' Rashid Iqbal a youth of 19/20 years was brought to THQ Hospital Jampur by Faiz Muhammad 564/C on 14-2-2001 at 2:35 p.m. With 90-98% burn injuries on his person; according to Medical Officer Ahmad Saeed (PW-7), he was oriented to time and space with a capacity to communicate.
Almost the entire body of the deceased carried was charred. Deceased's arrival with burn injuries in the THQ Hospital Jampur was in the wake of complaint Ex.PC lodged by Wahid Bukhsh (PW-5) at 2:00 p.m. Near Pull Landi Patafi Jampur wherein it is alleged that he along with Faiz Muhammad and Ghulam Farid was on way to meet Ghulam Nabi Khan Ahmdani on a motorcycle when he came across Rashid Iqbal deceased, who informed him that he was going to visit his friend Farooq in his house. It is complainant's case that after half an hour on his way back when he passed by near the house of the said Farooq in the company of the same PWs, he was attracted by the screams of the deceased; after entering the house, he saw the deceased lying in injured condition, who disclosed to him that while he was present at his grocery shop, he was asked by Farooq Ahmad to visit his sister Shabana as she sent for him. It is prosecution's case in Ex.PC that as per disclosure made by the deceased he was carrying on an affair with Shabana for about 2/3 years and that he also retained her love letters and that it was in this backdrop that Pairra, Ghulam Rasool and Saif Ullah surprised him in the company of Shabana when Pairra attempted a Churri blow which was snatched by the deceased and as he was retaliating he accidently hit Shabana.
According to Wahid Bukhsh (PW-5) it was further disclosed by the deceased that the above accused confined him in a room after overpowering and sprinkled something on him whereafter they set him ablaze.
' It is alleged that the deceased was in liaison with Shabana and it is in the backdrop of this motive that he was deceitfully induced to visit her whereafter he was set on fire with kerosene oil.
' After registration of the case, during spot inspection, Investigating Officer (PW-8) secured a pocket size tape recorder P-3, a pack of cigarette P-4, two small dry cell P-5/1-2, Dopatta partly burnt P-6, two pieces of burnt clothes P-7/1-2, currency notes of various denomination totaling Rs,102/- P-8/1-7, a pair of Softy-Chappal P-9, matchboxes P-10/1-4, ache P-11 and one matchbox soaked with kerosene oil P-12; these articles were secured vide memo. Ex.PD. The Investigating Officer also secured a broken latch P-13 and an iron nail P-14 from inside the room of occurrence vide memo. Ex.PE, a bloodstained Churri P-15 and a plastic cane emitting kerosene odour were secured vide memo. Ex.PF from inside the room, a small lamp and a bottle containing a small amount of kerosene oil were also found in the room which too were secured by the Investigating Officer. From the veranda outside the room where the deceased was first seen by Wahid Bukhsh (PW-5) lying with burn injuries, pieces of burnt shirt and loin cloth were secured vide separate memos; seven letters P-21/1- 7 purportedly written by Shabana to the deceased were also secured from a box lying in the room of the deceased which were taken into possession vide memo. Ex.PJ.
Lastly the Investigating Officer secured blood from the place where Shabana was shown to have received injuries. The entire exercise was undertaken on 14-2-2001 when the Investigating Officer also moved Medical Officer Ahmad Saeed (PW-7) to record statement of Rashid Iqbal who was still struggling for life. Ex.PQ is dying declaration purportedly made by the deceased during his last hours.
' The accused were arrested on 20-2-2001, however, Farooq Ahmad accused was exonerated during the course of investigation. Upon conclusion of investigation, Pairra, Saifullah and Ghulam Rasool were sent to face trial; they were indicted on 17-1-2002; Farooq Ahmad was summoned by the learned trial Court whereafter a fresh charge was framed on 26-2-2002; the accused denied the charge and claimed trial; prosecution in order to bring home charge against the accused produced as many as nine witnesses. The accused confronted with prosecution evidence, took following plea with one voice: "False case has been got registered against me and my other co-accused. In fact, Rashid Iqbal had committed suicide but the legal heirs of the deceased with the connivance of their relative Malik Nazir Babbar, Inspector Police got prepared forged dying declaration only to involve us in the case. I was not present at the house but reached at the spot after hearing about the incident. On hue and cry of Mst. Shabana, neighbours attracted to the spot and they after breaking the door, brought out the injured outside and informed the police telephonically. Our relatives took the injured Rashid Iqbal to, the hospital in burnt condition."
' In addition to the above, two defence witnesses were examined by the accused, who however, did not opt to be their own witnesses in disproof of charge against them. Though the defence remained somewhat reticent on the graphic details of the occurrence, nonetheless, the bottom line of stance taken by Shabana who appeared as DW-1 is that the deceased was a dejected lover who rocked the boat after she declined to accompany him and that it is a case of suicide.
2. Upon conclusion of the trial, the learned trial Judge convicted Saiftdlah, Paine and Ghulam Rasool under Section 302(b), PPC and sentenced them to imprisonment for life each with compensation of Re.50,000/- each or to undergo six months 'SI each in default of 'payment thereof; they were convicted under Section 842, PPC and sentenced to fine of Rs,100,000/- each or to underjo , one month SI each; both the sentences were ordered to run enneurrently with benefit of Section 382-B, Cr.P.C. Farooq Ahmed accused was,, however, extended benefit of the doubt and thus acquitted from the charge.
3. Learned counsel for the appellants contends that there is direct evidence of the occurrence and story narrated by Wahid Bukhth (PW-5) in Ex.PC is far from being plausible. The format and manner in which the dying declaration (Ex.PQ) is purportedly recorded by Medical Officer Ahmad Saeed (PW-7) on the face of it is tainted'and in any case the learned trial Court erred in placing partial reliance on dying declaration Ex.PQ. According to the learned counsel,/t dying declaration is to be accepted or rejected as a whole and after acquittal of Farooq Ahmed co-accused there was no occasion for the learned trial Judge to press into servide the so called dying declaration against the remaining accused to return a guilty verdict.
4. Contrarily, the impugned judgment is defended by the learned Law Officer assisted by the learned counsel for the complainant.
5. Heard. Record perused.
6. Muhammad Arshad PW-3, Wahid Bukhsh PW-5, Faiz Muhammad PW-6 and Dr. Ahmed Saeed PW-7 constitute collective evidential strength to support the charge against the appellants.
Muhammad Arshad PW-3 is a real brother of the deceased and according to him in his presence the deceased left his grocery shop in the company of Farooq Ahmed accused; Wahid Bukhsh PW-5 and Faiz Muhammad PW-6 claimed to have seen the deceased, first while heading towards the place of occurrence and thereafter lying him in injured condition when he shared with them events that led to receipt of burn injuries by him Dr. Ahmad Saeed (PW-7) is a witness with multiple roles; he first medically examined the deceased in injured condition, then recorded dying declaration Ex.PQ and lastly conducted ti autopstikfter Rashid Iqbal succumbed to death. Wahid Bukhsh (PW-5) and Fiaz Muhammad (PW-6), on their own showing are chance witness; they met Rashid Iqbal first going to the house of occurrence as per chance and again their arrival at the scene when Rashid Iqbal was lying in burnt condition struggling for life inside the house of occurrence are coincidences which seldom occur; even otherwise, there is no reason or plausible explanation for their presence at yle spot; their entry without resistance into the house of occurrence where the crisis was at its peak in the presence of all the accused, requires a pinch of salt. A witness cannot be believed merely on the basis of an articulate rendition unless his deposition is blended with probability with a ring of truth; they are not worthy pf any credence, the position taken by these witnesses and one by Muhammad Arshad (PW-3) are Mutually destructive, as according to the latter, deceased' left in the company of Farooq Ahmad accused, however, according to the formers, Farooq was not seen with the deceased when he lastly conversed with them on his way to the venue. The indinstay of the procestion its star witnesses is Dr. Ahmad Saeed (PW-7) who is architect of /dying declaration Ex.PQ. The foremost question is whether a dying declaration is to be accepted in totality or it can be pressed into service partially to the detriment of some of the accused named therein; it has not been believed qua Farooq Ahmad co-accused.
7. A dying declaration is presumably a declaration of trutIN it is the only statement which is allowed to be admitted in evidence in the absence of its maker after his departure to the world hereinafter, under a belief that he while being face to face with God narrated truth, the whole truth and nothing but truth. It is this presumptive solemnity that the rigors of administering oath and cross- examination are dispensed with, leaving the person adversely effected in an awfully vulnerable position. On the question of divisibility of a dying declaration, in the case of Murad v. The State (PLD 1957 (W.P) Lahore 332) a dying declaration was not discarded as a whole on account of its having been found partially incorrect and it was made a basis for conviction qua some of the accused named therein; relevant portion is reproduced below: "Learned couesel for the appellant attacks the dying declaration on the ground that it contains false recitals for in it Shera and Haider are stated to be armed with ballams and to have caused injuries using them as dangs and the learned Sessions judge has found this part of the prosecution case to be untrue. We are prepared to accept that this part of the statement of the deceased is not altogether correct," for although one of the two acquitted accuseCmy have given a blow, both of them could not have done so there being only one blunt-weapon injury on the deceased,But wec annoton this ground discard the whole dying declaration, for there bp reason why the deceased should substitute someone else for the person who had fired at him.
' However, in a subsequently decided case of Rang Ali & others v. Th{ State (PLD 1958 (W.P) Lahore 242) it was held by a learned Division Bench that veracity of a dying declaration is indivisible; relevant portion is reproduced below: "It was entirely out of question to accept a portion of the dying declaration and to reject the rest.
There must be absolute guarantee of the truth of the entire statement before it can be acted upon.
A 'touched up dying declaration' has no evidentiary value".
' The same view was taken in the case of Muhammad Yasin v. The State (1978 SCM R 303), wherein a dying declaration was excluded from consideration for its having been found false qua some of the accused implicated therein.
' In Indian jurisdiction though the space for divisibility was drastically reduced in the case of Godhu and another Versus State of Rajasthan (1974 AIR (SC) 2188) yet a dying declaration was partially believed. Relevant portion is reproduced below:-- "We are also unable to Subscribe to the view that if a part of the dying declaration has not been proved to be correct. It must necessarily result in the rejection of the whole of the dying declaration.
The rejection of a part of the dying declaration would put the Court on the guard and induce it to apply a rule of caution. There may be cases where in the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the Court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the Court would not normally act upon a part of the dying declaration the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the Court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct.
' However, the above view underwent a change which is vividly reflected in the case of Laxmibai w/o Dhanraj Moon & another Versus State of Maharashtra (2012 ALL MR (Cri) 3537) wherein it was held as under: "A dying declaration had to be read as a whole and one could not pick and choose the contents of dying declaration to base conviction on its incriminatory portion. The consistency has to be as a whole."
The above view is in conformity with the view taken by our Courts holding that veracity of a dying declaration would be indivisible. As statement of maker of a dying declaration sans the sanctity of oath as well as opportunity of cross-examination, it would be extremely unsafe to allow its division so as to partially convict a person from the array, of accused implicated therein. It would also be antithetical to the solemnity attached with a dying declaration. In the present case, the dying declaration has been disbelieved on a very vital aspect of the case and that is Farooq Ahmad's role in inducing the deceased into the fateful situation. If Farooq Ahmad is excluded from the array of the accused, the entire edifice of the prosecution case is raised to the ground. Acquittal of Farooq Ahmad completely vitiated the evidentiary value of dying declaration Ex.PQ and it could not have been pressed into service to the detriment of the appellants. There is yet another reason to disbelieve Ex.PQ, it was humanly not possible for the deceased to communicate after sustaining 90-98% burn injuries on his person that included almost each part of his body. Opinion given by Dr. Ahmad Saeed (PW-7) and his role in formulation of Ex.PQ is intriguing from many angles; on the one hand, this witness mentioned in medico legal certificate Ex.PL that Rashid Iqbal was oriented to time and space with the presence of speaking power and on the other, he noted eyes as semi opened with mouth swollen and whole head and face black with all the hairs burnt plunging the deceased into a dehydration shock. Even the strongest man on God's earth under such agonizing moments could not communicate. A bare perusal of Ex.PQ depicts two different formats and handwritings which could not possibly be result of one sitting exercise. Less said the better. Dying declaration Ex.PQ merits outright rejection. A broken latch of the door with an iron nail coupled with injuries on the person of Shabana which are multiple and extensive in numbers and nature and reference to some love letters go a long way to spell out a scenario which is nearest to the position taken by Shabana DW. It is unsafe to maintain the convictions, therefore, by extending benefit of the doubt to the appellants, Crl. Appeal No, 696 of 2002 is allowed; impugned judgment dated 18- 7-2002 is set aside. The appellants are acquitted from the charge; they are on bail; their sureties stand discharged.