1968 PLP 1397 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 1st November 1967, in Criminal Appeal No. 696 of 1966/Murder Reference No. 188 of 1966).

S. 302‑Evidence in case not of such quality from which legitimate inference of guilt of accused could be properly drawn and dying declaration also found not reliable for good and cogent reasons‑High Court, in circumstances, held justified in acquitting accused on appeal‑Special Leave to Appeal against acquittal refused by Supreme Court. Abdus Samad Hashmi, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State. JUDGMENT FAZLE AKBAR, C. J.‑This petition for special leave to appeal is directed against the judgment and order of the High Court of West Pakistan at Lahore, by which the convictions and sentences of the respondents Nos. 1 to 3 imposed by the Sessions Judge, Rahimyar Khan, ware set aside and they were acquitted. The alleged incident took place on 1‑4‑1955 at about one pehar, after sunrise, on the bank of a canal. According to prosecution, on that morning accused, Muhammad Afzal, went to Muhammad, deceased, and asked him to go with him to some Blacksmith for getting his pistol repaired. Muhammad along with his servant, Allah Bakhsh, went with him. When they crossed Bhung Distributory Canal, accused Ahmad and Dur Muhammad suddenly emerged from under the bridge and attacked Muhammad. Ahmad and Dur Muhammad gave him dang blows and Muhammad Afzal gave him hatchet blows. When Allah Bakhsh tried to intervene, a shot was fired at him and he then ran away raising an alarm. Sultan, father of the deceased, Ghulam Nabi, brother of the deceased, and one Abdul Qadir, who were harvesting crop in a field, a few furlongs away from the scene of the incident, came running and saw the occurrence. The injured was then taken to the hospital where his dying declaration was recorded by Doctor Bashir Ahmad. The deceased succumbed to his injuries at 2‑40 p.m. The three accused were tried for murder of Muhammad and attempted murder of Allah Bakhsh. The prosecution case rested on the dying declaration of the deceased and evidence of three eye‑witnesses, namely, Sultan Khan, Abdul Qadir and Ghulam Nabi. It may be mentioned here that Allah Bakhsh was not examined as a witness in this case. Relying on the dying declaration and evidence of the above named eye‑witnesses, the Sessions Judge convicted all the three under section 302/34 of the Pakistan Penal Code and sentenced Ahmad to death and the other two to transportation for life. He, however, acquitted them of the charge under section 307/34 of the Pakistan Penal Code. On appeal and reference, the learned Judges of the High Court acquitted them. Sultan Khan, father of the deceased, has filed this petition for special leave to appeal against the order of acquittal. The learned counsel has contended that the High Court was not justified in not placing any reliance on the dying declaration and on the evidence of the eye‑witnesses. While dealing with the casa the learned Judges of the High Court have given the following reasons for discarding the dying declaration "Doctor Muhammad Siddiq Zafar, P. W., on the other hand, contradicted this witness. He stated that at the time when the dying declaration was being recorded two or three persons were present with the deceased, and that they talked to him as well as consoled him while he was making his statement. This shows that they must have been interested persons or his relations. He also added that these persons mentioned certain names, which were uttered by the deceased in a subdued voice, and that the deceased sometimes became sub‑conscious, as there appeared to be some depression on his brain. All this shows that those persons prompted the deceased while he was making the dying declaration. Doctor Muhammad Siddiq Zafar is a completely disinterested witness, while Dr. Bashir Ahmad, on the other hand, on his own showing is, by no means, an independent and disinterested witness, as he had some grudge against the father of Muhammad Afzal, appellant." They then summed up their conclusion thus: "In the result the dying declaration made by the deceased, in our view, has no value and as such no reliance can be placed on it. Even if we were to accept this dying declaration we find that it is in direct contradiction to the testimony of the eye‑witnesses and, therefore, it cannot be said that it corroborates their statements or that their statements are corroborated by the dying declaration." According to the eye‑witnesses, they were cutting crop which belonged to P. W. Sultan Khan. Mushtaq Ahmad (D. W.). Lam bardar of the village, has, however, stated that Sultan Khan (P. W.) did not own any land in the village and had not cultivated any wheat crop anywhere in the village, nor had paid any land revenue. Hence, while doubting the presence of the eye‑witnesses in a nearby wheat field, the learned Judges observed: "Further the story that Abdul Qadir and Ghulam Nabi P. Ws. actually saw the appellants inflicting injuries to the deceased is also doubtful. According to Abdul Qadir and Ghulam Nabi P. Ws. that after they had been informed by Allah Bakhsh that the appellants were causing injuries to the deceased, they travelled a distance of about three or four acres, i.e. over a furlong, and then witnessed the occurrence. This is not possible because Allah Bakhsh would have first taken sometime to travel three or four acres in order to inform the P. Ws. and then the P. Ws. travelled the same distance in order to reach the place of occurrence and the assault could not have lasted for such a long time and thus they could not have witnessed the occurrence. Further Sultan Khan P. W. was not very far behind Abdul Qadir and Ghulam Nabi P. Ws. then how is it possible that he did not actually witness the assault. In any case, if they had witnessed the actual assault, they would have given some details." The learned Judges also gave cogent reasons for coming to the conclusion that the occurrence most probably did not take place at the time as alleged by the eye‑witnesses. They also commented on the inordinate delay in lodging first information report. We, therefore, agree with the learned Judges that the evidence in the instant case is not of such a quality from which a legitimate inference of guilt of the accused could properly be drawn. Furthermore, the dying declaration was also rejected for good and sufficient reasons. The High Court has, therefore, rightly held that the charges have not been brought home to these` accused beyond reasonable doubt. This petition is, accordingly, dismissed. Leave refused.