' AMIR-UL-MULK MENGAL, J.--While deciding Criminal Appeal No,66 of 1994 and Murder Reference No,6 of 1994, there was a difference of opinion between Hon'ble Members of Division Bench of this Court comprising of Mr. Justice Iftikhar Muhammad Chaudhry and Mr. Justice Javed Iqbal, hence the matter was referred to me as a referee Judge within the meaning of section 378, Cr.P.C.
2. Mr. Justice Javed Iqbal while dismissing the appeal was pleased to confirm the judgment passed by learned trial Court; whereas Mr. Justice Iftikhar Muhammad Chaudhry came to the conclusion that the prosecution failed to bring home the charge against the appellant, as such Murder Reference No,6 of 1994 was rejected and appeal filed by the convict-appellant was accepted.
3. Notices were issued to the counsel for the appellant as well as learned Advocate-General. I heard Mr. H. Shakil Ahmad, Advocate for appellant and learned Additional Advocate-General, Balochistan Mr. Ejaz Yousuf Chaudhary for the State.
4. Since facts have already been narrated in detail in the aforesaid two judgments, therefore, I need not recount the same. However, reference to the evidence and law points to the said effect shall be discussed at the relevant portion of the judgment as and when required.
5. The case of the prosecution prima facie was a simple case. On the basis of Fard-e-Bayan of deceased Mir Jan F.I.R. Was lodged with Police Station Dera Murad Jamali on 10-2-1993. To the effect that Mir Jan was resident of Dera Murad Jamali and was tenant of one Gul Muhammad. At 6-00 p.m. He along with his family members and maternal uncle Eid Muhammad, Caste Talani was in his house when somebody called him. When he went out of house accused Doda Ali Murad and Muhammad were found standing. Doda was armed with pistol whereas remaining two accused were empty-handed. On seeing him accused Doda fired two shots at him one after the other which hit him on the left side of stomach. After receiving bullets he fell down. On raising the alarm his maternal uncle Eid Muhammad, his wife Mst. Basran and daughter Mst. Peruk came out of the house. After seeing them, the three accused ran away. His maternal uncle and his wife both saw the accused running. There was some matrimonial dispute on account of which accused Doda fired and injured him. Thereafter, his relatives brought him to the hospital who were present at the time of recording the statement.
6. This statement was treated as F.I.R. As veil as dying declaration. P.W.5 Abdul Qadir, S.I.P. Dera Murad Jamali recorced this in the hospital and sent it through a constable for registration of tie case. The prosecution evidence hinges mainly on this dying declaration and statement of Mst.
Basran. Besides this the dead body of Mir Jan who succumbed to the injuries, according to the prosecution, was examined by PM. 1 Syed Ellahi Bakhsh, Medical Officer, Civil Hospital, Dera Murad Jarndi. It is also the case of the prosecution that the weapon of offence was recovered at the pointation of accused Doda and one empty was also recoverei from the place of incident and both these were sent to the Ballistic Expert vho confirmed that the empty had been fired from the said pistol.
7. I have had the honour to go through the judgments separately written by Mr. Justice Javed Iqbal and Mr. Justice Iftikhar Muhammad Chaudhry. Mr. Justice Javed Iqbal believed the prosecution (ase in toto and dismissed the appeal confirming the Murder Reference; whereas the dying declaration has not been believed by Mr. Justice Iftikhar Muherimad Chaudhry.
8. A detailed discussion had been nude as to the extent of dying declaration can or cannot be believed. The'efore, I do not dilate upon the aspects which have already been discussed 1y Mr. Justice Iftikhar Muhammad Chaudhry. However, as far as admissibility of the dying declaration is concerned I make an attempt to discuss tit same in the light of the evidence brought on record.
9. As pointed out earlier the proscution case mainly hinges upon the dying declaration and statement of Mst Basran. This dying declaration has been recorded by P.W. 5 Abdul Qadir ,vho was Investigating Officer. In his statement he has clearly stated that on 10-2-1993 while he was posted as S.H.O., Dera Murad Jamali at 4-00 or 4 -15 p.m. He received a telephonic information that an injured has been brought to the hospital for treatment. He rushed to the hospital and found injured Mir Jan in the hospital. He recorded Fard-e-Bayan of injured Mir Jan and obtained his thumb- impression over his Fard-e-Bayan.
10. Similarly P.W .1 Syed Ellahi Bakhs h, Medical Officer, Civil Hospital, Dera Murad Jamali st ated as under:-- "On 11-2-199.3 I examined the dead body of Mir Khan son of Bhai Khan and four id the following injuries on the person of deceased Mr. Khan:-- `Two circular o pening 1/4" at upper part of left side of abdomen. Probable cause of death: Internal bleeding due to fire-arm. Weapon used: F ire arm.
' Time between it jury and death about 8 hours."
' In cross-examination he pinned that deceased had died 8 hours before he was brought to him. It was fturther stated that dead body was identified by Jhanda Khan (not produced). T. He dead body was brought by a private person Dil Murad Jamadar (not p rocluced).
11. In order to re Iv a I the dying declaration the following facts have to he kept in mine:--
(i) The incident had t aken place at 6-00 p.m. On 10-2-1993. It is indeed astonishing how on the same day i,e, 10-2-1993, S.H.O. Recorded the dying declaration k it 4-00 or 4-15 p.m. In other words the dying declaration was rec prided when incident had not taken place at all, because according tc prosecution the incident took place at 6-00 p.m. On 10-2-1993.
(ii) That according to S. H.O., he received a telephonic message that injured Mir Jan has been brought to hospital. There is nothing on record to suggest as to who informed S.H.O. On telephone.
(iii) The Medical Officer 1 not state a single word whether Mir Jan was at all admitted in the hospital while he was injured. There is no evidence on record except statement of P.W.1 Mst. Bast-an and S.H.O. That injured Mir Jan 3s admitted in the hospital for treatment whereas Medical Officer has not stated so.
(iv) Keeping in view the statement of Medical Officer while examining the dead body of the deceased, that probable time of death was 2-00 a.m. If the deceased had been ad mitted in the hospital then after his death his dead body must have been removed to the mortuary. Question that dead body was identified by Jhanda Khan and brought by Dil Murad did not arise. It thus leads to the conclusion that the deceased had not been admitted in the hospital as injured but was taken for examination, after his death.
(v) According to doctor the dead body was identified by one Jhanda Khan but he was not produced by the prosecution as a witness. It was further stated by the doctor that one Dil Murad Jamadar brought the dead body but Dil Murad has also not been produced by the prosecution.
(vii) Over and above all from bare of the dying declaration it is revealed that the deceased clearly stated in the same that today at 6-00 p.m. When he was sitting in his house and it is not understandable as to how S.H.O. Recorded the said statement at 4-00 p.m. The same day. In other words the S.H.O. Recorded dying declaration before the incident had taken place.
12. For all such reasons it is very difficult for me to believe that the deceased was at all admitted in the hospital for treatment and that S.H.O. Recorded his statement in the hospital, thus dying declaration in the circumstances as narrated above is totally inadmissible in evidence and no credibility can be attached to it.
13. Another important piece of evidence is the statement of Mst. Basran who was produced as P.W.4. According to her statement it was 6-00 p.m. And she was present in the house. P.W. Eid Muhammad (not produced) was also present in the house. The deceased was taking food when someone called him from outside. He went outside. She heard two fire shot reports. She along with P.W. Eid Muhammad went out of the house and found her husband lying injured. She found accused Ali Murad (acquitted) and Doda standing near her husband and Doda was having a pistol. After seeing them the accused ran away. It was she and Eid Muhammad who removed the deceased Mir Jan to hospital.
' In cross-examination she admitted that accused is the brother of second wife of the deceased.
The deceased had two wives. The second wife was also present in the house when the accused was called from outside.
14. The statement of this witness is not confidence inspiring for the following reasons:--
(i) In dying declaration the deceased stated that there were three accused persons namely accused Doda, Ali Murad and absconding accused Muhammad but according to Mst. Basran she saw only Ali Murad and Doda and not Muhammad.
' It is also mentioned in the dying declaration that daughter of deceased Pairuk was present in the house. Mst. Basran has not mentioned presence of Pairuk nor she has been examined as a witness.
(iii) It is an admitted fact that deceased had two wives Mst. Basran and Mst. Gulli. In her cross- examination Mst. Basran admitted presence of Mst. Gulli at the time of occurrence in the house but she has not been produced. Mst. Basran being first wife had implicated brother of second wife as Doda is brother of Mst. Gulli.
(iv) According to this witness she and Eid Muhammad removed deceased Mir Khan to hospital. She is not mentioned by the Investigating Officer to be present in the hospital. However, in cross- examination Investigating Officer only mentioned that Mst. Basran is wife of deceased Mir Jan. It is also a fact that Mst. Basran mentioned Muhammad Khan as co-accused in her 161, Cr.P.C.
Statement but she omitted to mention his name in her statement at the trial.
(v) It is otherwise not confidence inspiring that at the time of occurrence maternal uncle of deceased namely Eid Muhammad, his daughter Pairuk and his second wife Mst. Gulli were all present but none of them deposed about the incident to have occurred in the house.
Nonappearance of Mst. Gulli as a witness is understandable because allegedly her brother was involved but as far as statement of Mst. Pairuk is concerned, she was the daughter of deceased and there was no reason why she should not depose about the occurrence. Besides in the dying declaration deceased admitted Eid Muhammad as his maternal uncle and present in the house but prosecution has dropped Eid Muhammad on the mere plea that he had been won over.
' Thus, out of four persons present in the house it was only Mst. Basran who gave statement implicating brother of second wife of her husband.
In cross-examination it has been suggested to the witness that house of one Rahm Dil was adjacent to the house of the deceased and she admitted that it is situated at 10 paces but Rahm Dil had not gone to Wardat. Besides the I.O. As per sketch of Wardat showing house of Ellahi Bakhsh, Daddle and Umeed Ali adjacent to the house of deceased but none of the residents of these houses nor anyone of the entire Mohalla have been included to depose about the incident. It was not the case of the prosecution that everybody was absent. In the circumstances the suggestion of the defence that the incident had taken place not in front, of the outer door of the house of the deceased but somewhere else is more confidence inspiring.
15. Now attending to the statement of Investigating Officer who was examined as P.W. 5 it may be observed as under:-- ' According to P.W.5 he was informed about the incident by someone on telephone. He has not disclosed the name as to who informed him about the incident. He has further stated that it was P.W. Eid Muhammad, the maternal uncle of the deceased who took him to the spot where he prepared the sketch of Wardat. It has never come on record that the I.O. Had personal knowledge about the residence of the deceased. Eid Muhammad has not supported this version and was dropped by the prosecution. Thus, the very fact that it was Eid Muhammad who led Investigating Officer to the spot has become doubtful, so also the sketch of Wardat and recovery of one empty.
We have already mentioned that it was the Investigating Officer who recorded the alleged dying declaration of the deceased in the hospital. There is no documentary evidence or none from the hospital has been produced about the admission of the deceased for treatment. According to P.W.
1 Dr. Ellahi Bakhsh he found two bullet leads in the X-Ray. Obviously had the deceased been taken to the hospital the doctor must have tried to operate the deceased in order to take out the bullet leads but it is revealed from the statement of the doctor that the X-Ray was done only when the deceased was already dead. This further casts doubt on the entire testimony of the investigating officer as well as of the prosecution case.
From the aforementioned discussion it becomes abundantly clear that recovery of pistol and empty at the instance of the accused do not provide corroboration because the empty allegedly has been recovered in front of the house of deceased but I have mentioned reasons for disbelieving this version, thus the recovery of pistol becomes irrelevant.
16. Lastly it is indeed strange that the Investigating Officer did not produce the copy of the F.I.R. But only produced Fard-e-Bayan although FIR had been separately registered on the basis of Fard-e- Bayan. Furthermore, the motive as narrated by the deceased in the dying declaration was some matrimonial dispute. What was that matrimonial dispute has not been specified by P.W. Basran.
However, it has come on record that she implicated accused Doda who is brother of the second wife of the deceased. Thus, chances of false implication on that count in view of the peculiar circumstances of the case in hand cannot be ruled out.
' For all such reasons I have to respectfully agree with the judgment delivered by Mr. Justice Iftikhar Muhammad Chaudhry.' In my opinion the prosecution has failed to prove the charge against the accused beyond shadow of doubt. Thus, the accused is entitled to benefit of doubt. The appeal must succeed and resultantly accused Doda is acquitted of the charge. He shall be released forthwith if not required in any other case.
(Sd.)
AMIR-UL-MULK MENGAL, J.
' JAVED IQBAL, J.--This is an appeal preferred under section 410, Cr.P.C. Against the order dated 30- 44994 passed by learned Sessions Judge, Nasirabad at Dera Allah Yar, whereby the convict/appellant Doda was convicted and sentenced to death and fine of Rs,20,000 and in case of default to suffer imprisonment for one year under section 302, P.P.C. The co-accused Ali Murad was, however, acquitted of the charge.
2. Briefly stated the facts of the case are that one Mir Jan son of Bhai Khan got lodged F.I.R. And recorded his Fard-e-Bayan (Exh.PD) stated therein that he was residing at Ward No,5 of Dera Murad Jamali, working as a tenant of one Gul Muhammad, when at 6-00 p.m. While he was sitting along with his family members and uncle Eid Muhammad someone called him from outside of the house and when he came out, he saw accused Doda, Ali Murad and Muhammad. Accused Doda was holding a pistol, while accused Ali Murad and Muhammad were standing empty-handed. The convict/appellant Doda suddenly fired 2 shots from his pistol, which hit his abdomen and resultantly he fell down on the ground and on his hue and cry his wife Mst. Basran and maternal uncle Eid Muhammad came out of the house. On seeing them the above-named accused made their escape good. His wife and uncle witnessed the occurrence, which took place due to some matrimonial dispute. The said Fard-e-Bayan was recorded by the S.H.O. Who rushed to the hospital after receiving a telephone call that an injured person having received fire-arm injuries was brought to Hospital. The said Fard-e-Bayan (Exh.P/D) was subsequently converted into F.I.R.
3. The prosecution in support of accusation produced Syed Ellahi Bakhsh (P.W.1), Ghulam Muhammad (P.W.2), Sohbat Khan (P.W.3), Mst. Basran (P.W.4) and Abdul Qadir (P.W.5).
4. The charge was framed on 25-7-1993 against convict/appellant Doda under section 302, P.P.C.
To which he pleaded not guilty and claimed trial. The convict/appellant in his statement recorded under sections 342 and 340(2), Cr.P.C. Denied his guilt, pleaded innocence and stated that he had been involved due to enmity in the case. No defence witness, however, was produced to substantiate his plea of innocence.
5. Let us first examine the prosecution evidence as led by the prosecution to establish the charge against the convict/appellant. Syed Ellahi Bakhsh (P.W.1) is a Medical Officer, Civil Hospital, Dera Murad Jamali, who examined the dead body of Mir Jan on 11-12-1993 with the following observations:-- "Two circular openings 1/4" upper part of left side of abdomen.
' Probable cause of death: Internal bleeding due to fire-arm. Weapon used: Fire-arm.
' Time between injury and death about 8 hours."
' He also produced the death certificate (Exh.PA) duly signed by him. He was subjected to a brief cross-examination, wherein he mentioned that the accused had died 8 hours prior when he was brought to hospital. Ghulam Muhammad (P.W.2) deposed that he along with S.H.O. And other Police Officials went to Civil Hospital, Dera Murad Jamali, where Eid Muhammad handed over a blood-stained shirt of deceased Mir Jan to S.H.O., who took the same into possession and made into a sealed parcel vide recovery memo. (Exh.PB) duly signed by him. He was not preferred to be cross-examined. Sohbat Khan Constable (P.W.3) deposed that on 28-2-1993 he was posted at Police Station Dera Murad Jamali, when S.H.O. Interrogated the convict/appellant at Police Station, who disclosed that he had hidden the pistol in bushes near brick kiln. He deposed further that he along with S.H.O. And one other Constable namely Habibullah proceeded to brick kiln, where convict/appellant Doda led the Police party to the bushes near the brick kiln and took out pistol from the bushes and produced the same to S.H.O., who took into possession vide recovery memo.
(Exh.PC), it was duly signed by him. One live cartridge was also recovered from the pistol. He also identified the pistol (Art./1) and live cartridge (Art./2). He was also subjected to cross-examination, but nothing advantageous could be extracted. He denied the suggestion in categorical term that pistol was not recovered and foisted upon the convict/appellant. He stood firm to the test of cross- examination. Mst. Basran (P.W.4) is an eye-witness and deposed that at 6-00 p.m. While she was present in her house along with Eid Muhammad and her husband was taking food when someone called her husband from outside, who responded the call and went outside and thereafter she heard two fire shots and rushed hurriedly to outside along with Eid Muhammad and found her husband lying injured while convict/appellant Doda and Ali Murad (acquitted accused) were standing near him. She further deposed that accused Doda was having a pistol while co-accused was empty-handed. The convict/appellant and co-accused made their escape good on seeing them. She and Eid Muhammad brought injured Mir Jan to hospital. She also identified convict/appellant Doda and Ali Murad (co-accused) in the Court. She was subjected to an exhaustive cross-examination, but nothing beneficial from defence point of view could be extracted from her. It is worthy to note that various searching questions were raised, but her testimony could not be shattered. She denied ha an unequivocal term that the convict/appellant had not committed the murder. Abdul Qadir (P.W.5), 1.0. Deposed that on 10-2-1993 he was posted as S.H.O. At Dera Murad Jamali when he received a telephone call in between 4-00 or 4-15 p.m.
That one injured was brought to hospital for treatment and in pursuant to the said, information he rushed to hospital where injured Mir Jan was present and he recorded his Fard-e-Bayan (Exh.PD) and obtained his thumb-impression. It was also signed by him. The case was got registered on the basis of Fard-e-Bayan (Exh.PD). He visited the place of occurrence and preferred memo. Of site inspection (Exli.P/E) duly signed by him. He also recovered one empty cartridge from the place of occurrence vide recovery memo (Exh.PF) duly signed by him. He also prepared sketch of Wardat (Exh.PG) duly signed by him and recorded the statement of prosecution witnesses. He arrested co- accused Ali Murad from Sibi. He also arrested convict/appellant Doda on 19-2-1993 from Dera Murad Jamali. He further stated that pistol was got recovered on the pointation of convict- appellant Doda from near the brick kiln hidden in bushes vide recovery memo. (Exh.PC) duly signed by him. He also produced Chemical Examiner Report (Exh.P/I), Fire-arm Expert report (Exh.P/J), He also identified alleged recovered pistol as Art./1, live cartridge Art./2, empty round of pistol Art./3. He also pointed out that injured Mir Jan expired on 11-2-1993. He was also subjected to cross- examination and conceded frankly that one Muhammad was also mentioned as accused in Fard- e-Bayan (Exh.P/D). He also admitted that Mst. Basran (P.W.4) also mentioned about Muhammad being third accused in her statement recorded under section 161, Cr.P.C. He denied the suggestion that the statement of injured Mir Jan was not recorded and he obtained his thumb-impression over Fard-e-Biyan Exh.P/D after his death.
6. Having stated the relevant facts, the evidence adduced by the prosecution and our brief comments thereupon, now let us examine the contentions as argued on behalf of the convict/appellant. We are conscious of the fact that the Court has to keep the prosecution evidence and defence pleas in juxtaposition and then to determine the question whether guilt of convict-appellant has been proved beyond the shadow of doubt or otherwise. Mr. Shakeel Ahmad, Advocate, the learned counsel for the convict-appellant mainly contended that the prosecution has not been able to prove its case against the convict-appellant beyond reasonable doubt as eye-witnesses are related and partisan and there is no independent corroboration of their statements, as such the same cannot be taken into consideration. It is urged emphatically that the Dying Declaration (Exh.P/D) cannot be relied upon being highly unreliable specially when there is no independent and reliable corroboration. It is also argued that the entire prosecution evidence suffers from infirmities and furthermore, that the prosecution has failed to produce the injury sheet prepared regarding the injuries allegedly inflicted upon the deceased, and as such it becomes doubtful whether he was alive or not when admitted in the hospital.
7. We have carefully examined the evidence as led by the prosecution and discussed above. In our view the depositions of Syed Elahi Bakhsh (P.W.1) Ghulam Muhammad (P.W.2), Sohbat Khan (P.W.3), Mst.Basran (P.W.4) and Abdul Qadir (P.W.5) are confidence inspiring. No enmity whatsoever has .Been alleged against them and as such there is no possibility of false implication. We have not been able to persuade ourselves to agree with the main contention as argued by Mr. Shakeel Ahmed, Advocate, who appeared on behalf of the convict/appellant that Dying Declaration cannot be relied upon and should be discarded being not recorded in accordance with the relevant provisions of law. We may mention here at this juncture that no specific mode has been prescribed that as to how and by whom a dying declaration should be recorded. There are no mandatory prerequisites of law that it cannot be made before a Police Officer or that it should always be in writing. It can be oral and communicated by means of gestures when the victim cannot speak due to his critical condition. No embargo whatsoever has been imposed that a dying declaration cannot be converted into F.I.R. It is, however, desirable that every effort should be made to get the declarant version in the same word and language as used by the declarant. In order to avoid the possibility of any exaggeration or omission, which may subsequently prove fatal. It may, however, be noted that the interpretation and admissibility of dying declaration exclusively falls within the ambit of Court's competency. In the case under consideration dying declaration was made in Fard-e-Bayan (Exh.P/D) duly signed by the declarant and in presence of prosecution witnesses, who stood firm to the test of cross-examination and their testimony remained unshaken and as such can be relied upon being confidence inspiring. We are conscious of the fact that dying declaration alone cannot be made a sole base to award conviction unless corroborated, but such corroboration is not a rule of law but a requirement of prudence. It, however, cannot be laid down as an absolute rule of law that the Dying Declaration cannot be made a sole base to award conviction unless it be corroborated as each case must be examined and determined on its own facts and keeping in view the circumstances in which it was made. It cannot always be said as a general proposition that Dying Declaration is a weaker type of evidence as compared to that of other piece of evidence. In our considered opinion a dying declaration stands on the same footings as the other evidence and no line of distinction can be drawn in between and it has also to be judged in the light of surrounding circumstances and with reference to the settled judicial principles governing the weighing of evidence. It is to be noted that Dying Declaration was made in presence of Abdul Qadir (P.W.5) who no doubt is a Police Officer, but it hardly makes any difference because the fact still remains that acid test of his veracity was the inherent merit of his own statement and not the fact that he was a Police Official. We may point out that no question regarding any sort of mala fides whatsoever was asked to the said P.W. And there was no reason to involve the convict-appellant falsely by him. It is worth mentioning that Mst. Basran (P.W.4) remained present in hospital and no question whatsoever was asked that Fard-e-Bayan was not got recorded by Mir Jan. We may point out that it is not essential for the admissibility of Dying Declaration that deceased must ? Have been apprehending death at the time of making it. The only requirement I of is that the deposition so made must relate to the cause of maker's death or the circumstances which resulted in his death. The declaration so made should not be based on hearsay or irrelevant material having no concern with death, but it must not escape unnoticed that such deposition made by the deceased regarding the cause of his death would not only admissible against the assailants, he in fact caused his death, but against all those who remained concerned in such transaction and circumstances which resulted the death of the maker. The dying declaration made by deceased Mir Jan is thus admissible against all those named by him.
The evidence which has come on record lends sufficient corroboration to the dying declaration. In this regard the deposition of Mst. Basran can be referred from whom in spite of an exhaustive cross-examination nothing advantageous could be elicited. When she reached at the place of occurrence she saw convict-appellant Doda carrying a pistol in his hand while co-accused Ail Murad was standing nearby. The said pistol was got recovered at the pointation of convict- appellant Doda from bushes under brick kiln which indicates his exclusive knowledge. The recovery witnesses are independent and no enmity whatsoever was alleged against them. The Ballistic Export lends further corroboration, which is reproduced hereunder for ready reference:-- "G.P. (0) 1026,5,000-form.
4.86.
JUSTICE THROUGH SCIENCE.
FORENSIC SCIENCE LABORATORY, QUETTA.
EXAMINATION REPORT FORM 'B'.
LAB. 6 /DATED 10-1-1994.
' SUBJECT: EXAMINATION OF SUSPECTED 25 BORE PISTOL AND 25 BORE SUSPECTED CRIME EMPTY SHELL.
' RECEIVED ON 9-1-1994 FROM S.H.O., P.S. DERA MURAD JAMALI BY HAND OF POLICE OFFICER CASE FIR NO. 10/93 UNDER SECTION 302, QISAS AND DIYAT ORDINANCE.
' Parcel No,--(1) A duly sealed parcel bearing two seals. The parcel contained one suspected 25 bore crime empty shell (marked as 'C').
' Parcel No,--(2) A duly sealed parcel bearing three seals. The parcel having one 25 bore pistol No,786 Pakistan made along with magazine (Marked as 'A').
' Note.--Physical and Microscopical examination of the above case is revealed as under:--
(1) The one 25(6.35) mm bore pistol No,786 Pak-made is in working condition (order) but no definite opinion can be expressed when it was last fired.
(2) The one 25 (6.35) mm bore crimes empty shell (marked as C) was fired from the 25 (6.35) mm bore Pistol No,786 Pakistan-made (marked as A) in question in view of the following major points i,e, breech face marks striker pin marks etc. Are similar, ' Note.--Two test empty shells were being sent in the parcel of pistol.
' After examination the parcels of pistol and crime empty shell were sent to S.H.O., P.S. Dera Murad Jamali by hand of police officer duly sealed.
(Sd.) (Sd.)
Muhammad Iqbal Incharge, I.P. Fire-arm Deputy Superintendent or Expert FSL Crimes Police, Crimes Branch FSL, Branch, Quetta Quetta, Balochistan.
No,19/FSL ' Dated Quetta, the 10-1-1994."
The medical evidence also supports the Dying Declaration and the injuries upon the deceased by means of firing were subsequently found on the same places of body as deposed by the deceased.
8. In the light of what has been stated above in our view, the prosecution has been able to prove its case beyond the shadow of doubt and resultantly the impugned judgment does not call for any interference. The appeal is therefore, dismissed.
(Sd.)
JAVED IQBAL, J.
' IFTIKHAR MUHAMMAD CHAUDHRY, J.--I have had an opportunity to go through the draft judgment, composed by my learned brother Mr. Justice Javed Iqbal, but with due deference, I express my reservations to his conclusion. As such, I have decided to record separate reasons in support of my opinion.
' Detail marshelling of the facts has already been made in the draft judgment, therefore, I would examine the case in view of the contentions put forth by Mr. Shakeel Ahmed, learned counsel for convict and the State Counsel Mr: Salahuddin Mengal, learned Assistant Advocate-General.
The prosecution case mainly rests on the 'dying declaration' of the deceased Mir Jan son of Bhai Khan, ocular testimony of Mst. Basran, recovery of crime weapon at the pointation of convict Doda and the supporting medical evidence.
' The learned trial Court, having declared the 'dying declaration' as a valid incriminating piece of evidence placed heavy reliance on it. Under Article 46(1) of the Qanun-e-Shahadat, 1984, such statement is a relevant fact by the person who is dead. For reference the provision of law is reproduced herein below:-- "46. Cases in which statement of relevant fact by person who is dead or cannot be found etc. Is relevant.--Statement written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:- `(1) When it relates to cause of death.--When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which 'the cause of his death comes into question'."
A careful perusal of the above suggests that such statement is to be followed being a relevant fact without impeaching its credibility, under the law. Therefore, such statement requires a thorough scrutiny before placing reliance on it and ordinarily, it should not be presumed that always truth sat on the lips of a person, who had expectations of his death. In this behalf, the Hon'ble Supreme Court in the case of Tawab Khan and another v. The State (PLD 1970 SC 13) laid down following dictum, for the guidance of the Courts. With benefit relevant para. Therefrom is reproduced herein below:-- "In the same line, there are the dying declarations of the deceased which have a degree of sanctity under the law, being the statements of a dying man, on the belief placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons, on false charges. But I consider that in the matter of administration of criminal justice taking in view the present state of our society the assessment of evidence whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercised of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has ,t6 be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours and enmities. Even assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time, and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of the dying declaration like the statements of interested witnesses, becomes absolutely necessary. The maxim `falsus in uno falsus in omnibus' has all along been discarded by the Courts in this country.
Similarly the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservation and cannot be accepted as one of universal application."
' Similarly in another case of Zarif Khan v. The State (PLD 1977 SC 612) it has been laid down as under:-- "No doubt, a dying declaration can be challenged on any ground on which the evidence of a witness can be challenged. So, for example, it can be challenged on the ground of enmity, but how is the accused to prove the hostility of a person who is dead? In the instant case, the appellant had challenged P.W. Abdul Sattar's evidence on a suggestion, of enmity which is not clear, and the witness had repudiated this suggestion, but he was not a reliable witness. On the other hand, the deceased might have been a very honest man, and if he had survived his injury, he might have admitted the suggestion of hostility on his party, if that suggestion had been true. And further, there will be many cases in which the witness who gives evidence about a dying declaration does not know the deceased or knows him casually. In such cases, unless the prosecution produces evidence to show that the deceased was a person of unimpeachable integrity, the accused would have no means to, prove the bias of the deceased against him, unless of course it is assumed that truth sits upon the lips of a dying man."
In another judgment of Wahiduddin v. Allah Ditta and others (1977 SCMR 72), the Hon'ble Supreme Court held that 'dying declaration' recorded at police station in presence of deceased's relatives is always suspected to place implicit reliance on it. One must be fully satisfied that it is a statement which has been made by the deceased voluntarily without any possibility of prompting as to cause of death etc. Yet in another judgment in the case of Muhammad Yasin v. The State (1978 SCMR 303), the Hon'ble Supreme Court declared that the dying declaration must be free from every sort of taint and be independently corroborated for safe reliance to record the r conviction.
' In view of the above law, it is imperative to ascertain the voluntariness and truthfulness of the dying declaration made by the deceased in the instant case.
' I have noticed on thorough scrutiny of the evidence that according to Mst. Basran, the wife of deceased, incident took place at 6-00. p.m. When she was present in her house. P.W. Eid Muhammad (not produced) was also present in the house. The deceased was taking food, when someone called him from outside. He went outside. There were fire shots, on which, she along with Eid Muhammad came out of house, her husband was lying in an injured condition, she saw acquitted accused Ali Murad and convict Doda standing near her husband. The accused had a pistol in his hand. The other accused was empty-handed. On seeing them, the other accused ran away. The deceased was removed to hospital by both of them. In cross-examination she also admitted that Rehm Dil (not produced) lives in her neighbourhood, besides P.W.Muhammad Usman, the brother of accused (given up) who also lives in her Mohallah also came there. It is also admitted by the witness that accused is the brother of second wife of deceased Mst. Kolee. She was also present in the house, when her husband was called from outside. It is important to note that according to the version of the witness, in cross-examination, she and Eid Muhammad along with the dead body of deceased reached at the hospital, in night.
' Whereas P.W. Abdul Qadir, S.I./I.O. Who recorded 'dying declaration' deposed that on 10th February, 1993, he was present in police station at 4-00 or 4-12 p.m. When he received telephonic information that one injured has been brought to hospital for treatment. He immediately went there. The injured/deceased was present in the hospital. He recorded his Furd-e-Bayan and obtained his thumb-impression over it, which was produced as Exh.P/D. He sent the same to police station for registration of case. Then he proceeded to the place of incident along with P.W. Eid Muhammad (given up) According to his information on 11th February, 1993, the injured Mir Jan expired. In cross- examination, he admitted thht Mst. Basran made her statement in the hospital, at Dera Murad Jamali. It would mean that Furd-e-Bayan Exh.P/D, was also recorded in her presence. The perusal of the dying statement would indicate that deceased was fired upon at about 6-00 p.m. When he was present in his house with his children and Eid Muhammad. He was called from outside when he went there, accused Doda with a pistol in his hand and Ali Murad empty-handed were present. Out of them Doda all of a sudden fired two shots one after the other which hit him on the left side of his belly, due to which he fell down. He has also attributed enmity against the culprits on account of previous grievance in respect of some relationship.
' The prosecution failed to obtain a report from the concerned Doctor of the hospital to ascertain whether deceased had fully consciousness when he was admitted in the hospital and whether he was in a position to make a correct statement mentioning thereby the timings etc. In absence of these particulars the correct position of the injured before his death cannot be determined. In this behalf it is equally important to note that if at all the accused had died in hospital then as to why his statement was not reduced into writing by the Doctor, who was attending him or why he did not stand witness to testify the contents of the 'dying declaration'. It may also be seen that ordinarily when an injured person dies in a hospital, after completion of documentation, his dead body is shifted to Morchery for the purpose of Autopsy, but in the instant case, although autopsy was not conducted except noting down the injuries by P.W.1 Syed Ellahi Bakhsh, Medical Officer, Civil Hospital. Dera Murad Jamali, who in his Certificate Exh. P/1, indicated that the body of deceased was brought by Jamadar Dil Murad son of. Mir Hassan, Ward No,5, Dera Mufad Jamali, the Mohallah in which deceased and Mst. Basran were residing and the dead body was identified by Janda Khan son of Bhajia Khan, It is not clear that if Eid Muhammad and Mst. Basran were present in the hospital, why the other persons took the dead body to Doctor for medical examination. So much so, identification was also made by another person. According to the witness, death took place at 2- 00 a.m. In the night, ' With reference to the time of death in hospital, again it comes to one's mind, whether the deceased was physically in a position to make the statement, because he died after a short period when he received the injury. As such, the production of the history of patient (deceased) was most essential. It may also be determined that I.O. Abdul Qadir has reached hospital in between 4-00 to 4-30 p.m. On receipt of telephonic call from the hospital. Whereas statement of Mst. Basran as well as the contents of Exh. P/D, reveals that incident had taken place after 6-00 p.m. And no explanation is available on record to reconcile with different timings. Of course, it would have been convenient to sort out the correct timings, had the prosecution produced the FIR formally recorded but unfortunately the FIR if recorded on the basis of the statement of deceased had also not been produced. It is also abundantly clear that the alleged 'dying statement' was made by the deceased in presence of Mst. Basran wherein he himself, has alleged enmity with the accused. Thus, in absence of independent corroboration and non-recording of the 'dying declaration' in view of the principles laid down by the Hon'ble Supreme. Court, referred to herein-above, it is not safes to rely on it. Because it does not appear to be true in the circumstances of case.
' The next piece of evidence is the statement of P.W. Basran. To her statement, due credence can also not be given, firstly for the reason that no independent corroboration to her statement with regard to the events of the incident is available. P.W. Eid Muhammad (given up) could have furnished support to her statement, if he had been produced before the Court. Similarly other two witnesses, who according to the version of Mst. Basran, namely Rehm Dil and Muhammad Umer had seen the incident were also not produced. Secondly in her statement, which she recorded before Police under section 161, Cr.P.C. She named three persons being accused for the commission of offence, but in her Court statement she omitted to involve the third-one, as it is indicative from the perusal of her cross-examination. Thirdly, her presence at the place of incident, just after the firing also appears to be doubtful, in view of the fact that it is also not sure whether incident had taken place allegedly in front of her house or not, because the site inspection note Exh.P/E, does indicate that no blood-stained earth was collected by the I.O. From the place where the deceased fell down after receiving injuries. Might there would be possibility that the blood had not dropped on earth, because the wound had small circular opening of 1/4th inch and immediately he had been shifted to hospital. However, the recovery memo. Exh. P/B of the shirt indicates that it was stained with blood, therefore, it was necessary for the I.O. To procure the blood from the place of incident to show that in fact the incident had taken place in front of the house of deceased and .The presence of Mst. Basran was natural. It may also be seen that shirt of the deceased had not been given to the I.O." by the Doctor, who conducted the medical examination, rather it was produced by Eid Muhammad to whom the prosecution had dropped, therefore, it is not ascertainable that how this shirt came in his possession.
' The important witness namely Eid Muhammad, Rehm Dil and Muhammad Umer had also been dropped without assigning any convincing reasons. Although Eid Muhammad was the real uncle of Mst. Basran as such, his production before the Court was convenient and essential to establish the accusation against the accused. Non-production of this important witness gives rise to legal presumption that if he would have been produced, might he had not supported the prosecution.
Ordinarily the statement of an interested witness cannot be discarded, however, it becomes a legal obligation upon the Court to look forward for an independent corroboration.
In view of the above discussion, no corroborative evidence is available to believe the statement of Mst. Basran, as such, it is not in the interest of S justice to rely upon it.
' The next piece of incriminating evidence is the recovery of pistol at the instance of accused Doda Khan. After the commission of offence, he was arrested on 19th February, 1993, from Dera Murad Jamali, by the I.O. Abdul Qadir. According to the prosecution on 28th February, 1993, he led the I.O.
And P.W.3 Sohbat Khan Constable as well as Constable Habibullah for the recovery of crime weapon. According to the Inventory Exh.P/C, the accuse while leading the police dug out a pistol from underneath the bushes on northern side of a brick kiln. On it barrel, No, 786 along with English words `GUER-WIASO ARM' were found.
' The recovery of pistol has also not been proved legally, because according to P.W. Sohbat Khan, accused led the police party to bushes situated near brick kiln and took out pistol from the bushes which he produced to the S.H.O. Whereas the contents of the recovery memo. Shows that the accused took out the pistol, after digging the earth. Similarly the witness stated that accused was arrested two days prior to the recovery which would mean, on 26th February, 1993. Likewise there is important contradiction between the recovery memo. And the report of Ballistic Expert Exh. P/1, according to which, he received .25 bore pistol No,786 (Pak-made) for examination. Similarly it also revealed that the Expert failed to express his definite opinion th,at when it was lastly fired. Therefore, in view of the variations in the identification of the weapon, it is not safe to hold that the same pistol which allegedly was recovered from the possession of accused is a crime weapon.
' Although no mala fides have been attributed against the I.O. For sending the recovered pistol as well as the led for the report of Ballistic Expert, after a considerable delay i,e, on 10th January, 1994, whereas incident had taken place on 10th February, 1993. The same I.O. Had sent shirt of deceased for the report of Chemical Expert on 6th July, 1993. I failed to understand that what was the wisdom for keeping the crime weapon at police station for a long period particularly when earlier to that he has sent the other articles to Chemical Expert. Therefore, if from this point of view as well, the prosecution case is viewed, it becomes doubtful.
Even otherwise, under Article 40 of the Qanun-e-Shahadat, an information received from the accused in custody of police is admissible to the extent of information conveyed by him that crime weapon is concealed at such and such place. As far as, physically affecting the recovery of incriminating articles by the accused being in the custody of police is concerned, it tantamounts to making a confession of the crime. And to this extent, the evidence cannot be utilized against him. In this behalf, reference can be made to PLD 1974 Quetta 28 (State v. Jamil lqbal). Relevant para. Therefrom is reproduced herein below:-- "On careful consideration of the principles of law I am of the view that in the present case the statement made by the respondent that he had concealed the knife is not admissible because the same is a total confession for the simple reason that he could not conceal an object without possessing it and by admitting such a statement, a confession in its totality will be admitted. The result is that the statement of the respondent is only admissible to the extent that he would produce the knife before the police."
' In view of the above glaring defects in affecting the recovery, it is equally not in the interest of justice to use the crime weapon as a circumstantial corroborative evidence against the accused.
' The next piece of evidence is the statement of P.W.1 Syed Ellahi Bakhsh, the Medical Officer. No doubt unnatural death of deceased had occurred but the medical evidence independently cannot prove the guilt against the accused.
' The aforesaid discussion gives rise to a presumption that the death of Mir Jan deceased has shrouded in mystery and prosecution had failed to establish the accusation against the accused.
For the foregoing reasons I am of the considered opinion that the prosecution has miserably failed to bring home the charge against accused, as such, the Murder Reference No,6 of 1994 is rejected and appeal filed by the convict is accepted. Consequently the impugned judgment, dated 30th April, 1994, passed by Sessions Judge, Nasirabad at Dera Allah Yar, is set aside. The appellant Doda son of Allah Ditta is acquitted of the charge. He be set at liberty, if not required in any other case.
(Sd.)
IFTIKHAR MUHAMMAD CHAUDHRY, J.
ORDER OF THE COURT ' Since there is difference of opinion and we have drawn separate conclusions, therefore, the matter be placed before the Referee Judge, after obtaining orders from the Hon'ble Chief Justice.
(Sd.)
Iftikhar Muhammad Chaudhry, J.
(Sd.)
Javed Iqbal, J.