2006 PLP 1628 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Hameed Gul, complainant of F.I.R. No.871 dated 25-12-1999 of Police Station Hangu, seeks leave to appeal against the judgment, dated 21-5-2004 of a learned Division Bench of Peshawar High Court whereby Tahir and Muhammad Ayaz, respondents were acquitted of charges under sections 302/324, P.P.C.

2. The prosecution version according to the complainant/brother of the deceased namely Hameed Gul son of Niaz Bahadur is that on 25-12-1999 at 7-30 p.m., his brother Man Asghar has taken his vehicle from house and left for village Wrasta. The complainant was present in his house, when he received information that his brother Man Asghar was murdered by someone and his dead body was lying in a ditch known as Razghai. He rushed thereto. On reaching there he found his brother lying murdered while Khair Muhammad who had been injured was removed to Civil Hospital Hangu. He further stated that he has no enmity with anyone. He added that he was enquiring and after satisfaction will charge the culprits. He, however, charged none in the F.I.R. The prosecution case mainly depends upon the dying declaration of Khair Muhammad who, then injured, subsequently died. The complainant himself is not a witness to the occurrence. Attributed to Khair Muhammad P.W. are two dying declarations Exh.P.A./2 and Exh.P.A./3. Taking Exh.P.A./2, first, one can notice that it is undated.

3. It bears an endorsement of doctor (P.W.10) but in cross-examination, he (P.W.10) categorically stated that it had been recorded by the police and was brought to him for endorsement and further that at the time of recording the statement, he was busy in attending to the patients inside the causality. Abdul Hakim (P. W.7) appeared as Investigating Officer, giving an amazing statement that such dying declaration in writing was given to him by Khair Muhammad. He did not know as to who in fact had handed over the statement to the Investigating Officer nor any such person was cited as a witness. A statement in writing given to the Investigating Officer is pregnant with strong doubt that it was written with consultations and prompting by someone interested in the matter and was not in fact the statement of Khair Muhammad. The scribe of such statement is unknown till today. Under the law, it cannot be placed reliance upon.

4. The second statement Exh.P.A./3 is in the form of statement under section 161, Cr.P.C. It was never recorded in the presence of the doctor. It does not bear any date. The Investigating Officer admitted that he recorded Exh.P.A./3 on the basis of already recorded statement Exh.P.A./2. That it was handed over to him by some unknown person. Because of the aforesaid background Exh.P.A./3 is a word-by-word reproduction of Exh.P.A./2. Khair Muhammad had remained unconscious for quite some time and was so unconscious even when the Investigating Officer contacted him in the Lady Reading Hospital at Peshawar. The strong possibility cannot be ruled out, as rightly held by the High Court, that it could be the result of consultations and prompting by the relatives. This statement also cannot be relied upon as genuine dying declaration.

5. Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along. There is no evidence as to how it came to the possession of Haid Akbar, who was not produced.

6. In nutshell, we are convinced that the dying declarations in the instant case are not worthy of credence and cannot be placed reliance upon in a case of capital charge. We are also convinced that it was an unseen night occurrence where the identity of the accused could not be established. The respondents, therefore, were rightly acquitted. There being no force in the petition, it is hereby dismissed and leave to appeal refused. M.H./H-10/SC Petition dismissed.