1984 P Cr (PLP)

S. 32-Dying declaration-Maker of dying declaration alive-- Such dying declaration, held, could not be used as substantive piece of evidence and at most at par with statement of a prosecution wit ness, recorded under S. 161, Cr. P. C.-[Evidence-Dying declaration]. Nemo for the State. "It is complaint that 2/3 years prior my cousin Idress son of, Sathi Bangulani was murdered as Karo and the case is pending in the Court. The parties have not effected the compromise. The houses of the other party are at a distance of 3 furlongs towards east from our house. Today I, my cousin Jalal son of Nawab Samejo, Abdul Ghani and Manthar both sons of Sabir Samejo were jointly plough ing the lands of Muhammad Hassan Samejo when at 8-00 a. m. Gulab son of Sathi Bangulani armed with gun, Imam Bux son of Yar Ali Bangulani, Soomar son of Haji Sathi, Tegho son of unknown Bangulani came there armed with hatchet from eastern side. Gulab demanded the revenge of Idress from Abdul Ghani and fired a direct gunshot at Abdul Ghani which hit him on his left hand. In the meanwhile Imam Bux inflicted hatchet injuries to him. We due to fear did not go closer, but raised cries. The villagers came running on gun-shot report and cries and the appel lant went away. Then we saw Abdul Ghani having hatchet injuries on his head, shoulder and back and gun-shot injury on his left arm near hand, who is being brought. I have come for lodging the F. I. R. The appellants have caused injuries with intent to murder Abdul Ghani just to take the revenge of the murder of deceased Idrees." S. H. O. Police Station, Thul Muhammad Paryal after recording the F. I. R. (Exh. 11) was the injuries on the person of Abdul Ghani in presence of mashirs Lai Bux and Badderuddin vide mashirnama (Exh. 16) and referred the injured to Medical Officer Thul for treatment. The statement of the injured was not recorded as he was unconscious. The S. H. O. proceeded to the vardat of this case, which was situated in the lands of Muhammad Hassan Samejo as shown by' complainant and he secured the blood-stained earth and one empty cartridge which were separately sealed in presence of same mashirs vide mashirnama (Exh. 17). He recorded the statement of P. Ws. Jalal and Manthar. He had arranged the recording of the dying declaration of injured by Head Munshi and lInd Class Magistrate Thul and also recorded 161, Cr. P. C. statement, on 7th April, 1976 he handed over the papers to S. H. O. Manzoor Ahmad as he was transferred. On 11th April, 1976 P. W. 7 A. S. 1. P. Zaman Shah of P. S. Thul received the papers for further investigation from S. H. O. Manzoor Ahmed and he recorded the statement of P. W. Rato. He also tried for the arrest of the appellants and conducted their house searches in their absence but nothing incriminating was secured. On 12th April, 1976 appellant Gulab, Soomar and Imam Bux voluntarily appeared at the Police Station, whom he interrogated and arrested. On 14th April, 1976 he produced P. W. Rato and Jalal before Mukhtiarkar and F. C. M., Thul for recording their 164, Cr. P. C, statement on 27th April, 1976 A. S. I. P. Muhammad Zaman handed over the papers to S. H. O. Manzoor Ahmed, who submitted the challan against the appellants showing Tegho as an absconder, in the Court of Civil Judge and F. C. M, Thul. On 15th June, 1976 appellant Tegho was arrested and challaned in the same Court. Due to enforcement of the law reforms, the appellant were sent up to the Court of Sessions to stand their trial. The case of appellant Tegho was separately sent up, therefore, the application for amalgamation was moved by the A. P. P., which was allowed for amalgamating the cases to be disposed of by single judgment. The charge was framed, read over and explained to the appellant to which they pleaded not guilty indended to lead no defence. The prosecution had examined P. W. 1 Dr. Muhammad Alim, P. W. 2 Ghaloo, P. W. 3 injured Abdul Ghani, P. W. 4 Jalaluddin, P. W. 5 Lai Bux mashir of injuries and vardat, P. W. 6, S. H. O. Muhammad Paryal and P. W. 7 A. S. I. P. Muhammad Zaman both Investigating Officers. The learned A. P. P. gave up P. W. Rato and P. W. Manthar who is said to be dead, and ultimately closed his side vide statement (Exh. 21). The case of the appellants on the other hand is of total denial of the prosecution allegation and they claimed their implication by the witnesses due to enmity. Appellant Gulab had further stated in his statement recor ded under section 342, Cr. P. C. that co-accused Soomar is his brother, Imam Bux is his cousin and Tegho is his caste-fellow. One Saeed Ali cousin of the complainant had also filed a criminal case under section 3071 34, P. P. C. and 13-D, Arms Ordinance against his cousins, including present appellant Soomar for same murder of Idress, and the appellant were let off in that case. He has produced true copy of judgment (Exh. 23). The co-accused have adopted the statement of Gulab. However they have not led any evidence in defence. That the learned trial Court taking into consideration the evidence adduced before it, which acquitting two co-accused, convicted and sentenced the appellants abovenamed as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo of appeal. (a) All P. Ws. are closely related and in view of admitted enmity between the parties, no reliance could be placed on their statement, without independent corroboration, which in the present case is not at all available. In support of this contention the learned Advocate for the appellants relied upon cases in P L D 1981 Kar. I and P L D 1973 S C M R 321 . (b) That co-accused Sumar and Tegu were acquitted by the learned trial Court, as the statements of P. Ws. in respect of them was not believed, but appellants were convicted on the same evidence and as such conviction of the appellants cannot be legally sustained. In support of this contention the learned Advocate for the appellants relied upon cases reported in P L D 1976 Kar. 438 and 1982 S C M R 162 & 1049. (c) That learned trial Court erred on relying upon alleged dying declarations of P. W. Abdul Ghani Exh. 13 for conviction of the appellants, in complete violation of the law laid down by D. B. of this Court in case reported in P L D 1966 Kar. 637 and by misinterpretation of section 32 of the Evidence Act. Since P. W. Abdul Ghani did not die, his so-called dying declaration at the most could only be used for purposes of contradiction, as in~ case of the statements of P. W. under section 161, Cr. P. C. (d) The mere lodging of F. I. R. promptly does not by itself establish truth of the facts mention therein and as such learned trial Court has erred in coming to such conclusion that since F. I. R. was lodged promptly and mentions the names of the appellants, it supports and corroborates statements of P. Ws. In support of this contention the learned Advocate for the appellants relied upon cases reported in P L D 1964 Kar. 356 and P L D 1978 Kar. 710. (a) Case of the acquitted two co-accused was distinguishable and as such contention of the learned Advocate for the appellants in this connection has no force at all. (b) That dying declarations could not be ignored completely and as such reliance placed by the learned trial Court on trial was justified. (c) That statements of P. W. 2 Gaboo and P. W. 3 Abdul Ghani are reliable and mere relationship inter se between them does not make their statements unworthy of credit, as medical evidence corrobo rates the time of incident. In support of his above contentions the learned counsel for the State relied upon cases reported in P L D 1977 S C 413/357, P L D 1976 Kar. 112 and 1976 S C M R 91. 1 have carefully considered the above submissions made by the learned counsels before me and have gone through R & P of the learned trial Court and impugned judgment and the cases cited by the learned Advocates before me. Prosecution case rested upon the statements of P. Ws. Gaboo (Com plainant) P. W. Abdul Ghani (injured) and P. W. Jalaldi (cousin of injured). Learned trial Court did not believe the statement of P. W. Jaladin at all and discarded the same. As far as P. Ws. Gaboo and Abdul Ghani are concerned, both of them are closely related and in view of admitted enmity between the parties on account of earlier murder and other litigations between the parties, produce demands, that no reliance could be placed on their statements, without independent corroboration, in view of the law laid down by Hon'ble Supreme Court in P L D 1973 S C 321 and P L D 1981 Kar. 1. For corroboration of the statements of P. Ws. 2 and 3, learned trial Court and learned State counsel relied upon the dying declarations of P. W. Abdul Ghani Exh. 13 and promptness in lodging of F. I. R. and the facts mentioned in F. I. R. It is settled law, that F. I. R. is not substantive piece of evidence nor dying declaration Exh. 13 could be used as substan tive piece of evidence, as P. W. Abdul Ghani is very much alive and as such at the most such dying declaration could be placed on par with statements of P. Ws. under section 161, Cr. P. C. and could only be used for purposes of contradiction. It may further be noted that P. W. Abdul Ghani in his statements before the learned trial Court disowned his alleged dying declaration as well his 161, Cr. P. C. statement. The learned Magistrate who recorded the said dying declaration was not examined before the learned trial Court. In view of this, I fail to understand, how learned trial Court has relied on the said Exh. 13, which was not proved at all for purposes of conviction of the appellants. It may further be noted P. W. 2 Ghaboo in his F. I. R. stated, that appellant Gulab fired gun whereas only appellant Imam Bux gave hatchet injuries to P. W. Abdul Ghani, Similarly P. W. Abdul Ghani in his statement under section 161, Cr. P. C. nor in so-called dying declaration mentioned the names of the acquitted co-accused persons. However, both complainant and P. W. Abdul Ghani, in their statements before the learned trial Court attributed gun injuries on person of P. W. Abdul Ghani to acquitted co-accused persons and as such tried to involve all the accused persons before the learned trial Court. 1n view of this also it would be un safe to place reliance on the statements of these two P. Ws. without inde pendent corroboration. In view of my appraisal of the prosecution evidence on record and my conclusion about Exh. 13 alleged dying declaration, the case of above two appellants is on all fours with the case of two acquitted co-accused persons. At any rate in my opinion, prosecution has failed to establish its case beyond reasonable doubt against the appellants. This conclusion of mine is fully supported by law as discussed by Hon'ble Supreme Court in un reported decision of the Hon'ble Supreme Court in Criminal Appeal K-2 of 1982 Chango v. State dated 12th. January, 1983. Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them and acquit them by giving them benefit of doubt and discharge the bail bonds executed by the appellants in above appeal. S. G. D Appeal accepted.