Dying Declaration

Dying declaration was admissible in evidence under Article 46 of the Qanun-e-Shahadat, 1984, without any pre-condition that the maker should be in imminent expectation of death

Normally, the Courts attach great importance to a dying declaration, presuming that "truth sits upon the lips of the dying man"

Shadow of impending death is in itself a guarantee of truth of the statement of the deceased regarding the circumstances leading to his death

Grounds for admissibility are: firstly, the necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement may defeat the ends of justice; and, secondly, the sense of impending death, which creates a sanction equal to the obligation of oath.

Complainant mentioned in application that his deceased father told him that he was brought on pretext of compromise by appellant and then occurrence was committed and injury statement might be treated as "dying declaration"

When as per own case of prosecution, there was dispute between father of the complainant (now deceased of the case) and appellant, then there was no occasion for going of father of complainant (now deceased of the case) with appellant on his motorcycle and reason offered by the complainant in application for registration of the case that his father told him that he was taken by the appellant on the pretext of compromise did not seem plausible because if compromise was to be made, then it was appropriate to go to Board of Revenue, for recording the factum of compromise as case was pending there or to go to the village for compromise but no reason appealing to a common prudent man was brought on the record to show that for the purpose of compromise, (father of the complainant) went with appellant towards and at the place of occurrence

Therefore, this claim of the complainant appeared to be afterthought and fabricated just to give colour to the prosecution version, and was thus repelled

Circumstances established that prosecution had failed to prove its case against the appellant beyond shadow of doubt

Appeal against conviction was allowed, accordingly.

Dying declaration could even be made before a private person, and if it is proved that it is free from influence and the persons before whom such dying declaration is made are examined, then it would become a substantive piece of evidence

In absence thereof, dying declaration requires close scrutiny and is considered a weak kind of evidence due to not being cross-examined.

Case in hand mainly hinged upon the dying declaration attributed to deceased, which had allegedly been made by her before four witnesses and also before the Medical Officer, who conducted her medical examination in injured condition

Medical Officer before whom the patient is brought or if such incident is reported to the Officer-in-Charge Police Station, both the Medical Officer on duty and the Officer-in-Charge Police Station are bound down to give the intimation in that regard to a nearest Magistrate and at the same time, the Medical Officer shall record the statement of the injured person immediately on arrival, so as to ascertain the circumstances and cause of his injuries and on arrival of the Magistrate, if the patient is still in a position to make a statement, would also record his statement

Machinery of law was set into motion in this case by father of the deceased, but he not only stayed away from the dock but also did not file the private complaint and it was in fact filed by his other daughter

Alleged dying declaration was made by deceased in critical condition, when she was taken to hospital by four witnesses, out of whom, two were not produced by the prosecution, whereas only two witnesses appeared before the Trial Court

While deposing before the Trial Court, both the said witnesses had reiterated their earlier stance that the declarant apprised them that it was appellant, who had served her poisonous tea

Sister of deceased also deposed before the Trial Court that the injured was firstly taken to Police Station and a witness "RMA" also reached there and the injured, stated that she had been served poisonous tea by her co-teacher/appellant

Surprising enough neither said "RMA" appeared before the Trial Court nor there was any statement of any Police Official to the effect that injured had made any declaration before him

Similarly, another witness "MS" deposed before the Trial Court that he along with his nephew reached at Police Station on motorcycle and "RMA" had also reached there

Injured and her brother and sister also arrived there

Sister of injured sat outside the main gate of Police Station and brother of injured called two Police Officials there and on asking by the Police Officials, sister of injured told them that due to strained relationship appellant had administered poisonous tea and the AEO had already reconciled in between her and appellant

So, according to that witness the alleged declaration was made by injured in presence of two Police Officials but as observed earlier, the entire case was silent at the end of the police, where no Police Official had written/recorded that statement, nor any Police Official while deposing before the Trial Court had admitted the factum that any statement was ever made by injured in front of them

Perusal of the contents of the Medico Legal Certificate revealed that in the relevant column of history, it was neither alleged that said statement was in fact made by injured to the Medical Officer nor it was mentioned that who had prepared the tea or made the injured drink it

Medical Officer, while deposing before the Trial Court, did not speak a word about any such statement by the deceased (in injured condition)

In cross-examination, while admitting that, she had not named the appellant in her statement to the effect that at any point of time, the deceased had claimed that it was the present appellant, who had administered her the poisonous tea

Circumstances established that the prosecution had failed to prove its case 'beyond reasonable doubt'

Appeal against conviction was allowed, accordingly.

Dying declaration is, at best, a weak type of evidence which requires cautious appraisal and must ordinarily be corroborated by other reliable and confidence-inspiring material

Conviction cannot rest solely on a dying declaration if the same is shrouded in mystery or is fraught with infirmities

Credibility, voluntariness and the mental fitness of the declarant, along with the absence of extraneous influence, are sine qua non for its evidentiary acceptance

Dying declaration must not only be truthful and free from external coercion but also supported by surrounding circumstances.

In order to do substantial justice, the said dying declaration was played in the Court, however, it was an admitted fact that the said dying declaration was not properly audible

In the instant case it had come on the record that deceased was 38.5% burnt and whether she was able to give a dying declaration in such a situation was again a question to be answered by the prosecution

Moreover, such declaration was neither recorded by the Investigating Officer or the Medical Officer or any other independent person but by the relatives of deceased

Even otherwise the same was, admittedly, not properly audible

On first principle, the sanctity attached to such a statement by the statute should be respected unless there were clear circumstances brought out in the evidence to show that a dying declaration was not reliable

An audio tape or video produced before a Court as evidence ought to be clearly audible or viewable

Video recording of the dying declaration showed the deceased had not made any statement at her own rather she was being dictated and tutored by her relatives to make a statement against the petitioner

Moreover, it was clear that deceased was only saying yes or no in response to the statements made by her relatives present at the relevant time and as such it was not her own statement rather the statement of her relatives which was recorded in the video recording

Thus, the said statement could not be considered as the dying declaration of the deceased

Even otherwise it clearly showed that deceased was under the influence of her relatives who were present at the relevant time and recorded her alleged dying declaration

No certificate of the concerned Medical Officer had been produced in the prosecution evidence to show that the deceased was medically fit to make the statement

None from the hospital staff appeared in the witness box to affirm that any dying declaration was made by the deceased as claimed by the prosecution

Video recording of the dying declaration of deceased was never sent to the office of the Forensic Science Laboratory to determine its genuineness, therefore, it was not safe to rely upon said recording

All these factors when read in conjunction with each other and in juxtaposition would reveal that the instant case was not free from doubts and surmises

Dying declaration was not recorded in accordance with the law; there was no Forensic Science Laboratory Report about the authenticity of the video recording of the dying declaration of the deceased and the dying declaration admittedly not being properly audible could not be relied upon

Appeal against conviction was allowed, in circumstances.

Sanctity is attached to a dying declaration because a dying man is not expected to tell a lie, however, it requires close scrutiny and corroboration

If the Court is satisfied about the genuineness and truthfulness of the dying declaration, it can be acted upon without any corroboration.

In this case, the dying declaration of the deceased (then injured) had been recorded in the shape of Marasila prepared by Inspector of Police

Said witness mentioned in the dying declaration that at the time of making the report, the deceased (then injured) was fully conscious

Dying declaration bore the thumb impression of the deceased as well as the signatures of its author

Factum of orientation and consciousness of the deceased (then injured) at the time of making the report could also be gathered from the medical certificate issued by Medical Officer to the Investigation Officer to the extent that the injured was capable of recording statement and the same certificate was also mentioned in the Marasla, "fit for recording statement"

Complainant lodged the report promptly without any delay

From the evidence, it had been established beyond a shadow of a doubt that the deceased (then injured) made a dying declaration immediately after the incident, eliminating the possibility of influence, etc

Prosecution also produced the son of the deceased who stated that on 04.09.2020, when he was present at Ajwa Hotel at 8:30 pm, he received information about injuries to his parents

Said witness reached the hospital, and there, his father and mother told him that the appellant fired upon them

Both the author of Marasla and son of deceased had been subjected to cross-examination by the defence, but nothing could be extracted from their mouth that the deceased was not capable of recording his statement/report

Both the said witnesses, as well as the certificate issued by the Medical Officer, had established the factum of consciousness of the deceased (then injured) and his capability to talk and make statements

Dying declaration of the deceased (then injured) was recorded on 04.09.2020 at 9:45 pm

Deceased remained alive till 1:00 am 05.09.2020

Firearm entrance wound on the arm and right side of the ribs of the deceased (then injured) resulted in his death

In view of the statement of the author of Marasla and certificate issued by the Medical Officer the deceased (then injured) remained alive till 1:00 am 05.09.2020; i.e. for more than five hours after the occurrence

Deceased, then injured was fully conscious, well-oriented in time and space and capable to make a statement/report

Dying declaration revealed that the deceased (then injured) had directly charged the appellant with a specific role of firing at him and his wife

Dying declaration of the deceased (then injured) was corroborated with the statement of injured witness

Son of deceased also corroborated the version of injured witness in all particulars

Circumstances established that the prosecution had been successful in proving its case against the appellant beyond a reasonable doubt

However, due to some mitigating circumstances, death sentence was altered to imprisonment for life

Appeal was dismissed with the said modification in the sentence.

Accused were charged for making firing upon the complainant party, due to which two persons died and complainant was injured but later on died

Scribe of the murasila confirmed that before making the report the injured complainant was conscious and was oriented in time and space

Said witness further confirmed that he put some rational questions to the complainant who replied rationally, and so after getting satisfied regarding the capacity of the complainant, he drafted the murasila

Scribe at the time of report succeeded in getting a certificate from the Medical Officer and the Medical Officer also endorsed the murasila, where the factum of the understanding and capability to talk of the deceased (then injured) was confirmed

Medical Officer was examined, who confirmed that at the time of examination the injured was conscious and capable to talk and that the same had been mentioned in the Medico-Legal Certificate, prepared by him

Moreover, the incident occurred on 22.08.2016, the deceased (then injured) remained hospitalized till his death on 24.08.2016

Survival of the deceased (then injured) for long two days was another circumstance that confirmed that at the time of report the complainant was capable to talk

Medical Officers were cross-examined regarding the seat of injuries, the organs which got injured in the incident and thereafter the capability of the deceased (then injured) to talk, and they remained consistent regarding the consciousness and orientation of the complainant

Dying declaration got further support from the statement of the eye-witness, and when both were read in juxtaposition it confirmed that the prosecution succeeded in establishing its case against the appellants to the hilt

Circumstances established that the prosecution had succeeded in bringing home guilt against the accused persons

Appeal against conviction was dismissed accordingly.

Noteworthy that Medical Officer, who initially medically examined deceased in injured condition, was not the medical officer, who allowed the Investigating Officer to record the dying declaration of the deceased

Said Medical Officer did not utter a single word in that respect and the Medical Officer, who allowed to record the alleged dying declaration of the deceased, was not produced in the witness box

Moreover, Medical Officer had further stated during his cross-examination that the condition of the injured was critical and in the column of history, he had mentioned that the victim did not name the assailant

In order to prove the dying declaration of the deceased, the prosecution had only produced a retired police official

Said witness stated that he recorded dying declaration of the deceased and he also produced the document to establish that the deceased was fit to make statement but the relevant Medical Officer, who gave the opinion that the deceased was fit to make statement had not been produced in the witness box

Noteworthy that in the examination-in-chief, retired police official, had stated that at the time of joining the deceased, the then injured, into the investigation of this case the father of the deceased,his mother and brother were present, who joined the investigation but the complainant did not utter a single word in his examination-in-chief that dying declaration of deceased was recorded in his presence

Remaining witnesses of dying declaration were also not produced by the prosecution in the witness box

Neither any member of the concerned hospital staff was associated at the time of recording of statement of the deceased nor was it verified by any official of the hospital that the statement was actually made by the deceased

Under the circumstances, the status of statement of the deceased was a statement under S.161, Cr.P.C and not the dying declaration of the deceased

Circumstances established that the prosecution failed to prove its case to the extent of appellant beyond the shadow of doubt

Appeal against conviction was accordingly allowed.

Record showed that the son of complainant/deceased told his father that the appellant had fired direct shot at him after which appellant fled away

Eye-witness raised hue and cry

Complainant immediately shifted his injured son to the hospital where they were told that it was a police case and were asked to take him to other hospital

Complainant took his son to the other hospital where he was treated but his son succumbed to injuries almost after 25-minutes

Statement made by the deceased before his father was a dying declaration, that carried great weightage in a criminal case of homicide as it had been established beyond any doubt that the deceased made that declaration immediately after the incident, ruling out any possibility of influence or other factors

Circumstances established that the prosecution had proved its case beyond any shadow of doubt against the appellant

Appeal against conviction was dismissed accordingly.

Statement under section 161, Cr.P.C. recorded in injured condition of deceased, one day prior to his death, was rightly not considered as a dying declaration by Trial Court as death occurred on the next day

Investigation was completed to the extent of petitioner accused

After submission of challan, trial had also commenced

Trial Court, after tentative assessment of material available on record granted pre-arrest bail to petitioner accused but the same was wrongly cancelled by High Court without appreciating that no grounds for cancellation of pre-arrest bail of petitioner accused were available to complainant

While cancelling pre-arrest bail of petitioner accused, High Court also failed to appreciate that there was nothing on record to show that petitioner accused ever abused or misused concession of pre-arrest bail

On the basis of tentative assessment of material available on record, apprehension of petitioner accused for his arrest by police at the behest of complainant with mala fide and ulterior motives, could not held as vague or baseless

Grant of pre-arrest bail to petitioner accused by Trial Court was not "granted in wrong exercise of discretion"

Supreme Court set aside order passed by High Court and restored that of Trial Court

Petition for leave to appeal was converted into appeal and bail was allowed.

To find out truth or falsity of a dying declaration, a case is generally to be considered in all its physical environment and circumstances

Dying declaration can be made before a private person but it should be free from any influence and the person before whom it is made has to be examined

It is necessary to ascertain that the dying declaration was made honestly, its maker was in a fit state of mind to make the statement, its maker was free from outside influence, its maker was fearing death and had made a truthful statement.

Dying declaration is a weak type of evidence and it can not be made the sole basis for conviction.

Dying declaration is a weak type of evidence which requires deep scrutiny with great care and caution but on the other hand, dying declaration can be considered as substantive piece of evidence if the Court is satisfied about its genuineness

Thus, dying declaration is required to be considered on case-to-case basis in view of the attending circumstances of each case and, if found genuine, may be relied upon against accused.

Accused was charged for firing upon complainant and his nephew with his pistol resulting into injuries on their bodies; injuries sustained by complainant proved fatal because of which he subsequently died

Record showed that the Murasila/dying declaration had been drafted on the report of deceased then injured

Not only said report was seconded by injured eye-witness but he also verified the contents of Murasila when appearing during the trial proceedings

Injured complainant and injured eye-witness were well oriented in time place and person as spelt out from certificate endorsed by Medical Officer who, in order to ascertain as to whether they were able to record statements, had examined both of them on their arrival to casualty of DHQ hospital and issued certificate about his opinion

Nothing was available on record from the mouth of witnesses to create even a slightest doubt qua the genuineness of said certificate

Head Constable, who recorded dying declaration of deceased then injured in shape of Murasila, had verified the contents of said report by stating that he had read over the report to deceased then injured whereafter he signed the same in his presence

Prosecution had adequately discharged its burden in establishing that the dying declaration had been recorded by deceased then injured himself without being influenced or tutored

Beside the dying declaration had been verified by injured eye-witness/seconder of Murasila as well as by the author of dying declaration whose statements had not been damaged during their cross-examination, therefore, no hesitation was found in considering dying declaration of the deceased as a substantive piece of evidence

Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt

Appeal against conviction was accordingly dismissed.

Statement of brother of complainant was recorded by the Investigating Officer, in injured condition, when he was admitted in Hospital, after having procured requisite permission from the concerned Medical Officer by filing application, who declared that patient was fit for statement, on which his statement was recorded by Investigating Officer

However, it was observed that statement of injured was recorded in terms of S.161, Cr.P.C.

There was no dispute qua the legal proposition that the statement in shape of dying declaration of a deceased was relevant and admissible under Art. 46(1) of Qanun-e-Shahadat Order, 1984 (Order) and R. 25.21 of Chapter XXV of Police Rules, 1934 (Rules)

However, statement of the deceased in the shape of dying declaration had been made relevant but the mechanism of recording the same had not been followed as provided in Rule 25.21 of the Rules, 1934

So, there was no denial of the fact that the Investigating Officer, while recording statement of deceased in injured condition, had not adhered to the mandatory provisions of law as the word 'shall' was used in each of the Rule 25.21(I to V) of Rules, 1934

Conviction can be based on the dying declaration alone, if such statement is recorded in hospital; it should be written in presence of a doctor or any other staff of hospital should be associated

So, in these circumstances, statement of deceased recorded by the Investigating Officer in injured condition in hospital under S.161, Cr.P.C., carried no legal sanctity, rather it should not have been exhibited on record, however, that was the prerogative of accused only to bring it on record for the purpose to contradict and confront the maker

Circumstances established that the prosecution failed to prove its case on the touchstone of principle of 'beyond reasonable doubt'

Appeal against conviction was allowed, in circumstances.

Record showed that injured then deceased was taken to hospital, where Investigating Officer reached there on receiving information about the incident and after seeking permission from the Medical Officer, recorded his statement

Medical Officer certified that victim was fit whereupon he recorded his statement which was attested by the said Medical Officer and two witnesses

Occurrence took place at 06.15 a.m. and injured then deceased was brought to the hospital at 06.30 a.m. and his statement was recorded at 08.10 a.m.

Keeping in view the fact victim had suffered multiple injuries it could reasonably be presumed that he was expecting his death at that time

Said statement of victim could be regarded as dying declaration which was admissible in evidence under Art. 46 of Qanun-e-Shahadat, 1984

However, perusal of statement of victim showed that he gave photographic details of the incident

It was not possible for the victim to make such a narration in his given condition

Victim was surrounded by two witnesses

Record did not indicate that necessary steps were taken to keep him out of their influence at the time of making the declaration

Said facts made the dying declaration all the more dubious and it could not be relied upon

Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt

Appeal against conviction was allowed, in circumstances.

Record showed that dying declaration was made by the deceased before two persons at two different places while he was on the way to hospital

Eyewitness stated that deceased himself narrated the facts to two witnesses in respect of injuries caused to him by the accused persons

One of the witnesses stated that at the time of incident he was standing at a grocery shop where he had seen three persons on motorcycle driven by "M"; injured was sitting in between "M" and "S"; he had seen that victim was bleeding and injured and on his query disclosed that he was coming from his work where he was attacked by accused with a hatchet and with knives by other two accused persons

Other witness stated that on 09-01-2020 he was returning from a factory and was available outside his house and saw "M" and "S" bringing victim where he rushed and inquired from the victim as to who had done this to which the victim replied that accused persons had caused injuries with hatchet and knives

Said witnesses took a motorcycle for taking the injured to the hospital

During cross-examination he negated the suggestion of defence in respect of injured being in his senses at the time when he inquired from the injured victim

Said witnesses were independent witnesses having no enmity or ill-will with the accused persons nor was it so suggested during their cross-examination

In the present case dying declaration was oral and was not in writing

No particular format was required for a dying declaration and the main requirement appeared to be that it was made without influence and it was made before two independent persons by the deceased when he was alive and was in full senses

Dying declaration, thus, fulfilled all the requirements of law and it was admissible and could be relied upon

However, due to same mitigating circumstances the death sentence of accused was altered to life imprison-ment

Appeal was dismissed with such modification in sentence.

Dying person would never make an attempt to conceal the truth or make an attempt to save those, who had brought him to bed of death

Sacredness and purity are always attached to a dying declaration because it is supposed that when a dying person was face to face with death, he would like to make peace with Al-Mighty Allah and it is not expected that he tells lies

Dying declaration is always treated as very strong piece of evidence; such type of evidence needs no further corroboration by any other evidence

Thus, without looking for any independent witness, the sole statement of the deceased being his dying declaration is enough to establish the guilt of the accused.

Accused was charged for committing murder of the son of complainant by sprinkling acid on him, which resulted into burning of his face, chest and legs and later on he succumbed to his injuries

Deceased succumbed to the injuries prior to recording his statement before the Trial Court, however, the fact remained that the statement recorded by the deceased fully supported the prosecution version and named the accused as the real culprit, who threw acid upon his person

Medical evidence and the other facts and circumstances of the case would suggest that the deceased was severely injured, but he was in his senses to record such a statement before the Investigating Officer

Thus, under the settled norms of justice, the statement of the deceased was rightly declared as a dying declaration

Even otherwise, the most important evidence on such behalf was the medical evidence recorded by Medical Officer, who brought nothing on record that the deceased during his surviving period was not in his senses or he could not have recorded his statement before the police

Dying declaration recorded by the deceased was in simple words, wherein the deceased implicated the accused with specific role which had been proved by the prosecution through direct, ocular and medical evidence

Thus, no lawful justification was found whatsoever to disbelieve dying declaration of deceased

Appeal against conviction was dismissed accordingly.

No doubt, initial version of the occurrence was provided by the deceased himself to a witness, but there was no material on the case file which could show that said report was lodged by the then injured in immediate presence of the Medical Officer who provided initial treatment to him

Though, Medical Officer had stated that at the time of his examination, the patient was fully conscious, able to talk and well oriented but as he had not stated in clear and unequivocal terms that in his presence the then injured had reported the matter to the police nominating therein the accused persons, therefore, the report lodged by the then injured on which signatures of a witness did appear, could not be taken into account as his dying declaration for recording conviction of the accused persons

Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt

Appeal against conviction was allowed accordingly and accused were acquitted of the charge.

Record showed that the Medical Officer, who provided first aid to the injured at the time of his arrival to the hospital, confirmed that while examining the injured he was capable to talk and the same had been mentioned in the Medico-Legal Certificate

Said Medical Officer was asked as to whether any certificate was provided by him to the local police and as to whether any request was made by the local police in that respect, the Medical Officer replied in affirmative and stated that a written request was made which was duly endorsed by him

Said witness further stated that it was he who opined to the local police regarding the orientation and capability of the deceased then injured to talk

As per record, there was no denial to the fact that the deceased received firearm injuries on the vital parts of his body and that the major organs of his body were injured, but it could not be ignored that the deceased then injured survived for three long days and thereafter breathed his last in the hospital

Attending circumstances of the present case left no ambiguity in mind that the injured was in senses and was fully oriented in time and space

Certificate asked by the police and report tendered by the doctor left no ambiguity that the deceased was capable to talk

Circumstances established that the prosecution had proved its case against the accused but the accused deserved to be convicted under S. 302(c), P.P.C. instead of S. 302(a), P.P.C.

Appeal was partially allowed by setting aside the conviction and the sentence awarded under S. 302(a), P.P.C. and convicted the accused under S. 302(c), P.P.C. to fifteen years rigorous imprisonment

Appeal was dismissed with said modification in sentence.

Qatl-i-amd, attempt to commit qatl-i-amd, causing hurt, ghair-jaiffah munaqqillah, abetment, rioting armed with deadly weapons, unlawful assembly

Appreciation of evidence

Dying declaration

Accused were charged for making a murderous assault upon the complainant party, due to which the complainant sustained injuries and later on died

Record showed that soon after the incident the deceased, then injured, was rushed to the hospital, who was examined by the doctor and his Medico-Legal Certificate was prepared, whereafter he was referred to another hospital, and after getting confirmation regarding the fracture caused, the deceased, then injured, was referred to for specialized treatment, where he remained hospitalized for few days and after gaining stability was discharged from the hospital for further management at home

Although no certificate was obtained from the concerned doctor, regarding the capability of deceased to talk and nothing was brought on record that at the time when the deceased then injured, was lodging the report, he was alert and conscious, but it could not be ignored that the deceased received a fracture on his leg which later on turned to be the cause of his death

As the injury was on non-vital part of the body and the deceased, then injured, did not die on the day of incident, it was in itself suggestive of the fact that by that time the deceased, then injured, was fully conscious

Subsequent travel of complainant/deceased from hospital to hospital and his last management at home further clarified the situation

Attending circumstances of the case lent support to the report made in the shape of dying declaration and even the subject of dispute between the parties left no ambiguity that both the parties were claiming the property in question

Circumstances established that the prosecution had succeeded in proving its case against the accused persons

Appeal was partially allowed.

Dying declaration is a statement which a person makes, under the belief that as he/she is to depart to the world hereafter, hence, the person would make a true statement without advancing the cause or reason of his/her death.

Accused were charged for committing murder of sister-in-law of the complainant and also causing injuries to the complainant and his relative

Statement of injured, then deceased, was recorded during investigation by the Investigating Officer, after gaining her consciousness, wherein she charged accused for making firing upon her and causing injures upon her person

Injured then deceased later-on died in the hospital

On scrutiny of her statement, it was observed that injured, then deceased, died after some 38/39 days of the occurrence

Said victim remained alive for sufficient time, hence, having no immediate apprehension of death, her statement could not be considered as dying declaration

To authenticate such statement, the Investigating Officer was required to have recorded the statement of the concerned Medical Officer of the hospital to confirm that injured, then deceased, was conscious and well oriented in time and space and that it was a voluntary statement to implicate the respondent for the crime

Thus, in all, the statement of injured, then deceased, recorded after 38 days of occurrence did not qualify to be accepted as dying declaration

Appeal against acquittal was dismissed accordingly.

Rule relating to dying declaration and its admissibility is provided in Art. 46 of the Qanun-e-Shahadat, 1984, which says that the statement of dying man is relevant and admissible in evidence, however, for recording such declaration no particular mode has been provided

Sub-Article (1) of Art. 46 of the Qanun, provides that when the evidence or statement of a person, who is dead, relates to the cause of his death or as to any of the circumstances of the transaction, which resulted in his death

Such statement becomes relevant and gains evidentiary value because of the special circumstances that the person, who made such statement, was no more alive/available

Dying declaration is a weak type of evidence and is similar to the statement of an interested witness, therefore, requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie.

Murasila showed that the deceased had mentioned therein presence of his brother with him on the spot at the time of occurrence and nominated the accused for his firing at him but there was no endorsement on it by the Medical Officer, who had initially examined him, that at the time of making report its maker was oriented in time and space

Unless some opinion was given by the Medical Officer present in casualty ward of the hospital qua fitness of the critically injured person to lodge the report, no legal worth was to be given to the bare contents of the report that the complainant was conscious well to report the matter to police

Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt

Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Dying declaration could be made the basis for awarding conviction provided it was free from the menace of prompting and tutoring and was proved to have been made by none other than the deceased himself

Paramount reason for attaching importance and credibility to such a statement was the presumption that a dying person seldom lied.

Perusal of the record revealed that the Investigating Officer made no effort to procure the attendance of any unconnected witness, though it could easily be done from the hospital

Another aspect of the case was that the said statement of deceased was recorded at the hospital and the certificate regarding the ability of the then injured later deceased was also issued by a Medical Officer

Medical Officer was not produced before the Trial Court to prove the said certificate

Prosecution only got Medical Officer examined, who stated that the then injured later deceased was not in a position to make any statement

In absence of evidence that the then injured later deceased was able to make the statement, no reliance could be placed on the same

Deceased remained alive and admitted to the hospital for a considerable time, however, his purported statement was not attested by any official working at the hospital

Deceased remained alive and under treatment for a considerable time, during which there was sufficient time for the Investigating Officer to record the dying declaration through a Magistrate which exercise was not done

No explanation was traceable from the perusal of the record that as to why the statement of the deceased was not recorded in the presence of the doctor as it did not bear his signatures

For a dying person a doctor was like nothing less than an angel and the last ray of hope for him in his capacity as a saviour of his life, in that backdrop, a doctor could be the best person to endorse the dying declaration as it was expected from a dying person to tell the whole truth to the doctor

Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly

Appreciation of evidence

Dying declaration

Scope

Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant

Record showed that the occurrence in the case took place on 13.07.2016 and injured brother of complainant died on 29.08.2016 i.e. more than one and half month after sustaining the injuries

Investigating Officer in his statement had clarified that after getting permission from doctor he had recorded the statement of said injured on 22.08.2016

No specified forum was necessary before whom such dying declaration could be made

In that view of the matter, no illegality was committed by the Investigating Officer while recording the statement of injured then died, whose statement otherwise, had been found to be in line with the narration of the FIR

Circumstances established that the prosecution succeeded in proving its case against the accused, however due to mitigating factors, the death sentence was altered to imprisonment for life

Appeal was dismissed with said modification in sentence.

Motive behind the occurrence was that deceased had contracted second marriage, due to which his accused wife sprinkled acid upon him

Deceased (the then injured) had no regard for the truth as according to his version occurrence took place in the house of accused where the deceased (the then injured) along with his brothers had gone to bring her as compromise was effected between him and his wife (accused)

Contrary to that, brothers of deceased stated in their statements before the Trial Court that occurrence took place in the house of deceased (the then injured)

In the said circumstances, either deceased (the then injured) had economized with the truth while making his dying declaration or the dying declaration itself was a fabricated document which had been manufactured at some subsequent stage for the purposes of implication of the accused

Reliance on such dying declaration could not be placed, in circumstances

Appeal against conviction was allowed, in circumstances.

Investigating Officer was the person who had examined deceased (then injured) in the Hospital and prepared his injury statement wherein he did not state that deceased was either conscious or unconscious

Investigating Officer did not try to record his statement at that time

Application of Investigating Officer for obtaining permission from the Medical Officer to record statement of deceased (then injured) did not show the name of the accused rather relevant column was left blank

Medical Officer had made endorsement at the bottom of the said application but did not mention whether deceased (then injured) was able to make statement or not as his Medical Certificate showed that, he was semi-conscious

Neither Medical Officer nor Addl. Medical Superintendent of the Hospital had been produced in support of their endorsements made at the bottom of said application

Story of dying declaration along with application for permission to record statement of deceased (then injured) was result of fabrication which could not be relied upon

Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Relevancy of a dying declaration depended on the premise that in the circumstances no better evidence could be provided than the statement of a dying man

For ascertaining genuineness of a dying declaration whether intrinsically it rang true, whether there was any chance of mistake on the part of the dying person in identifying or naming his assailants, and whether it was free from being prompted by any outside quarter and was not inconsistent with other evidence and circumstances of the case.

Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapon, unlawful assembly

Appreciation of evidence

Benefit of doubt

Dying declaration

Scope

Accused were charged for making fires upon the Police Officials, when they were signalled to stop them, due to which, one Police Official was hit and died, whereas other sustained injury

Deceased while recording his dying declaration had implicated co-accused, who had fired upon him and had not implicated other accused persons

Deceased disclosed that they were on patrol duty, they stopped one suspicious vehicle in which accused was sitting and meanwhile he fired upon him

On the contrary, the story narrated by the complainant was quite different

In his evidence recorded before the Trial Court, complainant deposed that they were busy in checking, meanwhile a suspicious big parado vehicle came there, they signalled them to stop the vehicle

All four doors of the vehicle were opened and five people alighted from it

Two accused persons caught hold of him and two caught hold of deceased and then accused made fire from his pistol upon deceased

Two unknown accused persons were caught holding him and after firing they went away

Such information was given to "15" which took injured than deceased to Hospital

Whereas Medical Officer in his evidence disclosed that at about 02:30 a.m. night a police mobile brought the injured

Neither the name of the complainant was mentioned in the dying declaration nor the Medical Officer disclosed that complainant was also present there

Deceased had not disclosed the number of accused persons who were available in the vehicle nor he has stated that two accused persons had caught hold of him then accused fired upon him

Circumstances established that the prosecution had failed to prove its case against the accused beyond a shadow of reasonable doubt

Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Allegation against accused was that he along with other nominated or unknown but identifiable co-accused persons came to the business place of complainant's brother and caused him firearm injuries as a result of which he succumbed to the injuries

Delay in lodging FIR was natural and the same was plausibly explained within the body of FIR

Accused had remained absconder for more than four years

Accused was associated with a proscribed organization, which was involved in sectarian terrorism

Motive for the murder was alleged to be a sectarian dispute

Murder was motivated due to clerical strife and conflict in which the accused and his associates were so desperate that they allegedly did not hesitate to take the life of a person with whom they had no personal grudge or animosity

Absence of complainant from the place of incident made no difference because he had first-hand knowledge of res gestae and had also reported the dying declaration of deceased

Accused was not entitled to the concession of bail

Bail application was dismissed, in circumstances.

Dying declaration, even made before a private person, is free from influence and the person before whom such dying declaration is made is examined, then it becomes a substantive piece of evidence, and, no corroboration is required and such declaration can be made the basis of conviction.

Evidence of complainant revealed that when he reached the place of occurrence, he found his brother in an injured condition, who disclosed that accused had fired at him

Said witness was cross-examined, but nothing came on record to discard his evidence

No serious efforts were made to challenge his statement on the question of dying declaration

From the evidence, it had been established beyond any shadow of a doubt that deceased made a dying declaration immediately after the incident, eliminating the possibility of influence etc. before making the accused responsible for causing him injuries

Prosecution had proved the dying declaration, which by itself was sufficient to maintain conviction and sentence

Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, the death penalty was altered into imprisonment for life, in circumstances

Appeal was dismissed with said modification in sentence.

Evidentiary value of dying declaration and its exact place in prosecution evidence in each case is according to its attending circumstances.

Complainant while being in injured condition lodged a report in emergency ward of the hospital to the effect that on the day of incident he along with his father was present at a road when the accused persons fired at him with intention to commit qatl-i-amd, resultantly he was hit and injured, while his father escaped unhurt

Complainant later on succumbed to the injuries

Accused along with two others was directly charged for the murder of the deceased

Main thrust of the counsel for accused was that the injuries did not commensurate with the number of accused and that no bullet marks were found on the surrounding walls

True that the number of injuries did not commensurate with the number of the accused but it was not a rule of thumb that in every criminal case the accused charged was to be released on bail in a mechanical way

Investigating Officer during spot inspection had recovered the empties of different caliber and it was the deceased then injured, who had attributed specific role to the accused with specific weapons of offence

Accused was prima facie connected with the commission of offence

Petition for grant of bail was dismissed, in circumstances.

Dying declaration of deceased was not free from foreign interference as his step brother/eyewitness was present around him at the time when such statement was being given

Testimony of the said witness had been disbelieved thus, in such like situation interference on behalf of said witness in the statement of his brother, who was returning to his Creator to make an exaggerated account of the occurrence, could not be ruled out

Medical Officer who had examined the declarant had found his condition very serious whereafter referred him for further treatment to other hospital

Endorsement of the Medical Officer appearing at the corner of the FIR and the referral chit, it would appear that the deceased at the time of his death could not be in a position to narrate about the occurrence in detail as had been narrated in the FIR

Circumstances established that the prosecution had not proved the case against the accused persons beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Dying declaration, being a statement of a person without the test of cross-examination, was a weak type of evidence which by itself could not be used as admissible evidence for conviction of an accused unless corroborated by other evidence of reliable nature.

Investigating Officer later recorded the report of the deceased then injured at hospital in shape of murasila but he did not record the statement of the deceased then injured at hospital

Medical Officer who examined the deceased then injured at hospital had observed that the deceased then injured was semi-conscious and non-cooperative and had further stated that the injured was not in a position to record his statement

Deceased then injured was thereafter shifted to other hospital where his report was recorded and his thumb impression was obtained by Investigating Officer

Said witness during his Court statement had referred to certificate available on record which, according to him, he had obtained from the concerned doctor with regard to consciousness of the deceased then injured

Question was, when Investigating Officer had prepared the injury sheet of the deceased then injured at hospital then why he did not chalk out his report there and then 45 minutes prior to his shifting to other hospital

Certificate of consciousness though depicted that the deceased then injured was conscious but the same certificate had been signed by an unknown person and only his signature was there on the certificate without his name or designation

Even the prosecution had not examined the concerned Medical Officer who had issued the said certificate

Dying declaration of the deceased then injured, which was the only substantive piece of evidence with the prosecution, was belied by medical evidence

Deceased was not able to record his statement, as such, said piece of evidence was not sufficient for sustaining conviction of the accused

Record showed that the occurrence took place on 28.12.2014 whereas the injured complainant died on 08.01.2015 but during that interregnum the Investigating Agency neither made any effort to obtain any authentic certificate from the Medical Officer who had attended the deceased during his stay in the hospital nor recorded his statement through a Judicial Magistrate as provided in R. 21 of Chapt. XXV of Police Rules, 1934

Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Dying declaration was always considered a strong piece of evidence but at the same time it had to be seen that the same rang true or not.

Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later

Record showed that initially,the FIR was got registered on the statement of complainant (since deceased)

Complainant (since deceased) was injured during the occurrence and his medico legal certificate was issued on the day of occurrence and he passed away after about ten days of the occurrence at the hospital

Prosecution had pressed hard that beside ocular account of two eye-witnesses there was overwhelming evidence in the shape of statement of complainant (since deceased) which had become now a dying declaration and his statement had much credence and legal worth

Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt

Appeal against conviction was allowed, in circumstances.

Whether witness heard the deceased correctly and whether that evidence could be relied upon.

Dying declaration certainly is an important piece of evidence, which possesses the sanctity on the reason that a dying man is not expected to tell lie, however, said fact is not as absolute rule, as that dying declaration is a weak type of evidence as it cannot be challenged in cross-examination

Court was to evaluate its sanctity with great care and caution.

Dying declaration is testimony that would normally be barred as hearsay but might be admitted as evidence in criminal trials because it constituted the last words of a dying person

Rationale is that someone who is dying or believed death to be imminent would have less incentive to fabricate testimony, and as such, the hearsay statement carried with it some reliability.

One of the considerations to appreciate the dying declaration was that, it must be free from any outside promptness that means that at the relevant time no one had to be there to influence the deceased

Not only that, but also no one met him before his statement

Investigating Officer admitted in cross-examination that at the time of recording statement of injured, complainant and two witnesses were also present there

Said fact alone was enough to discard the evidence of dying declaration

Investigating Officer recorded the statement after seeking declaration from the woman Medical Officer, which meant that she was present in hospital at the relevant time

Investigating Officer was duty bound to record the statement in the presence of woman Medical Officer and then to obtain her signature in token of its correctness with a certificate also that injured remained conscious throughout during his statement

Even otherwise, the dying declaration was factually incorrect as injured had alleged sole fire by accused whereas through medical evidence it had been established that he had received two fire shots and same was also maintained by two eye-witnesses

In the present case, it had been established that one female was involved in hatching the conspiracy whereas in dying declaration injured had stated that they were two different personalities

Said deliberations made a definite result that the alleged dying declaration had not been proved by the prosecution

Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Dying declaration must be free from any outside prompting that means that at the relevant time no one had to be there to influence the deceased

Not only that, but also no one met the deceased before his statement

Prosecution could not claim that there was no outside prompting when alleged dying declaration was made in presence of complainant and the witnesses.