SOHAIL NASIR, J. This criminal appeal filed by Bilal Ahmad (appellant) is directed against judgment dated 24.06.2019 passed by the learned Additional Sessions Judge, Multan on the basis of which appellant was convicted under Section 302(b), P.P.C. and sentenced to imprisonment for life with direction to pay Rs.200000/- (two lass) as compensation in terms of Section 544-A, Cr.P.C., to the legal heirs of deceased and in default thereof to further undergo three months simple imprisonment
2. The conviction is outcome of First Information Report (FIR) No. 483 (PQ) recorded on 02.06.2018 under Sections 324/148/149, P.P.C. at Police Station Seetal Mari, District Multan. Later on Section 302, P.P.C. was also added in FIR.
3. Facts of the case are that on 02.06.2018 Muhammad Umar Farooq Sub Inspector (Pw-4) upon receipt of ,information of the occurrence arrived at Nishtar Hospital, Multan where Haji Missal Khan (Pw-6) submitted an application (PC) where he maintained that on 01.06.2018 after about Maghrib prayer time and Aftari, he along with Muhammad Arslan (Pw-7) and Kamran Ali (not produced) went to the house of his son in law (DAMAD) named Karim Bakhsh; all of a sudden there was a knock on the door which was opened by Karim Bakhsh; on hue and cry they/complainant etc. also came out and saw that there were present Bilal Ahmad (appellant) armed with 'Churi', Maqbool Ali in possession of a sharp point edged weapon (Suwa), two unknown persons having the 'Sows' and another unknown person empty handed; appellant repeatedly gave 10/12 'Churl' blows on the abdomen and chest of Karim Bakhsh and he also made 2/3 other blows on his neck and chin; Maqbool Ali inflicted the injuries with sharp point edged weapon on the back and abdomen of Karim Bakhsh; unknown persons, too, gave injuries with 'Sotas' on the legs and back of Karim Bakhsh, who being seriously injured fell down on the ground and became unconscious; all assailants had escaped from there; the injured was brought to Nishtar Hospital Emergency where he was struggling for his life; the motive was that Karim Bakhsh had separated the electricity meter; the use of electricity energy was excess by Bilal Ahmad etc. and they had to pay the electricity charges jointly. According to complainant as Bilal Ahmad etc. were angry because of separation of electricity meter so they committed the crime.
4. Muhammad Umar Farooq Sub-Inspector (Pw-4) made his endorsement and sent the complaint to police station through Hasnain Sarfraz/Constable on the basis of which FIR was recorded by Muhammad Tofeeq/HC (Pw-12).
5. On the same day, Muhammad Umar Farooq Sub-Inspector submitted an application (PG) to the Medical Officer who declared the injured unfit for any statement. On the next day that was 03.06.2018, he again submitted an application (PH) and this time patient was declared fit to make statement, therefore, his statement (PJ) was recorded by Muhammad Umar Farooq Sub-Inspector.
6. On 17.06.2018 Karim Bakhsh had died in hospital so further proceedings were conducted in the matter with regard to his postmortem examination.
7. Appellant was arrested on 12.07.2018 by Muhammad Baqir Shah Sub-Inspector (Pw-10). During investigation police found that only Bilal Ahmad was present at crime scene and none else hence submitted the report under Section 173, Cr.P.C., (Challan) accordingly.
8. A charge under Section 302, P.P.C. was framed against appellant on 12.11.2018 for which he pleaded not guilty and demanded his trial.
9. In support of its' case prosecution had produced Muhammad Saleem/Constable (Pw-1), Khalid Masood ASI/Moharrar (Pw-2), Irfan Hayat/draftsman (Pw-3), Muhammad Umar Farooq SI/initial Investigating Officer (Pw-4), Asghar Ali/ASI (Pw-5), Haji-Missal Khan/complainant (Pw-6), Muhammad Arslan/eye-witness (Pw-7), Dr. Mukhtiar Ahmad (Pw-8), Muhammad Suleman (Pw-9), Muhammad Baqir Shah SI/Investigating Officer (Pw-10), Dr. Wajeeha Anjum (Pw-11) and Muhammad Tofeeq HC/author of FIR (Pw-12).
10. Muhammad Anwar HC, Kamran Ali, Raheem Bakhsh, Mst. Fatima Haider, Mst. Iqra Yasmeen and Nazmeen Khan were given up being unnecessary by the learned ADPP, who thereafter had closed the prosecutions evidence.
11. In his examination made under Section 342, Cr.P.C., appellant pleaded his false involvement by maintaining that it was a blind murder and he was not present at crime scene.
12. HEARD
13. This case does not require any lengthy discussion for the reasons that whatever the case was built up by prosecution in FIR that was deviated during the trial. As mentioned earlier in FIR Bilal Ahmad (appellant) and Maqbool Ali were nominated accused whereas three unknown assailants were also shown. Specific injuries were attributed to Bilal Ahmad and Maqbool Ali both and even it was maintained that two unknown persons with `Sotas' also gave blows on the legs and back of Karim Bakhsh.
14. In Court Haji Missal Khan (Pw-6) completely changed the story and stated as under:-- "We heard the hue and cry, we attracted to the spot, the children were also crying. Within our view Bilal Ahmad inflicted Churi blows on the person of Karim Bakhsh on different parts of his body. The inhabitants of the locality attracted to the spot and seeing them Muhammad Bilal accused present in court along with weapon of offence succeeded to flee away"
15. Even Muhammad Arslan (Pw-7) in his examination-in-chief repeated the same story.
16. By no stretch of imaginations both the eye witnesses claimed presence of any other assailant at the crime scene except Bilal Ahmad and this was the reason that the learned trial court in paragraph No.29 of the impugned judgment categorically disbelieved the ocular account.
However the learned trial court by relying upon only the dying declaration had proceeded to convict the appellant.
17. The version of both the eye witnesses before they attended the witness box in trial court was about five accused including Bilal Ahmad. On 03.06.2018 when statement of Karim Bakhsh was recorded, he did not state presence of any other person except Bilal and he was silent about the presence of any eye witness also. The alleged dying declaration therefore was factually incorrect and in conflict. with the story setup in FIR by Haji Missal Khan.
18. The dying declaration on the face of it appears to be doubtful because after it was completed, a sufficient space was left where incomplete thump impression of Karim Bakhsh has been shown and it makes no difficulty to say that his thumb impression was obtained on a blank paper.
19. This Court in Tal Muhammad v. The State[1] (Criminal Appeal 1717 of 2010) decided on 27.05.2021 on the importance of evidence of dying declaration had observed as under:- "In Pakistan, dying declaration is the statement that is made by the victim of homicide offence and it relates to his/her cause of death. Under Article 46 of the Qanun-e-Shahadat, (P.O No. X of 1984), it is a relevant fact when it is made by a person as to cause of his death, or as 'to any of the circumstances of the transaction which resulted in his death.
A dying declaration certainly is an important piece of evidence, which possesses the sanctity on the reason that a dying man is not expected to tell lie. But this is not an absolute rule, as by now it is settled principle that dying declaration is a weak type of evidence as it cannot be challenged in cross-examination, therefore, the Courts have to evaluate its sanctity with great care and caution and for that Court must keep in sight that:- i. Whether the maker has the physical capacity to make the dying declaration? ii. Whether the maker had opportunity to identify the assailant/assailants? iii. Whether there was a chance of misidentification on the part of dying man in identifying and naming the assailants?
Iv. Whether it was free from prompting from any outside quarter; and? v. The witness heard the deceased correctly and whether this evidence can be relied upon?
20. Muhammad Umar Farooq SI (Pw-4) is the witness who recorded the dying declaration (PJ) in hospital after seeking fitness certificate from Dr. Wajeeha Anjum (Pw11). The most important reply he made had smashed this piece of evidence. He said: - "At the preparation of Exh. PJ doctor complainant and the PWs were present but their names are not shown in Exh. PJ"
21. As noticed earlier that one of the considerations to appreciate the dying declaration is that, it must be free from any outside promptness that means that at the relevant time no one has to be there to influence the deceased. Not only this, but also no one met him before his statement. So how prosecution can claim that there was no outside promptness when alleged dying declaration was made in presence of complainant and the witnesses?
22. In "Mst. Zahida Bibi v. The State PLD 2006 SC 255" the apex Court was pleased to observe that the status of such statement is hardly a statement under Section 161, Cr.P.C. and not a dying declaration because the dying declaration or a statement of a person without the test of cross- examination is a weak kind of evidence and that the rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires a close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell lie.
23. Occurrence took place on 01.06.2018 at about Maghrib prayer time and matter was informed to police after about 16 hours that was on 02.06.2018 at about 11:30 am and for that delay no explanation whatsoever has been given in FIR.
24. The medical evidence is not relevant to be discussed here when ocular account and dying declaration have been disbelieved. By now it is a settled proposition that medical evidence at the most is confirmatory/corroborative piece of evidence, therefore, if the direct evidence is disbelieved, the medical evidence shall play no role for the purpose of conviction.
25. Concluding the discussions made above, this appeal is allowed. Impugned judgment dated 24.06.2019 is set aside. Appellant is acquitted from the case. He is in custody and shall be released forthwith if not required in any case. The case property shall be dealt with .in the same manners as directed by the learned trial court.
1. https://sys.lhc.gov.pk/appjudgments/202ILHC1283.pdf