' Vide judgment dated 19-8-1996 the learned Additional Sessions Judge, Dera Ghazi Khan, camp at Taunsa Sharif convicted Shah Nawaz alias Shadu appellant for an offence under section 302(b), P.P.C. And sentenced him to imprisonment for life and a fine of Rs,50,000 or in default of payment thereof to suffer R.I. For two years. It was ordered that half of the fine, if recovered, shall be paid to the heirs of Ayyaz deceased. The benefit under section 382-B, Cr.P.C. Was, however, extended to the appellant. The appellant has challenged his conviction and sentence before this Court through the present appeal. It has been pointed out that the appellant had also filed an appeal from the jail (Criminal Appeal No,30/97) in this regard. Both these appeals are being disposed of by this Court through the present consolidated judgment.
2. The necessary facts relevant for the disposal of this appeal are that during the night between 3/4-5-1994 Ayyaz son of Allah Bakhsh was caused an injury on his throat at an open place at a sand dune called "Tibba Danner", Vehoa" Tehsil Taunsa Sharif, District Dera Ghazi Khan. F.I.R. No,46 was lodged in that regard by Nasir Ahmad complainant (P.W.3) at 1-00 a.m. On 5-4-1994 at Police Station Vehoa, District Dera Ghazi Khan for an offence under section 324, P.P.C. During the same night Ayyaz deceased succumbed to his injury and thereafter, section 302, P.P.C. Was added to the F.I.R. The present appellant was arrested by the local police in connection with that F.I.R. On 11-5- 1994 when he was produced before the police by his maternal uncle. After completion of investigation a challan was submitted before the learned trial Court which subsequently framed a charge under section 302, P.P.0 against the appellant to which he pleaded not guilty and claimed a trial.
3. At the trial the prosecution produced as many as 8 witnesses in support of its case against the appellant. Dr. Musa kaleem (P.W. 1) conducted the post-mortem examination on the dead body of Ayyaz deceased. Dr. Muhammad Ehsan (P.W.2) had medically examined the deceased before his death. Naseer Ahmad complainant (P.W.3) stated about the dying declaration allegedly made by the deceased before him as well as about the lodging of the F.I.R. By him. Nazar Muhammad (P.W.4) also stated about the dying declaration having been made by the deceased before the complainant and him. Ghulam Akbar, constable (P.W.5) deposed about the recovery of a knife (P.6) from the appellant during the investigation of this case. Ijaz Ahmad Head Constable (P.W.6) stated about taking of the parcels containing bloodstained earth to the office of the Chemical Examiner. Haq Nawaz Patwari appeared as P.W.7 and stated about preparation of a formal site- plan of the place of occurrence by him at the pointing out of the police. Malik Ijaz Ahmad, Inspector (P.W.8) deposed about various steps taken by him during the investigation of this case.
4. In his statement recoptled under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and maintained that he had been falsely implicated in this case due to suspicion. He, however, did not make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in his defence. As mentioned above, the learned trial Court. At the end of the trial, convicted and sentenced the appellant as noticed in the earlier part of this judgment. Hence, the present appeals before this Court.
5. It has been argued by the learned counsel for the appellant that it was admittedly an un witnessed occurrence and, therefore, no ocular account of the incident is available on the record so as to implicate the appellant. He has also maintained that the prosecution has completely failed to allege any motive against the appellant for commission of the offence in question. He has gone on to argue that the alleged recovery of a blood-stained knife from the possession of the appellant during the investigation of this case is legally inconsequential as the said' knife was never proved to be stained with human blood. The learned counsel has based this argument on the fact that no report of the Serologist is available on the 'record of this case. The learned counsel for the appellant has further contended that the medical evidence, by its very nature, cannot identify or directly connect an accused person with an offence allegedly committed by him.
According to him the medical evidence, even otherwise', does not provide any corroboration as the same is accepted only as a supporting evidence. According to the learned counsel any supporting evidence pales into significance if there is nothing available to be supported by it. The learned counsel for the appellant has seriously challenged the admissibility, reliability as well as relevance ' of the so called dying declaration relied upon heavily by the prosecution in this case. He has lastly argued that it is a case of no evidence against the appellant and the conviction of the appellant is not sustainable. As against that, the learned counsel for the State has argued that the dying declaration in this case had been amply proved through witnesses who had no motive or against the appellant so as to implicate him falsely in this case. He has, thus, canvassed for dismissal of this appeal and sustaining of the conviction as well as the sentence of the appellant.
6. After hearing the learned counsel for the parties and going through the record of this case with their assistance, I have no hesitation in concluding that this appeal must succeed. Admittedly, nobody had witnessed the occurrence in question so as to positively or directly incriminate the appellant for perpetrating the same. It is again not disputed that the appellant had no motive whatsoever to commit the offence in question. The prosecution has failed even to allege any background of or bitterness between the parties so as to propel the appellant into aggression against the deceased. The alleged recovery of a blood-stained knife from the possession of the appellant during the investigation of this case in surely legally inconsequential as the said knife was never proved to be stained with human blood. The knife in question is an ordinary knife which is ordinarily available in the houses in rural areas. The learned counsel for the appellant is quite justified in saying that the medical evidence in this case could not provide an support in this case because there was nothing much with the prosecution to be supported.
7. This brings me to the only piece of evidence worth any consideration in this case i,e, the alleged dying declaration made by the appellant before Nasir Ahmad complainant (P.W.3). Nazar Muhammad (P.W.4) and Malik Ijaz Ahmad, Inspector (P.W.8). After a careful scrutiny of the evidence available on the record the said dying declaration is found to be totally insufficient to incriminate the appellant in this case for various reasons. First of all it has been noticed that the dying declaration allegedly made by the deceased was "Shada" and "Dada". No proof had been brought on the record by the prosecution that the appellant was ever known as either Shada or Dada. The. Investigating Officer (P.W.8) had stated that the nick-name of the appellant. As Shada was told to him by P.W. 4 whereas the said P.W.4 had categorically maintained that he did not know the appellant previously at all. Thus, any question of knowing his name or even his nick-name could not arise.
8. The alleged dying declaration relied upon heavily by the prosecution against the appellant does not even qualify to be called res gestate inasmuch as the declaration made by the deceased was neither contemporaneous nor the same unmistakably pointed towards the guilt of the appellant. It had come on the record that after receipt of the injury on his throat the deceased had travelled for 232 Karams the darkness of the night before uttering the stated words. Even the words uttered by him do not unmistakably point towards the appellant, as observed above.
9. Another serious blow to the said dying declaration was handed down by Dr. Muhammad Ehsan (P.W.2) when he unmincingly stated that the deceased could not speak in the condition that he was in. The dimension of the wound received by the deceased and also the fact that all the relevant parts of the throat had been cut were sufficient to infer that the doctor (P.W.2) was not wrong in stating that the deceased was in no condition to speak or utter coherent words. Such a categorical statement coming from a witness produced by the prosecution itself seriously damages the worth of the alleged dying declaration.
10. It may not be out of place to mention here that there are serious contradictions to he found in the statements made by P.W.3. P.W.4 and P.W.8 in respect of the stated dying declaration. The said witnesses have not only made contradictory statements in that regard but some of them have made significant and material improvements in their statements made before the police regarding which they were confronted with their earlier statements.
11. Apart from all the above mentioned considerations, it is important to notice that the necessary formalities regarding recording of a dying declaration were not complied with by Malik Ijaz Ahmad, Inspector (P.W.8). The alleged dying declaration was not even reduced into writing nor any other effort was made to perserve the said declaration in a written form. In such a situation this Court would be extremely reluctant to rely exclusively upon such a dying declaration, for recording a conviction on a capital charge.
12. For what has been observed above a conclusion is inescapable that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. This appeal is, therefore, accepted and the appellant is hereby acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case.
13. This also disposes of Criminal Appeal No,30 of 1997. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.