' AZMATULLAH MALIK, Through the instant appeal Sajan Nadeem appellant has assailed the judgmnt/order dated 5-11-2010 passed by Sessions Judge, Kohat whereby he was convicted and sentenced to death under section 302(b), P.P.C. And a fine of Rs,50,000 was also imposed, payable to the legal heirs of the deceased and in default to suffer 6 months' S.I. He was also sentenced to undergo 5-years' R.I. Under section 449, P.P.C. And further sentenced to undergo R.I. For 2 years under section 456, P.P.C. The sentences recorded were ordered to run concurrently. Benefit of section 382-B, P.P.C. Was also extended to him.
2. The facts of prosecution case are that on 24-5-2011 Muhammad Jabir Khan, A.S.-I. Received information about the occurrence upon which he rushed to C.M.H. Kohat where at 9-00 a.m. He recorded the report of injured Raja Masih son of Patras Masih r/o Ghazi Camp PAF Base Kohat, who was lying in surgical ward I.T.C. And made a report stating therein that at 4-00 a.m. He was sleeping in the Veranda of his house when accused Sajan Nadeem son of Nanak Chand climbed over. The wall, sprinkled petrol over him due to which he awoke. Where after the accused set him on fire. He raised hue and cry to which his brother-in-law Aashiq Lal attracted, who overpowered the accused and handed him over to PAF Police. The medical staff of PAF Base was also informed.
The occurrence was witnessed by Aashiq Lal Motive behind the occurrence was that the accused had suspected the deceased then injured of practising enchantment over the accused. The report was recorded in a shape of murasila Exh. PA/1, which was read over to the deceased then injured who after admitting it correct thumb impressed the same. The murasila was dispatched through Hikmat Shah to the Police Station for registration of the case.
3. In order to prove its case the prosecution produced as many as 9-P.Ws., P.W.1 is Dr. Fareed who conducted autopsy on the dead body of deceased, P.W.2 Shaukat Saleem S.-I. Recorded the F.I.R., Exh.PA on receipt of murasila. P.W.3 S.H.O. Who submitted the challan against the accused, P.W.
Mawaz Khan A.S.-I. Who prepared the injury sheet and inquest respect of the deceased. Exh.P .W .4/1 and Exh. P.W. 4/2 respectively. P.W.5 Muhammad Jabir Khan A.S.-I. Who recorded the report of deceased then injured in shape of murasila, P.W.6 Sultan Ali HC attesting witness of recovery memo Exh.P.W.6/1 vide which the Investigating Officer had procured clothes of deceased Exh.P-1, steel glass Exh.P-2 which was produced by Mst. Rani P.W. (not produced) and was marginal witness of pointation memo Exh.P.W.6/2. P.W.7 Muqaish son of Bansi Lal witness of pointation memo., P.W.8 Rafiullah S.-I. Who investigated the case. P.W.9 Aashiq Lal eye-witness of the occurrence.
4. The case of prosecution is based on the dying declaration, ocular testimony of P.W.9 Aashiq Lal, recoveries and medical evidence.
5. Keeping in view and considering the material before the learned trial Judge, he convicted and sentenced the accused/ appellant vide impugned judgment.
6. We have heard counsel for the parties and have gone through the record with their able assistance.
7. Learned counsel for the appellant argued that there is a delay of 5 hours in lodging the report to A.S.-I. In the Hospital which later on was wrongly treated as dying declaration. There is no medical guarantee that the deceased who was burned more than 80% was able to talk. As the so-called dying declaration was not verified/attested by any Doctor, no staff of the Hospital or other private person to prove that it was made by the deceased. He further argued that no certificate was obtained prior to recording of the report regarding the fitness of deceased then injured to establish that he actually made the report which was recorded by the A.S.-I. He further argued that no evidence was led to prove that any medical aid was provided to the deceased then injured or he was taken to C.M.H Kohat. He also argued that it is highly unbelievable to accept that petrol was taken in glass and no drop had fallen either on the wall or on the floor of the courtyard. No match box was recovered from the spot, which negates the story of prosecution as to the mode and manner of the occurrence as reported by the deceased then injured. He lastly argued that entire edifice of prosecution evidence is shaky and doubtful and the learned trial. Judge should have extended benefit of doubt in favour of the appellant. He prayed that the appellant may be acquitted,
8. On the other hand learned counsel appearing on behalf of complainant assisted by State counsel vehemently opposed the contentions raised by the counsel for the appellant and argued that the appellant is directly charged in the report of deceased then injured, which was rightly treated as dying declaration by the trial Court. It is a case of single accused who was known to the deceased then injured and eye-witness Aashiq Lal. Therefore, no question of misidentification or false charge arises. He also argued that P.W.9 Aashiq Lal is a natural witness of the occurrence. His presence has not been questioned or disputed by appellant. The appellant was apprehended from the spot and was handed over to PAF Base officials. He lastly argued that prosecution version is supported by dying declaration, ocular and medical evidence which is further corroborated by recovery of glass in which the petrol was taken to the spot with which the deceased was burned.
9. We have given anxious consideration to the submissions made by the learned counsel for the appellant and have perused the relevant material on the record. There can be no cavil with the proposition that the statement of the deceased in the form of a Murassila/F.I.R. Can be treated as dying declaration which was itself is good enough for sustaining the conviction on a capital charge. Question in the instant case, however, is whether the maker of the report Exh.PA/1 was in a fit condition to make the statement which he is said to have made. Deceased then injured Raja Masih has made a report in injured condition but it is not known as to who had taken him to C.M.H Kohat. Further no evidence was produced to establish that prior to his death he was examined by any Doctor in the said Hospital. There is no Medico-legal Report in respect of deceased then injured except the P.M. Report and according to P.M. Report autopsy was conducted on the body .Of the deceased at 7-00 p.m. Vide report Exh.P.M. Non-examination. Of deceased then injured till his death also creates serious doubts about the veracity of report recorded by the P.W.5 Muhammad Jabir Khan A.S.-I., who also failed to explain as to why the deceased then injured was not examined till his death. P.W.1 Dr. Fareed, DHQ Kohat while appearing as witness during the trial stated that he conducted P.M. Examination on the body of Raja Masih. His body was having 80% to 85% burns of different depths. The body was having backs and scalds.
10. In cross-examination he stated that:-- xxx. The depth of the burn injuries were different in size. When the victim was received by me he was gasping. When some one is burn 80 to 85% he is not able to speak or to give statement. I have not sent the spots of the wounds for analysis.
11. On the face of this medical evidence, the report Exh.PA/1 attributed to deceased then injured losses all its credence which to our opinion is not safe to rely upon. Further the person who recorded the report i,e, P.W.5 admittedly has not obtained any fitness certificate from the Doctor and no explanation or omission was given by the Police officials in this behalf.
12. Thus in our view it is not safe to rely upon the version of the deceased then injured, recorded vide Exh.PA/1 which was treated as dying declaration for recording conviction of the appellant on the capital charge.
13. In the case reported in PCr.LJ 1997 SC (sic) page 1170 titled Mst. Gul Zawara and others v. Malik Muhammad Sadiq and others it has been held that to prove the dying declaration recorded in the Hospital in a shape of report, certificate of fitness is necessary to establish that the injured who made the report was able to speak. In another case reported in PLO 1965 SC page 151 titled Abdur Raziq v. State it was held which reproduced as under:--
(c) Evidence Act (I of 1872), S. 32---Dying declaration--- Credibility---Believing or disbelieving witness is question merely of "ordinary human judgment"---Aids to formation of such judgment not available in case of dying declaration---To accept such statement without considering "surroundingcircumstances", "totally inconsistent with safe dispensation of justice"---Accepting such statement on considerations of opinion expressed in precedent cases regarding similar declarations, accompanied by words indicating reliance on "some principle of law", held, to be "no less dangerous" --- " Careful scrutiny, applied to all physical circumstances" appearing from evidence, only way of arriving at conclusion that statement is "worthy of belief".
14. Before concluding we would like to discuss the ocular testimony of P.W.9 Aashiq Lal. P.W.9 who happened to be brother-in-law of deceased. While appearing as an eye-witness in the case stated that he saw the accused while running from the house but he overpowered him and locked him in the bath room. He then reported the matter to the PAF authorities who came and took the accused with them. He claimed that he also sustained burn injuries and was taken to the Hospital along with the deceased. He further stated that accused entered into the house by jumping over the wall where after he cut the door of the Veranda which was made by "Jali" and after entering in to the Veranda he put the deceased on fire by sprinkling petrol on his person. In cross he stated that prior to the occurrence accused never visited the said house and he brought the petrol in a bottle. He admitted that he had not seen the accused while jumping over the wall and entering into the house. He also stated that deceased made a report in the hospital at 7-00 a.m. Before the Police. The careful scrutiny of the statement of this P.W. Would suggest that he rather was not at all present on the spot because bringing petrol in the bottle was denied by the host of circumstance as no bottle was recovered from the spot instead a glass was produced to the Police after 2 days of the occurrence by the mother of the deceased who too was not produced at trial to prove this piece of evidence. Further, no report at 7-00 a.m. Was made by the deceased then injured. No evidence was produced to establish the arrest of the accused from the spot through PAF officials.
This P.W. Also claimed to have sustained burn injuries but no medical certificate was produced to prove this allegation, further no broken '"Jali" was taken into possession by the Investigating Officer during the spot inspection which negates the version of this P.W. Therefore to our view the prosecution has failed to establish the presence of this P.W. At the spot at the alleged time of occurrence. So we are not impressed with the evidence of this P.W. Nor his claim is acceptable posing himself to be an eye-witness.
15. Thus while seeking guidance from the dicta laid down by the Apex Court and keeping in view the peculiar facts of this case we hold that prosecution has miserably failed to establish the charge against the appellant. Therefore by extending the benefit of doubt this appeal is allowed. The conviction and sentence awarded to the appellant are set aside. He is acquitted from all the charges levelled against him. He be set free if not required in any other case.
16. The murder reference is answered in negative.
17. Above were the reasons of the short order of even date.