' MUHAMMAD RIAZ AKHTAR CHAUDHARY, J.--- Jamait Ali Shah aged 25 years was tried under section 5 of the Islamic Penal Law for the murder of Zulfiqar Ali Shah by the District Criminal Court Kotli. He was found guilty by the trial Court and the trial Court vide its judgment dated December 9, 1991, awarded the sentence of life imprisonment to the appellant.
2. The succinct facts constituting the background of this appeal as set forth by the prosecution arc that 7 or 8 days before the occurrence, the father of the deceased namely Bashir Hussain Shah took some branches of mulberry tree for his goats to his house after sundering them from the mulberry tree situated in front of the house of his brother-in-law Akber Shah. When Akbar Shah came back to his house, he felt it and asked the father of the deceased, that why he did so. Upon which the hot words were exchanged by Akbar Shah with Zulfiqar Shah deceased and his father.
Due to this incident the relations between them became strained. Jamait All Shah son of Akbar Shah, after hearing about this occurrence came from Nakyal and said to the deceased Zulfiqar Shah, that he will take the revenge, whenever he will get the chance. Bashir Shah and the deceased Zulfiqar Shah forgot it and took it lightly, while Jamait Ali Shah did not forget it and was bent upon to take the revenge. On 27-11-1988, early in the morning, Jamait Ali Shah came to the house of the deceased and took Zulfiqar Ali Shah alongwith him to the forest Bahallian for fetching the wood.
After some time, the mother of the deceased namely Mst. Khurshid Bibi felt that, why her son did not come back. She went towards the forest to see her son and saw Zulfiqar Shah in injured condition and the blood was oozing from his head. Zulfigar Ali Shah told his mother that Jamait Ali Shah caused the injury with the hatchet on his head. The mother of the deceased brought him near the road and then put him in a Trailer and reached to Gulpur, but Zulfiqar Ali Shah succumbed to the injury. Jamait Ali Shah, after a planning, took the deceased to the forest and murdered him. The report of the aforesaid incident was lodged by the father of the deceased to the Police Officer, Chowki, Nar, upon which a case was registered under section 5 of the Islamic. Penal Law at Police Station Kotli against the appellant. P.W.22 Muhammad Arif, Sub-Inspector, Chowki Officer Nar prepared the inquest report and the injury report and sent the dead body to D.H.Q., Hospital Kotli.
P.W.14 Dr. Raza Ahmed C.M.O. D.H.Q., Hospital. Kotli conducted the autopsy on the dead body on 28- 11-988 and found the following injury: "There is a single incised wound about 12 c.m. Long, 4 c.m. Wide and 4 c.m. Deep. Semiluner in shape on (R) side with fractured occiptal bone along the line of wound.. Resulting in direct injury to
(R) occipital lob of brain matter."
' According to his opinion the cause of the death is: ' Injury to brain substance leading to excessive brain haemorrhage causing oligenic shock and cardiopulmoary arrest. The injury is caused by a sharp weapon."
3. Muhammad Arif, Sub-Inspector, Chowki Officer Nar, P.W.22, recovered the blood-stained clothes of the deceased from the Medical Officer, Kotli and prepared the recovery memo. Exh.P.F. On 28-11- 1988. The P.W.22 Muhammad Arif, Sub-Inspector proceeded on the place of occurrence on 29-11- 1988 and recovered blood-stained hatchet from the spot and prepared the parcel of the hatchet in the presence of the witnesses. He prepared recovery memo. Exh.P.B. On 29-11-1988. On the same day, he also recovered the blood-stained clay from the spot in the presence of the witnesses and prepared the parcel and also prepared the recovery memo. Exh.P.G.
4. Asghar Hussain Shah, A.S.I., Police Station Khuiratta P.W.18, arrested the accused on 9-12-1988.
Iftikhar Ahmed, Head Constable P.W.17 recovered the blood-stained shirt of the accused on the instigation of the accused on 12-12-1988 and prepared the parcel of the shirt. He also prepared the recovery memo. Exh.P.H. On 12-12-1988. The blood-stained clothes of the deceased alongwith the hatchet and the blood-stained clay and the blood-stained shirt of the accused were sent to the Chemical Examiner. The Chemical Examiner through his report Exh.P.J. Found Qameez, Shalwar, Sweater, Kulhari and clay stained with the blood and sent the pieces and scrappings to the Serologist for the determination of the origin of the blood and blood group. The Chemical Examiner through his report Exh.P.K. Found the Qameez of the accused stained with the blood and sent the pieces to Serologist for determination of the origin of the blood and the blood group. The Serologist through his report Exh.P.L. Declared the clothes of Zulfiqar Ali Shah deceased and Kulhari and clay stained with human blood and found the blood of group '0' on all the articles. The Chemical Examiner through Exh.PA., found shirt of the accused stained with the human blood, but he could not determine the blood group of blood on the shirt due to insufficient sample. The challan was presented before the District Criminal Court, Kotli. After the trial, the District Criminal Court, Kotli found the accused guilty and awarded him the sentence of life imprisonment. The instant appeal has been filed against this judgment of the District Criminal Court, Kotli.
5. The learned counsel for the appellant Mr. Abdul Basit argued, that there is no direct evidence in the instant case. The entire case of the prosecution is based on circumstantial evidence, that too is of a weak nature and the accused has not been linked up with the occurrence by the circumstantial evidence. He further submitted, that the trial Court has based the conviction on the oral dying declaration made by the accused before Mst. Khurshid Bibi and Muhammad Malak. The oral dying declaration has no sanctity and it does not fulfil the requirement of dying declaration, so it cannot be termed as dying declaration.
6. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondent (complainant) Muhammad Ilyas argued, that the lower Court has rightly based the conviction on the dying declaration. He further maintained, it is not necessary that the dying declaration should be reduced into writing. Even the conviction can be based on the oral dying declaration. He further contended that blood-stained clothes of the deceased and the hatchet and the blood-stained clothes of the accused are stained with the human blood, so the accused have been linked up with the occurrence. The judgment of the lower Court is based on sound and cogent reasoning and warrants no interference.
7. We have heard the learned counsel for the parties and have perused the record of the case.
8. In the instant case, there is no direct evidence against the accused and the entire case of the prosecution is based on the circumstantial evidence. No doubt that the circumstantial evidence can be the base of conviction but only if it can exclude all the hypothesis of innocence of accused.
9. The important witnesses against the accused appellant are Mst.
' Khurshid Bibi the mother of the deceased P.W.2 and Muhammad Malak P.W.3, before whom the dying declaration was made by the deceased. The lower Court has also based the conviction on the dying declaration furnished by these witnesses.
10. Now the question arises, that whether the conviction can be based on the dying declaration as in the present case. Dying declaration is a weaker type of evidence than the evidence subjected to cross-examination. The value of the dying declaration cannot be at par with the evidence adduced in the Court. The dying declaration of the deceased has a degree of sanctity under law being the statement of a dying man on the belief that he being placed in a situation of immediate apprehension of separation of his ties with the mundan affairs, he would not tell lie and implicate the innocent person on the basis of false charge, but the society in which we are living, in this it has become a judicially recognized general practice to add or to involve the innocent person in the incident to satisfy the sense of revenge, and to put the other party in maximum trouble, so it cannot be laid down as rigid rule, that person who is injured and is in the apprehension of death would at once be gifted as if by a magic transformation with a clean conscience and purity of mind, to shed all the age old habits and deep-rooted rancours and enmities, so a close scrutiny of dying declaration like the statement of interested witness is necessary because it is not sacrocent.
11. As this contention of the learned counsel for the appellant is concerned, that oral statement of the deceased injured cannot be termed as the dying declaration carries no substance for the following reason. The provisions of section 164 of the Cr.P.C. Do not in any way affect the admissibility of a statement made by a person, if it falls within the terms stated in section 32 of the Evidence Act. It is not necessary that the dying declaration should be in writing. According to section 32 of the Evidence Act, dying declaration is admissible even if orally made. This view finds support from PLD 1951 FC 111 (113), which reads as under:-- "It must, however, be remembered that the provision in section 164 of the Code of Criminal Procedure, does not in any way affect the admissibility of a statement made by a person, if it falls within the, terms stated in section 32 of the Indian Evidence Act. To be' admissible under that section, it is not necessary that such statements, usually described as 'dying declarations' must necessarily have been recorded and much less recorded in accordance with the provisions contained in Chapter XXV of the Code of Criminal Procedure. Dying declarations are admissible even if orally made."
' So the contention of the learned counsel for the appellant that the oral statement of the deceased cannot be termed as dying declaration is hereby repelled and is without any substance.
12. The difference between the oral dying declaration and the one recorded under section 164 of the Cr.P.C., is that the declaration which has been recorded by a Magistrate containing the certificates of Doctor about the fitness of a person to state as such is on much higher footing than a dying declaration which is based on oral testimony, which may suffer from all infirmities of human memory. As stated above that a close scrutiny of dying declaration like the statements of interested witnesses is necessary, but in the case of oral dying declaration the more close scrutiny than the scrutiny of the dying declaration recorded under section 164 of the Cr.P.C. Is required. The Court should be more cautious while acting upon an oral dying declaration, than the declaration recorded under section 164 of the Cr.P.C. In case of the oral dying declaration, the Court has to engage itself in dual process. Firstly testing the credentials of the source of dying declaration.
Secondly in scrutinizing the contents of the dying declaration more cautiousness is required than the recorded dying declaration. As in the instant case, the dying declaration is oral so it required the more closer scrutiny. In the instant case the witnesses of the dying declaration arc Mst.
Khurshid Bibi, the mother of the deceased and Muhammad Malak P.W.3, before whom the alleged dying declaration has been made.
13. Mst. Khurshid Bibi, is the mother of the deceased P.W.2 who deposed that Jamait Ali Shah accused came to her house early in the morning on the day of occurrence. Her husband and Zulfiqar Ali Shah were at the house. He took alongwith him Zulfiqar Ali Shah for cutting the wood from the forest. The accused was armed with the hatchet. While going, the accused said they will come back soon. I waited for some time, but when they did not return, then I went towards the forest and saw the accused running and found Zulfiqar Ali Shah in injured condition. The injury was on his head, from which the blood was oozing. I enquired from Zulfiqar Ali Shah. On my enquiry, he told that Jamait Ali Shah caused the hatchet injury on his head and fled away. The blood and the hatchet was on the spot. The hatchet was also blood stained. I brought the deceased upto road.
Muhammad Malak also reached there and then we put him in a Trailer and brought him to Gulpur.
My husband Bashir Hussain Shah also reached there. I told about the occurrence to him. The husband went for lodging the report. Zulfiqar Ali Shah died before reaching Gulpur hospital. When the husband came to Gulpur, Zulfiqar Ali Shah had already died.
14. The entire evidence of Mst. Ithurshid Bibi against the accused is that the accused took alongwith him the deceased to the forest and the deceased told her that the accused caused the injury with the hatchet to the deceased. She saw while running the accused from the place of occurrence.
This version of Mst. Khurshid Bibi has not been corroborated by any other evidence. She narrated that Muhammad Malak also came there, while Muhammad Malak P.W.3, also states that he enquired from the deceased and the deceased also told him, that the accused caused the hatchet injury on his head. Muhammad Malak P.W.3, further states that Abdul Qayyum and Muhammad Ashraf also enquired from the accused that who caused the injury to the deceased. The deceased told them that Jamait Ali Shah caused the hatchet injury to the deceased on his head. An effort has been made by the prosecution for the corroboration of the statement of Mst. Khurshid Bibi.
Muhammad Malak, Ashraf and Abdul Qayyum have also been shown as witnesses before whom the declaration was made by the deceased, but this evidence is not a confidence inspiring evidence for the following reasons:--
15. Mst. Khurshid Bibi states that she enquired from the deceased and he told that Jamait Ali Shah caused the hatchet injury on his head, but Muhammad Malak who was also there nowhere states as such or corroborates her. According to Muhammad Malak he in her presence enquired from the deceased and the deceased stated as such to Muhammad Malak. If Muhammad Malak would have asked from the deceased then naturally Mst. Khurshid Bibi would have supported him because she remained with the deceased up to his death. She nowhere supports Muhammad Malak and states that he asked as such from the deceased. If he would have asked from the deceased and the deceased would have told him then naturally Mst. Khurshid Bibi would have stated that Muhammad Malak enquired from the deceased and he told as such too to him. It cannot be said that Muhammad Malak enquired from the deceased and the deceased stated as above, so the statement of Muhammad Malak is not corroborated by Mst. Khurshid Bibi and the statement of Mst. Khurshid Bibi is not supported by Muhammad Malak. It is also pertinent to note that Muhammad Malak in his statement also stated that Muhammad Ashraf and Abdul Qayyum also enquired about the occurrence from Zulfiqar Ali Shah, and he also made the same dying declaration before them, but Muhammad Ashraf and Abdul Qayyum instead of corroborating Muhammad Malak negated the version stated by Muhammad Malak and Khurshid Bibi.
Muhammad Ashraf P.W.4 states that when I saw the injured person he was unconscious and he did not talk. Abdul Qayyum P.W.5, stated that when he saw the injured at that time he was unconscious. He did not talk. The version narrated by Muhammad Malak has been negated by Abdul Qayyum and Muhammad Ashraf. Both Abdul Oayyum and Muhammad Ashraf as stated above, stated that when they saw the deceased in injured condition at that time, he was unconscious and he was not able to talk. The version narrated by Mst. Khurshid Bibi is also negated by these witnesses. When the deceased was not capable of talking, then how he told about the occurrence to Mst. Khurshid Bibi. The version adopted by Muhammad Ashraf and Abdul Qayyum, that the deceased in injured condition was not capable of talking and was unconscious is further strengthened from the nature of the injury, and the period of duration between death and injury and injury as stated in the post-mortem report and from the statement of the Doctor which reads as under:-- {{URDU TEXT}} ' The post-mortem report contains a single incised wound about 12 c.m. Long, 4 c.m. Wide and 4 c.m. Deep. Semiluner in shape on (R) side with fractured occipital bone along the line of wound.
Resulting in direct injury to (R) occipital bob of brain matter, and the duration between the death and the injury is 30-60 minutes. In the light of the statement of the Doctor and the nature of the injury and the duration between the death and the injury, it can be said that the injury was so much severe, that it was improbable that the deceased would have been in a position to speak. There is nothing on the record from which it can be said that after infliction of the injury, the deceased remained in senses. It was the paramount duty of the prosecution to prove that after infliction of the injury, the deceased remained in senses and he was capable of narrating the alleged incident.
But nothing like such is on the file, rather the evidence of the prosecution is counter to this as Abdul Qayyum and Muhammad Ashraf who are alleged as the witnesses of the prosecution before whom too the dying declaration was made by the deceased testified, that the deceased was unconscious. He was not able to talk. The prosecution has failed to prove the necessary requirements of the dying declaration, that after the infliction of the injury the deceased remained in senses and was capable of narrating the incident. In our view no conviction can be based on such like oral dying declaration.
16. The next circumstantial evidence collected by the prosecution against the appellant is the blood-stained clothes of the deceased. The blood-stained hatchet, blood-stained clay and the blood-stained clothes of the accused recovered from the house of Muhammad Sabir. According to Exh.P.B., the hatchet was recovered from the place of occurrence in the presence of Bashir Hussain Shah P.W.1 and Ghulam Ahmed P.W.9 on 29-11-1988. Bashir Hussain Shah and Ghulam Ahmed appeared as a witnesses and stated that the hatchet was recovered from the place of occurrence.
The clothes of the deceased were recovered on 28-11-1988 in the presence of Muhammad Sait and Bashir Hussain Shah. The recovery memo. Exh.P.F. Was prepared. Both Muhammad Sait and Bashir Hussain Shah appeared as witnesses and stated that, the clothes of the deceased were recovered on 28-11-1988. The blood-stained clay was recovered in the presence of Bashir Hussain Shah and Ghulam Ahmed. Both appeared as witnesses and supported the recovery memo prepared by the police. According to the report of Serologist Exh.P.L., the blood-stained clothes of the deceased and the blood-stained clay and the blood-stained hatchet contain the human blood of group '0'.
Although the hatchet recovered from the place of occurrence and the clothes of the deceased contained the human blood of one and the same group, but despite this, the accused cannot be connected with the occurrence, because the hatchet has not been recovered from the accused, nor it has been recovered at the instance of the accused appellant. The hatchet was recovered from the place of occurrence on 29-11-1988, whereas, the accused was arrested on 9-12-1988. Even the evidence of the prosecution is not that the hatchet was recovered at the instance of the accused, but the evidence of the prosecution is that the hatchet was lying on the place of occurrence and it was recovered from there. No evidence by the prosecution was led that this hatchet belong to accused appellant. There is no evidence on the file from which it can be said that this hatchet belong to accused or on the day of occurrence this hatchet was in the possession of the accused appellant. If the hatchet would have been recovered from the accused appellant or at the instance of the accused, or the prosecution would have proved that this hatchet belonged to the accused appellant, then of course, this would have been a strong incriminating piece of evidence against the appellant, because the hatchet and the clothes of the deceased contained the one and the same group of the blood. Here it will not serve any useful purpose, because it is not on the file that the hatchet recovered from the spot belong to accused or it has been recovered from the accused, or it has been recovered at the instance of the accused, then the accused cannot be linked up with the recovery of hatchet or it cannot be said that the accused appellant has any concern with the hatchet.
17. The next circumstantial evidence against the accused is the recovery of the clothes of the accused. The clothes of the accused have been recovered at the instance of accused in the presence of Muhammad Siddique P.W.11, and Muhammad Rafique P.W.12 on 12-12-1988. Both Muhammad Siddique and Muhammad Rafique appeared as witnesses. Muhammad Siddique stated in his cross-examination that we remained outside of the house, from where the clothes were recovered and the other witness also did not go into the house. Only the police and the accused went into the house. After some time, they came out of the house and said that these clothes have been recovered on the instigation of the accused. He further states that I did not go into the house so I could not say that from where or how the clothes were recovered. This statement of Muhammad Siddique clearly shows, that in his presence the clothes were not recovered by the police on the instigation of the accused person, but he remained outside of the house and he was told by the police, that these clothes have been recovered on the instigation of the accused appellant. He was not a witness of the recovery, but he was told after the recovery, that these clothes have been recovered from the accused appellant. His statement is based on the telling of the police and comes within the ambit of hearsay evidence. No reliance can be placed on this piece of evidence. Muhammad Rafique also stated in his cross-examination that I did not go into the room from where the clothes were recovered. The accused went into the room, so I could not tell that from where the clothes were brought. He also did not witness the recovery, but he was told by the police that the accused pointed out the place of recovery. No police witness has testified that he told Muhammad Siddique and Muhammad Rafique, that the accused led to the place of recovery and the clothes have been recovered on the pointing out of the accused. As the evidence of Muhammad Rafique and Muhammad Siddique is based on what they learnt from the police, so the evidence of both of the witnesses Muhammad Rafique and Muhammad Siddique comes within the ambit of hearsy evidence and no reliance can be placed on such like evidence.
18. Assuming for the sake of arguments, that if it would have been proved, that the clothes of the accused have been recovered at his instance, even then it would have not served any useful purpose, because the clothes of the accused appellant were sent to the Chemical Examiner and the Serologist. But the group of the blood on the clothes has not been determined, so it cannot be said that the clothes of the accused were stained with the same group of blood with which the clothes of the deceased and the blood-stained clay and the bloodstained hatchet were stained. If the blood group on the clothes of the deceased and on the hatchet and on the clothes of the accused have been one and same, then it would have been a strong incriminating evidence against the accused. But when the blood group on the clothes of the accused as stated above, has not been determined then no useful purpose has been served by the recovery of the clothes and the accused could not be linked up with the occurrence by this evidence.
19. As the evidence of Bashir Hussain complainant is concerned, Bashir Hussain narrated whatever he learnt from Mst. Khurshid Bibi his wife. Neither he went to the place of occurrence, nor the deceased made the dying declaration before him. According to the statement of Mst. Khurshid Bibi, when Muhammad Bashir reached, the deceased had already died and she told about the occurrence to him and he went to lodge the report. He also himself states that Mst. Khurshid Bibi told him that the deceased told her that Jamiat Ali Shah caused the injury with the hatchet on his head. No doubt, that Mst. Khurshid Bibi deposed in her statement, that she told about the occurrence to Muhammad Bashir but despite this, the evidence of Muhammad Bashir complainant is of no use because the evidence of Mst. Khurshid Bibi has not been believed and his statement is based on the statement of Mst. Khurshid Bibi whose statement has already been rejected.
20. The next circumstantial evidence against the accused appellant is that he was last seen in company of deceased. Only Muhammad Ilyas son of Said Muhammad P.W.6 appeared as a witness. His statement was recorded on 21-5-1989 just after six months of the occurrence. He stated at the very outset of his statement, that he could not remember the month and day, but it is occurrence of one year before, that he early in the morning at 8 or 9 o'clock was going to the forest alongwith his bull. In the way the accused Jamait Ali Shah and the deceased Zulfiqar Ali Shah met him. They went towards the forest and the accused was having a hatchet in his hand. On my enquiry, the accused told me that they are going to the forest for fetching the wood. They continued walking with me for 10 to 12 minutes, then they went away and I returned back to my house. As this witness is concerned, he has stated that as such happened a year before, whereas the occurrence took place six months before. Even otherwise, the last seen evidence is a weak type of circumstantial evidence, and no conviction can be based merely upon the fact of the deceased having being last seen in the company of accused. In the instant case, the available circumstantial evidence relied upon by the prosecution did not connect the accused with the crime beyond reasonable doubt. Circumstantial evidence can be the base of conviction if it can exclude all hypothesis of innocence of an accused. The accused cannot be found guilty unless all reasonable hypothesis consistent with the innocence have been excluded. The convication in a criminal case should rest on solid and cogent circumstantial or direct evidence. Conjectures and surmises cannot take the place of proof. Where the evidence against the accused is only circumstantial then it must be incompatible with the innocence of an accused and particularly incapable of any explanation on any other reasonable hypothesis than that of his guilt. This requirement has not been fulfilled in this case.
' The nutshell of the above discussion is that the prosecution has utterly failed to bring home the guilt to the appellant. His appeal is therefore, accepted and the sentence awarded to him is set aside. He shall be set at liberty forthwith, if not required to be detained in any other case.