' JAVED IQBAL, J.---This appeal by leave of the Court is directed against judgment dated 7-12-1992 passed by learned Division Bench of Peshawar High Court, Peshawar, whereby the appeal filed by the convict/respondent has been accepted by setting aside the judgment dated 30-6-1991 passed by learned Additional Sessions Judge, Nowshera, who after having found the convict/respondent guilty convicted under section 302, P.P.C. And awarded death sentence with fine of Rs,20,000 or in default whereof to undergo R.I. For three years. The fine in case of realisation was to be paid to the legal heirs of the deceased. Being aggrieved an appeal was preferred by the convict/respondent which has been accepted vide impugned judgment now assailed by means of this appeal.
2. Briefly stated the facts of the case as enumerated in the impugned judgment are to the effect that "while in injured condition, the deceased had made dying declaration charging the accused for his injuries by firing at him". The report was allegedly recorded by A.S.I. Saida Mir Khan (P.W.7) in form of 'Murasila' (Exh.P.A./1) at 8.00 a.m. On 7-9-1988 in the Hospital. The report is in vernacular and its English translation is as under:-- ' "I am running a shop for selling ice, in the Muslim Bazar. At the time of occurrence, I was present in my shop, meanwhile, Qadeem son of Shamroz resident of Mohallah Zaman Khel, came armed with 'Topak' and fired at me with intention to kill me. With fire, I was injured below the navel. After the occurrence, the accused decamped. Farmanullah and Muhammad Nabi were present on the spot, who witnessed the occurrence is that some while before the occurrence there was altercation between my cousin Jamil and the accused."
' The A.S.I. Thereafter sent the 'Murasila' to the Police Station for registration of the case, where Mir Asghar Khan A.S.I. Registered the F.I.R. (Exh.P.A.) against the accused. P.W. Said Amir Khan A.S.I.
Thereafter prepared the injury sheet of the complainant (Exh.P.A./2) and referred the patient to Dr. Sabz Ali (P.W.4) for treatment". By whom he was referred to L.R.H., Peshawar but he breathed his.
Last on the way After. Completion of investigation the convict/respondent was sent up for trial and on conclusion whereof: he was convicted and sentenced as per details mentioned herein above vide; judgment dated 30-11-1991. Feeling aggrieved an appeal was preferred which been accepted by the learned High Court vide impugned judgment and he was acquitted of the charge.
3. It is mainly contended by Mr. Saeed Baig, learned Advocate Supreme Court on behalf of appellant that the judgment of the learned High Court is against law, facts and evidence on the record which has not been appreciated in its true perspective and it is a case of misreading and non-reading of evidence which resulted in serious miscarriage of justice. It is next contended that the dying declaration of the deceased has been discarded on flimsy grounds by taking into consideration the facts extraneous to the record which was supported by eye account and medical evidence. It is next contended that there was no enmity or between the parties and hence the question of false implication does not arise. It is argued that motive for the offence has been proved. It is urged with vehemence that the learned High Court has completely ignored the pronouncements of this Court regarding the administration of criminal justice and thus, acted without jurisdiction which caused serious prejudice.
4. Sardar M. Ishaque, learned Advocate Supreme Court appeared on behalf of convict/respondent and vehemently controverted the view point as canvassed by Mr. Saeed Baig, learned Advocate Supreme Court on behalf of appellant by arguing that no dying declaration whatsoever was made by the deceased and the same has rightly been rejected by the learned High Court as it was not signed by the medical officer who was present and moreso the time of occurrence which is 7.30 p.m., recording of dying declaration, preparation of injury sheet and other formalities were not possible within short a span of time i.e, in one hour. The dying declaration has been attacked from other angle that in view of the critical condition of the deceased it was not possible for him to get the dying declaration recorded as he was immediately shifted to operation theatre for surgical treatment. It is next contended with vehemence that eye account furnished by Farmanullah (P.W.5) and Muhammad Nabi (P.W.6) being vague, sketchy and contradictory has rightly been brushed aside by the learned High Court as on the basis whereof no capital punishment could have been awarded. It is also mentioned that the impugned judgment is based on an in depth scrutiny of evidence and being unexceptional hardly calls for any interference.
5. Mr. Rashidul Haq Qazi, learned Additional Advocate-General, N.-W.F.P., appeared for State and supported the appeal by contending that prosecution has established its case on the basis of worthy of credence evidence and the judgment of the trial Court has been reversed without any lawful justification. In order to substantiate his view point he mentioned about the dying declaration, eye account furnished by Farmanullah (P.W.5) and Muhammad Nabi (P.W.6) duly supported by medical evidence. It is also contended that the factual and legal aspects of the controversy have not been appreciated properly by the learned High Court and the judgment of trial Court has been set aside without any sound reasoning.
6. We have carefully examined the respective contentions as agitated on behalf of the parties. The entire evidence has been thrashed out with the eminent assistance of the learned counsel. The judgment of the learned trial Court dated 30-6-1991 and impugned judgment have been perused thoroughly. It mainly prevailed upon the learned High Court that since the prosecution case is bristling with serious contradictions and discrepancies in material particulars, therefore, the conviction awarded to the accused by the learned trial Judge cannot be sustained and is liable to be set aside. The learned High Court has also disbelieved the dying declaration and discarded the eye account furnished by Farmanullah (P.W.5) and Muhammad Nabi (P.W.6). A careful scrutiny of the impugned judgment would reveal that various factors which led the High Court in setting aside the judgment of learned trial Court are based on conjectural.Presumptions. The statement of Saida Mir Khan, A.S.I. Police (P.W.7) has been discarded without assigning any convincing reasons. There is absolutely no evidence to show that injured was attended at once by the doctors when he was brought to hospital. The statement of Dr. Subz Ali Khan (P.W.4) by whom Jamshid (deceased) was examined has mentioned in a categoric manner that "later on before my examination, an A.S.I.
Came to the hospital and also examined Jamshid and submitted an application to me for my opinion". There is nothing on record to show that the injured was examined immediately by the said medical officer and Saida Mir Khan, A.S.I. (P.W.7) had no occasion or opportunity to examine the injured and get his statement recorded which subsequently was incorporated in F.I.R. And treated as dying declaration by the learned trial Court. The second reason which prevailed upon the High Court for discarding the dying declaration is that no certificate from the doctor was obtained by Saida Mir Khan (P.W.7) which in our considered opinion is not a valid reason for discarding or disbelieving the dying declaration as there is no mandatory legal requirement that prior to recording such statement a certificate must be obtained from the doctor. Each case has to be examined in view of its own peculiar circumstances and no hard and fast rules can be framed. The relevant provisions of law as contained in Article 46 of the Qanun-e-Shahadat, 1984, which runs as follows were examined in depth by one of us (Mr. Justice Javed lqbal) in case Kashif-ur-Rehman v.
State 1996 PCr.LJ 1689 with the following observations:-- "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 proceeding in which the cause of his death comes into question".
7. A bare perusal of the said Article would indicate that there is no ambiguity in it and it is a combination of the following ingredients and the language as employed does not permit to add, delete or insert anything new:--
(a) It relates to the cause of death.
(b) It includes the circumstances which resulted into death.
(c) It is relevant when the cause of declarant's death comes into question whatever may be the nature of proceedings irrespective of the fact whether such statement was made under the expectation of death or otherwise?
The abovementioned ingredients were discussed by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned hereinbelow:--
(i) There is no specified forum before whom such declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be examined.
(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law but requirement of prudence.
(viii) Such declaration when proved by cogent evidence can be made a base for conviction.
8. Believing or disbelieving a witness is a question of 'merely ordinary human judgment.' Aids to formation of such judgment are not available in the case of a dying declaration. To accept such statement without considering 'surrounding circumstances' is 'totally inconsistent with safe dispensation of justice.' Accepting such statements on considerations of opinion expressed in precedent cases regarding similar declaration, accompanied by words indicating reliance on 'some principle of law' held to be 'no less dangerous'; 'careful scrutiny, applied to all physical circumstances' appearing from evidence, only way of arriving at conclusion that the statement is 'worth of belief'. Abdul Razik v. The State PLD 1965 SC 151."
9. The dying declaration got recorded by Saida Mir Khan, A.S.I. (P.W.7) has been examined in the light of the criterion as mentioned herein above and we are of the opinion that it has been proved beyond shadow of doubt and being a substantive piece of evidence it could have been relied upon. It is an admitted feature of the case that the incident occurred in a broad daylight and only one accused was nominated by assigning specific rule leaving no question of mistaken identity.
We don't find any lawful justification whatsoever to disbelieve Saida Mir Khan, A.S.I. (P.W.7) who has no enmity or against convict/respondent. It may not be out of place to mention here that once the dying declaration is believed there is no legal requirement that it must be supported by independent corroboration specifically in cases where there is no allegation of the substitution of real culprit with that of accused. In this regard we are fortified by the dictum laid down in Niamat Ali v. The State 1981 SCMR 61. A careful analysis of the dying declaration would reveal that the fateful incident has been narrated in a simple and straightforward manner by the injured who was not sure at the moment when it was being recorded that he would remain alive and more so, it finds full corroboration from medical evidence, surrounding circumstances and confidence inspiring eye account furnished by Farmanullah (P.W.5) and Muhammad Nabi (P.W.6). As mentioned hereinabove no corroboration is required and as a matter of caution the eye account, motive and medical evidence are sufficient to lend corroboration to the dying declaration. In this regard reference can be made to Hazara v. The State 1976 PCr.LJ 106. It is well-entrenched legal position that "sanctity is attached to dying declaration by the statute and it is to be respected unless clear circumstances are brought out showing it not to be reliable. There is no absolute rule that dying declaration cannot be made sole basis of conviction unless corroborated." Zarif v. The State PLD 1977 SC 612. As mentioned hereinabove sufficient corroborative material is available to support the dying declaration which was made by the deceased and. Who also affixed his thumb-impression on, the same. It may not be out of place to mention here that a dying declaration Made soon after the incident or at a time When the deceased expected death or at a time by which the deceased could 'not have consulted others or received hints from others will, ordinarily; be deserving of great weight. Similarly, if the contents of the, dying declaration indicate that what is alleged there is probably true, that no apparent; attempt has been made to exaggerate the incident or to rope in false persons, it will ordinarily be considered to be a dying declaration worth reliance". Asiq v. The State 1970 PCr.LJ 373. There is absolutely nothing 'on record to infer that the dying declaration is a result of consultation or tutoring. The injured has nominated the only person regarding whom he was sure that firing was made by him. The importance, the evidentiary value and implication of dying declaration was discussed by this Court and relevant portion whereof is reproduced hereinbelow for ready reference:-- ' "Expressions like 'weaker type of evidence', as employed in some of the precedent cases to describe the evidentiary value of the dying declaration are likely to produce a misleading impression as to the quality of such evidence and the reliance which may be placed upon it in the particular circumstances of each case. It has to be remembered that the Legislature has advisedly, as a matter of sheer necessity, incorporated in section 32 an exception to the general rule that hearsay is no evidence. In the very nature of things the sanctity of oath and the test of cross- examination are not available to ascertain the veracity of a dying statement, but the nature of the statement itself and the circumstances under which it is made make probable the truth of the statement and thus, take the place of oath and cross-examination. On first principles, the sanctity attached to such statements by the statute should be respected unless there are clear circumstances brought out in the evidence to show that a dying declaration is not reliable for any reason.
' It cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine. In order to test the reliability of a dying declaration, the Court has to keep in view the various circumstances like the opportunity of the dying man for observation and whether the capacity of the deceased to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; whether the statement had been consistent throughout if he had made several dying declarations; and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. It also goes without saying that the exact contents of the dying statement should be proved by reliable evidence, and for this reason a dying statement recorded by a competent Magistrate in the proper manner in the words of the maker of the declaration would obviously carry greater weight than an oral statement which may suffer from all the infirmities of human memory and human character. If the Court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants, there is no need for further corroboration. But if it appears to be unreliable by itself, or suffers from some infirmity, then it cannot form the basis of a conviction without corroboration." PLD 1977 SC 612, Chanderasekar v. The King 1937 AC 220; re: Guruswamt v. Tevar AIR 1940 Mad. 196, Khushai Rao v. The State of Bombay AIR 1958 SC 22; Taj Muhammad v. The State PLD 1960 Lah. 723; Muhammad Khan v. The State PLD 1961 Lah. 939; Abdul Raziq v. The State PLD 1964 Pesh. 67; Tawaib Khan v. The State PLD 1970 SC 13; Ekabbar Ali v. The State 1971 PCr.LJ 275 ref."
(Kashif-ur-Rehman v. The State 1996 PCr.LJ 1689).
10. In the light of what has been discussed herein above we are fully satisfied that dying declaration has been made by deceased Jamshid voluntarily without any probability of promptitude as to the cause of his death and the same has been reduced in black and white by Saida Mir Khan (P.W.7) who is Assistant Sub-Inspector of Police having no enmity or friendship with any of the parties and thus, we find no reason to discard the dying declaration as made by Jamshid (deceased) duly supported by corroboratory material as discussed herein above. We are conscious of the fact that Saida Mir Khan (P.W.7) is Assistant Sub-Inspector of Police whose testimony cannot be disbelieved merely for the reason that it was given by a police official. In this regard we are fortified by the dictum laid down in Abdul Hameed v. The State 1986 SCMR 11; Malik Aman v. The State 1986 SCMR 17 and Muhammad Shah v. The State PLD 1984 SC 278.
11. It has also been observed that undue importance has been attached to the time factor by the learned High Court while deciding the murder case. In this regard much significance has been attached with the statement of Dr. Muhammad Afzal Khan (P.W.2) by ignoring the fact that while answering one of the questions during cross-examination it was made abundant clear that time was not given with exactitude but probable timings were mentioned and in his own words, "probable time between injury and death 3/4 to 1 hour and time between death and post-mortem 9/10 hours". A careful scrutiny of the entire record would reveal that the entire formalities could have been completed by Saida Mir Khan (P.W.7) within a period of an hour and if it is considered that the incident had occurred at 6.30 p.m. As deposed by the eyewitnesses then the statement of Saida Mir Khan (P.W.7) could not have been discarded. We have observed a minor contradiction regarding the time of occurrence between the statements of Farmanullah (P.W.5) according to whom the incident occurred at about 6.30 p.m. While Muhammad Nabi (P.W.6) has mentioned that incident happened at 6.45 p.m. It must, however, be kept in view that the above named witnesses have mentioned a probable time of the occurrence and both of them had used the word "about" while stating the time of occurrence which is indicative of the fact that exact and correct time was never mentioned by them. How an illiterate and lay man can be expected to mention the time with exactitude that, too, in the state of turmoil, panic and pandemonium. The minor contradictions as pointed out hereinabove regarding the time of occurrence between the statement of Farmanullah (P.W.5) and Muhammad Nabi (P.W.6) by no stretch of imagination can be termed as a major contradiction but it is a minor contradiction which has not affected, in any way, the credibility of eye-witnesses. "Disagreement on minute details by the witnesses, held, they are more credible than if they did so agree". Josiah Patrik Wise v. Kishen Koomar Bous (PC) 1987 4 MIA 201. It is otherwise well-established by now that "minor discrepancies in the depositions of prosecution witnesses given no good ground for disbelieving independent and disinterested witnesses." Allah Bakhsh v. Ahmed Din 1971 SCMR 462. The observations of the learned High Court that Dr. Subz Ali Khan (P.W.4) has belied the version of Saida Mir Khan, A.S.I. (P.W.7) is a result of misreading and non-reading of evidence as there is nothing on record to show that Dr. Subz Ali Khan (P.W.4) was available at the time when injured was brought to hospital. As mentioned hereinabove Dr. Subz Ali Khan (P.W.4) has admitted that "an A.S.I. Came to the hospital and also examined Jamshid" which itself is enough to negate the view point of learned High Court having no nexus with record. It has also been observed that Dr. Subz Ali Khan (P.W.4) has not mentioned anywhere that the condition of injured was critical as wrongly observed by the High Court but on the contrary he opined that "the patient was in a shock state but conscious, responding to vocal command" meaning thereby that at the time when deceased was brought to hospital he was conscious, responsive and having full command over his voice and thus, was in a position to get his statement recorded. The eye account furnished by Farmanullah (P.W.5) and Muhammad Nabi (P.W.6) finds full corroboration from the medical evidence as discussed hereinabove as both of them have stated in a categoric manner that after receiving the bullet injury Jamshid remained alive for sometime. We have also gone through the statements of Farmanullah (P.W.5) and Muhammad Nabi (P.W.6) by whom a specific role of firing has been assigned to the convict/respondent and the details of episode were furnished in a simple and straightforward manner which unfortunately could not be considered in its true perspective by the learned High Court. One of the reason for disbelieving their statements appears to be that they have not stated that deceased was first taken in injured condition to Civil Hospital, Nowshera, and thereafter he was referred to L.R.H., and on the way he succumbed to the injuries. Farmanullah (P. W.5) has deposed in an unambiguous manner that "police came to the hospital where he recorded tile statement of Jamshid then in injured condition, on the basis of which he drafted the Murasila, then Jamshid was referred to Peshawar for specialize treatment but on his way to the hospital to Peshawar he succumbed to the injuries near Pirpai. We brought him from there to the hospital at Nowshera". The above stated version hardly needs any interpretation, as it is free from any confusion or doubt. It has been mentioned in a categoric manner that at first instance the injured was taken to hospital where his statement was got recorded and subsequently he was referred to Peshawar for specialise treatment but he succumbed to the, injuries on his way. The name of. L.R.H. Peshawar, has not been mentioned which hardly makes any diference and in no way affect the salient features of the case. We have not persuaded to agree with Sardar M. Ishaque, learned Advocate Supreme Court that on the basis of inter se relationship the statements of Farmanullah (P.W.5) and Muhammad Nabi (P.W.6) should have been discarded as they were related to deceased for the simple reason that it is intrinsic value of the evidence which is required to be considered and not the enmity or relationship. It is well-established by now that 'mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground.
An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused." Muhammad Amin v. The State 2000 SCMR 1784; Iqbal alias Bhala v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274. It may not be out of place to mention here that "the mere disinterestedness of a witness does not prove that he has come forward with a true statement. The statement itself has to be scrutinised thoroughly and it has to be seen as to whether in the circumstances of the cases the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible, then it would lead to very dangerous consequences." Muhammad Rafique v. The State 1977 SCMR 457.
12. A careful analysis of the statements of Farmanullah (P.W.5) and Muhammad Nabi (P.W.6) is indicative of the fact that there are certain variations but on the basis whereof their statements cannot be brushed aside altogether. This Court in the case of Roshan v. The State PLD 1977 SC 557 while, taking note of the fact that variation in the evidence of witness may occur due to various reasons which may be natural or artificial observed as follows:-- ' "As to the contradictions in the statements of the eye-witnesses on which the defence has placed so much reliance, I may point out that some counsel devote all their energies to create such contradictions and to this end lengthy cross-examination is conducted for hours and days which is intended to confuse, even an intelligent person, and is not calculated to elicit any useful information. This exercise is undertaken because Courts give undue importance to contradictions found in the statements of the prosecution witnesses. To my mind, the primary consideration in appraising the evidence given by a witness is to determine, firstly, why has he offered to testify?
Has he seen the occurrence? If so, has the witness a motive to implicate a person who was not among the culprits or to exaggerate the part played by any of them? If a witness satisfies these two tests, then the Court should watch the general demeanour of the witness in order to judge the quality of his perception and his faculty to recall the past incidents. A witness may make contradictory statements on some of the details of the incident in respect of which he is deposing in Court. The variation may be due to mere lapse of memory or the confusion caused in his mind by a relentless cross-examination.It is not uncommon that the cross-examiner puts words in the mouth of witnesses and the presiding officer is not vigilant enough to check it. It is also common experience that, without any particular intent, even educated people exaggerate when describing an event. Some witnesses may be prone to it more than others. Mere contradictions, therefore, do not lead to the result that whatever the witness has said on the salient features of the case and which conforms to the other evidence on the record, is to be thrown overboard". (Emphasis supplied).
13. In the light of the above reproduced verdict it becomes clear that each and every variation in the evidence does not effect or impair the intrinsic value of the evidence and all those variations which don't have any substantial bearing on the salient features of prosecution case can be ignored safely as it could not affect the credibility of the witnesses. In this regard we are also fortified by the dictum laid down in Mushtaq alias Shaman v. The State PLD 1995 SC 46.
14. It is also argued by Sardar M. Ishaq, learned Advocate Supreme Court on behalf of convict/respondent that the conduct of Farmanullah (P.W.5) and Muhammad Nabi (P.W.6) was not natural as one of them should have gone immediately for lodging F.I.R. But on the contrary both of them accompanied the injured to hospital for the reason that in a purterbed situation of mind due to fear, panic and anxiety no human being should be expected to act in a calculated and sequence wise manner and thus the said contention seems fallacious which hardly deserves any consideration.
15. In the light of foregoing discussion we are of the view that prosecution has established the guilt beyond shadow of doubt and judgment given by the learned trial Court is well reasoned which ought not to have been interfered by the learned High Court as no lawful justification is available for it in view of the overwhelming incriminating evidence furnished by the prosecution to substantiate the accusation. We are, therefore, inclined to accept this appeal and accordingly the impugned judgment is set aside and judgment dated 30-6-1991 passed by learned Additional Sessions Judge, Nowshera; whereby death sentence was awarded is restored. The convict/respondent should be taken into custody so that the judgment passed by the trial Court could be implemented.