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Criminal Appeal No. 427 of 1983, heard on 20th April, 1985.

‑‑‑S. 302‑‑Appreciation of evidence‑‑When co‑accused not injured, there could, held, be no circumstantial guarantee of his presence on spot at time of occurrence.

‑‑‑S. 302‑‑Appraisal of evidence‑‑Eye‑witnesses‑‑One of eye‑witnesses real brother of deceased and other a partisan witness‑‑Prudence, held, required independent corroboration of their statement on material points.

‑‑‑S. 302‑‑Evidence Act (I of 1872), Ss. 27 & 30‑‑Corroboratory evidence‑‑Trial Court using recovery of carbine from accused a corroboratory circumstance‑‑No crime empty recovered from spot‑‑Mere recovery of carbine from accused, held, could not be used as incriminating circumstance.

‑‑‑S. 302‑‑Eye‑witnesses interested and partisan‑‑No independent evidence available to corroborate their statements on material points,‑‑No crime empty recovered from spot‑‑Dying declaration which was partly disbelieved by trial Court almost verbatim copy of First Information Report and not bearing signature of doctor although it was recorded in hospital‑‑Dying declaration, therefore, inspiring no confidence and could not be used to corroborate statements of eye‑witnesses‑‑Prosecution, held, failed to prove its case beyond reasonable doubt‑‑Accused given benefit of doubt and acquitted in circumstances.

‑‑‑S. 302‑‑Evidence Act (I of 1872), S. 32‑‑Dying declaration‑ Admissibility‑‑Dying declaration a verbatim copy of First Information Report and inspiring no confidence‑‑Although it was recorded in hospital yet it did not bear signature of doctor‑‑Held, in view of these infirmities it would be highly unsafe to rely on such dying declaration or to use same as corroboration of statement of partisan eye‑witnesses.

Muhammad Asif Jan for Appellant.

Arshad Khan for the State.

Date of hearing: 20th April, 1985.

This criminal appeal by Muhammad Ismail and Criminal Revision No. 575 of 1983 by Ghulam Muhammad complainant against the acquittal of the co‑accused namely Shahdat Khan and Riaz Hussain and for the enhancement of the sentence of Muhammad Ismail, arise from the judgment of the learned Sessions Judge, Sargodha whereby he on 29‑6‑1983 while acquitting Shahadat Khan and Riaz Hussain, convicted Muhammad Ismail under section 302, P.P.C. for causing death of, Sultan Ahmed and sentenced him to imprisonment for life and a fine of Rs.2,000 in default thereof R.I. for six months, with the direction that the fine if recovered be paid to the legal heirs of the deceased.

2. The occurrence took place on 15‑11‑1982 at 5 p.m. near the village mosque in Chak No. 94/N.B. which is about 12 kilometers from Police Station Sadar Sargodha. The F.I.R., Exh.P.A. is the statement of Ghulam Muhammad P.W.1 brother of the deceased made on the same day at 8‑30 p.m. near Mal‑Brow Hotel, Sargodha. It was recorded by Muhammad Khan A.S.I. P.W.6. The formal F.I.R. Exh.P.A./1 was drawn up by Muhammad Shoaib Head Constable P.W.4 at Police Station Sadar Sargodha on the same day at 8‑45 p.m. The case was originally registered under section 307/34, P.P.C. but on the death of Sultan Ahmad it was converted into section 302/34, P.P.C.

3. The motive as alleged by the prosecution was that about 14 years prior to this occurrence, Sultan Ahmad deceased had done to death‑‑Sarang, brother of Muhammad Ismail appellant, hence this occurrence.

4. As far the main occurrence, it has been stated that at the eventful time Muhammad Ismail appellant armed with .12‑bore carbine fired at Sultan Ahmad hitting the back of his chest. Sultan Ahmad fell down near the village mosque. Riaz acquitted co‑accused then fired ineffective shots from his .12‑bore gun while Shahadat Khan co‑accused armed with a hatchet had been raising Lalkara. The occurrence was allegedly seen by Gulls P.W.2 and Allah Bakhsh alias Bakhsha (not produced).

5. Dr. Altaf Hussain P.W.7 examined Sultan Ahmad in his injured condition on 15‑11‑1982 at 8 p.m. He found 9 lacerated wounds of fire‑arm on the back of his chest caused within three hours of the examination. On the same day Muhammad Khan A.S.I. P.W.6 recorded statement Exh.P.H. of Sultan Ahmad under section 161, Cr.P.C.

6. On 16‑11‑1982 Muhammad Ismail appellant was arrested by Muhammad Khan A.S.I. P.W.6. On 18‑11‑1982 at 7‑40 a.m. Sultan Ahmad succumbed to the injuries. Dr. Altaf Hussain P.W.7 conducted post‑mortem examination on the same day at 11 a.m. He found nine lacerated Wounds of fire‑arm injury 1 c.m. x 1 c.m. size in area 7 c.m. x 7 c.m. on the back lower thorax, upper vertebrae. In 'his opinion death was due to shock and haemorrhage caused by the injury found on the person of the deceased which was sufficient to cause death in the ordinary course of nature. The time between the death and the injury was three days and between the death and the post‑mortem was six hours.

7. On 19‑11‑1982 Muhammad Ismail appellant led to the recovery of carbine Exh.P.3 from his residential Kotha which was taken into possession vide memo. Exh.P.D. attested by Ghulam Muhammad P.W.1 brother of the deceased and Gulla P.W.2. The recovery was effected by Muhammad Khan A.S.I. P.W.6. It may be noted that no crime empty was recovered from the spot. The carbine was sent to the Forensic Science Laboratory. The report Exh.P.4 is to the effect that the carbine was in the working order. On the completion of the investigation the two co‑accused were placed in column No.2 of the challan. The trial Court however, summoned them, tried them and ultimately acquitted them of the charges.

8. To prove its case prosecution examined sever: witnesses. Dr. Altaf Hussain P.W.7 examined Sultan Ahmad in his injured condition and also conducted post‑mortem examination on his dead body. Ghulam Muhammad P.W.1 and Gulls P.W.2 have deposed about the motive. Ghulam Muhammad is also witness of the oral dying declaration made by the deceased. Gulls P.W.2 has given the ocular account of the occurrence. He claimed to have seen the appellant firing at Sultan Ahmad resulting in his death. He is also a witness of the recovery of carbine from the appellant, Muhammad Khan A.S.I. P.W.6 supported the recovery of carbine Exh.P.I. from the appellant. He also stated that he had recorded statement Exh.P.H. of Sultan Ahmad under section 161, Cr.P.C. on 15‑11‑1982. The rest of the evidence is of formal nature,

9. When examined under section"342, Cr.P.C. the appellant denied all incriminating circumstances. He raised plea of false implication due to long‑standing enmity. In a reply to the question, whether he wished to say anything else he stated:‑

"I am innocent. In fact the deceased was fired at in darkness at Isha time and the assailants could not be identified. To trace out a blind murder I was made an escape‑goat."

In defence he produced Muhammad Azam Head Constable D.W.1 who stated that at serial No.23 of daily diary of 15‑11‑1982 there was an entry pertaining to the departure of Muhammad Khan A.S.I. for petrol duty alongwith Amir Khan and Nasir Ahmad Foot Constable towards Bahawal Road, Khushab Road and Sahiwal Road. He stated that Exh.D.W.1/A was the correct copy of the relevant entry. The appellant tendered school certificate Exh.D.A. to show that he was born on 7‑1‑1968.

10. The learned trial Court has disbelieved prosecution case, ocular account and the alleged dying declaration to the extent of Shahadat Khan and Riaz Hussain co‑accused. Relying on the evidence of Ghulam Muhammad P.W.1, Gulls P.W.2, Dying declaration Exh.P.H. and the recovery of carbine from the appellant, it has found the appellant guilty for the murder of Sultan Ahmad.

11. Learned counsel for the appellant contends that prosecution has failed to prove its case beyond reasonable doubt inasmuch as the Ghulam Muhammad P.W.1, Gulla P.W.2 are related and partisan witnesses; that their evidence has already been disbelieved to the extent of two co‑accused; that the dying declaration Exh.P.H. was totally unreliable and that the trial Court has not appreciated the evidence properly. Conversely the learned counsel for the State assisted by the learned counsel for the complainant supported the judgment of the trial Court. They maintained that conviction has rightly been recorded on the statements of Ghulam Muhammad P;W.1, Gulla P. W.2 and dying declaration Exh.P.H. The learned counsel for the complainant also prayed for the retrial of the acquitted co‑accused and for the enhancement of sentence of Muhammad Ismail appellant.

12. I halve considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that out of two eye‑witnesses Gulls a was produced as P.W.2 and Allah Bakhsh alias Bakhsha was given up. Ghulam Muhammad is the real brother of the deceased. Gulla also appears to be a partisan witness in that 11 years before this occurrence, his brother Sarang was murdered and Sultan Ahmad deceased of this case, was a prosecution witness in that case. No doubt the deceased could not appear in that case because of his murder, the fact remains that he having made statement before the police in that case was cited as a prosecution witness. The statements of Ghulam Muhammad and Gulla have not been acted upon by the trial Court to the extent of Shahadat Hussain and Riaz Hussain. Co‑accused Gulls is not injured and as such, there is no circumstantial guarantee of his presence on the spot at the time of occurrence. In any case prudence requires independent corroboration of their statements on material points. The trial Court has used recovery of carbine from the appellant as a corroboratory circumstance. The crime empty has not been recovered from the spot. Mere recovery of carbine from the appellant could not have been used as incriminating circumstances. In fact it was of no consequence. The dying declaration Exh.P.H. also fails to inspire confidence inasmuch as it has partly been disbelieved by the trial Court; that it does not bear the signatures of the Doctor although it was recorded in the hospital and that Exh.P.H. is almost verbatim copy of the F.I.R. In view of E the infirmities pointed out, it would be highly unsafe to rely on the dying declaration or to use the same as corroboration of the statement of the partisan witnesses. For all these reasons I am of the that prosecution has failed to prove its case beyond reasonable doubt.

13. The >upshot of the above discussion is that there being no satisfactorily basis to uphold the conviction of Muhammad Ismail appellant and while giving him the benefit of doubt, he is acquitted of the charge. The connected revision is resultantly dismissed.

M. Y. H.

Appeal accepted.

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