2013 PLP 1879 (MLD)

LAL JAN KHAN KHATTAK, J.- Through this single judgment we intend to decide Criminal Appeal No.160/2011, Murder Reference No.18/2011 and Criminal Revision No.52/2011, as all the three matters are the offshoots of a single judgment.

2. Muhammad Farhan Rahim alias Munna has been convicted and sentenced to death under section 302(b), P.P.C. by the learned Additional Sessions Judge-VI, Dera Ismail Khan vide judgment dated 18-10-2011, for the murder of Assad Abbas.

3. Initially on 9-3-2011, Assad Abbas himself reported the matter of his injuries in the DHQ Hospital, Dera Ismail Khan to ASI Rehmatullah against Muhammad Farhan Rahim alias Munna. This information was written down in Marasila which was later on incorporated in F.I.R. No.121 dated 9-3-2011 of P.S City D.I.Khan under section 324 P.P.C. However, on the death of the injured, the section of law was changed from 324, P.P.C. to 302, P.P.C., on 11-3-2011.

4. Relevant facts of the case are that on 9-3-2011, Assad Abbas reported to A.S.I. Rehmatullah in injured condition, in the emergency room of the hospital that on 9-3-2011, he was sitting in his baithak with 'Munna' when at about 12-00 night, on some matter, they turned acrimonious to each other. On which Munna inflicted repeated dagger blows to him with intention to kill him with which he was injured on various parts of his body.

5. On completion of the investigation, the case was put in Court and the appellant-accused was arraigned on indictment of murder to face the trial. Charge was accordingly framed against him to which he pleaded not guilty and opted to contest the charge so framed against him. Prosecution in support of its case against the accused examined 10 witnesses at all whereafter the learned trial court recorded statement of the accused as envisaged under section 342, Cr.P.C. Neither he examined himself on Oath nor he produced any witness in his defence.

6. The learned trial court after hearing counsel for the parties found the accused guilty of the offence to which he was charged. Consequently he was convicted and sentenced as mentioned in para No.2 of this judgment.

7. Appellant Muhammad Farhan Rahim has challenged his conviction and sentence, the learned Additional Sessions Judge VI, D.I. Khan has sent murder reference to this court while Fazal Abbas, brother of the deceased has preferred criminal revision for awarding compensation to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C. which was not so awarded by the learned trial Court.

8. Learned counsel for the appellant in support of grounds of his appeal argued before us that the learned trial Court has seriously fallen in legal and factual errors by basing conviction on the appellant on the uncorroborated testimony given in the shape of dying declaration allegedly made by the deceased Assad Abbas. He contended that the learned trial court has not taken the pain to apply its mind judiciously in a case where there was no eye-witness account of the occurrence and which entails a capital punishment of death. He argued that case against the appellant is full of major contradictions as all the Prosecution witnesses differ from each other on vital aspects of the case.

9. As against the above, learned counsel for the complainant contended that full credence can be given to the dying declaration of the deceased which is fully supported by the independent eye-witnesses of the occurrence. He contended that the dying declaration gets corroboration from the medical evidence and recoveries of incriminating articles recovered by the investigating officer in shape of dagger, clothes of the deceased and of the accused as well as blood from the place of occurrence. He further argued in support of his criminal revision by contending that compensation to the legal heirs of the deceased be awarded as per section 544-A, Cr.P.C. Learned Deputy Advocate General appearing for the State has followed the arguments of the learned counsel for the complainant.

10. We have heard arguments of the learned counsel for the parties and gone through the record of the case with their valuable assistance.

11. Prosecution case mainly hinges on the report made by the injured-deceased Assad Abbas to A.S.I. Rehmatullah on 9-3-2011 in the emergency room. This report is F.I.R-cum-dying declaration. For advantageous purpose, we reproduce the verbatim copy of the said report in Urdu;

12. In support of the above report, its scribe A.S.I. Rehmatullah appeared as PW-8 in the trial Court and deposed as under; "Stated that on 9-3-2011 deceased complainant narrated the occurrence to me at DHQ Hospital and I incorporated the same in the shape of Murasila Exh.PW8/1. After incorporation of his report same was read over to the injured and thereafter he thumb-impressed the same as token of correctness. After incorporation of report, I prepared injury sheet Exh. PW8/2 and referred him to the medical officer for his examination and treatment. Similarly, I also prepared progress memo/inquest report Exh.PW1/1 (already exhibited).

13. Apart from the marasila and statement of P.W.8, there is no other eye version account of the occurrence as statements of the other Prosecution witnesses are only of peripheral relevance.

14. No doubt, a dying declaration can be admitted in evidence for basing conviction on an accused but equally is dangerous to rely on a dying declaration in the absence of strong corroboration. While assessing the probative value of a dying declaration if the Court comes to a conclusion that the declaration is suffering from infirmities then without corroboration it can not be made the basis of conviction. In cases where there is only dying declaration, Courts are always very loath to go for conviction in absence of any independent corroboration. The superior Courts have from time immemorial emphasized for looking avenues of corroboration of dying declaration.

15. Why so immense emphasis has been given by the superior Courts for getting strongest corroboration of dying declaration because in such like cases the defence is always deprived of its right of cross-examination of the declarant regarding reliability and trustworthiness of his dying declaration.

16. We have perused the report of the deceased made by him in injured condition to A.S.I. Rehmatullah which is Exh.PW8/1 and which has been treated as dying declaration by the learned trial Court in para 20 of its judgment and which has also been reproduced verbatim in para No.11 of this judgment. Our perusal, took us to certain doubts about reliability of the deceased and his worthiness as well as accuracy of his report. First test of his reliability passed on to him is whether he narrated in toto the occurrence to A.S.I. Rehmatullah the way it happened to him or he concealed from him some very material facts forming part of the main occurrence. In order to pass on this test of reliability and removing our doubts, we subjected the report-cum-dying declaration to a very close scrutiny keeping in view the fact that the statement has been made and relied upon by the learned trial court in the absence of accused who had no opportunity of testing the veracity of the statement of the deceased by cross-examination.

17. In his report the injured says that he and the accused were sitting at 12-00 at night time in his 'baithak' when on some matter they turned acrimonious and the Munna attacked him with 'Churri' and caused him repeated stabbed blows on various parts of his body. This statement prima facie is not reliable and appealable to the mind of a prudent man as being friends or otherwise, both were present in the 'baithak' at very odd hours when all of a sudden the scene is changed and a boy of 17/18 years takes a 'Churri' in his hands and thrust it several times into the body of his friend. Yes so could be happened as narrated but not in isolation or all of a sudden. There must be some prelude to it that what were circumstances which led or compelled the accused to resort to this extreme step and wherefrom the 'Charri' came in either the accused took it out from the folder of his shilwar or from somewhere else as commonly in 'baithak Churries' or daggers are not kept unless contrary is proved. There is also no evidence to the effect that what for the appellant was sitting in the baithak at odd hours at least not for any ill-will. These are the lacunas in the case of prosecution, which missing parts, makes the Court to believe that the report-cum-dying declaration is neither reliable nor accurate and particularly in absence of any cross-examination on the declarant it would be highly unsafe to award sentence to the accused-appellant keeping in view the principles of safe administration of justice.

18. Apart from the above infirmities in the dying declaration of the accused which have been pointed out in the preceding para of this judgment, there is another lacuna in the Prosecution case. The deceased was injured at about 12-00 at night time of 9-3-2011 and he died on 11-3-2009. Meaning thereby that he remained hospitalized from 9-3-2009 to 11-3-2009 and during this time there was ample opportunity with the prosecution to record dying declaration of the deceased through a Magistrate which exercise was not done for reasons best known to the Prosecution. This was must for the reliability of the deceased, accuracy to his statement and probative value of his F.I.R.-cum-dying declaration. Had the dying declaration been recorded by Magistrate and countersigned by the doctor, it would then have a strongest corroboration.

19. Now we come to the role of the Fazal Abbas, brother of the deceased who appeared before the learned trial Court as P.W.10. Though this witness is not an eye-witness of the occurrence but he stated that on hearing some noise he went out of his house towards the place of occurrence and saw his brother Assad Abbas in injured condition. According to his Court statement he asked from his brother as to what happened to him who in turn replied that the accused has injured him. There is stark contradiction in the statement of this P.W. and dying declaration as according to the report-cum-dying declaration, the deceased received stab wounds inside his baithak wherefrom blood was recovered, though there is contradiction to this effect also, but P.W.10 says in his cross-examination as under; "My brother was lying in injured condition in a street".

20. The Prosecution has not offered any explanation to reconcile these two important facts which go to the very roots of the case. Lying down the injured in the street while he was attacked in his baithak are two different factors which run opposite to each other which cannot go unnoticed by this Court.

21. Not last but the least, the medical evidence shows that the deceased sustained multiple injuries on various parts of his body. These injuries have been attributed by the deceased to the accused. The accused is a man of 18/19 years while per record the deceased was of 46/47 years. Again it is not believable to a man of prudent mind that one would be inflicting multiple injuries to an other while the victim would be a statue. Being a young man of good health the deceased was supposed to offer any sort of resistance to his opponent who was just of 18/19 years.

22. For all what has been discussed above, we are convinced that the occurrence has not taken place in the manner in which' it has been reported. There are inherent weaknesses in the dying declaration of the deceased which have created dents in the Prosecution case for which it cannot be relied upon. So we hold that the dying declaration is not free from doubts. The same is, therefore, discarded keeping in view the principles laid down for the safe dispensation of justice. In view of the above we accept appeal of the convict Muhammad Farhan Rahim, set aside his conviction and sentence and order that he be released forthwith if not required to be detained in any other case. The murder reference is answered in negative and criminal revision of Fazal Abbas is also dismissed. MWA/244/P Appeal allowed.