' TARIQ PARVEZ KHAN, J.--- Mumtaz Khan, I.H.C. (P.W.7) on receipt of information that an injured has been brought to Civil Hospital, Lakki rushed to the Emergency Ward and has recorded the report of Abdul Waheed Khan alias Toti Khan at 10-55 a.m. On 15-7-1997. It was reported to him by injured Abdul Waheed that at 10-15 a.m. The same morning he was fired at by Muhammad Ali and Jaisra (Javed) and by two unknown assailants. No motive was assigned in the F.I.R.
' Because of the death of Abdul Waheed on 10-7-1997, his report regarding occurrence has become a dying declaration..
' Abdul Jaleel (P. W.11), a brother of the deceased then injured claims himself to be an eye-witness and he disclosed the names of two unknown accused as Rafiullah and Naqeebullah.
2. The four accused named above were arrayed by the police but challan was only sent against three of them, as Naqeebullah was and is an absconder.
3. During the investigation, police arrested the present appellant, namely, Javed alias Jaisra on 15- 8-1997. Muhammad Ali was arrested on 19-8-1997 and Rafiullah on 22-10-1997. They have made judicial confession recorded on 18-8-1997, 23-7-1997 and 31-10-1997 respectively..
' The learned trial Court after the conclusion of the trial has extended the benefit of doubt to Muhammad Ali and Rafiullah, but found the appellant Javed alias Jaisra guilty of the offence and has convicted him to imprisonment for life under section 302, P.P.C. With a fine of Rs,15,000 payable as compensation to the legal heirs of the deceased.
' Learned trial Judge while convicting the accused-appellant has relied on his confessional statement recorded by P. W.10, Safeer Qaiser Malik, which statement was exhibited as P.W.10/1.
However, the confessions of two acquitted accused being exculpatory in nature, they were acquitted. Learned trial Judge has disbelieved the dying declaration on two grounds, firstly that it was recorded not in accordance with Police Rules, and secondly that deceased has not died immediately after the receipt of injuries and he has died on 4th day of occurrence.
4. We have heard learned arguments of the counsel for the parties and have perused the record.
5. The contention of the appellant is that dying declaration has been disbelieved in respect of participation of Muhammad Ali, acquitted accused, whose confession has also been discarded, therefore, applying the principle of consistency, the appellant cannot be convicted until there was some independent strong corroboration regarding his guilt. It is also submitted that dying declaration has been rightly excluded by the trial Court, as it was not recorded in line with as required under the Police Rules, i,e, in the first instance, it should have been recorded by a Magistrate, or by a doctor or by some gazetted Police Officer, and if none was available, than at least two unconcerned independent witnesses should have attested the dying declaration. It is argued that where death is not imminent no sanctity which is generally attached to the declaration is available and the plea that truth sits on the lips of a dying man would not be applicable in the instant case.
6. It is also argued that the dying declaration is not in consonance with the other prosecution evidence, as Abdul Jaleel P.W. Though brother of the Jeceased was not named as an eye-witness and that according to the dying declaration, the occurrence took place on a thoroughfare, whereas according to the confessions, occurrence has taken place elsewhere and in a different manner. Contention is raised that the deceased was a man of bad morals and he cannot be expected to speak the truth. Lastly, it is argued that there was enmity, between the father of Javed appellant and Rafiullali the acquitted accused, their joining hands together would, therefore, be unnatural.
7. The complainant and the State side, however, argued that Abdul Waheed, then injured, has made a prompt report. He was in his full senses and there is no element of tutoring nor there is any question of false charge, as there is no enmity between the accused and the declarant. It is argued that not only Mumtaz Khan (P.W.7) but Haneef Shah F.C. (P.W.6) has also confirmed the fact that deceased while injured has made the statement who was fully conscious.
8. Whether in the circumstances of the case and the grounds taken by the trial Court excluding dying declaration is maintainable or not, our reply is in negative. The recording of dying declaration is not required to be in a particular form. It can be recorded in any manner by any person and it can be even oral. The procedure as prescribed under the Police Rules Nos.25 and 21 of 1934 is not mandatory and it is directory. It is required to be generally followed by the police, it is not mandate of law but requirement of prudence. The rules (ibid) does not make the dying declaration inadmissible if not followed. The substantive law is Article 46 of Qanun-e-Shahadat Order, 1984 which makes a statement made by a person regarding cause of his death or circumstances relating to cause of his death as relevant and admissible.
' The fact that deceased remained alive for four days and that only an immediate apprehension of death would make the statement of an injured as a dying declaration is not the rule of law. What is required under the law is that any statement made by a person regarding circumstances which led to his death would be a dying declaration. It is not necessary that it should be recorded when there is imminent danger of death, nor it is necessary that a man otherwise capable of false statement would at once become a saint and would speak nothing but truth.
9. The evidentiary value of a dying declaration is to be determined on the basis of facts of each case and relevant considerations would be that:--
(a) Whether the deceased then injured was capable of making a statement?
(b) That he did make a statement whether recorded by someone or made orally?
(c) Whether what is stated by him is corroborated by independent evidence which would only be required when there is some taint of either tutoring or prompting, or there is some background of hostilities between the declarant and the person charge?
(d) The dying statement is straightforward and rings true which can be inferred keeping in view the motive, the circumstantial evidence like recoveries and the medical evidence etc.
10. If the above tests are qualified and where a dying declaration appears to be free from taints and is promptly recorded by a person who has no ulterior motive and where in a dying declaration, two accused are charged by names and those who could not be named were not so named and where deceased then injured survived for sufficient time, this by itself would be a sufficient proof of the truthfulness and straight forward redness of the dying declaration. We, therefore, hold that the learned lower Court was not right in law to hold the dying declaration inadmissible.
11. It is worthy to notice that the acquittal of Muhammad Ali and Raifullah was challenged by State through Advocate-General, N.-W.F.P. By filing an Appeal against their acquittal bearing No, 6 of 2000 which was dismissed in limine by a Division Bench of this Court on 30-3-2000' and it is argued that the judgment of the trial Court has attained finality regarding inadmissibility of the dying declaration, therefore, it should not be reopened.
' We are equally told by the complainant's side that judgment of this Court referred to above stands assailed through a petition for leave to appeal which is pending before the august Supreme Court of Pakistan. .
' Be that as it may, we have gone through the order of this Court, dated 30-3-2000 and the Honourable Division Bench of this Court has not at all made any comments regarding dying declaration and they have just reproduced in one paragraph the finding of the trial Court on dying declaration, but on different grounds this Court and while seized of appeal against acquittal has dismissed the State appeal in limine, therefore, there is no force that we while hearing this case in appeal cannot set at naught the finding of the trial Judge regarding dying declaration.
12. The dying declaration is promptly made with no animus between the maker and the accused.
Appellant is named as one of the culprits with role of firing. There were found three fire-arm wounds with two graze wounds on the person of the deceased. There is no suggestion that deceased while making the dying declaration was tutored or prompted and it is the statement of Hanif Shah (P.W.6) as well as Mumtaz Khan (P.W.7) coupled with the statement of doctor Samiullah Khan (P.W.13) that the deceased when received in the hospital was injured and was in full senses and could talk.
' If the condition of the deceased was such as described above, we do not find' any weakness in the dying declaration as far as its truthfulness is concerned. It is straight narration of facts and because of absence of enmity, it can be acted upon even without corroboration.
13. The dying declaration finds further support from the fact that six empties of kalashnikov were recovered from the venue of the crime beside blood-stained earth and a bullet mark was also found on the spot. Thus, the spot also stands confirmed as was given in the dying declaration.
14. Coming to the confession of Javed, the appellant, he was arrested on 15-8-1997 and on 18-8- 1997 he volunteered to make a confession which was recorded by Safeer Qaiser Malik (P.W.10). We have thoroughly gone through the confession and through the statement of Judicial Magistrate recording it.
' The fact that none of events as given in the dying declaration and as given by Javed appellant in confession are in consonance would not reflect adversely on the dying declaration. The dying declaration is the immediate version of the occurrence, while confession of accused gave the story on 18-8-1997, i,e, more than one month after the occurrence. He could have twisted the facts by long deliberation for a month and even otherwise a dying man would not know as what be the statement of an accused charged by him after a month of his death.
Javed appellant in his confession has admitted for having fired at the deceased though under somewhat different circumstances and in somewhat different manner, but the factum of firing has been admitted in his confession recorded by Judicial Magistrate and the statement of such Judicial Magistrate qua voluntariness of the confession has not been shakened. Therefore, the confession of Javed would be a circumstance adding to the corroboration of the dying declaration.
15. The statement of Abdul Jalil, brother of the deceased, has been taken out of consideration by the trial Court and we will agree with him because for safe administration of criminal justice when his name was given by the appellant in his report, it is safe to keep his statement out of consideration.
16. The joining hands of Javed appellant with Rafiullah because there is some enmity between their fathers is not proved though alleged by Rafiullah in his 342, Cr.P.C. Statement, but Rafiullah himself stand acquitted, therefore, such aspect of the case should not have any bearing on the case of the prosecution.
As a corollary to what is discussed above, we find no merit in this appeal which is hereby rejected.