DOST MUHAMMAD KHAN, J.--At a trial, held by learned Additional ssions Judge-V Peshawar, appellant, Siraj, was found guilty on a murder charge thus, upon conviction he has been sentenced to life imprisonment under section 302(b), P.P.C. And also to pay Rs.3,00,000 as compensation to the legal heirs of the deceased, however, in default of payment, he shall have to suffer three years'
S.I. Instead of six months, as provided by the provision of section 544-A, Cr.P.C, with benefit of section 382-B, Cr.P.0 hence, this appeal filed by the convict-appellant.
Argument heard and record perused.
2 Brief and relevant facts, with regard to this tragedy, are that the deceased namely, Irfan, allegedly made the report in injured condition at 10-05 hours, alleging that on the fateful day i.e. 9-9-2006 at 9-45 hours, the appellant came to his house and took him in his taxi car to a mechanic workshop situated near "Tambwano More" (Tent Selling Point/ Market) on the pretext of some job to be done.
They arrived at a motor bargain, close to the workshop of one Shahenshah. They both sat with the mechanic whose name too was Irfan and were chatting on different subjects, during the said course, Siraj drew out his pistol and fired at him, as a result, he sustained numerous injuries. Motive for the crime, setup, was that the brother of the appellant namely, Bakhtawar Shah, was killed for which the deceased was suspected.
3. The murasila report, taken by Farman IHC Incharge Casualty KTH, was made the basis of F.I.R.
No.3 dated 9-9-2006, Police Station Tehkal Peshawar which is Exh.PA.
4. The case is primarily dependent on the veracity of the reportcum-dying declaration made by the deceased, then injured, therefore, being the vital piece of evidence, having a decisive role to prove the guilt of the accused-appellant, needs to be addressed first with a degree of care and caution.
5. According to the autopsy report, conducted on 9-9-2006 at 2-14 p.m., the deceased had sustained five entry wounds with corresponding exit, all on the vital parts of the body. In the thorax cavity, walls, ribs and cartilages along with both lungs, pericardium, heart and major blood vessels were found injured. Similarly in the abdominal cavity, walls, peritoneum, diaphragm, small and large intestines were found injured.
6. The most intriguing aspect of the case is that the prosecution has nowhere shown the time of death of the deceased and it was for this reason that duration of survival of the deceased, after he got injured, has not been given in the autopsy report.
7. The report is shown to have been promptly lodged within 20 minutes, however, it appears to be the handwork based on dishonesty of the Head Constable who recorded the same because in the reporting center of the Hospital no Dying Declaration Register or F.I.R. Register is maintained and the police officers, taking such report, have a free hand to write down any time of the occurrence and that of the report. The place of occurrence is reasonably away from the hospital and is situated on University Road which is the most busiest road in the city because of unmanageable, vehicular traffic. There was no relative or friend with the deceased to lift him quickly from the spot and to rush him to the hospital, therefore, the 20 minutes time, between the occurrence and the report, apparently is not believable.
8. Looked at from another angle, the report is absolutely silent about the condition of the deceased, then injured. The Head Constable has not given any note in the murasila report that the deceased was in full senses, conscious, coherent in his speech and was able to make a statement.
9. In the medicolegal report, written in a very casual manner, the exact number of injuries is not shown, the arrival of the injured to the hospital has been shown at 10:00 am. There are over-writing and cuttings made with regard to parentage of the deceased, however, the most disturbing aspect is that only three wounds have been shown, the most conspicuous is the one on the lower jaw, size shown 2 x 3 inches, which was never found when autopsy was conducted on the dead body. Even in this report, the condition of the deceased, then injured, has not been shown as to whether he was conscious, in full senses, was oriented in space and time or was able to make a coherent statement. This appears to be a deliberate omission on the part of the doctor.
10. The injured was referred to Surgical Unit for management, however, the prosecution has not brought on record the report of death summary of the deceased to show that at what point of time he succumbed to the injuries, however, it is evident from the autopsy report that no surgically stitched wound was found on the dead body thus, before any surgical operation was to be conducted or any attempt of giving incision to anyone of the injuries was to be given, the deceased succumbed to the injuries almost before reaching the Operation Theater.
11. As discussed above, all the vital organs in the chest cavity including heart, pericardium and both lungs were damaged due to bullet injuries, therefore, in all probabilities, these injuries were combindly sufficient to cause coma immediately to the injured within no time, therefore, in the given circumstances, it would be entirely unbelievable proposition that the deceased, then injured, was able to make a statement in the shape of report after half an hour or more time moreso, when neither the police Head Constable, who took the report, nor the Medical Officer has given any fitness certificate either on the F.I.R. Or the medicolegal report about the condition of the deceased, then injured.
12. The story, setup in the F.I.R., keeping in view the motive shown, appears entirely unbelievable and unacceptable to a prudent mind because it was in the knowledge of the deceased that for the murder of Bakhtawar Shah, the brother of the appellant, he was the prime suspect, therefore, keeping in view the natural human behaviour and conduct, how the deceased trusted the appellant to accompany him all alone for no reason to a place, where both were having no job, much less essential, to do. No sensible man would accompany a person all alone who is after his blood.
13. For believing a dying declaration and convicting a person on its basis, the following essential conditions must be established by the prosecution:--
(i) That the dying man was in full senses, conscious and alert to the surroundings, was fully oriented in space and time and was able to make a coherent speech.
(ii) that the dying declaration otherwise rings true and is sound in substance to be relied upon.
(iii) that it is free from promptness given by the outside quarter.
(iv) that the victim/dying man was in a position to identify his culprit, and
(v) that the doctor present at the occasion shall give a fitness certificate about the condition of the dying man.
14. It is universal principle of criminal justice that dying declaration by itself is not a strong evidence being not tested by way of cross-examination. The only reason for accepting the same is the belief phenomenon of the court of law that a person apprehending death due to injuries, caused to him, is ordinarily not expected to speak a falsehood. B To believe or disbelieve a dying declaration thus is left to the ordinary human judgment, however, the courts always insist upon strong, independent and reliable corroboratory evidence for the sake of safe dispensation of justice. Relying blindly and without proper scrutiny on such statement, would be no less dangerous approach on the part of the courts of law.
15. In the case of "Sher Bahader and another v. The State" (1972 SCM R 651) and in the case of "Muhammad Yaseen v. The State" (1978 SCM R. 303), the Hon'ble apex Court held that dying declaration when undoubtedly is a statement of interested person, it requires corroboration. Yet in the case of "Muhammad Banaras v. Shah Fakhar Zaman" (1985 SCMR 505), the view of the Hon'ble apex Court was that after receiving injury to the brain, as the doctor has deposed too, held, dying declaration was not safe to be relied upon.
16. A rule of caution was laid down by the Hon'ble apex Court in the case of "Tawaib Khan and another v. The State" (PLD 1970 SC 13), after taking notice of the depleting virtues and values of the people of our society, the very words, spoken by the Hon'ble author Judge of the apex Court, are reproduced below:-- 'A dying declaration have got a degree of sanctity under the law, on the belief that the dying man is placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charges. But, in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this C country the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses, becomes absolutely necessary.'
17. From the facts and circumstances, earlier discussed and because of the overwriting made in the injury sheet, referred to above, in the present case too, a legitimate inference could be drawn that somebody, having hostile relationship with the appellant, was there who managed in making the report while thumb impression of the deceased was taken on the same when by then he was in coma condition.
18. The place, where the crime was committed, is a market, consisting of eleven shops, however, none has come forward amongst the shopkeepers to depose in favour of the prosecution, in any manner whatsoever.
19. The next piece of evidence relied upon by the prosecution and the trial court as well, is the recovery of the crime pistol of 30 bore, allegedly recovered at the instance of the appellant, however, there is a serious clash between the pointation memo. (Exh.PW4/5) and the recovery memo. (Exh.P.W.4/4). Six empties (Exh.P2) were recovered from the crime spot on 9-9-2006; however, the same were retained in the police "Malkhana" till 23-6-2007, almost for nine months.
No reason, much less plausible, has been shown for retention of the same at the Police Station and no one from the prosecution witnesses was able to explain this drastic omission. These were sent to the Arms Expert on 23-6-2007 alongwith the crime pistol and in this way the positive report (Ex.PR) was procured from the /Arms Expert. This recovery is otherwise unbelievable because the same was witnessed by the police officials and no independent witness has been associated therewith besides the fact that no reason has been shown for the omission.
20. The combined study and reappraisal of the entire evidence, highlighted above, thus, led us to a considered view that being an unwitnessed crime, the deceased, keeping in view the fatal injuries he had sustained, was not at all in senses or was able to make a dying declaration, the same is therefore, highly doubtful and unreliable piece of evidence which could not be relied upon for recording conviction on a capital charge hence, the learned trial Judge landed in the field of illegalities and acted on conjectures, surmises and also committed legal errors by receiving undue influence from the dying declaration and while convicting the accused-appellant no required care and caution was exercised, therefore, the impugned judgment is not sustainable in law.
Accordingly, this appeal of the appellant, Siraj s/o Rafiullah is allowed. His conviction and sentences awarded to him by the learned Additional Sessions Judge Peshawar vide impugned judgment dated 21-1-2009 are set aside and he is acquitted of all the charges levelled against him.
He be set free forthwith, if not required in any other case.
These are the detailed reasons for our short order of even date.