1972 PLP 644 (SCMR)

SALAHUDDIN AHMED, J.‑Respondents Nos. 1 to 3 were convicted under section 302/34 of the Pakistan Penal Code, and sentenced to transportation for life each by the Additional Sessions Judge, Mardan. On appeal before the Peshawar High Court, however, they were all acquitted. The present petition is from the order of acquittal. The occurrence took place on the 4th February 1961 at 3‑30 p. m., and Shamsuz Zaman (the deceased) was said to have been fired at and injured in his field by the three respon dents. The first information report which was subsequently treated as a dying statement, was lodged by the injured Shamsuz Zaman on the same evening. It is alleged that a dying statement of the deceased was recorded by P. W. 13 Mollah Dad while the deceased was proceeding to the Police station. The injured died on his way to the Civil Hospital, Mardan. The defence case is one of denial. The respondents denied abscondence, and said that they had gone to Swat in connection with their business, but no witness was examined by them. The prosecution relied on the evidence of prosecution witnesses Zarshad (P. W. 7), Farid Khan (P. W. 8) and Mollah Dad (P. W. 13) and the dying statement of the deceased to prove its case. For the purpose of conviction the learned Additional Sessions Judge relied on the dying statement of the deceased (i. e. F. I. R.) and the evidence of P. W. Zarshad as corroborated by the abscondence of the respondents. Its may be stated here that the dying statement claimed to have been recorded by P. W. Mollah Dad was neither produced during the committal proceeding nor at the trial. S. H. O. Farid Khan who recorded the F. I. R. did not say that he received the said statement. This statement was received by the Additional Sessions Judge after the conclusion of the trial but before the judgment. Inasmuch as, however, the statement had not been produced at any stage earlier he refused to take it into consideration. There are certain unsatisfactory features of the case. Of the four witnesses of occurrence mentioned in the F. I. R. only one of them viz. P. W. Zarshad, brother of the deceased, has come forward to depose as an eye‑witness. Among the omitted witnesses is an Imam of the Mosque, and one Muhammad Ayub who died after his deposition before the committing Magistrate but whose evidence was not brought on record under section 33 of the Evidence Act. An earlier dying statement recorded by P. W, Mollah Dad vas not produced either at the committal proceeding or at trial. According to the ocular evidence of P W. Zarshad the deceased was fired at from a distance of 4/10 paces. This is inconsistent with the medical evidence which discloses that there were tattooing and blackening marks upon the deceased. This is indicated that the deceased was shot from very close range. In view of the Interested nature of the evidence and the existence of enmity between the parties there should have been some corroboration. There is, however, no corroboration. In the facts and circumstances of the case, the High Court held that mere abscondence was not a sufficient corroboration. Having regard to these infirmities we do not think that the High Court acted unreasonably in acquitting the respondents. This is not a fit case for interference with the High Court's order. The petition is accordingly dismissed. Petition dismissed.