Mst, MIRAN and another’s vs ABDUR RAHIM and another

Sardar Muhammad Raza, J.--Mst. Miran and Mst. Khandana, the legal heirs of Mir Shad Ali Khan deceased have filed this appeal after leave of Court against Abdul Rahim son of Faqir Zaman accused who was acquitted of the charge under Section 302 PPC of the murder of Mir Shad Ali Khan by a learned Division Bench of Peshawar High Court vide judgment dated 2.4.1997, whereby on acceptance of appeal of the convict against the judgment dated 30.10.1995 of the learned Additional Sessions Judge Bannu, the conviction so recorded and the sentence of death awarded to the convict was set aside.

2. The first information of the occurrence was furnished by Mir Shad Ali Khan deceased himself, to the effect that on 27.4.1987 after 'Isha' prayer's time at 2115 hours he alongwith one Ghulam Saeed had gone out to the fields in order to ease himself. After having done so he was in the process of returning when Abdul Rahim accused armed with a .12 bore pistol came and fired a shot which hit the complainant who fell to the ground. The occurrence was witnessed by Ghulam Saeed aforesaid. Previous altercation, exchange of abuses and grappling is said to be the motive.

3. Before that Ghulam Saeed eye-witness could be examined in Court, he was dead, therefore, his statement under Section 164 Cr.P.C. was transferred to the Sessions file. Any how, the prosecution at the close of its case relief upon the transferred statement of Ghulafn Saeed, the FIR treated as dying declaration and the confessional statement of the accused recorded three days after his arrest.

4. The transferred statement under Section 164 Cr.P.C. was rightly discarded on the admitted ground that at the time when, the statement was recorded, it was not cross-examined by or on behalf of the accused. A statement uncross-examined is not statement in the eyes of law and hence the prosecution was bound to lose Ghulam Saeed as an eye-witness.

5. The dying declaration suffers from various drawbacks. From the narration thereof, it appears that the accused had fired while coming face to face with the deceased. In this manner the fire should have hit at the front but the medical report categorically states that the fire hit at the back. This' is a glaring contradiction. In the open fields there cannot be any arrangement of light at 2115 hours when it is pitch dark of night. Keeping in view the distance of 12-13 feet and the fact that the assailant attacked from behind, the identity could have almost been impossible. This is another contradiction which the dying declaration suffers from. In spite of the fact that the dying declaration was recorded in the emergency ward of Civil Hospital Bannu, no certificate of the doctor was obtained to certify as to whether the deceased, in the presence of injuries sustained, was capable of making a speech. This becomes all the more pronounced when the doctor says that when the examined the deceased in injured condition, he was in shock and not in a position to "realize and understand his surroundings". This is true as well because the damage done to the victim was in the shape of injuries to the abdominal wall, peritoneum, stomach, small intestine, large intestine, spleen and left kidney.

6. It is a matter of common routine that in villages the people take early meals in the evening but in the instant case even at 2115 hours the stomach of the deceased was empty. The possibility cannot be ruled out that he was done to death in the late hours of night and the occurrence being unseen, had not taken place in the manner described in the dying declaration.

7. Coming to the confessional statement, it clearly indicates that the assailant was located in the front and the inlet wound should have been sustained in the front as stated earlier in connection with the dying declaration, the confessional statement also suffers from the same factual discrepancy. The Magistrate never enquired the accused about any torture at the hands of the police. The motive disclosed by the accused was totally suppressed in the so-called dying declaration. The learned Magistrate was not conversant with `Pushto' language in which the accused spoke. The statement was recorded with the assistance of his stenographer who was never examined on oath as an interpreter nor had he taken any oath before the Magistrate that he would correctly translate the version in Pushto' of the accused. The learned High Court has rightly held that the statement was recorded in violation of the principles laid down under Section 364(3)

Cr.P.C.

8. The Investigation Officer has not examined the spot in the light of the narration of the declarant that he had already eased himself when the occurrence took place. We are left only with the abscondance of the accused which by itself cannot lead to conviction in a case of capital charge.

9. In the circumstances, there were more than many doubts in the prosecution case and the accused respondent was rightly acquitted by the right Court. The acquittal is upheld and the appeal is hereby dismissed.