ABDUL QADEER CHAUDHRY, J.-- This appeal by leave of the Court is directed against the judgment of the High Court dated 31-8-1988.
2. The facts, in brief, are that Mst. Shamim Akhtar P.W. 7 lodged the report about the incident wherein it was stated that on the night between 17th and 18th May, 1985 she was sleeping on the roof of her house. Her sister Mst. Nasim Akhtar was also sleeping near her on a separate cot.
Gulfraz, the son of the complainant aged about 4-1/2 years was sleeping with Mst. Naseem. At about 1.30 a.m., the complainant woke up on the shrieks of Mst. Naseem. She saw in the light of the torch that the respondents Fiaz Akhtar and Abdul Aziz were going downstairs while running. Fiaz Akhtar had a plastic bottle in his hand. She stated that the respondents had burnt her sister and son by throwing acid. She further stated that her hands were also burnt with the acid when she was removing the clothes of her son Gulfraz. Mst. Naseem Akhtar died on 26-6-1985 in hospital.
3. The respondents were arrested on 21-5-1985. Certain recoveries had, been made on the spot.
The accused also produced their clothes. The learned Additional Sessions Judge by means of judgment dated 15-10-1986 convicted both the respondents under Section 302/307/457/34, P.P.C.
And sentenced them as hereunder:
(i) U/s. 302/34, P.P.C. To imprisonment for life each; (ii)U/s. 307/34, P.P.C. To 5 years' R.I. Each; (iii)U/s. 457/34, P.P.C. To 2 years' R.I. Each.
(iv)They were also directed to pay fine of Rs. 10,000 each failing which they were directed to undergo R.I. For one year each. The fine if realised was directed to be paid to the legal heirs of the deceased.
4. Abdul Aziz, respondent, did not file any appeal. Only Fiaz Akhtar, respondent, filed an appeal before the High Court which was accepted. Abdul Aziz respondent was also acquitted. The criminal revision filed by the complainant Mst. Shamim Akhtar was dismissed.
5. We have heard the learned counsel for the appellant and the learned counsel for the respondents.
6. The learned Assistant Advocate-General has supported the appeal and submitted that the conviction recorded by the learned Additional Sessions Judge be maintained.
7. The learned counsel for the appellant submitted that the complainant has proved the case of the prosecution against the respondents. The Dying Declaration is another piece for evidence which corroborated the ocular testimony of the complainant. The medical evidence in respect of the injuries of the deceased, complainant and Gulfraz fully corroborated the ocular testimony.
Another factor connecting the respondents with the commission of the offence is that they had also burn injuries.
8. At the trial, the prosecution produced 12 witnesses. Dr. Fakhrul Islam, P.W. 8 performed the autopsy on the dead body of the deceased Mst. Nasim Akhtar, and found the following injuries:- "(1)An old unhealed burn injury present over the right and left buttock of both thighs on the back and in front and lower part of abdomen.
(2)Old healed burn injury over left and right forearm and lower part of left leg in front."
According to the doctor all the injuries were caused by burn by acids and were sufficient in the ordinary course of nature to cause death.
9. Dr. Muhammad Tasneem, P.W. 9 examined Gulfraz and found the following injuries: "(1)Deep burns Jumbo-sacral area.
(2)Burn left buttock and left iliac fossa.
(3)Burn right upper arm whole of ventral surface.
(4)Burn at two places on the right cheek, the biggest being 2 cm x 0.5 cm in measurements.
(5)Small burns right temporal area.
(6)Burn right chin.
According to the doctor, injuries Nos. 1 to 6 were grievous."
10. The said doctor also examined Mst. Shamim Akhtar and found the following injuries: "(1)Superficial burn middle half of the right forearm ventral surface.
(2)Superficial burn left forearm ventral surface:"
11. On the same day, he examined Mst. Naseem Akhtar and found the following mjuries: "(1)50% deep burn involving left forearm, right forearm, both buttocks, perineum and thighs:"
12. Dr. Fakhrul Islam also examined Fiaz Akhtar, respondent, and found the following injuries: "No.l brownish black scar mark over wound on the back of right knee joint, extending on to the back of right leg, 7 c.m. x 5 c.m. No.2 Multiple scar mark on the back of right leg near the injury No. 1 3 c.m. x 2 c.m. Its color was brownish black."
He complained that there was burning sensation in the wound which was much more on the day of getting the injuries. All injuries were caused by inorganic acid, were simple in nature and the duration was two to three days.
13. He also examined Abdul Aziz, respondent, and found the following injuries: Multiple scattered healed wound in an area of 32 c.m. x 6 c.m. On the back of the right leg and ankle joint with brownish black scars.
He complained of burning sensation over the wound which was much more on the first day but was still present. All injuries are caused by inorganic acid, were simple in nature and durtion approximately was three days."
14. To bring home the charge against the respondents the prosecution relied upon the direct evidence of Mst. Shamim Akhtar, P.W. 7, the Dying Declaration of Mst. Nasim Akhtar, the motive, the recoveries and the injuries on the person of the deceased. As the recoveries had been disbelieved by the two Courts, we will not discuss this piece of evidence.
15. The learned counsel for the respondents has submitted that there is inordinate delay of about eight hours in the lodging of the First Information ( A Report which is fatal to the prosecution case. This contention has no force. The three persons had received injuries. They went to the hospital to get medical treatment. In normal course of human conduct one goes to the hospital in the first instance to save the life of an injured person. The medical treatment of the injured takes precedence over lodging the report. There was nothing unusual in the conduct of the complainant in first removing the injured to the hospital for treatment. She was herself injured.
16. The second objection of the learned counsel is that a number of persons accompanied the injured to the hospital but nobody went to the police, station to inform about the incident. This contention is also without merit. The report is generally lodged by a person either who has witnessed the incident or the one who is injured in the incident. If some persons had accompanied the injured which is usually done in such cases it does not mean that they were bound to approach the police for recording the report. It does not cast a legal duty on the prosecution to have recorded the statement of such persons who accompanied the injured in order to initiate the investigation. None of them who accompanied the injured had witnessed the incident. There were three injured who were getting treatment in the hospital. The minor son aged about 4-1/2 years of the complainant had also received injuries. In such a state of agony and suffering it is not expected that the injured in the first instance would go to the police station at a distance of 25 miles to lodge the report. She being a lady, in the given corcumstances, the prosecution had sufficient explanation for lodging the report at about 8 p.m. The police station was at a distance of 25 miles from the place of occurence.
17. The next objection of the learned counsel is that there was a police post in the hospital and anybody could lodge the report with that police post. Attention of the complainant was not drawn to this fact. There is no material to support the contention that there existed a police post in the hospital. There is, therefore, no force in this contention. Additionally, the delay per se is no ground to disbelieve the prosecution witnesses. Intrinsic worth of the statement of a witness has to be considered. There is also nothing on record to show that it was within the knowledge of the prosecution witnesses that there existed a police post at the hospital.
18. The next objection of the learned counsel is that Mst. Shamim Akhtar in her statement before the Court stated that she alonegwith the police came to the spot in the morning to show the place of occurrence to the Investigating Officer. According to the learned counsel, `this morning' can only be the morning of 18-5-1985 because according to his own version, the Investigating Officer came to the place of occurrence on 18-5-1985 after recording the First Information Report. There is no warrant for such proposition that the Investigating Officer had visited the site on 18-5-1985. In her statement Mst. Shamim Akhtar has stated "I came to the spot along with the police in the morning."
She has not stated that the police had visited the spot on 18-5-1985.
The Investigating Officer PW 10 Abdul Majid has denied the suggestion of the defence that on 18-5- 1985 early in the morning Mst. Shamim Akhtar PW came to him at the police station and informed him that some unknown persons threw acid. He has also denied the suggestion that Ex. PA. Was drafted after consultation. He has also denied that he returned to the police station on 18-5-1985.
He stated that he closed the diary on 19-5-1985.
19. The learned counsel also challenged the prosecution case about the identification of the accused. The learned counsel stated that Mst. Shamim Akhtar was wrapped in a quilt. After throwing the acid upon Mst. Shamim Akhtar it would have taken some time in seeping of acid from the cotton in the quilt and then reaching the body and when a person is in a deep sleep and startled by sudden events it takes some time for composition of senses. In fact, the learned counsel objected to the identification, on mere supposition and pesumption. The accused were known to the complainant before the occurrence. She was awakened after she heard the shrieks of the deceased. In the meantime, the accused after throwing the acid started going back from the place of incident. The complainant saw them while they were going back. The complainant has not stated that they were standing near the cots. She has not made any improvement in her statement. She has narrated the incident in the manner she had seen it. The statement of the complainant is more logical than the presumption being raised by the defence.
20. Another infirmity pointed out by the learned counsel is nonproduction of the torch. According to the complainant, she had identified the accused in the torchlight. The accused were fully known to the complainant prior to the occurrence. There was no question of wrong identification. Even otherwise non-production of torch does not detract the evidentiary value of the complainant. It is not fatal to the prosecution case. If she had produced the torch, it could be easily said that it was procured from Bazar. How can it be said that due to the non-production of the torch the case had been fabricated against the respondents. 1n this respect, an additional fact is to be noted that at the time of lodging the F.I.R. She did not know that the accused had also burn injuries. The accused were arrested after three days of the occurrence and then. It was found that they had also received burn injuries. On the point of torch, the High Court has observed that "if the claim of Mst. Shamim Akhtar is granted that she had seen the assailants with the help of torchlight, the situation instead of proving still worsens, for the reason that it would have taken some time to have laid her hands on the torch even if that was lying on her bed and in lightning the same". The statement of a witness cannot be discarded on mere presumption of certain facts. After going through the statement of the complainant, the conclusion is irresistible that the same has come from the mouth of a natural and true witness. The statement of Mst. Shamim Akhtar is natural and coherent, therefore, implicit reliance can be placed on the testimony of this witness.
21. Another piece of evidence against the accused is the motive. According to the complainant, the accused Fiaz Akhtar had demanded the hand of Mst. Nasim Akhtar but it was refused by her father.
It was contended by the learned counsel for the accused-respondents that the father of Mst.
Nasim Akhtar had not been produced to substantiate this fact. As the statement of the complainant has been accepted and there is no reason to disbelieve her statement on this account, it was not necessary for the prosecution to have produced her father. The motive is not the sole factor on which the conviction has been based.
22. The third piece of evidence is the Dying Declaration of the deceased. According to the Investigating Officer, the statement of Mst. Nasim Akhtar was recorded on 19-5-1985 in the Civil Hospital. The Dying Declaration has been challenged by the learned counsel for the respondents on the ground that Mst. Nasim Akhtar was examined on 18-5-1985 at about 10.15 a.m. By Dr. Muhammad Tasneem, CMO, District Headquarters Hospital, Rawalpindi, and there is no evidence on the file to show that on 19-5-1985 she was even present in the Central Government Hospital, Rawalpindi, as none from the Central Government Hospital was produced to confirm that she was even admitted there. Dr. Muhammad Tasneem in his statement has deposed that Mst. Nasim Akhtar was referred to the Visiting Surgeon as the injured was kept under observation. The question for consideration is whether Mst. Nasim Akhtar had given any statement on 19-5-1985 or it was concocted by the prosecution. Nonproduction of a witness from the hospital would not change the veracity of the statement if otherwise it is established that the statement of the deceased was recorded on that day. The learned counsel for the appellant has stated that she was removed to the Central Govt. Hospital. After all, why the prosecution would state an incorrect fact when it will not get any benefit out. Of it. Her statement could be recorded in either of the two hospitals but if in reality, she was admitted to another hospital on that date, it was not the requirement of law that the prosecution must show that why her statement was recorded in Central hospital.
22-A. The learned counsel for the accused respondents submitted that no explanation has been given by the prosecution as to how the accused had received burn injuries on their legs. First of all as the prosecution has not alleged about these injuries, therefore. There- is no burden on the prosecution to explain how these injuries were received by the accused. There may be so many explanations. One stated by the learned counsel for the appellant is that the burn injuries on the legs are the result of throwing away the quilt by Mst: Nasim Akhtar when acid was poured on her and when the accused were about to run, the quilt touched their back. However, nothing positive can be said in view of the fact that it was entirely within the knowledge of the accused as to how these injuries had been caused. But we are not accepting their plea that they had received the injuries on account of splinters of boiling ghee.
23. The Dying Declaration fully corroborated the statement of the complainant Mst. Shamim Akhtar in all particulars and it could be safely relied upon by the prosecution against the accused. The learned counsel for the accused-respondents has supported the judgment of the High Court and the reasons in rejecting the dying declaration. It would, therefore, be profitable to reproduce in extenso the reasons which prevailed with the learned Judge in Chamber in discarding the Dying Declaration, and these are as follows: "The statement was recorded when Mst. Nasim Akhtar was admitted in the hospital as a result of burns, which later proved fatal. There is no evidence on record that she was fit to make a statement, and that the statement recorded by the S.I. Was recorded exactly and correctly as deposed by her. The doctor about whom the S.I. Stated had opined that she was fit to make a statement, was not produced at the trial. No reason has been given as to why he was not examined. The S.I. Who recorded the statement while apppearing at the trial himself did not state that according to his observations Mst. Nasim Akhtar was fully conscious and fit when he had recorded her statement (Exh. PP). Statement (Exh. PP) is not only a coherent but a detailed statement which could only have been made by a person fully conscious and not under severe pain. It is highly improbable to believe that poor girl with such burns from acid could have been in such a good shape. The requirements of treating a statement as dying declaration are lacking in the case of statement (Exh.PP). As such, this piece of evidence has to be excluded for safe administration of justice."
24. With respect, we have not pursuaded ourselves to agree with the above reasoning of the High Court on any principle of criminal jurisprudence. There is gross miscarriage of justice in this case.
25. Mst. Nasim Akhtar died subsequently. The doctor who examined her injuries on the day of incident stated that the condition of the patient was fairly good. It is not mentioned which requirement of law in recording. The dying declaration has been ignored. The law does not prescribe any special mode of recording the dying declaration. The statement of an injured recorded by the police under S.161, Cr.P.C. During the course of investigation is not hit by S.162, Cr.P.C. As such the dying declaration is a good piece of evidence and it can be relied upon by the prosecution. It is not necessary for the admissibility of dying declaration that the deceased at the time of making it should have been under expectancy of death. A statement under S. 161, Cr.P.C. Of an injured is an admissible evidence even though the injured had died much later. The dying declaration is to be adjudged on its own merits. In this case, the learned High.Court erred in law in discarding the statement of Mst. Nasim Akhtar. Her statement is a substantive piece of evidence and can easily be used against the accused and there is nothing to suggest that the deceased had substituted an innocent person in place of real culprit, The statement by a dying person about the circumstances of his death is admissible under section 32(1) of the Evidence Act. It becomes substantive piece of evidence if it is trustworthy. In the present case, there is harmony between the dying declaration and other pieces of evidence. There is no room for doubt that it is not false. Due weight has to be attached to the truth of declaration made by the deceased.
26. In Wazir Gul v. The State (1976 SCM R 471), it has been observed that "the dying declaration need not be made under immediate apprehension' of death". Law does not insist that for the purpose of being treated as a dying declaration the statement should have been made under immediate apprehension of death. We cannot import into statutory provision any such extraneous limitation.
In the absence of statutory requirement in this regard, the last incriminating statement made by the deceased could be legitimately treated as dying declaration. Similar view was taken in Muhammad Aslam v. The State (PLD 1978 SC 298); Niamat Ali v. The State (1981 SCM R 61); and Noor Muhammad v. The State (1988 SCM R 1640).
27. The learned counsel for the accused respondents referred to the statement of Mst. Shamim Akhtar. According to the statement of Mst. Shamim Akhtar, her hands were burnt with the acid when she was removing the burnt clothes of her son Gulfraz. He has referred to the statement of PW.9 Dr. Muhammad Tasneem wherein he stated that there were no burns on the hands of Mst.
Shamim Akhtar, PW, but the same doctor had examined Mst. Shamim Akhtar and there were burns on the right forearm ventral surface and on the left forearm ventral surface. These injuries would have been received while she was picking up the child to remove his clothes. The clothes of the child were secured by the police. There is no contradiction in the two statements.
28. The learned counsel then referred to the site plan and submitted that a bare perusal of the site plea would show that it was not possible for the complainant to identify the accused. This contention has no force. This site' plan was prepared on 7-7-1985 i.e. After about 50 days of the occurrence. Though, it is mentioned that it was prepared on the pointation of Mst. Shamim Akhtar but Mst. Shamim Akhtar in her statement stated that she had shown the place of incident to the Investigating Officer. She had not stated that on her pointation the site plan was prepared. The Investigating Officer has deposed that on 7-7-1985 he-got prepared the sketch from the draftsman. Moreover, site plan is not a substantive piece of evidence. We, therefore, see no force in this contention.
29. The direct evidence is fully supported by the medical evidence. There is no lacuna in the prosecution evidence which justifies the acquittal of the respondents.
30. As regards the injuries on the person of the accused, no plausible explanation has been furnished by the accused. The accused suppressed these injuries and did not go for treatment to any doctor. This tact is another ground which can be used against the accused. The doctor though gave an obliging statement but has admitted that there were acid injuries on the person of the accused.
31. Minor discrepancies do occur in the evidence of a natural witness but the overall conclusion from the above narration of facts is that the case against the accused-respondents is proved to the hilt. In the result, we accept the appeal, set aside the judgment of the High Court and restore that of the learned Additional Sessions Judge and maintain the conviction and sentence awarded to the accused-respondents by the trial Court. All the sentences to run concurrently. The respondents Nos.l and 2 are entitled to the benefit of Section 382-B, Criminal Procedure Code.
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