' MRS. IRSHAD QAISER, J.---Mir Ahmad, deceased, then injured, made a report in the Casualty of CH Thall, on 6-6-2006 at 2140, hours that today after purchasing household articles from Thall Bazar, he was on the swa y to his house situated in Toor Pul; that as soon as he reached near Toor Pul, Shahrok, appellant herein appeared and started altercation with him and gave him dagger blow; that he on being hit got injured; that the appellant after accomplishing his agenda, ran away from the spot. One Teeti son of Hassan Khan, witnessed the occurrence. No motive was reported to be existed. When the deceased succumbed to his injuries, a case under section 302, P.P.C., was registered against him, vide F.I.R. No,160 dated 6-6-2006, Police Station Thall.
2. After arrest of the appellant and on completion of investigation, he was sent to the Court of the learned Additional Sessions Judge-I, Hangu, for trial, who on its conclusion sentenced him to undergo imprisonment for life under section 302, P.P.C., with a fine of Rs,1,00,000 or in default to undergo one year's S.I. And half of it, if recovered, was ordered to be paid to the LRs, of the deceased as compensation under section 544-A, Cr.P.C. With the benefit of section 382-B of the Cr.P.C., vide judgment dated 18-1-2010, hence this Criminal Appeal.
3. Learned counsel appearing on behalf of the appellant contended that the version given in the murasila recorded in the Hospital, which is treated as dying declaration, is in conflict with the version furnished by the ocular account and the Medico-legal report. The learned counsel by referring to the Medico-legal report of the deceased contended that the deceased then injured was found to be unconscious by the Doctor and he did not say anywhere in his statement recorded in Court that the deceased then injured was well-oriented in time and space, any narration attributed to the deceased would be nothing but concoction, therefore, it would not be safe to rely on it in a case involving capital punishment. Such report, the learned counsel submitted, cannot be treated as dying declaration under any circumstances. The learned counsel next contended that where, according to the dying declaration, P.W.6, the eye-witness, so-called, unequivocally stated that on the night of the occurrence, he was away from the place of occurrence and the murder of the brother of the appellant by the deceased was the sole motive behind the occurrence. The version of this witness is not in line with dying declaration, as the version given in the dying declaration without mentioning about the previous blood feud and the existence of motive between them appears to be false on the face of it and that the Prosecution version being, replete with serious doubts and discrepancies is not of a nature as could sustain conviction of the appellant. Unconformable contradictions in the dying declaration and statement of the eye-witness, the learned counsel added, would further negate the presence of the eye- witness that he was present at the scene of occurrence or even at the time of recording the report.
The learned counsel by referring to the Medico-legal report, statement of P.W.6, the injuries on the person of the deceased and the report made in this behalf; contended that the occurrence has not taken place in the manner described by the Prosecution.
4. As against that, the learned counsel appearing on behalf of the State contended that the dying declaration being free from any infirmity merits implicit reliance, when it is supported by the P.W.
Furnishing ocular account. The statement of the P.W. Recording the report of the deceased being true and trustworthy lends further support to the testimony of the P.W.6 furnishing ocular account.
Minor discrepancies in the statements of the P.Ws., the learned State counsel submitted, cannot make any dent in the Prosecution version and that the convictions and sentences recorded by the learned trial Court being free from any flaw are not open to any interference.
5. We have gone through' the record carefully and considered the submissions of the learned counsel for the parties.
6. The record reveals that Mir Ahmad after having been injured was taken to the Hospital where he lodged the report in the Casualty. Since he died, this report was treated as dying declaration. The Prosecution besides relying on this piece of evidence also examined Teeti as P.W.6 who, according to the dying declaration, happened to be the eye-witness of this incident. Thus the Prosecution case primarily rest on the dying declaration of the deceased and the ocular account of the incident furnished by P.W.6, Teeth. There can be no cavil with the proposition that the statement of the deceased in the from of an F.I.R. Can be treated as a dying declaration which itself is good enough under Article 46 of Qanun-e-Shahadat Order, 1984, for sustaining conviction on a capital charge. But for believing dying declaration and convicting a person on its basis, the following essential conditions must be established by the Prosecution. (1) That dying man was in full senses, conscious and alert to the surrounding, was fully oriented in space and time and was able to make a coherent speech. (2) That the dying declaration otherwise rings true and is sound in substance to be relied upon. (3) That it is free from promptness given by the outside quarter. (4) That Doctor present at the occasion shall give a fitness certificate about the condition of the dying man.
7. Keeping in view the above principles in mind, it is to be seen that whether the maker of the statement Exh.P.W.5/1 was in a fit condition to make a statement. Khanullah, ASI, who recorded the report of the deceased then injured in the shape of murasila Exh.P.W.5/1 was examined as P.W.8. He has stated that on receipt of information he went to Emergency Room where Mir Ahmad reported the matter to him in injured condition; which he recorded in the shape of murasila. He prepared his injury sheet Exh.P.W.8/1 and then referred him to Medical Officer for medical examination. There is nothing in his statement that he recorded the report in the presence of Doctor and obtained a certificate from him. Dr. Nawaz, who examined the deceased then injured was examined as P.W.7.
He stated that he examined the patient at 9-05 p.m. On 6-6-2006 and prepared Exh.P.W.7/1. It means that the deceased then injured was examined by the Doctor before making the report, which was drafted by P.W.8 at 2140 hours. He (Doctor) has not uttered a single word in respect of the fact that at the time of recording the report, he was present with the Police official and injured.
In his cross-examination, he also admitted that the patient was not conscious and he was semi- conscious, when he was examined at 9-05 p.m." He also admitted that "the report was not made in my presence". He further admitted that "I cannot say as to the weapon, of offence is dagger or knife or any other weapon. The Prosecution also failed to examine the Doctor who conducted the postmortem examination of the deceased. In the face of this medical evidence it was the duty of the Police official concerned to have obtained the certificate from the Doctor before recording the statement of the injured that he was in fit condition to give statement. Such Certificate admittedly was not obtained and no reasonable explanation for this omission was given by the Police official concerned. In the circumstances fitness of injured to make a statement Exh.P.W.5/1 remained doubtful. Reference in this respect is made to 1983 PCr,LJ 2075 and 1989 PCr.LJ 1.
8. It is universal principle of criminal jurisprudence 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 injury, caused to him is ordinarily not expected to speak a falsehood. 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 corroborative evidence for the sake of safe dispensation of justice. As it is repeatedly held by the august Supreme Court that relying blindly and without proper scrutiny on such a statement, would the no less dangerous approach on the part of the Courts of law.
Reference is made to Sher Bahadur and another v. The State 11972 SCM R 661) and Muhammad Yaseen v. The State (1972 SCMR 303), A rule of caution was also laid down by the Hon'ble Supreme Court in case of Tawab Khan and another v. The State (PLD 1970 SC 13). Reference is also made to (2011 SCMR 464) wherein the Hon'ble Judge while dealing with similar situation observed as under:- - "Mere Dying Declaration shrouded by mystery and fraught with so many infirmities is not enough to convict a person---Dying Declaration is weaker type of evidence, which needs corroboration when fully corroborated by other reliable evidence---Facts and circumstances of each case have to be kept in view and also credibility, reliability and acceptability of such Declaration by Court."
9. Another important fact which needs to be added is that' this piece of incriminating evidence (dying declaration) was not put to the accused at the time of recording of his statement under section 342, Cr.P.C. It is settled principle of law that when the material incriminating piece of evidence was not .Put to the accused at the time of recording his statement under section 342, Cr.P.C., It cannot he used against him. Reference is made to 2010 SCM R 1009, wherein it is held:- "if any incriminating piece of evidence is not put to an accused in his statement under section 342, Cr.P.C. For his explanation then the same cannot be used against him for his conviction."
10. Reference is also made to 1996 PCr.L.J 1446, wherein it is held:--
11. From the perusal of the impugned judgment of the trial Court, we came to the conclusion that the learned trial Judge has not properly appreciated and scrutinized the evidence produced on the record. It is based on misreading and non-reading of evidence and also on surmises and conjectures. The Prosecution could not prove this material piece of evidence.
12. The next piece of evidence relied upon by the Prosecution is ocular account furnished by the Teeti (P.W.6) but he did not support the Prosecution case and in the opening sentence of his examination-in-chief, he stated on the night of occurrence, I was away from the place of occurrence. The complainant Mir Ahmad deceased then injured told me that he was given blows by Farooq." It is also important to note that at the time of recording murasila, this P.W. Was not present with the injured. In his cross-examination, this P.W.6 has completely shattered the.
Prosecution version and admitted that "the complainant was not given blows by accused sitting in the Court rather he was injured by Farooq. He was another person." In this state of affairs, neither of the version deserves implicit reliance, that too, when they disagree with each other on material issues.
13. Above all as discussed in the preceding paras, when there is nothing on the record to show that the deceased then injured was well-oriented in the time and space, his statement thus made cannot be held to be a genuine dying declaration by any attribute. We, thus, do not think that the case against the appellant can be said to have been proved. Beyond any shadow of -reasonable doubt. When that being the case, it would not be in accord with safe administration of justice to maintain convictions of the appellant on this quality and, quantity of evidence.
14. For the reasons discussed above, we allow this appeal, set aside the convictions and sentences recorded by the learned trial Court and acquit him of the charge. He be set free forthwith, if need not in any other case. These are the reasons furnishing basis for our short order of even date.