MALIK HAQ NAWAZ, J.---Since criminal appeal No,17/2016, Criminal Appeal No,18/2016, Criminal appeal No, 19/2016, criminal revision No,08/2016 and Cr. Misc. No, 192/2018 are arising out of one and the same matter , therefore, these are being disposed of through this single judgment.
2. Ali Sarwar and Rehbar Ali both sons of Ghulam Ali (appellants in criminal appeal No,19/2016 and criminal appeal No,17/2016) were tried by learned Additional Sessions Judge Gilgit in case FIR No,01/2014 dated 02-02-2014 registered at Police Station Haramosh District Gilgit for double murder of deceased Sohail Abbas and Shahab-ud- Din. Vide judgment dated 25-04-2016 the appellants have been convicted and sentenced as shown in the operative part of the impugned judgment, which portion of judgment is re-produced as under:- "With the above observations, I am of the firm view that the prosecution through dying declaration corroborated by the witnesses in whose presence the same was made, postmortem reports and positive reports of crime empties and other evidence referred above has successfully proved the charges again st the accused Ali Sarwar and Rehbar Ali. Keeping in view the above referred dying declaration etc. The accused Ali Sarwar and Rehbar Ali sons of Ghulam Ali residents of Hanochal Haramosh Tehsil and District Gilgit have murdered/committed Qatl-i-amd of Shahab-ud-Din son of Muhammad Ali and Suhail Abbas son of Jan Muhammad residents of Hanochal Haramosh Tehsil and District Gilgit in furtherance of their common intention therefore, convicted and sentenced to imprisonment for life on two counts under section 302(b), P.P.C. and they are also sentenced to fine of Rs, 500000/- (five hundred thousand only) each under section 544-A, Cr. P. C. and the said amount shall be paid to the legal heirs of both the deceased and in case of failure/default of payment of the said amount they will undergo simple imprisonment for a period of one year. The sentences would run concurrently . The accused shall be entitled for the benefit of section 382-B, Cr .P.C."
3. Assailing the above conviction and sentence, the appellants have filed the appeals whereas complainant Manzoor Hussain has filed criminal revision No,08/2016 for enhancement of sentence of Ali Rehbar and Ali Sarwar from lite imprisonment to death. During pendency of above appeals convicts/app ellants filed Cr. Misc. 192/2018 under section 426, Cr.P.C. for suspensio n of their sentence. The prosecution story , as set out in FIR No,01/2014 (Exh. PW-1/A) registered on the statement of complainant Manzoor Hussain is that on 02-02-2014 at about 13:45 hours the accused namely Ali Sarwar and Rehbar Ali sons of Ghulam Ali resident of Haramosh waylaid and on seeing both the deceased, who were riding on a motorbike opened fire with a Kalashnikov and a .30 bore pistol, on them. Sohail Abbas died at the spot while Shahab-ud-Din, who though seriously injured managed to drove away from the scence of occurrence. The injured Shahab-ud-Din was provided 1st aid at Civil Hospital Haramosh and later on shifted to DHQ Hospital Gilgit, where he lost his life.
4. After registration of FIR, PW-11 ASI Ghulam Sarwar visited the place of occurrence on the following day and prepared site plan Exh. PW-11/A, site inspection report Exh.PW -11/B. The I.O. also prepared Exh. PW-7/A, Exh.
PW-7/B, Exh. PW-5/1, Exh. PW-5/2 and Exh. PW-5/3. The accused got recovered weapon of offence vide recovery memos Exh. PW-6/A and Exh. PW-6/B. Site plan of the recoveries were also prepared and exhibited in the Court as Exh. PW, Exh. PW-11/C and Exh. PW-11/D. After completion of investigation the accused were committed to judicial custody to stand trial.
5. The challan of the case was submitted in the Court of learned Sessions Judge Gilgit, who entrusted the same to learned Additional Sessions Judge Gilgit for trial and disposal.
6. In order to prove the case prosecution examined 11 PWs and closed its case on 23-02-2015. The learned District Public Prosecutor tendered in evidence Exh. PA/Exh. PB the report of Forensic Expert and serologist in support of prosecution evidence. The accused were examined under section 342, Cr.P.C. on 25-03-2015. Both the accused neither examined themselves under section 340(2), Cr .P.C. nor opted to produce any DW in their defence.
7. After hearing the parties the learned trial Court handed down the verdict of guilt against the accused as discussed supra.
8. The learned counsel for the appellant submitted that the judgment of the learned trial Court has been handed down without considering the attending circumstances of the case. The learned counsel vehemently contended that it was an unseen occurrence and the appellants have been falsely implicated in the case. The FIR in the instant case has been lodged after a considerable delay of 9 hours, which cannot be explained in any manner and apparently this delay has been consume d in tailoring a false and concocted story . Per learned counsel the dying declaration is not worth reliance as the same has been invented by the police in collusion with the complainant party . The so-called dying declaration is neither signed nor thumb marked by the maker . The deceased Shahab-ud- Din was given 1st aid treatment at Civil Hospital Sassi Haramosh, where he did not named the assailants. PW-11 Ali Sarwar is related to the deceased and, it all was because of his dishonest invest igation and the same should not be believed and should be discarded. The learned counsel also attacked the recoveries and stated that the accused were arrested on 03-02-2014 but the recoveries have been effected on 08-02-2014 and no reasons have been shown for such a delay . The recoveries are joint and inadmissible in evidence. Per learned counsel the crime empties and crime weapon though recovered on different dates have been sent to forensic expert together , therefore, a positive report received, therefrom, could not be read in aid of prosecution case. Lastly the learned counsel submitted that prosecution itself is not sure about the death of deceased Shahab-ud-Din, whether he died in ICU Ward Gilgit, in Operation Theater or while on the way to Gilgit. Dying declaration is negated from the statement of PW-9 Amjad, who stated that dead bodies of both the deceased were brought in DHQ Hospital, meaning thereby that the deceased Shahab-ud-Din was already expired, when brought to DHQ Hospital. Per learned counsel the case in hand is one of the acquittal and the appellants be acquitted by extending them the benefits of doubts.
9. On the other hand the learned Dy. Advocate General assisted by learned counsel for the complainant vehemently opposed these appeals on the grounds that there is no conscious and deliberate delay in reporting the matter to the police. The complainant side has no previous enmity to falsely rope in the accused in commission of offence. The case of the prosecution is fully proved from the dying declaration, medical evidence, recoveries and the positive reports of forensic and chemical expert. Per learned Dy. Advocate General prosecution has successfully brought home guilt against the appellants beyond any shadow of doubt and there is no merit in these appeals which merit dismissal. They relied on 1995 SCMR 614, 2001 SCMR 1474 , PLD 2005 Peshawar 172, 2007 YLR 448 and 2015 MLD 939.
10. We heard learned counsel for the parties as well as the learned Dy. Advocate General for the State and gone through the record with their able assistance.
11. No doubt that there, is no eye witness of the occurrence. The statements of Shahab-ud-Din who was driving the motorbike and managed his escape from the place of occurrence in a very seve re and critical condition has not made any statement under section 161, Cr.P.C. Alleged dying declaration was made in presence of close relative of the deceased and neither before any independent/impartial person either at Civil Hospital Sassi Haramosh nor at DHQ Hospital Gilgit which raises a question of suspicious about its genuineness. Statements of a deceased person can be treated as a dying declaration, which per se is good enough to maintain a conviction on a capital charge, however for sustaining a conviction on a capital charge, the prosecution has to prove that the dying man was in full senses, conscious and alert and was able to make a coherent statement, secondly that it rings true and is sound in substance and fit in the circumstances of a given case, thirdly that it was free from any tutoring from outside. The deceased as per prosecution version after receiving fire arms injuries survived for a couple of hours, and was taken to Civil Hospital Haramosh and after first aid was shifted to DHQ Hospital Gilgit. As per prosecution version he made a statement (dying declaration) in the way to DHQ Hospital Gilgit which was handed down by PW-4 FC Sher Baz and exhibited in trial Court as Exh. PW-4/A and was signed by the witnesses. The same facts have been deposed by PW-3 Rizwan, who is closely related to the deceased that deceased made a dying declaration but at the same time it is to be kept in mind that SHO of Police Station Sassi Haramosh namely Ghulam Sarwar was incharge of Police Station and one of deceased namely Shahab-ud-Din was real brother of PW Manzoor Hussain (complainant) and their sister was in wedlock of SHO Ghulam Sarwar , the chances of manipulation and fabrication cannot be ruled out. The procedure regarding recording of a dying declaration has been given in chapter XXV, rule 21 of Police Rules-1934, however the Courts of the Country have discussed the pros and con of a dying declaration in various judgments but finally held that no omnibus principles could be laid down for acceptance of dying declaration. The Court may discard a dying declaration, which has been recorded after fulfillment of all the legal requirements, if the mind of the Court was not satisfied that the dying declara tion was tainted one, whereas in some of the reported cases it has held that, there is no legal requirement that the dying declaration should be in writing, thumb marked by the declarant or certified by the doctor , it may be a verbal statement made to any person.
If the mind of the Court is satisfied that the dying declaration was genuine and the dying person was in his senses to make the statement, it could be taken into consideration as a valuable piece of evidence. In the instant case, we minutely scanned the evidence of PW Manzoor , PW Rizwan, PW Sher Baz FC, PW Arif Ali Shah and found that all these PWs are closely related and PW Manzoor Hussain, who remained with the injured did not attempt to ask any impartial person to be the witness of dying declaration. We are of the firm view that the dying declaration of the injured Shahab-ud-Din being not free from outside influence as the circumstances suggests, it was wrongly relied upon by the learned trial Court. The other contention of learned counsel that recoveries of the crime weapons are "joint recoveries" and cannot be relied upon as a corroboratory piece of evidence is devoid of force, as it has been held in 1980 SCMR 654 and PLD 1997 SC 408, that joint recoveries, under certain circumstances are admissible in evidence if it could be easily deduced that the incriminating recoveries have been effected from a particular accused. A perusal of Exh. PW-6/A and Exh.PW -6/B depicts that both the accused separately led the police party to the place of recovery and the recoveries were effected on their pointation in presence of marginal witness, who all are police official and no reasons have been advanced for non association of private and independent witnesses in clear violation of section 103, Cr.P.C. However the crime weapons were sent to National Forensic Science Agency (firearm section) and the opinion regarding wedding the crime empties with the weapon of offence is positive. The said report was exhibited in the trial Court as Exh. PA. The report of chemical examiner Exh. PB is also in affirmative, but it cannot be ignor ed that crime empties were recovered on 03.02.2014. The weapons of offence were recovered on 08.02.2014 and sent to fire arm expert on 02.04.2014 after about two months, which cannot be read as a corroboratory piece of evidence. Further Ex.PW -11/C depicts that the recoveries were joint and Ex.PW -11/C negates recovery memos Ex.PW -6/A and Ex.PW -6/B.
12. The accused when examined under section 342, Cr.P.C. did not took any specific stand/plea and denied the allegations of prosecution as a whole.
13. Postmortem on the dead bodies of both the deceased was conducted by PW-10 Dr. Hussain Shah. The postmortem was conducted at DHQ hosp ital as there was no facility of conducting the postmortem in Civil hospital Sassi Haramosh. The postmortem reports of both the deceased, were exhibited in trial Court as Ex.PW -10/A and Ex.PW -10/B. Details of wounds found on the bodies of both the deceased are given below:-
(a) Deceased Shahab-ud-din son of Muhammad Ali Shah:- "Details of W ounds:-
1. A circular wound (Hole), of about 1.2 x 1 cm in size on left side of the chest (Entrance), at the level of 8th intercostal space on the line of anterior axillary fold with inverted edges and oblique in upward direction having no tattooing marks debris or clothing, and was already stitched.
A wound (Hole) of about 1.3 x 1.5 cm in size with irregular margins on right side of anterior surface of chest at 3rd intercostal spate (Exit) just lateral to the sternum.
2. A surgical wound of about 2.5 x l cm on the left side of lateral surface of chest at 507 intercostals space anterior to mid axillary line for chest intubation and was already stitched."
(b) Deceased Sohail Abbas son of Jan Muhammad:- "Details of W ounds:-
1. A semicircular wound (Hole), of about 1.2 x 1' cm in size on lateral surface of left arm about 03 cm above the elbow (Entrance), with inverted margins, directed obliquely upward already stitched. A wound (Hole) with irregular margins about 2 x 3 cm in size on medial surface of left arm 5 cm above the left Elbow joint (exit), stitched.
2. A circular wound (hole) about 1 x 1 cm in size on lateral surface of left Forearm just below the left Elbow joint (Entrance) obliquely crossed and stitched. A wound (hole) of 2 x 2.5 cm on medial surface of left Forearm (Exit) below the left Elbow joint and stitched.
3. A circular wound (Hole) of 1 x 1 cm on anterior surface of left Forearm (Entrance) about three inches below left Elbow joint and obliquely crossed. A wound (Hole) of 2 x 2 cm on medial surface of left Forearm below 2nd Exit wound. All above wound were passed through and through.
4. A semicircular wound (Hole) of about 2.5 x 2 cm in size on lateral surface of left side of the Chest, anterior to mid axillary line on 5th intercostal space with burning marks around the wound (Entrance), having no debris, tattooing, clothes at or around the wound, obliquely crossed downward towards right flank and stitched.
An irregular wound (Hole) of 3.5 x 3 cm on right flank just above the posterior superior iliac crest (Exit) and stitched.
5. A semicircular wound (Hole) of about 3 x 2.5 cm in size on the left side of the chest at 8th intercostals space at the line of anterior axillary fold (Entrance) with burning marks around the wound obliquely crossed and stitched.
An irregular wound (Hole) of about 2.5 x 2 cm on epigastric area, left lateral to midline (Exit) and stitched."
14. Whole of the prosecution case hinges upon the dying declaration of deceased Shahab ud Din, but host circumstances negate the making of any dying declaration by the deceased Shahab ud Din. The dying declaration is negated from the following circumstances:-
(i) Inquest report of deceased Sohal Abbas exhibited in trial Court as Ex.PW -11/G shows date/time of death as 02.12.2014 at 1400 hrs. Likewise inquest report of deceased Shahab ud Din Ex.PW -11/H also shows date/time of death as 02.12.2014 at 1400 hours.
(ii) None was cited as PW from the staff of Civil Hospital Sassi Haramosh whereas per prosecution own stance deceased Shahab ud Din was given first aid treatment.
(iii) PW-10 Dr. Hussain Shah stated that deceased was brought in operation theatre in a critical condition but no Doctor from DHQ Hospital Gilgit was cited as a PW, who treated the injured nor Dr. Hussain Shah stated that the injured was able to make a statement.
(iv) PW-5 Arif Ali Shah categorically stated that no application was presented to the doctor in DHQ Hospital Gilgit regarding consciousness or making of any dying declaration by the deceased.
(v) PW-9 Amjad Ali stated that the dead bodies of deceased were brought to the DHQ Hospital at Isha time and further that both the dead bodies were brought in DHQ Hospital Gilgit at the same time.
(vi) PW-4, Sher Baz scribed Ex.PW -4/A (dying declaration). This PW stated that deceased remained in Civil Hospital Haramosh for an hour but no application was submitted to the Doctor regarding dying declaration. Dying declaration was prepared outside the door of operation theatre. No application was moved to any doctor of DHQ Hospital Gilgit regarding dying declaration. This witness also stated that his statement under section 161, Cr.P.C. was not recorded, whereas same is available in judicial as well as in police file.
(vii) No injury sheet of deceased Shahab ud Din is available on record, from where it could be deduced that the deceased was referred to Civil Hospital Sassi Haramosh and later on to DHQ Hospital Gilgit.
(viii) No Doctor from DHQ Hospital Gilgit, who attended the deceased Shahab ud Din or any one from para medical staff has been cited as PW to depose that the deceased was brought in to DHQ Hospital alive and was stable to make a statement.
15. Dying declarations are always treated a valuable pieces of evidence and could alone be made for basing a conviction, where the Court is of the opinion, that it rings true, free from outside influence and the deceased was in a fit state of mind to make a coherent statement. Following law cases could be cited for the purpose of guidance:-
(a) PLD 2006 Supreme Court 255
(a) Penal Code (XL V of 1860) .....S.302(b)/34... Qanun-e-Shahadat (10 of 1984), Art.46--- Constitution of Pakistan (1973), Art.185(3)... Statement of the deceased was not recorded by the Investigating Officer in hospital in presence of the Doctor and further neither any member of the hospital staff was associated at the time of recording her statement, nor the same was got verified by any official of the hospital that the statement was actually made by the deceased---Status of such statement would be of a statement under S.161, Cr.P.C. and not of a "dying declaration" of the deceased. Dying declaration or a statement of a person without the test of cross examination was a weak kind of evidence and its credibility depended upon the authenticity of the record and the circumstances under which it was recorded--- Courts below in complete departure from the principles of appraisal of evidence and the rule of criminal administration of justice, had held the accused guilty of the charge on the basis of hearsay and shaky evidence--- Dying declaration allegedly made by the deceased could not be treated as an admissible evidence and conviction on the basis of such an evidence on capital charge was not legal and with the exclusion of dying declaration which was the foundation of the prosecution case, the remaining evidence was not sufficient to sustain the conviction--- Prosecution, thus, had not been able to prove the charge against the accused beyond reasonable doubt---Petition for leave to appeal was converted into appeal and the accused was acquitted in circumstances.
(b) Penal Code (XL V of 1860) ---S. 302(b)/34--- Qanun-e-Shahadat (10 of 1984), Art. 46---Dying declaration---Dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie.
(c) Penal Code (XL V of 1860)---- ---S. 302(b)/34---Qanun-e-Shahadat (10 of 1984), Art. 46---Dying declaration or a statement of a person without the test of cross-examination was a weak kind of evidence and its credibility depended upon the authenticity of the record and the circumstances under which it was recorded.
(b) 2011 SCMR 646
(b) Qanun-e-Shahadat (10 of 1984)--- ----Art. 46--- Penal Code (XLV of 1860), S. 302---Dying declaration---Scope---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.
(c) 2012 PCr .LJ 1918
(b) Qanun-e-Shahadat (10 of 1984)--- ----Art. 46--- Dying declaration--- Scope--- Where making of dying declaration was not subjected to cross- examination and it was for the court to see that dying declaration inspired 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---Dying declaration was to be accepted on the theory that person on death bed would speak the truth---Great caution mist be exercised in considering the weight to be given to that kind of evidence on account of the existence of many circumstances which could affect its truthfulness---Since accused had 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---Court should also see that statement of deceased was not 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---Dying declaration recorded at Police Station is presence of relatives of the deceased, would not be worthy of credence and reliability of such dying declaration would also become doubtful.
16. Another piece of evidence available with the prosecution is recoveries of weapons of offence. The appellants were arrested on 03.02.2014, whereas the recoveries were effected from the appellants on 08.02.2014. Crime empties were recovered from the place of occurrence on 03.02.2014, following day of the occurrence. The weapons of offences and crime empties were sent to Forensic Expert for expert opinion on 10.04.2014, with a delay of about 2 months and 2 days, without any legal justification. Where these incriminating articles were kept during this period, the record is completely silent about this aspect. Moharrir of Police Station was not examined in the trial Court to depose about the safe custody of the incriminating articles. The person who took the above articles to the Forensic Science Laboratory has also not been cited in the calendar of witnesses. Furthermore the recovery memo of Kalashnikov Ex.PW -6/A recovered from the possession of appellant Ali Sarwar was witnessed by PW-FC Zahid Hussain and F.C. Dildar Hussain likewise, recovery of .30 bore pistol Ex.PW -6/B was also witnessed by these two above named police officials. No independent witnesses have been associated with the recovery proceedings and no reasons have been shown by the Investigating Officer for non-association of private witnesses. Police officials are as good witnesses as any other witness of the general public and non-association of private witnesses could be condoned if any plausible explanation is advanced by the Investigating Officer for departure from mandatory provision of section 103, Cr.P.C. In particular background of this case, when Investigating Officer was related to deceased Shahab ud Din and complainant Manzoor Hussain, it was incumbent upon him to associate two respectable of the locality to show his impartiality , which he has not done. Now almost all it is settled proposition of law that when crime empties and weapons of offence are recovered on different dates but sent together , the chances of manipulation could not be ruled out. Reliance is placed on 1992 SCMR 196 citation(m), which is reproduced as under:-
(m) Offences against Property (Enforcement of Hadd) Ordinance (VI of 1979) S 17(3)... Criminal Procedure Code (V of 1898), 5.103... Recovery--- Recovery of crime empties was witnessed by the Assistant Sub-Inspector of Police and one of such witnesses stated that place of occurrence was a big town and there were living serving and retired Government servants, lawyers and Magistrates etc. and local inhabitants were not joined at the search of the empties which were recovered from the spot on 20-06-1991 and crime weapon allegedly recovered on 7.7.1991 were kept in police station till 10-09-1991 for no rhyme and reason and Fire-arms expert's report showed the receipt of the crime weapon along with crime empties and five rounds for test on 10-09- 1991---Recovery of crime weapon and crime empties and the report of Fire-arm Expert thus did not advance the case of prosecution in circumstances."
17. The post mortem on the dead bodies of deceased was conducted in DHQ Hospital Gilgit by PW-10, Dr. Hussain Shah, which have been reproduced in para 13 of the Judgment. It is pertinent to mention here that as discussed supra and shown in Ex.PW -11/G and Ex. PW-11/H, both the deceased died on 02.02.2014 at 1400 hours. Post mortem on the dead body of deceased Shahab ud Din was conducted on 03.02.2014 at 1200 hours and the time which elapsed between death and postmortem have been shown about 17 hours, which though is approximate, yet it also does not reconcile with the prosecution as the postmortem on the dead body of deceased Sohail Abbas was conducted on 03.02.2014 at 10.00 AM and the time which elapsed between death and postmortem has been shown about 21 hours, which if taken as correct, then it could be presumed that deceased Shahab ud Din died 5 hours later, than deceased Sohail. This was a deliberate and dishonest attempt on the part of PW-10 Dr. Hussain Shah, as he has not applied worldly known method of medic al jurisprudence to ascertain the time of death and stated that the time of death of deceased was about 17 hours prior to the postmortem, meaning thereby that he died about 4 hours before the death of Sohail, which falsifies the story of, that deceased Shahab ud Din was taken to Civil Hospital Sassi Haramosh and after first aid was transferred to DHQ Hospital Gilgit. No Doctor or any one from para medical staff was cited as prosecution witness to depose that the deceased was ever treated in DHQ Hospital Gilgit nor there is any evidence that deceased Shahab ud Din died during process of operation in operation theatre. Medical evidence though does not establish the identity of the assailant and could only be used to specify about the seat of injuries, but when instead of lending support to the prosecution case, it is in full J contrast of the prosecution version, it could be resolved in favour of the defence.
18. The upshot of above detailed discussion leads us to draw a conclusion that there was neither ocular nor any other solid evidence except dying declaration, which because of its inherent defects and dubious nature is not worthy of any credence. These features, when taken all together give rise to reasonable doubt, entitling both the, convicts/appellants for acquittal. Consequ ently we set aside the sentence of both the convicts/appellants namely Ali Sarwar and Ali Rehbar . Both the convicts/appellants shall be released forthwith if not required to be detained in any other case. Accordingly other connected appeals bearing No, 17/2016, 18/2016, 19/2016 are accepted. While Cr.
Rev. No,08/2016 filed by complainant Manzoor Hussain is dismissed being meritles s. Cr. Misc. 192/2018 which has become infractuous is disposed of accordingly .