' RIAZAT ALI SAHAR, J.---By this Jail Appeal, the appellant has assailed the validity of Judgment, passed by 2nd Additional Sessions Judge, Ghotki on 30-6-2008 in Sessions Case No,306 of 2002, re State v. Ali alias Ali Bux and others (Crime No,179 of 2002, Police Station Ghotki, under sections 302, 34, P.P.C.), whereby while convicting the appellant sentence of rigorous imprisonment for twenty five years for offence under section 302(b), P.P.C. Was awarded to the appellant, with fine of Rs, 50,000 to be paid to the legal heirs of deceased and in case of failure in payment thereof, S.I. For six months more has been ordered to be undergone by the appellant. However, by impugned judgment, co-accused Bashir Ahmed and All alias Ali Bux were acquitted of the charge.
2. The facts of the prosecution case are that on 13-8-2002, complainant Muhammad Sharif Bhatti lodged F.I.R. Stating therein that Shah Nawaz was his relative, he was residing with him. On the preceding night of incident, the complainant, his relatives Shah Nawaz and Amanat Ali went to sleep after taking meals. At 5.00 a.m., there was call beside the house of complainant, the bulbs were glowing and complainant saw Shahban Bheri, armed with gun and two unidentified culprits, armed with pistols, standing in the street. Accused Shahban raised 'hakal' that they will not spare Shah Nawaz as he used to object to the passage of accused in the street and had insulted him.
Saying so, accused Shahban fired two shots from his gun at Shah Nawaz, which hit him and he fell down; on the fire shot reports people came at the scene of offence and seeing them accused persons ran away. Complainant saw that Shah Nawaz sustained one fire shot injury on his upper left arm and one fire shot below the left nipple and was injured. Complainant leaving the injured under supervision of witnesses went to police station and lodged the F.I.R. However, injured later-on succumbed to the injuries and died at hospital.
3. That trial court framed amended charge against the accused on 30-8-2004, to which they pleaded 'not guilty' and claimed to be tried. In support of the case, the prosecution examined P.W 1 Dr. Iqbal Ahmed as Exh.12, he produced postmortem report as Exh.12/A, P.W 2 Dr. Arbab Ali Malik as Exh.13, he produced provisional medical certificate as Exh.13/A, P.W 3 complainant Muhammad Sharif as Exh.14, he produced F.I.R. As Exh.14/A, P.W 4 Altaf as Exh.15, being Mashir, P.W 5 ASI-Ali Sher as Exh.19, P.W 6 SIP Muhammad Murad, being first I.O. Of the case, P.W 7 Jan Muhammad, Tapedar as Exh.22, he produced sketch of the site as Exh. 22/A, P,W 8 Faiz Muhammad, Judicial Officer as Exh.24, he produced mashirnama of identification parade as Exh.24/A, P.W 9 SIP Muhammad Sharif as Exh.25, being second I.O., he produced further statement of complainant as Exh.25/A and lastly P.W 10 Allah Bux as Exh. 27, whereafter prosecution closed its side by statement at Exh.28.
4. Statements of accused including the appellant under section 342, Cr.P.C. Were recorded by the trial Court, wherein they denied the prosecution allegations. However, neither appellant and acquitted accused examined themselves on oath nor led any evidence in their defence.
5. After hearing learned counsel for the accused as well as State Counsel, the learned trial court convicted and sentenced the appellant and acquitted co-accused, as stated hereinabove.
6. Learned counsel for the appellant assailed the impugned judgment stating that it was based on deviation from law and, thus, was liable to be set aside.
7. On the other hand, learned D.P.G. Defended the impugned judgment, which, according to him, was based on proper appraisement of facts.
8. I have minutely considered the respective arguments of learned counsel for the appellant as well as learned State Counsel and examined the record meticulously.
9. Perusal of record shows that after sustaining injuries the injured was taken to hospital, where his statement was recorded by Police and thereafter he died on the following day. The medical evidence stipulates the death to be the culmination of shock and hemorrhage, caused by firearm injuries; nevertheless, one of the doctors, examined by the trial Court, has stated that the injuries were caused by firearm and the other doctor has, in cross-examination, stated that the injuries might have been caused by bullets. The weapon, that the appellant was allegedly carrying was gun, therefore, the medical account, being in conflict with the ocular account, casts doubt on the veracity of the version of F.I.R.
10. Apart from above, it further appears from the record that the complainant, when he entered the witness box, did not hold the appellant responsible for the murder, that is so say, the complainant in his cross-examination has exonerated him and, therefore, insofar as the contents of the First Information Report are concerned, they stand negated by the informant himself.
11. The only material, which the trial Court considered for convicting the appellant, is the statement of injured/deceased Shah Nawaz under section 161, Cr.P.C, said to have been recorded at hospital by the Police. The trial Court has considered such statement as dying declaration being admissible within meaning of Article 46 of the Qanun-e-Shahadat Order, 1984. It is well-settled principle of law that dying declaration by itself is not a strong piece of evidence being not tested by way of cross- examination. For believing or disbelieving a dying declaration the Court should always insist upon strong, independent and reliable corroboratory evidence for the sake of safe dispensation of justice, which is totally lacking in the instant case.
DYING DECLARATION
12. In the case of Zarif Khan v. The State, reported in PLD 1977 SC 612 the Hon'ble Supreme Court was pleased to record following invaluable observations in the following terms:- "we are of the view that there is ordinarily little, if any, sanctity about a dying declaration, it follows that ordinarily a dying declaration in criminal cases, is in the words of Beaumont, C.J., "a weaker type of evidence than the evidence given by a witness in the witness box". I have deliberately confined my observations to criminal cases, because the burden of proving the guilt of the accused beyond reasonable doubt is on the prosecution in criminal cases."
13. In the same case of Zarif Khan (supra), while recording the consent note, his lordship S. Anwarul Haq. J., as he then was, (being one of the Hon'ble Members of the Larger Bench of Hon'ble Supreme Court in the said case) was pleased to observe as under:-- "S, Abwarul Haq, J.---While I agree with my learned brother Dorab Patel J., that, on the facts and circumstances as brought out by him, the conviction of the appellant cannot be sustained, I wish to make a few observations regarding the evidentiary value of a dying statement made admissible under section 32 (1) of the Evidence Act.
' As my learned brother has exhaustively examined the leading cases, from various jurisdictions, it is not necessary for me to go over the same ground again. I notice that although his Lordship has expressed the view that "there is ordinarily little, if any, sanctity about a dying declaration it follows that ordinarily a dying declaration in criminal cases is, in the words of Beaumont, C.J., a weaker type of evidence than the evidence given by a witness in the witness box, "yet he has made it clear that he should not be understood to mean that a conviction cannot be based on a dying declaration. Speaking with respect, I venture to think that expressions like "weaker type of evidence" as employed in some of the precedent cases to describe the evidentiary value of a dying declaration are likely to produce a misleading impression as to the quality of such evidence and the reliance which may be placed upon it in the peculiar circumstances of each case. It has to be remembered that the legislature has advisedly, as a matter of sheer necessity, incorporated in section 32 an exception to the general rule that hearsay is no evidence. In the very nature of things the sanctity of oath and the test of cross-examination are not available to ascertain the veracity of a dying statement: but the nature of statement itself and the circumstances under which it is made make probable the truth of the statement and thus take the place of oath and cross-examination. On first principles, the sanctity attached to such statements by the statute should be respected, unless there are clear circumstances brought out in the evidence to show that a dying declaration is not reliable for any reason."
14. Accordingly, I am inclined to take the view, in respectful agreement with the dicta laid down in the above cited case, that a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the appreciating of evidence in criminal cases. It cannot be laid down as an absolute rule of law; nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine. In order to test the reliability of a dying declaration, the Court has to keep in view the various circumstances like the opportunity of the dying man for observation, and whether the capacity of the deceased to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; whether the statement had been consistent throughout if he had made several dying declarations; and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. It also goes without saying that the exact contents of the dying statement should be proved by reliable evidence, and for this reason a dying statement recorded by a competent magistrate in the proper manner in the words of the maker of the declaration would obviously carry greater weight than an oral statement which may suffer from all the infirmities of human memory and human character. If the Court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants, there is no need for further corroboration. But if it appears to be unreliable by itself, or suffers from some infirmity, then it cannot form the basis of a conviction without corroboration.
15. Even otherwise, in the instant case the so-called dying declaration was not produced before the trial Court at the time of trial, mere P.W/I.O. Muhammad Murad has deposed that he has recorded the statement of the injured/deceased Shah Nawaz under section 161, Cr.P.C, whereby he implicated the accused Shahban regarding commission of alleged offence.
16. It appears that there was previous vengeance between the parties and the record does not speak of the deceased being in expectancy of death at the time of giving his statement, which, thus, can hardly meet the requirement of dying declaration. It, therefore, cannot be said with certainty that there was no reason to falsely implicate the appellant. In view of aforesaid circumstances, which make the case doubtful, the purported dying declaration can hardly be given weight, specially for the purpose of basing conviction.
17. It has been consistent view of the superior Courts that benefit of a slightest doubt, emerging out of the story of prosecution, has to be given to the accused as a matter of right and, therefore, the appellant deserves to be given benefit of doubt.
18. Accordingly, the instant appeal was accepted and the impugned judgment, dated 30-6-2008, was set aside by means of a short order, dated 24-5-2013.