1985 P Cr (PLP)

GULBAZ KHAN, J.‑‑ This is a State appeal against the order, dated 14th November 1983, of the Additional Sessions Judge, Jhang, whereby the respondents were acquitted of the charge under sections 302/34 and 302/109, P.P.C.

2. The respondents were tried on the allegations that three days prior to the occurrence they hatched a conspiracy to commit the murder of Said Ahmad Shah and in pursuance thereof. Haider Shah and Safdar Hussain Shah respondents in furtherance of their common intention, fired at Said Ahmad Shah on 9th September 1981 at morning prayer time, as a result of which he died in the hospital on 24th September 1981. 2‑A. Case was registered on the statement of Said Ahmad Shah deceased made in Civil Hospital, Chiniot, on 9th September 1981 at 7 a.m. According to the F.I.R., the occurrence was witnessed by Munawar Abbas, Iqbal Hussain and Dosa P.Ws.

3. The grounds taken in the appeal are:‑ (a) the eye‑witnesses had no motive to falsely implicate the respondent, and their evidence which finds support from the medical evidence, has been rejected without any rhyme or reason; and (b) the trial Court has illegally discarded the dying declaration which fully implicates the respondents.

4. The prosecution examined two eye‑witnesses, namely, Munawar (P.W.5) and Dosa (P.W.6). They supported the prosecution version in their examination‑in‑chief. In cross‑examination Munawar P.W. admitted that the accused fired at the deceased from a distance of 8/9 Karams at morning Azan time when it was dark and that they had muffled their faces. Dosa P.W. stated that when first shot was fired, he alongwith Iqbal Hussain P.W.(not produced) was present at the Dhari of Said Ahmad Shah deceased situate at a distance of one acre from the spot. According to him, the second shot was fired immediately after the first. He further stated that the place of occurrence was not visible from the Dhari of the deceased as a garden having full grown plants and a surrounding wall intervened between the two places. These admissions clearly show that the alleged eye‑witnesses could not have A correctly identified the assailants of the deceased. In the circumstances, no reliance can be placed on the ocular evidence.

5. The dying statement (Exh. P.F.) was recorded by Muhammad Hanif, A.S.I. In cross‑examination Dr. Nazir Ahmad (P.W.1) stated that he was not present when this statement was recorded by the police. Muhammad Hanif, A. S. I., admitted that all the eye‑witnesses were present with Said Ahmad deceased and they remained with him when his statement was recorded. The occurrence took place on 9‑9‑1981 and Said Ahmad Shah died on 24‑9‑1981. The investigating agency did not bother to have the statement of the injured recorded by a Magistrate although the Courts were at a distance of 200 yards from the hospital. It is prosecution's own case that there was enmity between the deceased and Haider Shah respondent due to land dispute pending in the civil Court. The possibility of the statement Exh. P.F. of the deceased being the result of tutoring, therefore, cannot be ruled out. To prove the charge of conspiracy, the prosecution examined Hayat (P.W.) and Dewan Ali Shah (P.W.8) Hayat P.W. stated that three days prior to the occurrence Muhammad Shah and Jafar Shah accused instigated Haider Shah and Srfdar Shah accused to kill the deceased as the land dispute could only be resolved if he was murdered. They also offered to bear all the expenses in case they were challaned and sent up to face the trial. Dewan Ali Shah P.W. stated that 4/5 days after the occurrence Hayat P.W. had apprised him of the said conspiracy. In cross‑examination Hayat P.W. admitted that he was a tenant of the deceased. He did not inform the deceased about the conspiracy and he made statement before the police five months after the occurrence. It is very strange that the accused hatched a conspiracy in his presence knowing full well that he was a tenant of the deceased and information will be conveyed to him. It is again surprising that this witness did not bother to inform his landlord that the accused had conspired to kill him. Dewan Ali Shah P.W. also admitted that the police recorded his statement about 4/5 months after the occurrence and his evidence can be rejected on this ground alone. After going through the entire evidence, we find that the finding of acquittal recorded by the trial Court has the support of evidence. In the circumstances, no interference with the same is called for. This appeal is, therefore, dismissed. M. Y. H. Appeal dismissed