepted by the prosecution in toto. The injuries sustained by them also correspond to the, time of occurrence and therefore, it would be reasonable to presume that the same were caused by the complainant party. The eye‑witnesses have definitely suppressed the injuries sustained by the convicted accused appellant Banaras and accused Akbar (since acquitted). On the contrary, they (the eye‑witnesses) have stated that they or deceased had not caused any injury to them (the accused). It is, therefore, very much obvious that they had told a lie regarding this important point which, of course, had a material bearing on ' the culpability of the appellant. Since these eye‑witnesses, in our opinion, are compulsive liars, therefore, their evidence is not believable unless it is duly corroborated by other independent or circumstantial evidence, both in respect of the version of the prosecution as well as the identity of the appellant.

9. In the light of what has been mentioned above, it has been strongly urged before us by the learned counsel for the appellant that in case a witness has falsely implicated one culprit and that his testimony contradicts the medical evidence, then in that case his credibility is completely shattered/eroded and his testimony cannot be relied upon safely and has to be discarded. Judging the account of assault, as disclosed by these eye‑witnesses; in its true perspective, we cannot ignore the fact that if two (appellant and Sadiq his brother) of the five culprits were armed with shot guns from the very beginning and two shots had been fired, as alleged, one at Ali Aksar Shah (P.W.9) and the other at the deceased, then in that case no person, who is armed with an axe/dagger or stick, would dare to go near those who has guns in their hands. Had it been true then the appellant and his brother would never have permitted the deceased, Abbas Shah (P.W.10) and others to assault and injure them. The facts and circumstances of the case indicate that a gun shot was fired, after the appellant and Akbar accused had received injuries at the hands of the complainant party or when the accused were being assaulted by them. We find considerable force in the contention of the learned counsel for the appellant that the gun was brought into the occurrence, by some one, when it was already going on and the appellant and his companions were being thrashed. This unsatisfactory feature of the prosecution case could not be answered adequately either by the learned counsel for the complainant or by the learned counsel for the State. On the other hand, the above inference is duly supported/strengthened by the positive evidence of Abbas Shah (P.W.10) who, in his cross‑examination has admitted as under:‑‑

"When both parties were quarreling with each other in village mosque, a shot was fired from outside the mosque and it hit Fida Hussain Shah deceased who was injured."

10. It is well‑settled principle of law that anything which goes in favour of the accused must be taken into consideration and benefit of the same, if any, be extended to him, not as a matter of grace but as a matter of right.

11. The damaging admission, coming as it does, from the mouth of the prosecution's own witness cannot be legally easily brushed aside keeping in view the rule stated above. If it is taken into consideration, as it should be, it not only demolishes the case as set up in the F.I.R. but also shatters the entire fabric of the testimony of Ali Aksar Shah (P.W.9). Thus both the eye‑witnesses have contradicted each other on material points and have also introduced an element of. uncertainty regarding the identity of the assailant, whosoever he was, causing the death of the deceased. The question of sifting the grain from the chaff, in the circumstances of the present case does not arise, bec4use the ocular account suffers from false implication of several accused (some since acquitted), manner of assault and the incorrect attribution of weapons to them as it is indirect contradiction with `the medical evidence. It appears that the occurrence has taken place in a different context than the one alleged by the prosecution. The prosecution, no doubt, sees only what it is prepared to see but in the present case the ocular version being inherently defective and false merits no consideration and is accordingly discarded.

12. Next we have to ascertain the evidentiary value of the dying declaration (Exh.P.W.5/1) relied upon by the prosecution. There is no doubt that the dying 'statement is forthcoming from a person who was charged by the appellant accused for having assaulted him with a dagger. This is clear from the perusal of the counter‑report (Exh.P.W.12/D‑1) duly proved by S.H.O., Muhammad Nisar (P.W.12). He was a co‑accused in a cross‑case. This being so, the dying statement is proceeding from interested tainted quarters. As such it requires to be scrutinized very carefully, before it is acted upon, in the light of its factual background. In this context, it may be noted that deceased was taken alongwith the eye‑witnesses to the Emergency Ward of Civil Hospital, Haripur at 6 P.M., where S.H.O., Muhammad Nisar Khan. (P.W.12) scribed the Murasila (Exh.PA/1) in the first instance and thereafter prepared injury sheets, Exh.P.C, Exh.P.D and Exh.P.E., of Ali Aksar Shah (P.W.9), Abbas Shah (P.W.10) and Fida Hussain Shah deceased respectively. The preparation of all these documents must have taken at least fifteen to twenty minutes. But curiously, the deceased was examined by Dr. Muhammad Tariq (P.W.7) at 5‑00 p.m. and the other two injured between 5‑10 p.m. to 5‑20 p.m. The time of examination of the deceased does not fit in with the time when he was sent with the injury sheet for medical examination. The injury sheet (Exh.P.W.6/3) is silent about the factum of dying declaration. Both the eye‑witnesses were present with the deceased when all of them were medically examined. Even they have not spoken a word about any declaration having been made by the deceased before the doctor. The S.H.O. concerned also did not make any reference to it. He never said a word about having received the dying declaration from the abovenamed Doctor. When and at what time the dying declaration was written, the doctor concerned is absolutely silent about it. Strangely enough, no certificate has been attached by the doctor to show that the accused was in his proper senses when he allegedly made the dying declaration. A perusal of the dying declaration would show that it is full of cutting and interpolation with different ink and for this no plausible explanation has been advanced by the prosecution. This fact alone injects an element of falsehood in the dying declaration and accordingly the veracity of the contents of the dying declaration have become highly doubtful. Beside this, the learned counsel for the appellant has invited our attention to few other circumstances which make the genuineness of the alleged dying declaration extremely highly doubtful. In the first place the tampering and cutting and use of different ink appearing on the said document, without any initial of the scribe, has thrown a thick blanket of suspicion on the dying declaration. In the next place the other marginal witness of the dying declaration i.e., Muhammad Shah has not been produced to stand the test of cross‑examination, It seems that he is the son of Haider Shah who has been named as one of the assailants of the appellant in the counter‑report (Exh.P.W.12/D‑1). The association of co‑accused and close relation of the deceased with dying declaration, at the time of its writing, further aggravates the above suspicion. In the third place, it is clear from the medical evidence that the deceased was in severe shock and the fact that the scribe, being a doctor, did not certify that the deceased was in a fit condition to make the declaration, robs the dying declaration of its evidentiary value in toto. We are, therefore, of view that the dying man (deceased) has failed to disclose the important details of the occurrence and had suppressed his own role in causing injuries to the appellant and his companions. It may also be stated that the dying declaration is also contradicted by Abbas Shah (P.W.10) who has, in clear terms, deposed that the deceased was fired upon by some one from outside the mosque. In such circumstances the dying declaration cannot be regarded as sacrosanct especially when it stands completely refuted and shattered by prosecution's own witness. Since the dying declaration is neither true nor it is corroborated by other evidence, nor fully proved according to law, therefore, it cannot be relied upon or form the basis of the conviction of the appellant accused.

13. Even the motive for the commission of the offence, as mentioned in the F.I.R., has not been proved by cogent evidence during the trial. The motive relating to the quarrel between the children of the parties has not been disclosed with full detail. It is as vague as it is hazy. On the other hand, the appellant has alleged, without proof, the religious differences with the complainant party as the motive for his false implication in the case in hand. The third motive has been introduced by the investigating officer by stating that some four/five months prior to the occurrence a son of Banaras appellant accused had teased a niece of Abbas Shah (P.W.10). Thus, motive for pre‑emptive attack, in our opinion, lay with the complainant party and not with the appellant accused party.

14. The manner of attack suggests that the appellant and his companion Akbar were given beating in the first instance and that while the assault was in progress and has assumed duel fight with diverse weapons, some one from outside the mosque fired a shot, hitting and killing the deceased. The fact, however, remains that if any motive is advanced by the prosecution for the ommission of offence, then in that case it becomes obligatory for the prosecution to prove that motive. Failure to do so would be fatal for the prosecution. In the instant case the motive set up in the F.I.R. and the dying declaration stand unproved and this fact has further weakened the prosecution case.

15. For the foregoing reasons, we are of the view that the prosecution has not been able to prove its case against the appellant‑accused beyond reasonable doubt and, therefore, we accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith,) if not required in any other case. N.H.Q./1792/P??????????????????????????????????????????????????????????? Appeal accepted.