' MIAN FASIH-UL-MULK, J.---Zakaullah son of Mubarak, has filed instant Criminal Appeal, directed against the judgment and order dated 25-3-2010 passed by the Court of learned Sessions Judge, Kohat, who convicted the appellant under section 302, P.P.C. For causing the murder of Jehanzeb, deceased and sentenced him to undergo rigorous imprisonment for life and to pay compensation of Rs,5,00,000 to the family of the victim. In default of payment of compensation amount, he was directed to undergo simple imprisonment for a period of two years.
2. Muhammad Shahid, father of deceased, has also filed connected Criminal Revision No,63 of 2010 for enhancement of sentence of the appellant from life to death. We propose to dispose of both the appeal and revision through this single judgment in Cr.A. No,290 of 2010.
3. Accusations which led to trial of the accused-appellant in essence are as follows:- ' On 11-6-2009, deceased Jehanzeb (then injured) was brought to District Head Quarter Hospital Kohat in injured condition, who was attended to by Dr. Farid Afridi, DMS. Habibullah Khan, S.I. Also received information of the episode and proceeded to the hospital, where the deceased then injured in conscious position reported the occurrence to him in the words that on the day of occurrence accused Zakaullah knocked at the door of his house, on which, he came out and exchanged hot words with each other whereafter the accused, who was duly armed with pistol, fired at him with which he was hit and injured. Motive was previous enmity. The report (Exh.PA/1) was sent to the Police Station, where F.I.R. No,718 dated 11-6-2009 (Exh.PA) was registered under section 324, P.P.C. Against the accused-appellant, wherein the time of occurrence was mentioned as 10-Q0 a.m. And that of report as 12-00 O'clock.
4. As per examination report (Exh.P.W.8/1) of Dr. Farid Afridi, there was a single firearm injury on right hypochondrium (upper abdomen) measuring 1/2" x 1/2" with no exit wound and that at the time of examination the patient was in shock, who was then referred to L.R.H., Peshawar where he remained hospitalized for about 4 days and then died on 15-6-2009. The section of law was accordingly changed from section 324, P.P.C. To section 302, P.P.C. According to post-mortem report, the death of deceased was the result of firearm injuries to the liver and spinal cord.
5. After completion of investigation, appellant was sent for trial to the Court of learned Sessions Judge, Peshawar, where the prosecution examined 9 witnesses in support of its case, including Dr. Muhammad Asghar (P.W.3), who had performed autopsy on the dead body of deceased, Dr. Farid Afridi (P.W.5), who had examined the deceased then injured for his injuries, Habibullah Khan, S.I.
(P.W.8) who had recorded the statement of accused and Shahid (father of deceased) (P.W.9), who had seen the accused-appellant running from the spot having a pistol in his hand.
6. The appellant in his statement under section 342, Cr.P.C. Denied the charge and also recorded his statement on Oath under section 340(2), Cr.P.C. He, in his defence, also produced two witnesses i,e, Akhtar Khan and Riayatullah, D. W.1 and D.W.2 respectively, who supported the stance of appellant that at the relevant, time he was present in Kohat Ketchery
7. Learned counsel appearing for the accused-appellant submitted that the so-called dying declaration (Exhibit PA/1) cannot by any stretch of imagination be considered to be a .Dying declaration in the sense it is understood in law. 'The same was recorded by P.W.8, a police official without obtaining any certificate from the doctor about the capability of deceased to make a statement and similar is the case of doctor, who examined the deceased then injured without issuing certificate that the injured was able to give statement in his presence. Though there was ample time to do so if really a dying declaration was to be recorded. Due to the nature of injury on the person of deceased, it is highly improbable that he was in a fit state of health and mind to give the dying declaration. Learned counsel also argued that availability of sufficient documents on record showing involvement of the parties in various criminal and civil nature of cases, omission of the places of deceased and accused in the site-plan and also that of father of deceased as well as non-recovery of any blood or empty from the spot and presence of other relatives of deceased in hospital at the time of making report would clearly suggest mala fide intention of complainant party to falsely involve the appellant in crime because of previous enmity; hence the impugned judgment of trial Court is liable to be set aside.
8. Learned State counsel assisted by learned counsel for the complainant, on the other hand, defended the impugned judgment and stated that it being a case of single accused and single fire-arm injury, substitution of appellant with the real culprit would not arise on part of the deceased, coupled with secondary evidence of father of deceased and other circumstantial evidence; hence appellant has rightly been found guilty of the charge.
9. The case of prosecution, beside the statement of father of deceased, is mainly dependent upon the F.I.R.-cum-dying declaration Exh.PA/1 which has been recorded by P.W.8 Sub-Inspector in presence of P.W.5 Doctor. Although the scribe of report and the doctor in their oral statements have stated that the injured was in a position to record his statement, but neither the police official had asked the doctor to give a certificate in this regard nor the doctor of his own deemed it proper to do so. Moreover, both the witnesses including P.W.9 father of deceased in their statements have stated that report of the deceased then injured was recorded in presence of the relatives of the deceased. It is well-settled that maker of dying declaration is not subjected to cross-examination and it is for Court to see that dying declaration inspires full confidence; that Court should satisfy that there was no possibility of tutoring; prompting and that Court should be satisfied that the deceased was in a fit state of mind to make the statement. Section 46 of Qanun-e-Shahadat Order, 1984 is parallel to section 32 of the Evidence Act which deals with the matter of dying- declaration. Dying-declaration is accepted on the theory that person on death bed will speak the truth. However great caution must be exercised in considering the weight to be given to this kind of evidence on account of the existence of many circumstances which may affect its truthfulness.
Since the accused has no occasion of cross-examination, the Court should insist that dying declaration should be of such a nature as to inspire full confidence of Court in its truthfulness and correctness. Similarly, Court should also see that statement of deceased was not as a result of either tutoring or prompting or a product of imagination and that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. The august Supreme Court of Pakistan has laid down in the case of Nazim Khan and 2 others v. The State (1984 SCM R 1092) that Dying-declaration recorded at Police Station in presence of relatives of deceased would not be worthy of credence. If the situation explained by the I.O. And doctor in which the dying-declaration of deceased was recorded in presence of his relatives, is looked with the lacunas left by prosecution i,e, not obtaining certificate from the doctor as well as the omission of the places of presence of accused and deceased at the time of occurrence in the site-plan, then reliability of such dying-declaration would also become doubtful, as a certification by the doctor is essentially a rule of caution and is important for the Court to property judge the veracity of the maker. To adopt the proper course by the I.O. And doctor, the Court cannot arrive at a just and proper conclusion that the injured was in a position to record his statement, when it is also mentioned in the report of doctor that at that time the patient was in shock.
10. The established facts are that SI Habibullah Khan on coming to know that an injured person has been brought to the hospital with serious fire-arm injuries, went to the hospital where the doctor was already busy in treating the patient. Father of deceased along with other relatives were also present at the time of recording statement by S.I. And there was every chance of tutoring or prompting of the deceased by the complainant party to name the appellant for the crime, if it is presumed that the injured was able to make the report. The dying-declaration is further predominant to the fact that no time of the occurrence has been given by the injured in his report.
Though time of occurrence is written in the heading of murasila as 10.00 a.m. But it seems to be the job of the I.O. Otherwise no time of occurrence has been given by the injured-deceased in his report. Similarly, there is no mention of time in the report of Dr. Farid Afridi as to when (at what time) he examined the deceased (then injured). The actual time of occurrence is thus shrouded in mystery along with place of occurrence. From the place alleged by prosecution, neither any empty was recovered nor any blood It would also pinch the mind of a prudent man that when the parties were involved in previous blood enmity, how the appellant dared to come to the house of deceased, knock at the door of his house, exchange hot words with him and then took out his pistol and fired at him only one shot.
11. Father of deceased in his statement has stated that he was coming to his house from bazaar after purchasing vegetables on bicycle and when he reached the main street leading to his house, he saw the accused running away towards the fields duly armed with pistol.
Moments later, he came across injured Jehanzeb who had put his hand on the place of injury on which he asked him as to what had happened to which he stated that he had been shot by accused Zakaullah. The above deposition of P.W.9 is not so forceful in the circumstances of this case, as neither the injured in his report had stated such fact nor in his statement before the police this witness had stated the facts of placing hand by injured on his injury and his query from him about the incident. As per testimony of this witness, when he saw the injured, he found a couple of women-folk near him but none of the women was produced by prosecution to strengthen its case against the appellant.
12. Keeping in view the bone facts and from the combined and comprehensive study, reappraisal of the entire evidence with care and caution, we are of the considered view that the dying- declaration of deceased is not worth reliance and other circumstantial evidence too does not provide independent corroboration to the guilt of appellant and as per dictum of the apex Court even a single circumstance of doubt arising in the case of prosecution is sufficient for acquittal of accused. Therefore, on such impeachable evidence conviction of appellant and awarding him life imprisonment would be highly unsafe keeping in view the principles of safe administration of justice.
13. Hence, while extending benefit of doubt to the appellant, this appeal is allowed. The impugned judgment of the learned Sessions Judge, Kohat dated 25-3-2010 is set aside and the appellant is acquitted of the charge levelled against him. He be set free forthwith if not required in any other case.
14. As the conviction and sentences of appellant stand annulled thus Criminal Revision for enhancement of sentence of the appellant becomes redundant and the same is hereby dismissed.