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Criminal Appeal No. 9‑P of 1971, decided on 18th April 1972,

(On appeal from the judgment and order of the former High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 9th December 1968, in Criminal Appeal No. 246 of 1967).

Penal Code (XLV of 1860),

S. 307‑A, B and C jointly charged for murder‑F. I. R. lodged by deceased treated as dying declaration and made sole basis of conviction‑Identity of person delivering fatal injury, doubtful‑B and C acquitted by trial Court‑Held, A too in circumstances, was entitled to benefit of doubt and to be acquitted along with B and C.

.Syed Masoom Shah, Advocate Supreme Court instructed by Muhammad Nazar Khan, Advocate‑on‑Record for Appellant.

Jalaluddin, Advocate Supreme Court instructed by M. Qasim Imam, Advocate‑on‑Record for the State.

Date of hearing : 18th April 1972.

The appellant, Zaman, has been convicted and sentenced to transportation for life for the murder of his co‑villager, Ahmad Riaz. His real brothers, Munsif and Dilawar, who were jointly charged with him for the same offence, acre acquitted.

The murder ‑took place at noon tithe on tire 7th of September 1966. The same day, an altercation had taken place between Azad Khan, the father of the appellant, and Muhammad Nawaz a brother of deceased Ahmad Riaz, over the turn of irrigation water, in which fist blows were exchanged. The murder o: Ahmad Riaz an hour later was a sequel to that incident.

The deceased had sustained a penetrating stab wound 1 " x 1" x 5" on the left lumber region, and another incises wound " x " x " in front of the right leg above the right ankle‑joint. There was also a contusion below the lower eye‑lip of the left eye. Injury No. 2, i.e., the penetrating stab wound proved fatal. The deceased was taken to the police station where he made the report, Exh. P. A., which has been treated as a dying declaration, and forms the sole basis of the conviction of the appellant by the Courts below. Three witnesses, namely, P. Ws. Sohbat, Nawab and Lal Khan, were produced at the trial to give ocular evidence, which, however, has been totally rejected by both the Courts below.

We have carefully examined the dying declaration to asses its evidentiary value in the context of this case. Its translation is reproduced below :‑---

"I was in Dobandi Chowk and my brother had left for the arhat. There a quarrel had arisen between my brother, Muhammad Nawaz, and Azad Khan son of Shahzad. I was not aware of it. I was proceeding from Dobandi Chowk towards my house when near the Hujra of Zarin Khan, Zaman Khan, Dilawar and Munsif, sons of Azad Khan met me. Dilawar was armed with a chhuri, Zaman with an axe, and Munsif also carried a chhuri. As soon as. I reached near them, Zaman, Dilawar and Munsif struck me. I received a blow with a chhuri on my back, which was dealt by Zaman Khan. I fell down. A kulharl blow by Dilawar struck me on the right leg. Munsif did not give any blow."

It is apparent that the deceased in the first part of his declaration said that the appellant Zaman Khan was armed with a kulhari, with which he struck blows to the deceased and his co‑accused, Dilawar and Munsif caused to him injuries with the daggers carried by them. In the latter part of the dying declaration, the weapon in the band of the appellant is changed from kulhari to dagger, and it is said 'that the appellant gave him a blow with the dagger in the lumber region. Dilawar is imputed an injury with an axe, and Munsif, the third accused, was said not to have caused any injury.

It is contended by the learned counsel for the appellant that this change in the roles of the three accused persons, as originally attributed to them, damages the value of the dying declaration, as it cannot be depended upon to say with certainty as to which of the three accused had caused the fatal injury to the deceased. It appears that the deceased being surrounded by the three assailants, as alleged by him, each of whom had dealt him blows, he could not have seen or known with certainty as to who had given him the stab wound in the lumber region. As the other two accused have been acquitted, it is difficult to withhold the benefit of doubt from the appellant also, as a finding cannot be given with certainty on the basis of the dying declaration that he and not any of the acquitted accused was responsible for the fatal injury.

In the result, we accept this appeal, set aside, the conviction and sentence of the appellant and direct his release forthwith, if not wanted in any other case.

Appeal accepted.

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