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Criminal Appeal No. 21 of 1974, decided on 29th March 1975.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 19‑4‑1973 in Criminal Appeal No. 98 of 1971).

--S. 302 read with Evidence Act (I of 1872), S. 32‑[Murder‑case] Dying declaration‑No mention of dying declarations in First Information Report though such declarations allegedly made before making of first information report‑Evidence also led to show deceased having made yet another dying declaration to another person and such statement contradictory to those made to other two persons‑Evidence relating to recovery of crime weapon discrepant, one witness saying it was in tact other saying it was in broken condition‑Eye‑witnesses named in F. I. R. completely disbelieved by trial Court‑Case, held, created a general doubt and required strong evidence aliunde to sustain conviction but such evidence lacking‑Conviction, in circumstances, held, not sustainable.

Ijaz Hussain Batalvi, Senior Advocate Supreme Court instructed by Rao Muhammad Yousuf Khan, Advocate‑on‑Record for M. A. Rahman, Advocate‑on‑Record for, Appellant.

W Riaz Ahmed, Assistant Advocate‑General instructed by Ijaz Ali, Advocate -on‑Record for the State.

Date of hearing : 29th March 1975.

On the conclusion of arguments in this appeal on 29th March 1975, we, by a short order accepted the appeal of Nazir Ahmad Who had been convicted and sentenced to death for the murder of his father's first cousin Taj Din, and acquitted him of the charge under section 302, P. P. C. altogether. Abdul Sattar, who was also tried with the appellant for the same murder was acquitted by the trial Court. What follow are the reasons in support of our order to the appeal.

The motive for the crime was that there was a dispute about certain land left by the appellant's grand‑father between his father Ibrahim on the one hand and his father's sister Mst. Zainab Bibi on the other. Mst. Zainab Bibi however succeeded in having the land partitioned and got possession of Killa No. 24 in square No.14 through Taj Din deceased.

The incident took place on the night of the 16th May 1968 at about 8‑30 in Chak No. 42/G. B. P. S. Sumandri, District Lyallpur, at about the time when Killa No. 24 fallen to the share of Mst. Zainab Bibi was to be irrigated by the deceased. According to the prosecution case the appellant and the co‑accused Abdus Sattar armed with a spear each appeared on the scene to prevent the deceased from irrigating the land but the deceased insisted on taking the turn of water to irrigate Killa No. 24. In the altercation that ensu ed the appellant and the co‑accused each gave a barchhi blow to the deceased. The incident was witnessed by Bashir Ahmad P. W. 15, the informant, 13ashir Ahmad son of Abdul Aziz P. W. 16, Boota P. W. 17 and Feroze Din P. W. 18.

The deceased was taken in an injured condition to the Civil Hospital Lyallpur. On intimation sent from the Hospital Head Constable Muhammad Aslam came to the Hospital but on his enquiry, the Medical Officer reported that the injured was not in a fit state to make the statement. Therefore, the statement of Bashir Ahmad P. W. 15 was recorded by the Head Constable which formed the basis of F. I. R. Exh. PA/1 later registered at the P. S. In this statement the appellant and Abdus Sattar were, both named as assailants.

According to the police investigation however, none of the above named eye‑witnesses were present at the time of the incident. Instead only Mst. Zainab Bibi and one Muhammad Ishaq were present. But neither of them was produced, both having been won over. The eye witnesses named above however adhered to the version stated above implicating Abdus Sattar besides Nazir Ahmad. But the trial Court came to the conclusion that the in the case were not present and that they were, Chairman of Union Council who had taken active part in the investigation and who had animus against Abdul Sattar co‑accused. Accordingly, the trial Court had no hesitation to record the judgment of acquittal so far as Abdus Sattar was concerned.

Nevertheless, the trial Court convicted the appellant herein on the basis of two oral dying declarations alleged to have been made to Abdul Majid P. W. 13 and Muhammad Tufail P. W. 19 which in the opinion of the trial Court also received confirmation from the evidence relating to the recovery of blood‑stained barchhi Exh. P. 2 at the instance of the appellant. The High Court also concurred in the above analysis of the prosecution case and maintained the conviction arid sentence of the appellant.

Leave to appeal was granted to consider whether the Courts having rejected out of hand the ocular evidence in the case and having regard to the other peculiar circumstances inherent in the case, were justified to, convict the appellant on the basis of two oral dying declarations

Mr. Ijaz Hussain Batalvi, learned counsel for the appellant argued that according to the prosecution case the two dying declarations were made be fore the first information report Exh. P. A/1 recorded at the instance of Bashir Ahmad P. W. 15. However, there is no mention of these dying declarations in that statement This according to the learned counsel seriously impairs veracity of the alleged two declarations. It was also pointed out that evidence was also led as to third dying declaration which the deceased had deposed to Mst. Bashiran P‑ W. 14 which contradicted the other dying declarations deposed to Abdul Majid and Muhammad Tufail.

As to the confirmatory evidence concerning the recovery of barchhi Exh. P. 8, according to learned counsel, even the High Court found it difficult to place "complete reliance" on that evidence.

We consider that there is force in the argument. The fact that the eye witnesses named in the F. I. R. were completely disbelieved by the trial Court seriously affected the entire prosecution case with a general doubt and required strong evidence aliunde to sustain the conviction of the appellant. The evidence relating to the recovery of barchhi is also discrepant in that the two recovery witnesses are at valiance with each other as to whether the barchhi was red intact or in broken condition. By this process of elimination what remains the oral declarations trade to Abdul Majid and Muhammad Tufail which because of the reasons stated above are wholly insufficient, in the circumstances explained above to sustain the conviction of the appellant. Hence the appeal was accepted and the appellant set at liberty.

Appeal accepted.

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