ZIA MAHMUOD MIRZA, J.---This order will dispose of Criminal Petition No.28-K/94 filed by Mst.
Ghulam Zohra, the mother of deceased Naveedul Hassan and Criminal Petition No.38-K/94 filed by the State through Advocate-General, Sind as both the petitions are directed against the same judgment of the High Court of Sind, Karahci dated 1-3-1994 whereby appeal of Malik Muhammad Sadiq, respondent who was convicted on a murder charge and sentenced to death by the learned Sessions Judge, Karachi Central has been allowed and he has been acquitted.
2. Malik Muhammad Sadiq hereinafter called the respondent was put on trial before the learned Sessions Judge, Karachi Central on the charge .Of committing the murder of Naveedul Hassan.
Case of the prosecution in nutshell was that on 25-2-1984 at 6-30 p.m., Naveedul Hassan was present in his room when the respondent came there alongwith an unknown person who had muffled his face. The man with muffled face was carrying a tin of kerosene oil which he sprinkled on the person of Naveedul Hassan who then was set on fire by the respondent by using a match box. Cries raised by the victim attracted his neighbours Akhtar Hussain and Younas to the scene of occurrence. They extinguished the fire while the respondent and his companion escaped on a motor-cycle parked outside. Akhtar and Younas brought the injured to Abbasi Shaheed Hospital where Doctor Abdul Majeed Medico-Legal Officer provided treatment to him and also informed the Duty Officer Rehmat Ali of Police Station, New Karachi on telephone about the admission of Naveedul Hassan in the hospital in burnt condition. S.I. Rehmat Ali came to the hospital and after getting permission from the Medico-Legal Officer recorded the statement of the injured in the presence of Haji Nazar Hussain and Ghulam Shabbir P.Ws. Which he later transcribed in the F.I.R.
Register and on the basis thereof, case under section 307/452, P.P.C. Was formally registered.
Naveedul Hassan later died in the hospital on 25-2-1984 whereupon the offence under section 302, P.P.C. Was added in the F. I. R.
3. Motive for the offence was stated to be an earlier incident which had taken place 20/25 days before when Naveedul Hassan on seeing the respondent beating a by intervened and got the by released. This offended the respondent who gave to to four blows to Naveedul Hassan and threatened to see him in the evening. The matter was reported to the Councillor Aslam Shah. The respondent, however, nurtured the grudge against Naveedul Hassan on account of the said incident.
4. To prove its case at the trial, prosecution mainly relied upon the statement' of Naveedul Hassan deceased Exh.P/14, recorded by Rehmat Ali, S.I. In the hospital on 25-2-1984 which was treated as dying declaration. It was sought to be substantiated by Rehmat Ali, S.I. P.W.12 and to attesting witnesses, P.W.7 Ghulam Shabbir and P.W.10 Haji Nazar Hussain. Prosecution also examined a number of other witnesses including P.W.1 Zulfiqar Hussain, a maternal uncle of the deceased, P.W.2 Akhtar Hussain who had extinguished the fire on the person of the deceased, P.W.3 Muhammad Iqbal, a neighbouring shopkeeper, P.W.4 Muhammad Saleem, a Vegetable Vendor, P.W.5 Salam, P.W.6 Ali Ather, a Dresser in the Abbasi Shaheed Hospital, P.W.8 Ghulam Haider, P.W.9 Babud Din, P.W.11 Councillor Syed Aslam Shah, a witness of the motive, P.W.13 Qalb-e-Bakar, A.S.I., C.I.A. (who had partly investigated the case), P.W.14 Muhammad anwar a Compounder in Abbasi Shaheed Hospital, who produced Medical Certificate of the deceased Exh.44 and Supplementary Medico- Legal Report Exh.45 signed by Doctor Abdul Majeed who, it was stated, had gone to Canada and settled there. Trial Court also examined three Court-witnesses namely Muhammad Imtiaz, a Process---Server/Police Constable, Qalb-e-Bakar, A.S.I. And Doctor Abdul Basit who was posted as Assistant Police Surgeon in Abbasi Shaheed Hospital on 25-2-1984. None of these witnesses, it may pertinently be observed, had seen the actual occurrence. Some of them, however, stated that on enquiries from the victim, they were informed that he was set to fire by the respondent and his companion.
Ali Ather P.W.6, however, deposed that when he was dressing Naveed a day before his death, he was told by Naveed that Akhtar had got him killed, that he put himself on fire with the assistance of Akhtar in order to involve Malik Sadiq but due to ill-luck, he received the burns extensively.
5. The respondent pleaded not guilty to the charge and in his statement under section 342, Cr.P.C.
Denied the prosecution allegations. He also appeared as his own witness under section 340 (2), Cr.P.C. And produced to witnesses in his defence.
6. Learned Trial Judge brushed aside the evidence of P.Ws.4, 5 and 9 and P. W.6 but relying upon the dying declaration Exh.14, the medical evidence and the evidence regarding motive came to the conclusion that the case against the respondent was proved beyond reasonable doubt. He was accordingly convicted under section 302, P.P.C. And sentenced to death and a fine of Rs.50,000 or in default to undergo simple imprisonment for five years. It was also ordered that the convict shall pay Rs.50,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C.
7. The respondent preferred an appeal against his conviction and sentence in the High Court of Sind, Karachi. The High Court also received a reference from the Sessions Judge for confirmation of the death sentence awarded to the respondent.
8. Learned Judges of the High Court who heard the appeal and the reference found various discrepancies and contradictions in the prosecution evidence. For instance, it was noted that the evidence of Akhtar Hussain and Ghulam Shabbir P.Ws. That the injured was first taken to the Police Station and then to the hospital was contradicted by Rehmat Ali, S.I., who deposed that while on duty in the Police Station, he received the message from Doctor Abdul Majeed on telephone at 7-20 p.m. That Naveedul Hassan was admitted in the hospital and on receiving this information, he went to the hospital. It was also noted by the learned Judges that while Akhtar Hussain and Zulfiqar P.Ws.
Claimed that they were told by Naveedul Hassan that he was set on fire by the respondent and his companion, Naveedul Hassan did not so state in his dying declaration Exh.F/14. It was also pointed out that there was material contradiction about the person who brought the Taxi which took the injured to the hospital. Note was also taken of the fact that Ghulam Shabbir P.W. Who was an attesting witness to the dying declaration Exh.P/14 had sworn an affidavit Exh.P/15 before a Magistrate stating therein that Naveedul Hassan or Akhtar did not disclose as to who had caused fire and that the deceased did not tell S.I. Rehmat Ali that Malik Muhammad Sadiq had committed the offence. It was observed by the learned Judges that Haji Nazar Hussain, the other attesting witness of the dying.: declaration did not support the prosecution as he denied that the Police Inspector recorded the statement of the injured in his presence and further added that his signatures were obtained on the paper out-side the room in the hospital when the injured was inside the room. It was also noted that this witness admitted that in his statement before the C.I.A., he did not name Muhammad Sadiq for causing the injuries to Naveedul Hassan. Learned Judges also referred to the evidence of Ali Athar Dresser and observed that "this evidence makes Akhtar an accomplice". Statement of Ghulam Haider P.W. That he was told by Akhtar that Naveedul Hassan was set on fire by Malik Muhammad Sadiq was held to be inadmissible for the reason that Akhtar Hussain P.W. Did not state that he told the incident to Ghulam Haider. Learned Judges took the view that in view of the medical evidence showing that the body of the injured was burnt to the extent of 75 % and that he was brought to the hospital in unconscious condition, the injured could not have made the statement Exh.14 nor could he have told the P.Ws. Zulfiqar, Akhtar Hussain, Ghulam Shabbir and Haji Nazar Hussain that he was set on fire by the respondent. Having made this assessm ent/appraisal of the evidence, the learned Judges proceeded to hold that keeping in view the condition of the injured, it was the duty of S.I. Rehmat Ali to obtain a Certificate from a Doctor, before recording his statement, that the injured was in a fit condition to make the statement but this was not done with the result that "A doubt has been created about the fitness of injured Naveedul Hassan to make the statement Exh.14 or to have made the statements before the witnesses mentioned above, about the cause of injuries on his person. In such a situation the benefit of doubt has to go to the accused/appellant". Yet another infirmity pointed out by the learned Judges was that the Police Officer made no effort to procure the presence of a Magistrate though there was no dearth of Magistrates at a place like Karachi. Taking this view of the matter, learned Judges thought it unsafe to rely upon the dying declaration Exh.P/14 for basing conviction on a capital charge. Appeal of the respondent was accordingly accepted, his conviction and sentence set aside and he was acquitted of the charge of murder. Criminal Reference No.3 of 1993 having become infructuous was disposed of accordingly. This was vide judgment dated 1-3-1994 against which leave to appeal is sought in these petitions.
9. We have heard the learned counsel appearing for the parties in these to petitions. It was contended on behalf of petitioners that the learned Judges of the High Court erred in not relying upon the statement of the deceased Exh.P/14 which was rightly treated as dying declaration. It was submitted that it was in evidence that the deceased was in his senses and could talk when his statement was recorded by the police officer and there is nothing on the record to suggest that the deceased was prompted by any outsider when making the statement. It was vehemently contended that the High Court was wrong in presuming that the deceased was not in a fit condition to make the statement. It was pointed out that although Doctor Abdul Basit stated that the victim was brought in the hospital in unconscious condition, he could not say as to whether the victim remained unconscious during the entire period that he remained under the treatment as in door patient in the hospital. Learned counsel argued that it' is a settled principle that the dying declaration is a very strong piece of evidence on which conviction can be based without any corroboration.
10. We have given our anxious consideration to the submissions made by the learned counsel for the petitioner and have perused the relevant material on the record. There can be no cavil with the preposition that the statement of the deceased in the form of an F.I.R. Can be treated as a dying declaration which by itself is good enough for sustaining the conviction on a capital charge.
Question in the instant case, however, is whether the maker of the statement Exh.14 was in a fit condition to make the statement which he is said to have made. It is not denied that the deceased Naveedul Hassan was brought to the hospital in unconscious condition which fact is borne out from the statement of Doctor Abdul Basit. Medical Certificate Exh.44 also shows that 75 % of the body of the injured was brunt and he was in a shock at the the of his examination by Doctor Abdul Majeed. In the supplementary Medico-Legal Report Exh.45, it is stated that the injured "expired at 9- 00 p.m. On 29-2-1984 due to septecemia and Cardio-respiratory failure from 80% burn". In the face of this medical evidence, the learned Judges of the High Court rightly observed that it was the duty of the Police Officer to have obtained a certificate from the Doctor before recording the statement of the injured that he was in a fit condition to give the statement. Such a certificate admittedly was not obtained and no reasonable explanation for this omission was given by the Police Officer. In the circumstances, fitness of the injured to make the statement Exh.14 remained doubtful and the High Court rightly so held. It may also be pointed out in this behalf that even the to attesting witnesses of Exh.14 namely Ghulam Shabbir and Haji Nazar Hussain P.Ws. Did not fully support the prosecution case. Their evidence in fact suffers from glaring contradictions adversely reflecting upon the genuineness/veracity of the dying declaration in question. Learned Judges of the High Court also rightly took note of the Police Officer's failure to procure the presence of the Magistrate at the the of recording the statement of Exh.P/14. For all these reasons, the High Court was right in taking the view that it was not safe to at upon the statement of the deceased Exh.14 for maintaining the conviction of the respondent on the charge of murder. Before concluding, we would like to observe that the statement of Ali Athar P.W.6 indicating that Naveedul Hassan burnt himself with the assistance of Akhtar P.W. With a view to involve the respondent coupled with the evidence of some of the P.Ws. That they found the room of the Wardat locked from inside and it was opened by Akhtar casts doubts on the prosecution story as a whole.
11. In view of the position afore stated, we find no good ground to interfere with the impugned judgment of the High Court. Both the petitions for leave to appeal are accordingly dismissed.