1972 PLP 574 (SCMR)

SAJJAD AHAMAD, J.‑‑The respondent, Kachkol, was tried for the murder of one Zar Muhammad by the learned Sessions Judge, Peshawar, who found him guilty and sentenced him to death. He was, however, acquitted on appeal by the High Court (Peshawar), leading to this petition for special leave to appeal against the acquittal order. The murder of Zar Muhammad took place at 6 a.m. when be was going on his bicycle to attend to his duty in the Kheshki Military Farm, where he was employed as a Mali. He was fired at by the respondent with a topak and was hit in the left lumbar area, suffering 6 fire‑arm entrance wounds on the left lumbar area and 6 corresponding exit wounds over left side of abdomen, He was taken to the Police Station, Nowshera Kalan, where his statement was recorded as the First Information Report, in which he charged the respondent for firing at him, stating further that he was at the time accompanied by Babar and Saleh, P. Ws., who had witnessed the occurrence. The motive alleged was that by firing at the deceased, the respondent had avenged the murder of his brother‑in‑law, Bacha, for which Zar Muhammad, deceased, was charged and convicted. The evidence against the respondents produced at the trial consisted of the deceased Zar Muhammad's First Information Report, which on his death was treated as the dying declaration, and the ocular evidence furnished by P. Ws. Babar and Saleh, mentioned above. In addition, there was the circumstance of the abscondence of the respondent for about ten months after the occurrence. The learned Judges in the High Court have carefully scrutinised the evidence of the witnesses and have found it to be unbelievable. This evidence is obviously of an interested character, as both the eye‑witnesses, namely, Babar and Saleh are closely related to the deceased. Apart from this relationship, their testimony suffers from inherent defects and contradictions, end in particular was in conflict with the medical evidence. These witnesses had stated that the deceased was fired at by the respondent from a distance of 50 to 60 paces, but the pattern of the entrance injuries on the deceased, all of which were located close to each other over the lumbar area clearly indicated that the shot could not have been fired at the deceased from a distance of more than 12 feet. If the shot was really fired from a distance of 50/60 paces as alleged by the eye‑witnesses, the spread of the shot would have been very much wider. The other item of evidence against the respondent, namely, the dying declaration, was also carefully examined by the learned judges of the High Court and found not to be true and genuine. Although according to the prosecution case, several persons had collected at the spot after the incident, nobody came forward to depose that the deceased had charged his assailant before him. He was taken in a tonga to the police station where for the first tune he disclosed the name of the respondent as the person who' had fired at him. As already stated above, the occurrence had taken place at 6 a.m , and the statement of the deceased in the police station was recorded at 7‑15 a.m. after about an hour and 15 minutes. The doctor, who had examined him, stated categorically that because of the injuries to the deceased on the pancrea, small intestines, liver, spleen and the left kidney, he must have lost his power of speech within half an hour of receiv ing those Injuries. This statement renders the dying declaration entirely doubtful. The High Court has also observed that the alleged dying declaration was recorded by the police officer in the presence of the relations of the deceased, and if at all it was made by the deceased, the relations may have done the prompting The learned Judges have also noted from the site plan that there Is a culvert on the northern bank of the road to the west of the point where the deceased was injured, and the probability could not be ruled out that somebody fired at the deceased clandestinely by taking cover in that culvert. In view of the unreliability of the ocular evidence and the very doubtful nature of the dying declaration, the High Court did not find it safe to uphold the respondent's conviction, and his abscondence in the circumstances was held not to be a corroborative circumstance of any value. The prosecution case not being free from a genuine doubt, we do not think that it is a fit case for our interference for grant of special leave. The petition is dismissed. Petition dismissed.