' SYED HUSSAIN MAZHAR KALEEM, J.---Above titled appeal has been directed against the judgment of District Court of Criminal Jurisdiction, Kotli dated 30-11-2011, whereby the application under section 265-K, Cr.P.C.. Was allowed and by agreeing with the Police report made under section 173, Cr.P.C.., the case against the respondents was dismissed.
2. Brief facts forming background of the appeal are that a case under sections 342, 337, 34, P.P.C.
Was registered at Police Station, Khuiratta on the complaint of Raja Ali Shan. It was reported that the complainant's grandson Shahbaz was driver of Shakeel. He often had to stay with him and some time used to come home. On 16-10-2010, at 10-00 a.m. He came to know that due to some dispute the respondents beat and threw him in the forest, upon which he came at the spot, took the victim to Police Station Khuiratta and reported the matter.
3. Later on the victim was taken to Pakistan Institute of Medical Sciences, Islamabad for treatment where the Police recorded his statement. Thereafter he succumbed to the injuries and section 302, A.P.C., was added.
4. During investigation, the accused respondents were arrested by the Police. An incomplete challan was submitted against them before District Court of Criminal Jurisdiction, Kotli. The Court took cognizance of the offences and started proceedings against the respondents in light of the report made under section 173, Cr.P.C. The charge against them was framed on. 3-2-2011. They pleaded not guilty and moved an application under section 265-K,Cr.P.C. In the meantime the Police submitted a supplementary challan showing that the complainant failed to produce eye- witnesses. The deceased died of falling from the height and no cognizable offence was committed, therefore, the case may be dismissed for want of proof. The trial Court after necessary proceedings decided the matter in the aforesaid manner through the impugned judgment, hence this appeal.
5. Learned counsel for the appellant argued that finding of the trial Court was against law. The respondents were nominated in promptly lodged F.I.R. They were alleged for causing injuries to the victim. Allegation was supported by dying declaration and it was corroborated by post mortem report. In the given circumstances, the proper course was to record the statement of the prosecution witnesses and decide the matter. The evidence brought on record was sufficient to establish that the respondents committed the alleged offences and there were bright chances of their conviction, therefore, by accepting the appeal and setting aside the impugned judgment, the case may be remanded to the trial Court to proceed with it in accordance with law.
6. On the other side, it was argued that the respondents were roped in a false case by the complainant. During investigation, they were found innocent. It was proved beyond doubt that the victim sustained injuries because of falling from the height. The dying declaration was fabricated in order to strengthen the concocted story. The trial Court rightly appreciated the evidence on record and arrived at a correct decision. The impugned judgment being in accordance with law warrants no interference, therefore, the appeal may be dismissed.
7. We have heard the learned counsel for the parties and considered the record with care.
8. The complainant alleged that his grandson was beaten and thrown in the forest by the respondents. When he reached at the spot, the victim was alive. He along with other relatives took him to Police Station, Khuiratta and reported the matter. Later on the injured person was shifted to Pakistan Institute of Medical Sciences for treatment where the Police recorded his statement and on 21-10-2010, he died of the injuries, upon which section 302, A.P.C. Was added. During investigation, the respondents were arrested on 22-10-2010 and 10-11-2010. The incomplete reports under section 173, Cr.P.C. Were submitted before trial Court on 5-11-2010 and 26-11-2010. As the occurrence was not witnessed by anybody, the Police was facing difficulty in collecting the evidence because of which the request to grant further time for submission of the challan was made but it was declined and trial Court started proceeding. Later on another report under section 173, Cr.P.C. Was submitted showing that the complainant party failed to produce eye-witnesses, the deceased died because of falling from height, . No cognizable offence was committed therefore, the case may be dismissed for want of proof.
9. The trial Court while agreeing with the report under section 173, Cr.P.C. Submitted in favour of the respondents relied upon the Police diaries and observed that:-- "the investigation so far conducted by the Police does not indicate that the accused were involved in the offence. On the fateful night the deceased and Mudassar respondent met two girls at the place of occurrence. In the meantime, a third person came there, upon which they started running and thereafter did not meet. One of the girls was interrogated, the statements of others were recorded, and mobile phone record was also provided which cannot be ignored."
10. It may be mentioned here that where the Police submits a report under section 173, Cr.P.C. To dismiss the case for want of proof, such opinion of the Police A Officer is not binding on the Courts as the Police has no authority whatsoever to give judgment about the merits of the case which definitely is the function of the Courts. The Courts should not agree with such report blindly and pass the order of discharge of an accused in a whimsical and arbitrary manner, when a Court concurs with or refuses to agree with the Police report submitted to him, the order though is administrative in nature but has to be passed in a judicious fashion meaning thereby the Court has to consider the record placed before it and give reasons in support of its verdict. In the present case while agreeing with the report, the trial Court did not bother to consider the facts that no evidence in support of the report submitted in favour of the respondents was brought on the trial Court's file. Even the story narrated above was not mentioned in the report made to it suggesting dismissal of the case, thus the aforesaid observation was not made on the ground of any substantial evidence and the order was passed in a whimsical and arbitrary manner.
11. While deciding fate of dying declaration it was observed by the Court below that, the occurrence took place on 16-10-2010 the victim was unconscious, he was referred to Pakistan Institute of Medical Sciences, on 20-10-2010, at 9-30 p.m, when he regained consciousness P.W Mohammad Younus, Sub-Inspector Police recorded his statement wherein the victim alleged that "he was beaten and injured by Mudassar and Shakeel, some other was also with them." he again became unconscious but after a small interval opened his eyes and further added that "the incident took place in the house of Shakeel respondent." The above mentioned dying declaration was attested by P.Ws Tanveer Ahmed, Khushi. Mohammad and the doctor. P.W Tanveer Ahmed denied that the statement was recorded in his presence but later on filed an affidavit showing that it was ,done in his presence. It was evident from he record that the victim continuously remained unconscious and died in the hospital on 21-10-2010. The claim that during this period he regained consciousness only to record the dying declaration comprising of two lines was doubtful and it was not worthconsideration.
12. It may be stated here that death is the most painful truth. It never allows the victim to tell a lie during his dying moments. Even those who commit sins and tell ties when face it speak nothing but the truth. They repent and beg forgiveness from Almighty. It is an acceptable rule among all the scholars and thinkers belonging to different religions, cultures and societies that last words of a dying person enjoys the presumption of truth. A renowned scholar and writer Sir William Shakespeare in the Act II of his famous play King Richard II describes the feeling of a dying person in the following words:-- "O, but they say the tongues of dying men.
' Enforce attention like deep harmony.
' Where words are scarce, they are seldom spent in vain.
' For they breathe truth that breathe their word in pain.
' He that no more must say is listen'd more.
' Than they whom youth and ease have taught to glose.
' More are men's ends mark'd than their lives before.
' The setting sun and music at the close.
' As the last taste of sweets, is sweetest last.
' Writ in remembrance more than things long past.
' Though Richard my life's counsel would not hear.
' My death's sad tale may yet undeaf his ear.
13. It is also an acceptable principle in the eye of law that a dying person usually speaks truth In the case titled "Akbar Ali v. Shanaz and others," (1981 PCr.I.J 710) it was observed that:-- "Courts should as far as possible avoid expression of opinion on merits of case-Dying declaration to be treated as a valuable piece of evidence till decision taken by trial Court with regard to weight to be attached to it---General presumption that dying persons usually speak truth."
' It follows that the statement made by a person who was dying at the time he made it is a dying 'declaration in the legal sense of the terms and is admissible piece of evidence. No specific mode for recording a dying declaration has been prescribed. Size of such declaration whether small or lengthy is of no importance as the only requirement is that it must indicate the cause and the circumstances which resulted in the death of the declarer. The authenticity and credibility of a dying declaration can only be judged after recording evidence in the case because the question of concoction or fabrication if raised by the defence can only be resolved by considering the peculiar circumstances of the each case appearing in the evidence.
14. The report under section 173, Cr.P.C. Was submitted on two grounds (i) no eye witness was produced by the complainant party, (ii) the death of Shahbaz occurred due to falling from the height and no cognizable offence was committed. Both the above stated reasons given 'by the Investigating Officer were incorrect and against facts of the case. The report was lodged without any delay. The offenders were nominated therein and it was clear that the occurrence was not witnessed by anybody. Thus, asking the complainant to produce eye-witnesses was not justified in the given circumstance. Similarly claim of falling from the height resulting into the death of the deceased was not supported by any evidence. From perusal the post mortem report reveals that eight injuries were found at the person of the deceased. Keeping in view the nature of wounds it was hard to believe that the victim suffered the same because of falling. It was also clear from the report that the injury which resulted into the death was caused by some blunt weapon, hence to determine the nature of injuries and cause of death, examination of the doctor was necessary. It may also be added here that no evidence in support of the claim that the deceased fell from the height was brought on record, therefore, observation of Investigating Officer that no cognizable offence was committed was groundless. It was the result of either incompetency of the investigator or of the dishonest investigation.
' The trial Court while passing the impugned order failed to appreciate that the injured person was lying unconscious at the spot from where he was taken to Police Station, Khuiratta and later on was shifted to Pakistan Institute of Medical Sciences, Islamabad. On 20-10-2010 Muhammad Younus Investigating Officer recorded his dying declaration. In support of opinion of the doctor showing that "the patient is conscious and oriented able to talk at the movement" was also brought on record. The question that dying declaration was small as it was comprised two lines was hardly relevant. The necessary facts such as names of the offenders and the circumstances which resulted into the death including the place of occurrence were mentioned therein. There was no exaggeration and it was recorded in accordance with law. It will not be out of place to mention here that a dying declaration is most strong piece of evidence. In certain circumstances it does not require any corroboration and can be considered for recording conviction. It may be observed here that there is hardly any justification to dismiss a case supported by dying declaration for want of proof by agreeing with the report made under section 173, Cr.P.C.
' In light of the facts listed above, the appeal is accepted. The subsequent report under section 173, Cr.P.C. Suggesting dismissed of the case for want of proof is rejected. The impugned' judgment is set aside and the trial Court is directed to proceed with the case in accordance with law. Before parting with the judgment we would like to mention that performance of the Police and then members of the trial Court was very poor. This is sad state of affair that the institutions are deteriorating and the people sitting at helm of affair are not taking, notice of it perhaps they are not aware of its consequences and effects. The deterioration has shaken the whole society. It is our duty to bring such type of inefficiency and ignorance in the knowledge of those who have powers to correct it, therefore, the copy of the judgment shall be sent to Inspector General Police for necessary action.