2017 PLP 278 (YLR)

MOHAMMAD IBRAHIM KHAN, J.

Here is as such order in Cr.M.B.A. No. 1762-P/2016 titled "Muhammad Irfan v. State" and Cr.M.B.A. No.1741-P/2016 titled "Zakriya v. State" and as the facts, circumstances and legal considerations are very much alike with regard to the placement of role of each petitioner.

2. Rizwanullah in an injured condition giving an account of the occurrence while fully conscious and oriented expressing himself that at the pointfull hour at 11:30 am on 22.05.2016 he was accompanied by his brother Saeed ul Haq when reached Mohallah Bajiyaan near Sports Complex Tangi which is at a distance of one kilometer East of Police Station Tangi, three persons came into sight duly armed with their respective weapons and resorted to firing at them. One of the assailants was named as Mohammad Irfan while two others are neither named nor given of their addresses. Motive for this deadly occurrence is advanced as Mohammad Irfan a day earlier had telephonically given him treats of dire consequences.

3. Prior to, these petitioners separate applications for grant of bail were dismissed on 15.07.2016 with the order of learned Additional Sessions Judge, Charsadda at Tangi.

4. While learned counsel for the parties were heard fervently, record was gone through in thread bare.

5. It is as death summary dated 23.05.2016 suggests that soon after laprotomy Rizwanullah departed after cardiac arrest, thus after change over of section 324 to section 302 of the P.P.C. learned counsel pended on the report one of dying declaration. While placing reliance whether in the given sequence of events, petitioners would be entitled to grant of liberty by way of post arrest bail, or either way the conclusion of trial will prove its wheel of fortune.

6. Shakespeare says, "the tongues of dying men enforce attention like deep harmony, where words are scarce, they are seldom spent in vain, for they breath their words in pain." Values of Dying declaration are as follows;- a. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. b. That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. c. That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. d. Dying declaration stands on the same footing an other piece of evidence and has to be judged in the light of surroundings circumstances and with references to the principles governing the weighing of evidence. e. Finally, a dying declaration from the very nature of things should be very closely scrutinized be having been made in the absence of the accused its veracity is not tested by cross-examination and then the Court too has not any opportunity of watching the person making it.

7. Based on this analogy learned counsel for petitioner Mohammad Irfan referred to the judgment reported in 2006 PCr.LJ 252 Haji Khan Sheerin and another v. Siraj and another, 2015 YLR 624 (Peshawar Appeal), 1999 MLD 1853 Shariat Court AJK. Conversely learned counsel for complainant opposed by referring to 2011 PCr.LJ 1623 Raj Mohammad Khan v. The State and others.

8. In this case the dying declaration of Rizwanullah the complainant is supported by the medical evidence, the statement of his brother Saeed ul Haq and other corroborative evidence where all the prosecution led investigation is linked in chain at every step. There is nothing brought in rebuttal to disbelieve the dying complainant. Petitioner Muhammad Irfan is directly charged by name by the deceased then injured in his promptly lodged FIR. His firing shots are said to be contributory factor resulting into his death post liminary. In such state of affairs he has been unable to make out a case of further inquiry into his guilt.

9. The case of consideration of grant of bail of petitioner Zakriya is on different footing. Although he has been named in the statement under section 164, Cr.P.C of Saeed ul Haq witness of ocular account but not tagged having as a name in the FIR. It is on inquiry search based, implication and Police investigation that one of the unidentified person is the petitioner Zakriya. Prosecution was under imperative compulsory legal course to have adopted holding of identification parade in order to pick out and have put the identifier's finger on undeniable indictment of accusation. Mere personal inquiries and unaccountable Police investigation without holding identification parade may be an adumbrate standpoint casting shadow of doubt. Reliance is placed on 2008 PCr.LJ 831 Muhammad Sajjad v. State, 1997 SCMR 412 Muhammad Rafiq v. State. Therefore in all proximities he has been able so far to make his case one of further inquiry.

10. Without prejudice to the ultimate trial where all parameters of the values of dying declaration are to be adjudicated within the legal course, petitioner Muhammad Irfan application for his prayer stands dismissed while petitioner Zakriya is set on liberty on acceptance of his prayer provided he furnishes bail bonds in the sum of Rs. 3,00,000/- with two sureties each in the like amount to the satisfaction of the learned Additional Sessions Judge, Tangi, at Charsadda. Needless to say that the sureties must be men of means and reliable.

11. These are the reasons for the order even dated announced earlier. WA/320/P Bail granted.