1976 P Cr (PLP)

M. SIDDIQUE, J.‑The brief facts of the case, as alleged by the prosecution, are that on the day of occurrence, namely, 20‑7‑1972, the marriages of the sons and daughters of Noor Khan deceased and his brothers Dhanal Khan were to be solemnised. At about digarwela on that day, the deceased accompained by his brother Akbar Khan and Alam Sher P. Ws. was going to Wandha Yarmand Khelanwala for collecting cots and beddings for the guests of the said rnarriages. Rab Nawaz, the present appellant, and his brother Haq Nawaz (acquitted co‑accused) suddenly emerged from behind a banna in front of the deceased. Both the accused are alleged to be armed with rifles. The appellant challenged the deceased and shouted at him saying as to whose women he had snatched and simultaneously fired at the deceased hitting him on his right flank. On the receipt of the injury, the deceased fell down. Haq Nawaz (acquitted co‑accused) is also alleged to have fired at the deceased, which, however, proved ineffective. Akbar Khan and Alam Sher P. Ws. claim to have taken shelter on the ground by the side of banna. In the meantime, Gul Khan P. W. who was present in his jowar field near by, also reached the spot and entreated the accused persons not to fire any more shots. On this, both the accused are said to have retreated from the scene of occurrence. On reaching near Noor Khan, the eye‑witnesses saw that he was still alive. Alam Sher P. W. went to his house, brought a cot, placed the injured on it and took him to the pucca road on way to the hospital. On the road they waited for the bus for some time, but none turned up. They again carried the injured and covered a distance of about two miles when a bus going in opposite direction arrived there, but the driver told them that he would come back after dropping the passengers at Chhidur. The witnesses again waited there when the bus returned and took the injured to the hospital at Mianwali where he reached at about 10 p. m. on that night and was medically examined by Dr. Muhammad Asghar Chaudhary at 10‑20 p. m. The doctor found the following injuries on his person :‑ (1) A firearm wound of inlet with inverted margins 1/4" x 1/4" on right lumber region mid‑axillary line 3" above the anterior superior iliac spine. (2) Firearm wound of exit " x " on left lumber region in left mid axillatry line, 4" above the left anterior superior iliac spine. The doctor alleges to have informed the police about the arrival of the injured in the hospital. The doctor further vide ruqqa (Exh. P, X.) asked the police to arrange to get the statement of injured Noor Khan immediately recorded as his condition was serious. A. S.

1. Rafiq Ahmad P. W. after receiving this information, claims to have contacted Malik Abdul Rehman. Honorary Magistrate 1st Class and taken him to the Civil Hospital. On reaching the hospital, Malik Abdul Rehman vide ruqqa (Exh, P. D.) enquired front the doctor whether injured Noor Khan was tit to make a statement. The doctor vide Exh. P. D. 1 opined that sari Noor Khan was tit to give a statement. Malik Abdul Rahman Magistrate then recorded the statement of Noor Khan (Exh. P. D. 4). The Magistrate again vide (Exh. P. D. 2) asked the doctor whether the injured remained in his senses throughout the period when his statement was being recorded. The doctor instead of giving any positive opinion, just put his signatures (Exh. P. D. 3 below Exh. P. D 2 A. S.

1. Rafiq Ahmad P. W. sent a copy of the statement of the injured to the Police Station at Musakhel where formal F.I.R. (Exh. P_ C. 1) was registered at 1‑30 a. m. on 21‑7‑1972. The doctor vide ruqqa (Exh. P. G) informed the police that said Noor Khan expired in the hosuital at 3 p. m. reached the on 21‑7‑1972. On the receipt of ruqqa (Exh P. G.) S.

1. Tauqir Hayat P. W. reached the hospital, prepared the injury statement (Exit. P. H.) and inquest report (Exh. P. J.) of the deceased and despatched the dead body to the mortuary for post‑mortem examination. He claims to have arrested the appellant on 1 6‑8‑1972 from Mianwali Town. The case was partly investigated by, A. S. I. Talib Hussain who on 21‑7‑1972, inspected the spot and collected blood‑stained earth and sealed it into a parcel vide Memo. Exh. P. A. He secured warrants of arrest (Exh. P. W. 14/A) against Haq Nawaz (acquitted co‑accused). He also claims to have taken the docket from the office of the Superintendent of Police, Mianwali, to the Officer Commanding, Punjab Regiment, Mardan, where said Haq Nawaz was stated to be employed in the Army in those days.. According to him, the said warrants could not be executed as it was reported to him that the said accused had been discharged from the Army. He also tried at the place of his residence, but could not get any clue about him. He, therefore, returned the warrants of arrest unserved with his own report. Haq Nawaz accused was, however, arrested on 21‑11‑1972 by Inspector Muhammad lqbal P. W. After the usual investigation, the police challaned both the accused persons, namely, Rab Nawaz appellant and his brother Had Nawaz. They were tried by the Additional 6essions Judge, Mianwali, who vide the impugned judgment dated 12‑7‑1974, acquitted Haq Nawaz, but convicted the present appellant under section 302, P. P. C, for the murder of Noor Khan and sentenced him to death subject to confirmation by this Court. He was also sentenced to pay a fine of Rs. 1000 which was ordered to be paid to the legal heirs of the deceased as compensation under section 544‑A, Cr. P. C. The appellant has challenged his conviction and sentences through the present appeal. The case is also before us under section 37‑I, Cr. P. C. for the confirmation of the sentence of death awarded to him by the trial Court. This judgment will dispose of the Criminal Appeal as well as the Murder Reference.

2. Dr. Muhammad Aslam on 21‑7‑1972, at 5 p. m. performed the post‑mortem examination on the dead body of Noor Khan and found practically the same injuries on it. The injuries were caused by a firearm and were grievous and dangerous to life. Death in the opinion of the doctor occurred due to shock and hemorrhage as a result of these injuries which were sufficient to cause death individually or collectively. Probable time between injuries and death was within 36 to 38 hours and between death and post‑mortem examination within a few hours.

3. The appellant when examined under section 342, Cr. P. C. denied the prosecution allegations. When asked the following question about his abscondence, he stated as under :‑ Q. "Is it a fact that you absconded on the day of occurrence and were arrested on l6tb August, 1972, by Tauqeer Hayat S. I ? A. It is incorrect. I was with the police from the very first day." When asked if he would produce any defence, he stated as under :‑ "I tender in evidence copy of birth certificate of Mst. Kashmiran, Muhammad lqbal, Muhammad Azim and Mst. Bashiran, children of Mst. Khatun daughter of Saleem Khan Exh. D. C., copies of Register. Am Exhs. D. D. and D. E. and will not produce any oral evidence in defence."

4. In support of its case, the prosecution produced three eye‑witnesses, namely, Akbar Khan (P. W. y), Alam Sher (P. W. 10) and Gul Khan (P. W. 11). The prosecution also relied upon the dying declaration Exh. P. D. 4), motive and the abscondence of the appellant. The trial Court disbelieved the statement of Gul Khan P. W. and the motive, but after believing the testimony of Akbar Khan and Alam Sher P. Ws, as corroborated by the dying declaration and the abscondence of the appellant, convicted and sentenced the present appellant as mentioned above.

5. It may be mentioned at the very outset that the learned State Counsel has stated that the trial Court has rightly disbelieved the statement of Gul Khan (P. W. 11) and the motive. We have ourselves also examined these pieces of evidence and agrc a with the trial Court that no reliance can be placed upon the statement of Gal Khan P. W. and the motive alleged by the prosecution.

6. We are consious of the fact that the most important piece of evidence in this case is the alleged dying declaration (Exh. P. D. 4) of Noor Khan deceased. It is believed to be genuine and Legal document, the n the prosecution can strongly rely upon it to support the conviction of the appellant. On the other hand, it this document is doubted, then it will seriously prejudice the prosecution case. The learned State Counsel has rightly mentioned this document as the foundation of the prosecution case. We entertain serious doubts about tae genuineness and the mode of proof of this dying declaration. it is an admitted fact that Noor Khan deceased was not sent to Dr. Muhammad Asghar Chaudhary by the police. The doctor has admitted in cross‑examination that the injured was brought to him as a private patient. `This doctor claims to have informed the police about tire arrival of the injured in the hospital, but there is no d )current available on the record to this effect. This is the first circumstances to create doubt against the prosecution. However, subsequently he sent ruqqa (Exh. P. X.) to the S. H.. O. City Police Station, Mianwali, to arrange to get the statement of Noor Khan recorded immediately as his condition was serious. On receipt of this information, A. S. I. Rafiq Ahmad P. W. claims to have contacted Malik Abdul Rahman, Honorary Magistrate, and taken him to the hospital for recording the statement of the injured. This police officer has admitted in cross‑examination that he had submitted an application in writing to the Magistrate, but the said application is not available on the record. The absence of this application is a second circumstance to create doubt against the prosecution. It is admitted by the police officer that application in writing was submitted to the Magistrate requesting him to record the dying declaration. It is further not denied that generally it is on that very application that the Magistrate, who records such a statement, takes a note that the same has been complied with. 1n these circumstances, it can safely he inferred that in fact no such application was submitted by the police officer to the Magistrate for the said purpose; otherwise it would nave been on the record or at least it should have been mentioned in some other document. It is contended on behalf of the defence that the alleged dying declaration is a clear fabrication secured in collaboration of the doctor and the Magistrate. The learned State Counsel has not satisfactorily explained the absence of the said application of the police officer as well as the document sent to the police by the doctor about the arrival of Noor Khan injured in the hospital. We have ourselves minutely scrutinized the entire record, but find neither these documents on the record, nor even mention of them anywhere. The State Counsel admits that if these documents had been in existence and part of the file, they should have been noticed and exhibited before the Committing Court. Malik Abdul Rahman Magistrate P. W. has stated in cross‑examination that according to his memory, the police officer had submitted an application before him for recording the dying declaration of Noor Khan and that the said application also contained note of the doctor. He has, however, admitted that the dying declaration (Exh. P. D. 4) does not contain any note to the effect that it was recorded on the application of the police officer. He has further admitted that more than 1/4th of the portion of page upon which the statement (Exh. P. D. 4) is recorded, is lying blank and he has not offered any explanation for leaving this portion of the page as blank. He has denied the defence suggestion that this portion was left blank advertently in order to obtain the request of the police officer and certificate of the doctor as to the fitness of the injured. This witness has further admitted that he cannot give any reason for writing his query (Exh. P. D.) on a separate piece of paper and .not on the same( containing the dying declaration. Similarly, be has given no reason as to way he recorded his query (Exh. P.D. 2) on the same sheet of paper as that of Exh. P. D. and not on a separate paper or on the papers containing the dying declaration. The witness has also admitted that it is nowhere mentioned in Exh. P. D. to Exh. P. D. 4 that the doctor remained present during the course of examination of the deceased. He did not obtain the attestation of the doctor or anybody else on Exh. P. D.

4. He has denied that the portion of Exh. P. D. 4 encircled in red pencil was added after he bad read out its contents to the deceased and obtained his signatures thereon. This witness has further stated that the portion encircled in black pencil in Exh. P. D. 4 was altered and added at the behest of the deceased during the course of recording his statement. However, he did not make any note of the fact that the deceased did not agree to what was read, out before him and that the witness added the encircl ed portion in red pencil as such at his instance. We have ourselves carefully examined these documents. Exh. P. D. 4 is on a separate sheet and it does not start from the beginning of the page as is normally done. More than Z/4th portion of the page is left blank and then starts the statement of Noor Khan deceased. Exhibits P. D., P. D. 1, P. D. 2 and p. D., 3 are all on another separate sheet of paper. A careful examination of this sheet indicates as if Exh. P. D. was added later on. At the end of, it .the signatures, the date and time . go beyond the first two lines of Exh. P. D.

1. It seems that Exh. P. D. 1 was already in existence when Exh. P D. was written subsequ ently. In order to maintain the sequence it is added above Exh. P. D

1. Further, we find that there is some space blank between Exhs. P. D. I and P. D.

2. As mentioned above, Exh. P.D. 1 is the certificate of the doctor regarding fitness of Noor Khan to make a statement. In normal coarse, the doctor should have put his signatures immediately below the writing. There is also some tampering in the date and time below the signatures of the doctor. The prosecution has not been able to explain this, unusual method of leaving unnecessary blank spaces and writing these things on separate sheets and also writing Exh. P. D. above Exh. P. D. 1, bringing the signatures of the Magistrate below and crossing two lines of Exh. P. D. 1.

7. The most serious objection, however, seems to be the mode of proving the alleged dying declaration (Exh. P. D. 4). As mentioned above, according to the prosecution, this dying declaration was allegedly recorded by Malik Abdul Rahman, Honorary Magistrate 1st Class. Mianwali. The prosecution wanted td prove this document through this witness. The prosecuting Agency included this witness in the calendar of witnesses in the final challan. However, he was not produced before the Committing Magistrate. There is no formal statement by the Prosecuting Sub‑Inspector giving up this witness. The only statement of Ch. Abdul Latif, Prosecuting Sub‑Inspector, on 1‑8‑1973 at the close of the commitment proceedings is giving up Nasrullah witness. The fa9tual position, therefore, which emerges is that neither Malik Abdul Rahman Magistrate was examined by the prosecu tion as a witness, nor is there any formal statement by any competent authority giving up this witness. The Committing Magistrate while com mitting the case to the Sessions Court, mentioned 1,4 witnesses in the calendar, but the name of this witness was not included amongst them. Below these 14 names are mentioned two names under the heading of "Given up". One of them is Malik Abdul Rahman. Before the trial Court, Malik Abdul Rahman Magistrate was neither cited as a witness, nor summoned as such. On 25‑6‑1974, this witness happened to be present outside the premises of the trial Court in connection with some other case State v. Muhammad Ramzan (1973 P Cr. L J 63). The Public Prosecutor, therefore, produced him as a witness in the present case. The defence counsel took serious objection s for producing this witness in this manner. The trial Court put the following note and then recorded the statement of this witness :‑ "At this stage the learned defence counsel Mr. Ehsan Qadir Shah raised an objection that the witness cannot be examined in this Court for the reasons that he was neither reserved for Sessions trial in the Court of Committing Magistrate, nor was he examined there. It is further contended that this witness having already been given up in the Court of the' Committing Magistrate was not summoned to give evidence in this Court and that he has been brought today when he had come outside the Court in connection with another Sessions' case entitled State v. Ramzan. In support of his contention the learned defence counsel cited to 1973 P Cr. L J

63. The learned Special A. P. P. opposed this contention of the learned counsel for the defence and pressed for arguments on this point. . I shall dispose of this objec tion on writing final judgment of this case and allow the examination of this witness subject to this objection." It is surprising that the learned Additional Sessions Judge has completely forgotten to discuss and dispose of this objection. The judgment is completely silent on this point. In cross‑examination, this witness has admitted as under:‑ "I was not examined before the C.M. I was not specifically summoned in this case today and had come to Court in another Sessions' case entitled State v. Muhammad Ramzan etc." Thus, the position boils down to this that Malik Abdul Ramzan Magistrate was cited as a witness by tire prosecution in the final challan submitted to the Court. He was neither summoned, nor given up by any competent authority before the Committing Court. He was not included amongst the prosecution witnesses in the calendar submitted by the Com mitting Magistrate to the Court of Session., His name was shown under the heading "Given up" witnesses. He was neither cited nor summoned by the prosecution before the trial Court. He, however happened to be present outside the Court in connection with some other case. The Public Prosecutor produced him as a witness without any formal application or permission of the Court. The question which in these circumstances, arises for consideration is whether production of this witness in this manner is permissible under the law and whether it has caused any prejudice to the accused and if so, what is its effect 7 After going through the various provisions of the Code of Criminal Procedure, especially sections 208, 219, 286 and )4o, we are of the view that there is no legal bar for the Court to examine a particular witness at any stage of the case in the interest of justice. The power of the Court is not disputed. However, in the instant case, Malik Abdul Rahman, Magistrate, was not examined by the Court on its own, but it was prosecution which produced him before the trial Court. As mentioned above, there is no specific statement made by any competent authority before the Committing Magistrate giving up this witness. However, a witness can be given up either on, the ground of being unnecessary or having been won over. It is admitted by the State counsel that he was not unnecessary witness, as he had to prove a very important document which has a great bearing on the case. The only possible inference, therefore, for not examining this witness before the Committing Court is that he was not likely to support the prosecution. In a situation like this, the prosecution could not be allowed to produce such a witness straightaway before the trial Court without previous permission of the Court and without notice to the accused. In the present case, both these things are missing. Neither the permission of the Court was obtained by the Public Prosecutor before producing the witness, nor any previous notice or intimation was given to the accused. As mentioned above, Malik Abdul Rahman Magistrate was neither cited as a witness, nor summoned by the prosecution. He happened to be present outside the Court premises on that day in connection with some other case. The Public Prosecutor decided to produce him as a prosecution witness. The learned defence counsel contends that most probably this witness was not produced before the Magistrate as he was not willing to support the prosecution case and he was produced before the trial Court only when he agreed to support the prosecution. The defence had raised the objection to his being examined as a witness at that stage. The Court permitted this witness to give", a state ment subject to the objection to be d ‑.cided later on. That objectios never decided by the trial Court. Neither there is any separate order disposing of the said objection, nor is there any mention of it in the impugned judgment. Omission to give decision on this vital point has adversely affected the defence. After hearing the counsv1 for the parties and going through the relevant provisions of laws. we are of the view that thers is no material available on the record to justify the Public Prosecutor to produce Malik Abdul Rahman, Magistrate, as a witness in this manner without permission A and approval of the Court and without giving prior notice to the accused. We, therefore, disapprove such practice. Further, we are of the view that it was the duty of the trial Court to dispose of this objection raised on behalf of the defence either by a separate order or in the judgment under appeal.

8. According to the learned State counsel, the production of Malik Abdul Rahman Magistrate as a witness before the trial Court without citing him as a witness and summoning him as such, has not caused, any prejudice to the accused as he already knew everything about the said dying declaration on the basis of which formal F. I. R. was registered. In other words, the contents of the F. I. R. were known to the defence from the very beginning . According to him it was a mere formality to prove this dying declaration. We are not inclined to agree with the learned State counsel. As mentioned above, this witness, although cited as a prosecution witness. As mentioned above, final challan, was neither summoned, nor examined before the Committing Magistrate. Further, there is no statement by any competent authority on behalf of the prosecution to give up this witness on the ground of being unnecessary or having been won over. Even before the teal Court, being unnecessary witness was neither cited, nor summoned as a witness. As mentioned his above, his name was shown under the heading of "Given up". In this, the appellant could not expect that this witness would be background, ending the trial Court in connection with another case and then would be attending by Public Prosecutor in this case also. The accused must have been taken by surprise when all of a sudden the public Prosecutor produced ;s witness for the first time before the trial court. No doubt, the defence the did cross‑examine this witness, but it is an admitted fact that no time or opportunity was given to the defence counsel to get proper instructions from showing his interest in the complainant his client to discredit this witness by or enmity against the appellant. It may be mentioned here that this party case was fixed for hearing before Mr. Z. A. K. Yusafi, Sessions Judge, Mianwali, on 25‑6‑1974, who transferred it to the Court of the Additional Sessions Judge, Mianwali, as the latter was short of units. On the same day, the case was taken up by the Additional Sessions Judge and after recording the supplementary statement of Dr. Muhammad Asghar Chaudhary the first witness examined by the trial Court on that day, namely, 25‑6‑1974, was Malik Abdul Rahman, Magistrate. After him, the prosecution pro duced five more witnesses on that day. This clearly shows that the defence counsel was not given any extra time before recording the statement of Malik Abdul Rahman to get instructions for cross‑examining this witness. In this situation, it can safely be inferred that production of Malik Abdul Rahman Magistrate as a witness has caused material prejudice to the defence. Even otherwise, when a thing is not done in accordance with law, it is likely to cause prejudice to the opposite party. After taking into consideration the relevant material available on the record and going through the provisions of law, we are of the view that the alleged dying declaration recorded by Malik Able Rahman, Magistrate, cannot be used against the appellant as the same has not been proved in a proper and legal manner. Hence we keep the same out of consideration. The learned State counsel has tried to argue that this defect stands cured under section 537 of the Code of Criminal Procedure. Since it leas materially prejudiced the defence, the defect cannot be cured under the said section. We feel that the safer course is not to use this dying declaration against the defence at all.

9. Another circumstance relied upon by the prosecution is the alleged abscondence of the appellant. The occurrence took place on 20‑7‑1972 and the appellant was arrested on 16‑8‑1972. His brother Haq Nawaz acquitted co‑accused) was arrested much later on 21‑11‑1972. It is an admitted fact that warrants of arrest were obtained by the Investigating Officer against said Haq Nawaz, but no such warrants were secured against the present appellant. The Investigating Officer has admitted as under: "I had obtained warrants of arrest from the Maya Magistrate for Haq Nawaz accused only I did not obtain the warrants of arrest against Rab Nawaz accused as it was promised by his relatives to produce him before the police." According to the defence, the present appellant was with the police from the very beginning, but his arrest was not formally shown in the relevant papers in order to use this circumstance against him. The Investigating Officer, however, has denied this suggestion. The trial Court while rejecting this defence suggestion came to the conclusion that in fact the present appellant was arrested by the police for first time on 16‑8‑1972 that he offered no explanation about his absence during the period between the date of occurrence and his arrest. In the absence, the trial Court presumed that the appellant went underground after the occurrence and remained hiding till his arrest. The learned Additional Sessions Judge, therefore, used this abscondence as a cogent of incrim inating evidence against the appellant. In this background, we see whether the non‑arrest of the appellant from the date of occurrence (20-7-1972) till 16‑8‑1972 amounts to "abscondence" in the legal sense of the Word. The word "abscond" has been used both in the Pakistan Penal Code well as in the Code of Criminal Procedure. We need not examine sections of these statutes as the same are not necessary for the present case. What we have to see is whether the proved that Rab Nawaz appellant in fact did abscond before 16‑8‑19'72, The cent case was investigated by several police officers. S. H. O. (P. W. 12) had partly investigated this case. He has stated continuously searching for the accused from 22‑7‑1972 till 11‑8‑1972 at different places, but failed to arrest them. He has further stated obtained warrants of arrest from the 1llaqa Magistrate for Haq (acquitted co‑accused) only and deputed A. S. I. Talib Hussain (P. W. 14) with those warrants to execute the same but the latter could use them as according to him, Haq Nawaz co‑accused was therefore, returned the warrants unserved. On this, S.I. Nasrullah ban initiated proceedings under section 512, Cr. P. C. against Haq Nawaz accused only. In cross‑examination, this police officer has admitted that he did not obtain any warrants of arrest against Rab Nawaz appellant as to him, it was promised by his relatives to produce him before Thus, so far as Haq Nawaz accused is concerned, the prosecution took a necessary steps first to arrest him immediately after the occurrence and failing to do so got him declared an absconder under the law. However, far as Rab Nawaz, the present appellant, is concerned, it is an that the Investigating Agency did not start any such proceedings him. Even the warrants of his arrest were not secured from the died concerned and, therefore, there was no occasion for initiating under section 87 or 88 Cr. P. C.‑No prosecution witness except S. I. Hayat P. W. has stated that the appellant was absconding. It is his police 'officer who has just mentioned that he arrested on 16‑8‑1972 from Mianwali town who was absconding. The learned counsel after taking us through the relevant material available had admitted that except this assertion by S. T. Tauqir Hayat P. W. is no other material to substantiate the factum of abscondence of appellant. He, however, vehemently urges that even a accused person without legal justification can amount to abscondence according to him, absence of the appellant from the date of Occurrence till his arrest (I6‑8‑1972) in the absence of any plausible amounts to abscondence. We are, however, unable to agree with "Abscondence is not a mere term of art but is a legal term which the statute has to be proved by the prosecution like any other fact prosecution in the first instance must show that the summons or were issued against the appellant, but the same could not be served as was deliberately avoiding service by hiding himself. If the Courts satisfied that the appellant was concealing himself to avoid service, mono or warrants then action under section 87 or, 88 could be taken him. It is only after a proclamation under section 87 or 88 is obtained that demon can legally be said to have absconded. In other words, the prosecution has to prove by positive evidence that an accused person has really absconded‑ In the instant case, it is an admitted fact that except a verbal assertion by S. I. Tauqir Hayat P. W., there is no other material available on the record to show that the appellant was really absconding. As mentioned above, the prosecution did not obtain any warrants or proclamation from any competent Court against the appellant. In these circumstances, the defence plea that the appellant was with the police from the very beginning cannot be ruled out. The result is that the prosecution has failed to establish the fact of abscondence against the appellant. In the circumstances of the case, the mere non‑arrest of the appellant from 20‑7‑1972 till 16‑8‑1972 does not automatically amount to abscondence. A The mere assertion of the Investigating Officer that the relatives of the appellant had promised to produce him before the police was not a valid excuse for him for not taking any action under the law against the appellant to get necessary proclamation against him.

10. We are now left only with the eyewitnesses. As mentioned above, out of three eye‑witnesses, one of them, namely, Gul Khan bas been dis-beh aved by the trial Court and rightly so. The remaining two eye‑witnesses, namely, Akbar Khan and Alam Sher, are admittedly closely related to the deceased and inimical towards the appellant. It is well settled now that in view of such ‑ close relationship of these witnesses with the deceased and enmity with the appellant, their statements should not be believed unless corroborated by independent evidence of unimpeachable character. The trial Court has sought that corroboration from the dying declaration and the abscondence of the appellant. We have disbelieved both the dying declara tion as well as the abscondence of the appellant. The result is that there is no independent corroborative piece of evidence available on the record against the appellant. Even otherwise we are not convinced with the account given by these eye‑witnesses. According to the dying declaration, 15 or 16 shots were fired by the appellant and his brother Haq Nawaz (acquitted co‑ac used). According to Akbar Khan P. W. the accused had fired is all only tree shots. while according to Alan; Sher P. W. both the accused fired one or two shot. Thus there is direct conflict as to the number of shots fired by the two accused persons at the cell‑vant time. Similarly, we find that according to Ghulam Akbar Patwari who prepared the site plan, the 6anna where the occurrence took place was about 6 inches high. We have not been able to appreciate how these eye‑witnesses could take shelter behind a banns of that height. Further, it is highly improbable that the accused fired at these witnessess but the bullets hit the banna only. The assailant could easily, hit these persons hiding behind a banna of this height : It is an admitted fact that no crime empty was recovered from the spot, although according to the prosecution, about 15 shots were fired and the rifles used by the accused persons were single‑clutch action rifles, which means that after, every one shot the rifle had to be reloaded. In such a process of reloading, there should have been some crime empties on the spot, especially .when no witness says that the accused persons took away such empties with them. The alleged rifles were also not recovered from the accused persons.

11. After hearing the counsel for the parties at length and going through the entire material available on the record, we are clearly of the view that the prosecution teas not been able to prove its case against the appellant beyond reasonable doubt. The element of doubt is apparent from the very beginning. Accordingly, while giving benefit of doubt to the appellant, we accept this appeal, set aside the conviction and sentences of the appellant and acquit him. He should be set at liberty forth with if not required in connection with any other case. Appeal allowed.