PLJ 2022 Cr.C. 186
[Lahore High Court, Lahore]
Present: Sohail
Nasir,
J.
TAJ
MUHAMMAD--Appellant
versus
STATE--Respondent
Crl. A.
No. 1717 of 2010, heard on 27.5.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-i-Amd--Dying declaration--Dishonest improvements--Benefit of doubt--Acquittal of--In FIR admittedly
allegation is of single fire by appellant--There are two kinds of possible
improvements by a witness during trial. One relates to explain certain facts
those are immaterial in nature causing no damage to prosecution’s case--Others
are called deliberate, material and with a specific object, which in all
circumstances shall destroy the veracity of a witness--No reliance can be made
on the testimony of a witness who intentionally introduces improvements in his
statement so as to cover the lacuna’s or to bring his testimony in line with
other pieces of evidence--Priority for complainant was to save the life but
this duty to inform the police could be performed by two others, who being his
near and dear were accompanying the complainant--While reporting the matter to
police, complainant was having all relevant information, therefore, missing
from memory an important incident of the same day in the morning, was out of
question--A dying declaration is testimony that would normally be barred as
hearsay but may be admitted as evidence in criminal law trials because it
constitutes the last words of a dying person--The rationale is that someone who
is dying or believes death to be imminent would have less incentive to
fabricate testimony, and as such, the hearsay statement carries with it some
reliability--I.O. recorded that the statement after seeking declaration from
the lady doctor, which means that she was present in hospital at the relevant
time--Held: It was the duty of the
I.O. to record the statement in presence
of lady doctor and then to obtain her signature in token of its correctness
with a certificate also that injured remained conscious throughout during his
statement--Every finding recorded by the trial Court is contradictory or
imaginary--Appeal is accepted. [Pp. 191,
192, 193, 194, 195,
196,
197 & 199] A, B, C, D, E, F, G, H & I
2020 SCMR 857; 2017 SCMR
344; PLD 2006 SC 255 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art.
46--Dying declaration--Dying declaration is relevant fact under art. 46 of QSO,
when it is made by a person as to cause of his death, or as to any of the
circumstances of the transaction which resulted in his death--Dying declaration
is the statement that is made by the victim of homicide offence and it relates
to his/her cause of death.
[P.
196] G
Criminal Procedure Code, 1898 (V of 1898)--
----S. 367--A judgment shall contain the point or points for determination,
the decision, thereon and the reasons for the decision. [P.
199] J
Malik Jahanzaib
Advocate for Appellant.
Mr. Irfan Zia, Deputy
Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 27.5.2021.
Judgment
Since morning repeated calls are made, but none appeared on
behalf of complainant despite the fact that file is kept pending till 02:00 pm.
Order sheets show that for the last five consecutive dates no one from
complainant side has pursued this matter. This appeal is of the year 2010 and
shown in the red regular cause list where name of Mr. Shoaib Zafar Advocate for
complainant is also posted, so I proceed to decide it after hearing learned
counsel for appellant and learned Deputy Prosecutor General for the State.
2. This criminal appeal is directed against judgment dated
27.05.2010, passed by learned Additional Sessions Judge, Mianwali on the basis
of which Taj Muhammad (appellant) was convicted under Section 302(b) of
Pakistan Penal Code (XLV of 1860) (PPC) and sentenced to imprisonment for life
and to pay Rs. 2,00,000/- (two lacs) as compensation in terms of Section 544-A
of the Code of Criminal Procedure, (Act V of 1898) (Cr.P.C) to the legal heirs
of deceased. Benefit of Section 382-B, Cr.P.C. was also extended to him. By way
of same judgment Mst. Zareena Afshan was acquitted from the charges.
3. Facts of the case are that on 26.10.2007, Muhammad Ibrahim
(PW-9) while appearing in police station City Mianwali made a statement that on
that day at about 12:30 noon his son Muhammad Shafiq (deceased) was present at
Kala Bagh Chungi on his Chingchi Rikshaw;
Taj Muhammad armed with 30 bore pistol along with an unknown person empty
handed came there on a motorbike; appellant raised a ‘lalkara’ that they were
there for taking the revenge of insult and made a straight fire which hit on
the right flank of Muhammad Shafiq, who fell down on the ground; on hue and cry
Muhammad Rafiq (PW-10) and Muhammad
Hanif (not produced) arrived there;
appellant and his co-accused had escaped from crime scene. The motive alleged
was that the appellant had borrowed an amount of Rs. 50000/- (fifty thousand) from complainant and on
demand for its return, appellant was insulted by deceased.
4. Said statement was resulted into registration of FIR No. 524
(PG), on 26.10.2007 under Sections 324/34, PPC. On the death of Muhammad Shafiq
in hospital, offence of Section 324, PPC was converted to 302(b), PPC.
5. During investigation, complainant got his supplementary
statement recorded and maintained that while reporting the matter, he had
forgotten that an hour prior to the occurrence, Mst. Afshan and Mst. Zareena
daughters of Ghulam Hussain (sisters of
Appellant) hatched a conspiracy with their brother Taj Muhammad regarding
the murder of Muhammad Shafiq.
6. When the report under Section 173 Cr. P.C (Challan) was submitted in Court, an
objection was taken that Mst. Zareena Afshan was one and the same lady and not
two different personalities. After an inquiry it was also held so.
7. In the process of investigation the unknown person was
nominated as Muhammad Iqbal, who was declared Proclaimed Offender. It is
important to mention here that after the decision of the case, Muhammad Iqbal
was also apprehended but acquitted in 2011 on the basis of compromise with
legal heirs of deceased.
8. Appellant was arrested on
04.12.2007 and from his possession a pistol 30 bore was recovered. Statement of
Muhammad Shafiq, the then injured, on 30.10.2007 under Section 161, Cr.P.C. (PO) was recorded by the investigating
officer and it was claimed as dying declaration.
9. A charge under Sections 302/34,
PPC, on 14.04.2009, was framed against appellant and Mst. Zareena Afshan for
which they pleaded not guilty and demanded the trial, where after, in support
of its case prosecution had produced following witnesses: -
PW-1 Muhammad Hayat ASI is author of FIR.
PW-2 Muhammad Shafiq is the draftsman.
PW-3 Sher Rasool HC is Moharrar.
PW-4
Yakki Khan Constable had executed the proclamation of Muhammad Iqbal.
PW-5
Muhammad Asif Constable got conducted the post-mortem examination of
deceased.
PW-6
Dr. Muhammad Farooq performed the autopsy of deceased.
PW-7
Abdul Qayyum Constable had deposited the parcel of blood-stained earth
in the office of Chemical Examiner.
PW-8
Dr. Salah-ud-Din made initial medical examination of Muhammad Shafiq when
he was injured.
PW-9
Muhammad Ibrahim is complainant and eye-witness.
PW-10
Muhammad Rafiq is also an eye-witness.
PW-11
Nasrullah Constable is the witness to arrest of appellant and recovery
of pistol form him.
PW-12
Ghulam Qasim ASI is the investigating officer.
PW-13
Dr. Maria had declared the injured as fit to make statement.
10. Muhammad Hanif, Ghulam Fareed,
Muhammad Yasin and Ghulam Constable were given up being unnecessary. The
learned ADPP, after producing the reports of Chemical Examiner (PQ)
and Serologist (PR) had closed prosecution’s evidence.
11. In his examination made under
Section 342, Cr.P.C., version of appellant was as under:
“In
fact, few days prior to the occurrence, the parents of the deceased came in our
house and demanded the hand of my sister Mst. Zareena Afshan, my co-accused for
deceased and on our refusal, parents of deceased became annoyed and when this
fact came into the knowledge of deceased who while entering in our house tried
to outrage the modesty of my sisters. Meanwhile I attracted there and gave
slaps to the deceased and the said quarrel was in the knowledge of parents of
the deceased. Murder of deceased was committed by some unknown persons in
mysterious circumstances as the shirt of deceased was found torn and this fact
was noted by the IO during investigation but they involved me due to above said
quarrel on suspicion. All PWs are close relative and deposed against me due to
above said grudge. Furthermore the alleged occurrence took place in thickly
populated area and the prosecution failed to produce any independent witness
from the vicinity to corroborate the prosecution version.”
12. Appellant opted not to produce
defence evidence or to appear in terms of Section 340(2), Cr.P.C.
13. Learned counsel for appellant
contended that credibility of the alleged eye-witnesses was found under serious
doubts so much so they were proved to be the false witnesses; they made
material improvements during their statements to bring their evidence in line
with the medical evidence; showing two females with different names as sisters
of appellant and claiming that they hatched the conspiracy, was an ultimate
blast with regard to truthfulness of the witnesses for the reasons that Zareena
Afshan was one and the same lady; recovery of pistol being inconsequential
could not be considered as corroboration to the ocular account. He finally
contended that as prosecution has badly failed to prove its case beyond shadow
of doubt, therefore, learned Trial Court was not justified to record the
conviction.
14. On the other hand learned
Deputy Prosecutor General for the State argued that it was a broad daylight
occurrence in the city area, where appellant and his co-accused arrived and
committed the Qatl-e-Amd of Muhammad Shafiq by way of specific fire made by
appellant; misunderstanding about two personalities with different names by
eye-witnesses of the occurrence could not be a reason to declare prosecution’s
case doubtful; both eye-witnesses during trial with consistency had narrated
the manners of occurrence and in cross-examination, defence was unable to
shatter their credibility; no enmity existed between the parties, so no
question for false involvement of appellant was there; no doubt that
eye-witnesses were related to deceased but, on this fact alone, their testimony
cannot be termed as unreliable; initial medical examination and thereafter
post-mortem examination of deceased were strong corroborative pieces of
evidence to the ocular account; statement of Muhammad Shafiq, when he was in
hospital in injured condition, was recorded after seeking declaration of
fitness from the doctor, hence, it was a valid dying declaration; it is settled
principle of law that a person expecting his death cannot make a false statement;
recovery of pistol from the possession of appellant was also a strong support
to ocular account. Learned Law Officer finally maintained that the learned
trial Court had recorded valid reasons for convicting the appellant, so
impugned judgment requires no interference.
15. Heard.
16.
Prosecutions’ story with regard to occurrence is revolving around the
statements of Muhammad Ibrahim (PW-9) and Muhammad Rafiq (PW-10). In FIR
admittedly allegation is of single fire by appellant and that is as under:
تاج محمد
نے للکارا کہ
اپنی وہ اپنی
بے عزتی کا
بدلہ لینے
آگئے ہیں اور
سیدھا فائر با
نیت قتل محمد
شفیق پسرم پر
کیا جو اسے
دائیں وکھی پر
لگا۔ پسرم گر
گیا
Even no firing in the air was
alleged by any of the accused. At this juncture, I will like to refer the statements
of both the Medical Officers. Dr. Salah-ud-Din (PW-8) had performed the
medical examined Muhammad Shafiq when he was brought to hospital in injured
condition. He observed as under:
“Two
fire arm entry wounds on outer surfaced of right abdominal wall ½ x ½ C.M size
of each. It was 29 CM from umbilicus anteriorly and 10 C.M above right iliac
crest”
Dr. Muhammad Farooq (PW-6), who
conducted the postmortem examination also observed as under: -
“A
group of 2 fire arm entry wounds in healing phase on the right outer surface of
abdomen, 29 CM lateral to umbilicus and 10 CM above right iliac crest”
17. Muhammad Ibrahim (PW-9) and
Muhammad Rafiq (PW-10) in their examination-in-chief made clever moves by
saying that “one or two fire shots with
pistol were made by appellant and those hit on Muhammad Shafiq”. Muhammad
Ibrahim, on confrontation from FIR, was found under improvement. When his
attention was drawn with specific contents recorded in FIR, he made another
move by adding that “as it was automatic
weapon, second fire might have been fired from pistol”. Similarly, on
confrontation from his statement recorded under Section 161, Cr.P.C., Muhammad
Rafiq (PW-10) was also responsible for the improvements in this context as he
had claimed earlier only one fire.
18.
There are two kinds of possible improvements by a witness during trial. One
relates to explain certain facts those are immaterial in nature causing no
damage to prosecution’s case. The others are called deliberate, material and
with a specific object, which in all circumstances shall destroy the veracity
of a witness. It is a settled proposition by now that no reliance can be made
on the testimony of a witness who intentionally introduces improvements in his
statement so as to cover the lacunas or to bring his testimony in line with
other pieces of evidence.
19. In similar circumstances, when witnesses made improvements
to bring their statements in line with medical evidence the honorable Supreme
Court of Pakistan in “Sardar Bibi &
another vs. Munir Ahmad & others 2017 SCMR 344” was pleased to hold as
under:
“As doctor, while conducting postmortem examination, declared that the
deceased persons received bullet injuries hence for the first time during
trial, Falak Sher and Sikandar were shown to be armed with 30 bore pistol and
Munir being armed with 7mm rifle. This willful and dishonest improvement was
made by both the witnesses in order to bring the prosecution case in line with
the medical evidence. In the FIR the complainant alleged that fire shot of
Falak Sher hit Zafar Iqbal deceased on his chest and the fire shot of Sultan
Ahmed accused also hit on the chest of deceased Zafar Iqbal. According to
doctor, there was only one fire-arm entry wound on the chest of the deceased
Zafar Iqbal. In order to meet this situation, witnesses for the first time,
during trial made omission and did not allege that the fire shot of Sultan hit
at the chest of Zafar Iqbal, deceased. So the improvements and omissions were
made by the witnesses in order to bring the case of prosecution in line with
the medical evidence. Such dishonest and deliberate improvement and omission
made them unreliable and they are not trustworthy witnesses.”
20. The above view also finds support from “Syed Saeed Muhammad Shah & another vs. The State 1993 SCMR
550” where it was ruled that:
“Secondly, statements of the witnesses in the Court in which
improvements are made to strengthen the case of the prosecution are not worthy
of reliance. It is held in the case of Amir Zaman v. Mehboob and others (1985
SCMR 685) that testimony of witnesses containing material improvements are not
believable. Reference can also be made to the cases of Haji Bakhsh v. The State
(PLD 1963 Kar. 805), Qaim Din and others v. The State (1971 P Cr. LJ 229) and
Fazla and another v. The State (PLD 1960 Lah. 373)”
21. Same view was also taken by the
apex Court in its latest pronouncement (Muhammad
Arif vs. The State 2019 SCMR 631).
22. Prosecution’s case was that
Muhammad Shafiq was present at crime scene on his rickshaw. Said rickshaw was
not produced by the complainant during investigation. Even its documents were
not placed for consideration before the Investigating Officer. Ghulam Qasim ASI
(PW-12), in cross-examination, specifically replied that he had not shown any rickshaw in rough site-plan (PL). The same position was there in
the scaled site-plan (PB). Circumstances always play an
important role in corroboration to the ocular account. It is not the case of
prosecution that someone had taken the rickshaw
from there, so the question till today is unanswered that where that rickshaw is? This fact has also created
serious dents in prosecution’s story.
23.
Although it was claimed that FIR was recorded promptly, but I do not find so.
The occurrence took place at 12:30 noon. Police Station was at a distance of
one kilometer from crime scene that was in the city area. Muhammad Ibrahim
after taking Medico Legal Report of Muhammad Shafiq went to police station and
FIR was recorded. It means that prior to 01:45 pm, no one informed the police
about the occurrence. It is an absolute position and cannot be questioned that
priority for complainant was to save the life of Muhammad Shafiq but this duty
to inform the police could be performed by two others, who being his near and dear
were accompanying the complainant.
24. Muhammad Ibrahim, in
cross-examination, admitted that when injured was taken to hospital, his
clothes were smeared with blood. Those clothes to my mind could be considered
strong corroborative piece of evidence to prove his presence at crime scene but
those were never produced before the investigating officer.
25. Conduct of Muhammad Ibrahim and
Abdul Hameed is repeatedly under heavy clouds of uncertainty. On the same day,
Muhammad Ibrahim made a supplementary statement after registration of FIR that:
-
“He had
missed that on the same day at about 11:00 am Muhammad Shafiq had gone to the
house of Taj Muhammad and demanded money form him; there was also present Mst.
Zareen and her sister Mst. Afshan and all they quarreled with Muhammad Shafiq;
Mst. Zareen and Afshan asked appellant to take revenge of the said insult;
he/complainant and Muhammad Rafiq were also present and they heard this
conversation”
26.
I have observed that while reporting the matter to police, complainant was
having all relevant information, therefore, missing from memory an important
incident of the same day in the morning, was out of question, so this story was
rightly disbelieved by the learned Trial Court.
27. Since the females nominated by
the complainant in his supplementary statement were related to him therefore
question of misidentification or confusion does not arise. According to record
when incomplete Challan was submitted
in Court, appellant was placed in column No. 3. During investigation it
transpired that Mst. Zareena Afshan was one and the same lady and not two
independent personalities. She was placed in column No. 2. Second Challan was
submitted with the same status, however, name of Mst. Zareena Afshan was
not shown there. The learned Additional Sessions Judge, on the application of
complainant, had summoned Mst. Afshan and Mst. Zareena to face trial. Mst.
Zareena filed a criminal revision before this Court against that order of
summoning, which was allowed and the learned Trial Court was directed to hold
an inquiry, whether Mst. Zareena Afshan were two independent ladies with the
name of “Zareena” and “Afshan” or it was the name of one and
the same lady as “Zareena Afshan”. On
conclusion of inquiry the learned trial Court found that Mst. Zareena Afshan
was one and the same lady and not two independent personalities. Those findings
of the learned Trial Court remained unchallenged throughout.
28. If above was the position, then
how in supplementary statement, complainant and Muhammad Rafiq, in his
statement under Section 161, Cr.P.C. (DA) categorically stated that they were
two females “Afshan Bibi” and “Zareena Bibi”? Despite this
unchallenged position that she was one and same lady, again Muhammad Ibrahim
and Muhammad Rafiq in their examination- in-chief maintained that appellant
with Mst. Zareena and Mst. Afshan were present in the house.
29. The above referred facts and
discussion made, therefore, cannot restrain this Court to hold that both
witnesses made false statements in the Court so they cannot be relied upon.
30. Coming to story of motive, it
is enough that prosecution was under heavy burden to prove that at what date,
time and place and in what manners the appellant had borrowed the amount of
Rs. 50000/- from complainant party, but this duty was not discharged so without
any further discussion it is held that motive was not proved in this case.
31. This takes me now to the
evidence of dying declaration. The Phrase “Dying Declaration” means
that:-
“A
man will not meet his maker with a lie in his mouth”[1]
“No
one at the point of death is presumed to lie”[2]
32.
In the law of evidence, a dying declaration is testimony that would normally be
barred as hearsay but may be admitted as evidence in criminal law trials
because it constitutes the last words of a dying person. The rationale is that
someone who is dying or believes death to be imminent would have less incentive
to fabricate testimony, and as such, the hearsay statement carries with it some
reliability.
33. Evidence of dying declaration
is universally recognized. In England and Wales[3]
an original statement made by a dead person is admissible under the statutory
"unavailability" exception subject to the Courts’ judicial discretion
to exclude unreliable evidence.
34. In United States of America
under the Federal Rules of Evidence,[4]
a dying declaration is admissible if the proponent of the statement can
establish that deceased’s statement was made while under the genuine belief
that his or her death was imminent and that the statement relates to the cause
or circumstances of what he or she believed to be his or her impending death;
statement must relate to the circumstances or the cause of the his own
impending death.
35. The first use of dying
declaration exception in American law was in 1770 murder trial of the British
soldiers responsible for the Boston Massacre.[5]
One of the victims, Patrick Carr, told his doctor before he died that the
soldiers had been provoked. The doctor's testimony helped defense attorney John
Adams to secure acquittals for some of the defendants and reduced charges for
the rest.
36. In Canadian jurisdiction[6]
(R. v. Nurse, 2019 ONCA 260) the general principles on which evidence of
dying declaration is admitted are that declaration made in extremity: -
i. When the person is at the point of
death.
ii. When every hope of this world is gone.
iii. When every motive to falsehood is
silenced, and
iv. The
mind is induced by the most powerful considerations to speak the truth.
37. Dying declaration is also
allowed as evidence in Indian Courts, if the dying person is conscious of his
or her danger, he or she has given up hopes of recovery, the death of the dying
person is the subject of the charge and of the dying declaration, and if the
dying person was capable of a religious sense of accountability to his or her
Maker.
38.
In Pakistan, dying declaration is the statement that is made by the victim of
homicide offence and it relates to his/her cause of death. Under Article 46 of
the Qanoon-e-Shahadat, (P.O No. X of 1984), it is a relevant fact when it is
made by a person as to cause of his death, or as to any of the circumstances of
the transaction which resulted in his death.
39. A 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. But this is not an absolute rule,
as by now it is settled principle that dying declaration is a weak type of
evidence as it cannot be challenged in cross-examination, therefore, the Courts
have to evaluate its sanctity with great care and caution and for that Court
must keep in sight that:
i. Whether
the maker has the physical capacity to make the dying declaration?
ii. Whether
the maker had opportunity to identify the assailant/assailants?
iii. Whether there was a chance of
misidentification on the part of dying man in identifying and naming the
assailants?
iv. Whether it was free from prompting from
any outside quarter; and?
v. The
witness heard the deceased correctly and whether this evidence can be relied
upon?
40. By applying the above tests and
principles, now I proceed to discuss the evidence of dying declaration produced
by prosecution in this case. It is the statement under Section 161, Cr.P.C.
(PO) that has been claimed as dying declaration. It is in the statement of
Ghulam Qasim ASI that:
“I went to DHQ Hospital Mianwali where Muhammad Shafiq was admitted in
an injured condition and I was informed that he was taken for operation. On
27.10.2007 I again went to DHQ Hospital, Mianwali and made the application
EX-PM, doctor opined that he was not fit for statement. On 28.10.2007 I again
went to DHQ hospital Mianwali and sought the opinion of doctor about the
fitness of Muhammad Shafiq to make the statement and doctor gave negative
opinion. On 30.10.2007 I made application EX-PN and lady doctor opined that
Muhammad Shafiq was fit for statement”
41. One of the considerations to appreciate the dying
declaration is that, it must be free from any outside promptness that means
that at the relevant time no one has to be there to influence the deceased. Not
only this, but also no one met him before his statement. In the case in hand
Ghulam Qasim ASI (PW-12) admitted in cross-examination that at the time of
recoding of statement of injured, Muhammad Ibrahim/complainant (PW-9),
Muhammad Rafiq (PW-10) and Muhammad Hanif were also present there. This fact
alone is enough to discard the evidence of dying declaration.
42.
Investigating officer recorded the statement after seeking declaration from the
lady Doctor, which means that she was present in hospital at the relevant time.
It was his duty to record the statement in presence of lady doctor and then to
obtain her signatures in token of its correctness with a certificate also that
injured remained conscious throughout during his statement. In “Mst. Zahida Bibi Vs. The State
PLD-2006- SC-255” the facts were identical with regard to dying declaration as
in the case in hand. Their Lordships were pleased to observe as under:
“This
is an admitted fact that the statement of the deceased was not recorded by the
Sub-Inspector of police in hospital in presence of the Doctor and further
neither any member of the hospital staff was associated at the time of
recording the statement nor it was got verified by any official of the hospital
that the statement was actually made by the deceased. Be that as it may, the
status of such a statement would be hardly a statement under Section 161, Cr.PC
and not a dying declaration of the deceased. This may be seen that the dying
declaration or a statement of a person without the test of cross-examination is
a weak kind of evidence and its credibility certainly depends upon the
authenticity of the record and the circumstances under which it is recorded,
therefore, believing or disbelieving the evidence of dying declaration is a
matter of judgment but it is dangerous to accept such statement without careful
scrutiny of the evidence and the surrounding circumstances, to draw a correct
conclusion regarding its truthfulness. The rule of criminal administration of
justice is that the dying declaration like the statement of an interested
witness requires a close scrutiny and is not to be believed merely for the
reason that dying person is not expected to tell lie. This is the method of
common knowledge that in such circumstances in preference to any other person,
a Doctor is most trustworthy and reliable person for a patient to depose
confidence in him with the expectation of sympathy and better treatment to
disclose the true facts. In the present case, in the manner in which the
statement of deceased was recorded by the Sub-Inspector, would seriously
reflect upon its correctness and consequently, could not be considered worthy
of any credit to be relied upon as dying declaration.”
43. Even otherwise, the dying
declaration was factually incorrect on the following reasons:
i. Muhammad Shafiq had alleged sole fire by appellant whereas through
medical evidence it has been established that he had received two fire shots
and same was also maintained by two eye-witnesses.
ii. It is proved that Afshan Zareena is one
and the same lady whereas in dying declaration he had stated that they were two
different personalities.
44. The deliberations made above take me to a definite result
that the alleged dying declaration has not been proved by the prosecution.
45. From the possession of appellant a pistol 30 bore was
recovered on his arrest. As no empty was found at crime scene, therefore,
recovery was inconsequential with no benefit to prospection.
46. ‘Fiat Justitia’ is the motto of the Court. It is a Latin phrase,
which means ‘Let Justice be done’. Appreciation of evidence involves weighing
the credibility and reliability of the evidence presented in the case.
According to Jeremy Bentham[7]
‘evidence’ is any matter of facts, the effect, tendency or design of which is
to produce in the mind, a persuasion, affirmative or dis-affirmative, of the
existence of some other matter of fact. ‘Evidence’ means and includes all
statements, which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under enquiry and all documents
including electronic records produced for the inspection of the Court. The
standard of proof in Criminal case is not the same as in the Civil.
Importantly, in criminal case, the burden of proving the guilt of an accused is
upon the prosecution. It must stand by itself. If there is a real and reasonable
doubt as to guilt, the accused is entitled to the benefit of doubt. The law
always requires that the conviction should be certain and not doubtful.
47. The honorable Supreme Court of Pakistan in “Muhammad Imran vs. The State 2020 SCMR
857” on the question of benefit of doubt was pleased to hold that:
“It is by now well settled that benefit of a single circumstance,
deducible from the record, intriguing upon the integrity of prosecution case,
is to be extended to the accused without reservation”
48.
I have perused the impugned judgment and I feel no hesitation to say that it is
a bad judgment in the eyes of law. Every finding recorded by learned Trial
Judge is contradictory or imaginary. It appears that at one stage he believed
the presence of eye-witnesses but in later discussion he disbelieved them. The
findings on motive and dying declaration are also confusing as it is difficult
to understand that if he had stamped the correctness or not on both the pieces
of evidence. The learned Trial Judge was of the view that it was a case of two
fire shots and he himself assumed that second fire was made by Muhammad Iqbal
the then Proclaimed offender. The most astonishing position was that when
learned trial Judge disbelieved the allegations of fire by appellant and held
as under:
“As far as
accused Taj Muhammad is concerned, the prosecution has proved its case against
accused Taj Muhammad to the extent that he was present at the time and place of
occurrence and grappled with deceased Muhammad Shafiq with co-accused and
shared common intention with his co-accused for the murder of Muhammad Shafiq
deceased”
49. I am unable to understand that on the basis of what
material learned Trial Judge had drawn above opinion. If he had disbelieved the
presence of eye-witnesses and held that it was a case of two fire shots, then
he was supposed to acquit the appellant. I, therefore, find no difficulty to
hold that the learned Trial Judge had convicted the appellant on the basis of
presumptions only.
50.
Under Section 367 of Cr.P.C. a judgment shall contain the point or points for
determination, the decision, thereon and the reasons for the decision. The
learned Trial Judge has made complete deviation from the statutory provisions
while writing the impugned judgment.
51. A good judgment must base on
deep critical analysis of all the facts relevant to the case and not on
external consideration. It, in all circumstance, has to be transparent,
unambiguous, and intelligible. It is said that “a judgment should be transparent like clean water so that people can
understand it without any doubt and probabilities”.
52. Resultantly, this Criminal
appeal is allowed. Impugned judgment
dated 27.05.2010 is set aside. Appellant is acquitted from the case. He is on
bail. His surety is discharged from terms and conditions of bail bonds.
(K.Q.B.) Appeal
allowed
[1]. https://en.wikipedia.org/wiki/Dying_declaration.
[2]. Nemo moriturus praesumitur mentiri.
[3]. https://en.wikipedia.org/wiki/Dying_declaration.
[4]. The Federal Rules of Evidence are a set of
rules that governs the introduction of evidence at civil and criminal trials in
United States federal trial Courts.
[5]. The Boston Massacre was a deadly riot that
occurred on March 5, 1770, on King Street in Boston. It began as a street brawl
between American colonists and a lone British soldier, but quickly escalated to
a chaotic, bloody slaughter. The conflict energized anti -British sentiment and
paved the way for the American Revolution .
(https://www.history.com/topics/american - revolution/boston-massacre).
[6]. https://www.canlii.org/en/on/onca/doc/2019/2019onca260/2019onca260.html.
[7]. An English philosopher, jurist, and social
reformer regarded as the founder of modern utilitarianism.