2015 P Cr. L J 1389
[Balochistan]
Before Muhammad Ejaz Swati and Naeem Akhtar Afghan, JJ
DILMURAD DILJAN alias DILO ---Appellant
versus
The STATE---Respondent
Criminal Jail Appeal No.14 of 2012, decided on 28th April, 2015.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Evidence of
prosecution witnesses were based on hearsay; as neither the eye -witnesses of the occurrence had
direct knowledge, nor in their presence, the deceased (then injured) made any statement to the
Police or Doctor ---Purported statement of deceased (then injured) under S.161, Cr.P.C., was
recorded by Police Officer, and he produced the same---Nothing was mentioned in the said
statement about the presence of D octor, or any other official of the hospital, or obtaining of
fitness certificate regarding condition of the deceased (then injured) --- Doctor neither testified
the same nor he disclosed about the condition of the deceased (then injured) at the relevant ti me
and date ---Inconsistency existed relating to the time of arrival of the deceased in injured
condition to the hospital ---Doctor had not supported the purported statement of the deceased
(then injured) which in the circumstances of the case was not safe t o be relied upon---Act of
withholding most natural and material witness of the occurrence, would create an impression that
the witness, if produced might not have supported the prosecution---Non -examining of the best
evidence, had further made the case of the prosecution doubtful, and benefit of such doubt, was
to be extended in favour of accused--- Impugned judgment of the Trial Court, was set aside,
accused was acquitted of the charge and was released, in circumstances.
Mst. Zahida Bibi v. The State PL D 2006 SC 255 ref.
(b) Qanun- e-Shahadat (10 of 1984) ---
----Art. 46---Criminal Procedure Code (V of 1898), S. 161---Dying declartion ---Scope ---
Examination of witness by Police ---Statement of a deceased (then injured) in the form of
statement under S.161, Cr.P.C., could be treated as a dying declaration and same was admissible
under Art.46 of Qanun -e-Shahadat, 1984--- If proved, same could be made a basis for sustaining
conviction of accused on capital charge, but to make a basis for conviction, prosecuti on was
required to establish; firstly; that the deceased, while recording his statement as dying
declaration, was in full senses and was conscious and alert to surroundings and was able to make
a coherent statement; secondly, the dying declaration rang true, and was sound in substance to be
relied upon and thirdly, if the Doctor present at the occasion, would give a fitness certificate
about the condition of the dying person.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Police Official as witness ---Held, it
could not be stated as a rule that a Police Officer, could, or could not be a sole witness in
criminal case; it always depended upon the facts of a given case--- If the testimony of such
witness was reliable, trustworthy cogent and duly corroborated by other witnesses, and
admissible evidence, then the statement of such a witness could not be discarded only on the
ground that he had designation of Police Officer.
Abdul Karim Yousafzai for Appellant.
Miss Sarwat Hina, Additional P. -G. for the State.
Date of hearing: 7th April, 2015.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---This Criminal Jail Appeal has been sent by the
appellant Dil Murad Diljan alias Dilo through Superintendent Centr al Jail, Gaddani; challenging
the validity of the judgment dated 10th April, 2012 (hereinafter the "impugned judgment")
passed by the learned Sessions Judge, Turbat (hereinafter the "trial Court"), whereby the
appellant has been convicted under section 302(b) Qisas and Diyat Ordinance (P.P.C.) as Ta'zir
and sentenced to suffer imprisonment for life with benefit of section 382- B, Cr.P.C. The
appellant was also ordered to pay compensation of Rs.100,000 to the legal heirs of deceased
Shakir Ali as provided under section 544- A, Cr.P.C. or in case of default to further suffer S.I for
six months.
2. The case of the prosecution as projected before the trial Court is that on 2nd June, 2005,
the deceased Shakir Ali was found in injured condition near his house situated at Shahi Tump
Turbat. The brother of the deceased Naimatullah soon after receiving information through
children rushed there and found his brother in unconscious condition. The deceased Shakir Ali
was taken to hospital where he after gaining conscious told that the accused Sameer (acquitted
on the basis of compromise), Dil Murad Diljan alias Dilo (appellant) Khudadad alias Khudo and
Muhammad Azeem after taking him on two motorcycles assaulted him in their drawing room by
means of hunters and burnt him with hot iron rods; that his brother Zareef was also brought there
and beaten, but subsequently relieved, whereas, he was kept and on the next day, he was thrown
near his house. The matter was reported to Police Station, Turbat on 2nd June, 2005 by the
brother of the deceased namely Naimatullah. However, FIR was registered on 5th June, 2005 at
about 6- 50 p.m. On the said date, the investigating officer recorded the statement of the injured
Shakir Ali purportedly under section 161, Cr.P.C. After emergency tr eatment, the injured Shakir
Ali was shifted to Surgical Ward, where he expired on 6th June, 2005. The Medico Legal
Certificate (MLC) of the deceased mentions the cause of death as under:
Cause of Death: Septicemia (1) Secondary to simple injuries caused by blunt
object and hot and Heated object.
II. Multiple drug Addiction and its withdrawal complication."
3. Initially, the conviction/sentence of the appellant was set aside by this Court vide
judgment dated 13th October, 2011 and the case was remanded for bringing the statement of the
deceased Shakir Ali under section 161, Cr.P.C. on record. During pendency of the appeal before
this Court, the co- accused Khudadad alias Khudo was acquitted by the trial Court on 14th
January, 2010.
4. After remand, the trial Court vide impugned judgment convicted and sentenced the
appellant as mentioned hereinabove.
5. Learned counsel for the pauper appellant contended that it was an un- witnessed
occurrence; that the statements of the prosecution witnesses are based on hearsay evidence; that
belated purported statement of the deceased without the certificate of the doctor about the
condition of the deceased is a weak type of evidence; that the sole statement of the deceased
without independent corroboration is not safe for awarding conviction; that the important witness
of the prosecution namely Zareef had been abandoned by the prosecution without assigning any
reason.
On the other hand, learned Additional P.G. contended that the deceased during his
lifetime nominated the appellant with the commission of the alleged offence; that after his death,
the statement of deceased unde r section 161, Cr.P.C. was brought on record, which squarely falls
within the definition of Article 46 of the Qanun- e-Shahadat Order, 1984 (hereinafter the "Order,
1984") and is an admissible evidence; that the dying declaration has further been supported by
the independent witnesses of the prosecution; that no misreading and non- reading of evidence
has been pointed out in the impugned judgment calling for interference by this Court; that the
findings rendered by the trial Court are based on proper apprecia tion of evidence, which are not
open to any exception, therefore, the impugned judgment is liable to be sustained.
6. We have heard the learned counsel for the parties and have gone through the record of the
case. P.W.1 Muradi stated that prior to the incident, the acquitted co -accused Sameer came to her
home and abused the deceased and thereafter Sameer along with the appellant had taken the
deceased to their drawing room, however, this prosecution witness in the course of her cross -
examination admitted that she herself had not seen the appellant while taking the deceased to
their drawing room. In the same manner, P.W.2 Mirjan and P.W.3 Razia have also admitted that
they were told by the children about the throwing of deceased Shakir in the street. The evidence
of aforesaid prosecution witnesses are based on hearsay; as neither the eye- witnesses of the
occurrence had direct knowledge nor in their presence the deceased then injured made any
statement to the Police or Doctor.
7. Now coming to dying declaration of the deceased Shakir, no doubt the statement of a
deceased person in the form of statement under section 161, Cr.P.C. can be treated as a dying
declaration and same is admissible under Article 46 of the Order, 1984. If proved, same can be
made a basis for sustaining conviction on a capital charge. However, to make it a basis for
conviction, the prosecution is required to establish firstly that the deceased while recording his
statement as dying declaration was in full sense s, that he was conscious and alert to surrounding
and was able to make a coherent statement. Secondly, the dying declaration rings true and is
sound in substance to be relied upon. Thirdly, if the doctor present at the occasion shall give a
fitness certificate about the condition of the dying person. In the present case, the purported
statement of deceased Shakir under section 161, Cr.P.C. was recorded by a Police Officer i.e.
P.W.5 Murad Bakhsh on 5th June 2005 and he produced the same as Exh.P/5- C. The en tire case
hinges upon the trustworthiness, reliability or otherwise of the testimony of P.Ws. The
contention raised on behalf of the appellant that the police officer being the sole witness would
be an interested witness and in that situation false implica tion cannot be ruled out of
consideration. It cannot be stated as rule that a police officer can or cannot be a sole witness in
criminal case. It always depends upon the facts of a given case. If the testimony of such witness
is reliable, trustworthy, coge nt and duly corroborated by other witnesses or admissible evidence,
then the statement of such a witness cannot be discarded only on the ground that he has
designation of police officer. In the instant case, the purported statement Exh.P/5- C was recorded
by P.W.5, but there is nothing in his statement about the presence of doctor or any official of the
hospital or obtaining fitness certificate regarding condition of the deceased. Dr. Akhtar Ali
appeared as P.W.4 has neither testified the same nor he disclos ed about the condition of the
deceased on the relevant time and date i.e. 5th June, 2006 and there is also inconsistency
regarding the time of arrival of the deceased in injured condition to the hospital. As according to
FIR Exh.P/5- B, the date of incident is mentioned as 2nd June, 2005, while P.W.4 Dr. Akhtar Ali
in his examination in chief categorically stated that the deceased Shakir was brought in D.H.Q.
Hospital, Turbat on 1st June, 2005 i.e. one day prior to the incident. P.W.2 Mir Jan and P.W.3
Razia during the course of their cross -examination admitted that the deceased Shakir was addict
of heroin. The MLC of the deceased also indicates that the cause of death was "septicemia"
which according to the National Institution of Health Institute means "sep ticemia is bacteria in
the blood (bacteremia) that often occurs due to severe infection also called sepsis. It is a serious
life threatening infection that gets worse very quickly". Besides above, the doctor has not
supported the purported statement of the deceased, which in the present circumstances of the
case is not safe to be relied upon. Reference in this context is made to the case of Mst. Zahida
Bibi v. The State, PLD 2006 SC 255, wherein it is held as under:
"This is an admitted fact that the sta tement 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.P.C. and not a
dying declaration of the deceased. This may be seen that the dying decl aration 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 disbelie ving 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 cri minal administration of justice is that the dying declaration like the statement of an
interested witness requires close scrutiny and is not to be believed merely for the reason that
dying person is pot expected to tell lie. This is a matter of common know ledge 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."
8. The other as pect on the basis whereof this piece of evidence cannot be relied upon is that
in the said statement it is mentioned that besides deceased Shakir, the appellant along with his
co-accused had also taken the brother of deceased namely Zareef and beaten him b ut that
important alleged eye -witness had been abandoned by the prosecution without any cogent
reason. The act of withholding most natural and material witness of the occurrence would create
an impression that the witness if produced might not have support ed the prosecution, therefore,
non-examining the best evidence further makes the case of the prosecution doubtful, therefore,
we, vide our short order dated 7th April, 2015 extended the benefit of doubt in favour of the
appellant, which reads as under:
"For the reasons to be recorded later on, the Criminal Jail Appeal No. 14 of 2012 is
accepted, the impugned judgment dated 10th April, 2012 passed by the learned Sessions Judge,
Turbat is set aside and the pauper appellant Dilmurad Diljan alias Dilo is acq uitted of the charge
under section 302(b), Q&D Ordinance (P.P.C.) in FIR No. 49 of 2005 of Police Station, Turbat.
The pauper appellant being in custody be released forthwith, if not required in any other case."
These are the reasons of our short order of even date.
HBT/64/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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