2017 P Cr. L J 1491
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shakeel Ahmed Baloch, JJ
ABDUL MANAN and another ---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.(S)126 of 2015, decided on 30th June, 2016.
(a) Penal Code (XLV of 1860) ---
----Ss.302, 147, 148 & 149---Qanun -e-Shahadat (10 of 1984), Art. 46---Qatl -i-amd, rioting,
rioting armed with deadly weapon, unlawful assembly ---Appreciation of evidence---Dying
declaration ---Scope--- Accused -appellants along with absconding accuse d persons were alleged
to have launched a murderous assault upon complainant, resultantly, he became seriously injured
and after reaching the hospital, he submitted a report for registration of FIR ---
Injured/complainant, however, succumbed to the injuries ---Trial Court recorded conviction
against the accused -appellant on the basis of report submitted by deceased considering the same
as dying declaration ---Accused -appellants had alleged that the report submitted by the
complainant was wrongly considered as d ying declaration as the said report was neither written
on prescribed pro forma nor requisite certificate of the doctor was appended therewith---
Validity ---Admittedly, dying declaration was not written on the prescribed form and same did
not carry the cert ificate from the doctor nor in the beginning it contained the routine observation
by the police ---Such omissions would not detract the evidentiary value of the dying declaration if
the same was made without delay; that deceased could speak; that there was no doubt about
identity of the accused; that there was no motive for which the deceased while nearing his death
would lie and there was no element of prompting ---In the present case, record transpired that
soon after the occurrence, the complainant/injured submitted report promptly without any
consultation and deliberation---Record did not show that said report was rendered at the instance
of anyone else or the deceased had submitted the report after being tutored by someone ---
Submission of report and conte nts therein were sufficiently corroborated by the statements of
prosecution witnesses ---Injuries mentioned in the report were corroborated by the medical
evidence furnished by the Medical Officer, as such, said report was rightly treated as "dying
declarat ion"---Appeal against conviction was dismissed in circumstances.
Mst. Zahida Bibi v. The State PLD 2006 SC 255; Dilmurad Diljan alias Dilo v. The State
2015 PCr.LJ 1389; Zareef Khan v. State PLD 1977 SC 612; Naimat Ali v. The State 1981
SCMR 61; Mst. Sha mim Akhtar v. Fiaz Akhtar PLD 1992 SC 211; Farmallah v. Qadeem Khan
2001 SCMR 1474 and Crown v. Abdul Ghani PLD 1956 (W.P.) Lahore 300 rel.
(b) Qanun- e-Shahadat (10 of 1984) ---
----Art. 46--- "Dying declaration" ---Admissibility ---When a man, who had recorde d his statement
prior to his death shed light upon the cause of his death, such statement would be admissible in
evidence.
(c) Qanun -e-Shahadat (10 of 1984) ---
----Art. 46---Dying declaration ---Evidentiary value ---Dying declaration was worthy of credence
for recording conviction, when there was neither any evidence on record nor even a suggestion
that dying complainant submitted his report after consultation or receiving hints from others.
(d) Qanun- e-Shahadat (10 of 1984) ---
----Art. 46--- Dying declarat ion--- Scope --- If the contents of dying declaration indicated that
what was alleged, was probably true and no attempt had been made to exaggerate the incident or
falsely implicated someone, it would be considered as "dying declaration" ---Such dying
declar ation would be termed as strong piece of evidence.
Muhi -ud-Din Sasoli and Nadir Ali Chalgari for Appellants.
Jamal Khan Lashari for the Complainant.
Jameel Akhtar Gajani, Deputy Prosecutor -General for the State.
Date of hearing: 7th April, 2016.
JUDGM ENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This order disposes of
Criminal Appeal No. (S) 126 of 2015 filed by the appellants against the judgment dated 24th
August, 2015 (the "impugned judgment") passed by the learned Additional Sessions Judge Sibi
at Mach (the "trial Court") in Sessions Case No. 17 of 2014, whereby the appellants were
convicted under section 302(b) of the Pakistan Penal Code, 1860 (P.P.C.) and sentenced to suffer
imprisonment for life with further direction to pay compensation of Rs.50,000/ - on each count to
the legal heirs of deceased Abdul Hameed and, in default whereof to further suffer simple
imprisonment for one year each, on each count. The appellants were also convicted under section
147, P.P.C. and sentenced to suffer rigorous impri sonment for one year each with payment of
fine of Rs.2000/ - each on each count in default whereof to further suffer simple imprisonment for
two months each, on each count with benefit of section 382- B of the Criminal Procedure Code,
1898 (Cr.P.C.).
2. The brief facts of the case, as alleged in the FIR No.12/2014 registered on 12th
September, 2014 are that the deceased Abdul Hameed and the absconding accused namely
Muhammad Yaqoob had a dispute over a coal -mine situated at Kalat Coal Company, which was
resol ved by the notables of the area; that on 5th June, 2014 the deceased was on his way back to
home when the appellants along with co- accused persons near Sariat Cross alighted from a truck
and assaulted him with Dandas and stones, inflicting serious injuries on his person; that after the
incident the accused persons escaped from the spot whereas the injured was taken to Civil
Hospital Mach by one Ghulam Mustafa Sumalani: that the injured complainant submitted his
written report for registration of the FIR aga inst the accused persons, whereby initially the FIR
was registered under sections 337- ADF, 147, 148 and 149, P.P.C.; that after initial medical
treatment later on injured Abdul Hameed was referred to Civil Hospital Quetta, but he
succumbed to his injuries on 9th June, 2014, thereby section 302, P.P.C. was inserted in the FIR
substituting section 337- ADF, P.P.C.
3. After registration of FIR, the investigation was carried out. The appellants were arrested
and a bill of indictment was submitted against them, w hile rest of the accused persons remained
absconders, who were declared proclaimed offenders after fulfilling the procedural formalities.
The trial court framed and read over the charge to the appellants on 26th September, 2014 to
which they did not plead guilty and claimed trial. Thereafter the prosecution in order to
substantiate the case produced the following witnesses:
PW-1, Rajab Ali is the witness of the arbitration proceedings taken place between the
parties to resolve the dispute over the coal -mine.
PW-2, Abdul Aziz is also witness of the arbitration proceeding.
PW-3, Abdul Karim is the eye -witness of the occurrence.
PW-4, Ghulam Mustafa, he brought the deceased Abdul Hameed to Civil Hospital
Mach where the report for registration of FIR was submitted in his presence.
PW-5. Dr. Chulam Haider Samijo is the Medico Legal Officer, who produced the death
certificate Ex.P/5, of the dece ased.
PW-6, Safar Khan is also the eye -witness of the incident.
PW-7, Gul Jan Levies Sepoy. He produced the visual site inspection memo Ex.P/7- A.
PW-8, Sanaullah Levies Sepoy is witness of recovery memo of the truck bearing
No.TKH- 879 taken into possession through recovery memo Ex.P/8- A.
PW-9, Muhammad Razzaq is one of the arbitrators who were appointed to resolve the
dispute over the mines.
PW-10, Takari Noor Ahmed Shahwani is another member of the arbitration committee
formed to resolve the mining disput e.
PW-11, Babu Muhammad Zarif Naib Tehsildar , is the investigating officer of the
case. He recorded the statements of the witnesses under section 161, Cr.P.C. He produced
the written complaint for registration of FIR Ex.P/11 -A, the FIR Ex.P/11- B, visual si te
plan Ex.P/11- C, inquest report Ex.P11- D, incomplete challan and the supplementary
challans as Ex.P/11 -E and Ex.P/11- F.
After close of the prosecution evidence the statement of the appellants were recorded
under section 342, Cr.P.C. wherein they once ag ain denied the allegations and professed
innocence. The appellants also recorded their statement under section 340(2), Cr.P.C.
The trial court convicted and sentenced the appellants on conclusion of the trial in the
above terms. Hence, this appeal.
4. The learned counsel for the appellants argued that the prosecution has not been able to
prove the motive part of the alleged occurrence, simply because the previous enmity of the
complainant was to the extent of absconding co- accused persons, on the other hand the
appellants had substantiated their innocence by producing the defense witness in support of their
alibi plea; that the delay in recording the prosecution witnesses' statements under section 161,
Cr.P.C. has not been justifiably explained; that the ma nner in which the star witnesses have
reacted during the alleged occurrence disqualifies them being chance witnesses, particularly
when their presence could not be established through independent corroboration; that there is no
direct piece of evidence available on the record, except the written report of the deceased, which
cannot be termed as "Dying Declaration"; that the medical evidence is also not in line with the
oral testimony of the prosecution witnesses; that the prosecution has failed to prove the
allegations leveled against the appellants beyond doubt, therefore, the conviction and sentence
recorded against the appellants is not sustainable in the eyes of law; that the impugned judgment
is contrary to law and facts and is against the norms of just ice; that the statements of the
prosecution witnesses being contradictory, almost on all the material particulars, and therefore,
were not believable, but the trial Court failed to attend the said aspect; that throughout the trial
proceedings the prosecuti on has failed to establish that the deceased was murdered by the
appellants, therefore, conviction of the appellants in the aforesaid terms was totally uncalled for.
He finally urged that since the impugned judgment is based upon misreading and non- reading of
the material available on record as well as misinterpretation of law, while, there was no occasion
for the trial Court for recording the conviction, as such the same is liable to be set aside and the
appellants be acquitted of the charge by extending benefit of doubt in their favour.
5. Conversely, learned counsel for the complainant vehemently opposed the appeal and
supported the impugned judgment. He contended that the trial court had reached the just
conclusion because the prosecution successfully pr oved the guilt of the appellant through
confidence inspiring and reliable evidence supported by the medical evidence, therefore, the
appellants have rightly been dealt with by the trial court. He finally prayed dismissal of the
appeal and endeavored that t he impugned judgment passed by the trial court being unexceptional
does not warrant any interference, as such the appellants are not entitled for acquittal and their
appeal being devoid of merits is liable to be dismissed.
The learned DPG also endorsed an d relied upon the arguments advanced on behalf of the
complainant and Frayed for dismissal of the appeal.
6. Heard. Record perused.
7. In this case prosecution was launched on basis of written report Ex.P/H -A submitted by
deceased Abdul Hameed and the said report was brought on record in the statement of PW -11
viz. Babu Zareef Naib Tehsildar/investigation officer of the case. The written report of the
deceased shows that the parties were having a dispute over coal mines with the absconding
accused Muhammad Yaqoob son of Para Din. The deceased complainant on fateful day after
finishing his daily work was going to his home situated at Killi Juma Khan when the appellants
along with absconding accused persons launched a murderous assault upon him. Resultantly, he
became seriously injured and after reaching the hospital, he submitted a report for registration of
FIR. Learned counsel for the appellants have mainly assailed the impugned judgment on the
strength that conviction was recorded against the appellants on basis of report submitted by
deceased Abdul Hameed and the said report was wrongly considered as 'Dying Declaration' of
the deceased. He contended that neither the said report was written on prescribed proforma nor
requisite certificate of the doctor was a ppended thereto. Learned counsel while placing reliance
on the judgment rendered in case of Mst. Zahida Bibi v. The State (PLD 2006 SC 255) and
Dilmurad Diljan alias Dilo v. The State (2015 PCr.LJ 1389) vehemently urged that in view of the
dictum laid down in the judgments supra conviction cannot be recorded and the said report being
weaker type of evidence cannot be relied upon for recording conviction without any independent
corroboration.
8. The prosecution cases mainly hinges upon the report Ex.P/11- A, while the other
witnesses produced by the prosecution were in respect of dispute between the parties over the
coal mine. PW -1 Rajab Ali, PW -2 Abdul Aziz, PW -9 Muhammad Raziq and PW -10 Noor
Ahmed were appeared in respect of dispute between the parties, whic h was resolved on
intervention of PW -10: PW -3, Abdul Kareem is brother of the deceased Abdul Hameed, who
deposed that on the fateful day he along with his partner Safar Khan (PW -6) were going home
when they saw that the appellants along with absconding acc used persons made an attempt to
attack upon them, therefore, due to fear of brawl and death they returned to Mach city. During
this while he received a phone call from home that his brother Abdul Hameed (deceased) has
been trounced near his house on which he sent his partner Ghulam Mustafa (PW -4) to bring his
brother to the hospital. He also went to the hospital where his deceased brother (Abdul Hameed)
told him about the occurrence. He also stated that his brother was referred to BMC hospital
Quetta but due to non- availability of X -ray facility, they took his injured brother to Akram
Hospital, where his brother died after four days.
9. PW-4 Ghulam Mustafa appeared and confirmed that on fateful day he was informed by
Abdul Karim (PW -3) about the occurrence and he went to the place of occurrence and brought
the injured Abdul Hameed to the hospital. He also deposed that in his presence the deceased
Abdul Hameed submitted his report in respect of the occurrence. PW -5 Dr. Ghulam Haider
Sameejo appeared and produc ed death certificate of the deceased Ex.P/5 -A. He also provided the
seat of injuries sustained by the deceased to the following effect:
"Swelling on the occipital region.
Swelling on the right femor (sic.)
Scratched on the left forearm.
Bruises on the chest.
Bruises on the back of chest.
X-Rays of skull, left forearm and right femur [sic] advised and patient was referred to
Neuro ward."
10. PW-6 Safar Khan supported the statement of PW -3 Abdul Kareem. He deposed that on
fateful day he was accompanying Abdul Kareem when they saw the accused persons who were
intending to launch an attack upon them, therefore, they returned to Mach city, meanwhi le Abdul
Karim received a phone call from his home whereby he was informed that his brother Abdul
Hameed (deceased) has severely been beaten by the accused persons. Abdul Karim sent Ghulam
Mustafa to bring his brother to the hospital where the deceased tol d him about the occurrence.
On basis of aforesaid evidence the trial court while treating the report of the deceased as his
dying declaration convicted the appellants and sentenced them to suffer imprisonment for life.
11. Learned counsel for the appellant s relied upon the judgment of this court passed in the
case of Dilmurad Diljan alias Dillu v. The State (2015 PCr.LJ 1389) and judgment of the Hon'ble
Supreme Court rendered in case of Mst. Zaida Bibi v. The State (PLD 2006 SC 255). Learned
Division Bench of this court while relying upon the aforesaid judgment of the Hon'ble Supreme
Court opined that since the presence of doctor or any official of the hospital is not shown while
recording statement of the deceased under section 161, Cr.P.C. and, since the doctor's opinion
was not appended in respect of condition of the deceased therefore, dying declaration being the
weaker type of evidence cannot be relied for recording conviction without any strong and
independent corroboration.
12. A three member bench of the Hon'ble Supreme Court in case of Zareef Khan v. State
(PLD 1977 SC 612) while dealing with the similar proposition held as under:
"As there is no pronouncement by this Court directly on this question, I would observe
that if a dying declaration falls u nder section 32 of the Evidence Act, it becomes
evidence. And as neither this section nor the Evidence Act state in terms that a conviction
cannot be based on a dying declaration, it can be contended that a conviction can be
based solely on a dying declaration, ....."
An Hon'ble three member bench of the Hon'ble Supreme Court in case of Naimat Ali v.
The State (1981 SCMR 61) opines as under:
"There is nothing to suggest that Din Muhammad deceased himself would have
substituted an innocent man for the culpr it. His statement in the form of the FIR has
rightly been treated as a dying declaration. This by itself is a very strong piece of
evidence against the appellant. No further corroboration through any so -called
independent source, was necessary."
A five me mber bench of the Hon'ble Supreme Court in case of Mst. Shamim Akhtar v.
Fiaz Akhtar (PLD 1992 SC 211) held as under:
"Non -production of a witness from the hospital would not change the veracity of the
statement if otherwise it is established that the stat ement of the deceased was recorded on
that day and.......... It is not mentioned which requirement of law in recording the dying
declaration has been ignored ........ the law does not prescribe any special mode of
recording dying declaration". The statemen t of an injured recorded by the police under
section 161, Cr.P.C. during the course of investigation is not hit by section 162, Cr.P.C.
Such dying declaration is a good piece of evidence and it can be relied upon by the
prosecution. It is unnecessary for t he admissibility of dying declaration that the deceased
at the time of making it should have been in expectancy of death. A statement under
section 161, Cr.P.C. of an injured is an admissible evidence even though the injured had
died much latter. The dying declaration is to be adjudged on its own merits."
Another three member bench of the Hon'ble Supreme Court in case of Farmullah v.
Qadeem Khan (2001 SCMR 1474) has rendered an authoritative judgment on the subject of
dying declaration and after thrashing the law on the subject has also settled guiding principles for
accepting or otherwise of the dying declaration in the following manner:
7. A bare perusal of the said Article would indicate that there is no ambiguity in it and it
is a combination of the fol lowing ingredients and the language as employed does not
permit to add, delete or insert anything new: --
(a) It relates to the cause of death.
(b) It includes the circumstances which resulted into death.
(c) It is relevant when the cause of declarant's death comes into question whatever
may be the nature of proceedings irrespective of the fact whether such statement was
made under the expectation of death or otherwise?
The abovementioned ingredients were discussed by various higher Courts in different
cases which resulted into formulation of acknowledged and time tested principles which
are mentioned hereinbelow: -
(i) There is no specified forum before whom such declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be
signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be
examined.
(vi) Such declaration becomes substantive evidence when it is proved that it was made
by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of
prudence.
(viii) Such declaration when proved by cogent evidence can be made a base for
conviction.
8. Believing or disbelieving a witness is a question of 'merely ordinary human judgment.'
Aids to formation of such judgment are not available in the case of a dying declaration.
To accept such statement without considering 'surrounding circumstances' is ' totally
inconsistent with safe dispensation of justice.' Accepting such statements on
considerations of opinion expressed in precedent cases regarding similar declaration,
accompanied by words indicating reliance on 'some principle of law' held to be 'no l ess
dangerous'; 'careful scrutiny, applied to all physical circumstances' appearing from
evidence, only way of arriving at conclusion that the statement is 'worth of belief'. Abdul
Razik v. The State PLD 1965 SC 151.'
9. The dying declaration got recorded by Saida Mir Khan, A.S.I. (P W.7) has been
examined in the light of the criterion as mentioned herein above and we are of the
opinion that it has been proved beyond shadow of doubt and being a substantive piece of
evidence it could have been relied upon. I t is an admitted feature of the case that the
incident occurred in a broad daylight and only one accused was nominated by assigning
specific rule leaving no question of mistaken identity, We don't find any lawful
justification whatsoever to disbelieve Said a Mir Khan. A.S.I. (P.W.7) who has no enmity
or ill- will against convict/respondent. It may not be out of glace to mention here that once
the dying declaration is believed there is no legal requirement that it must be supported
by independent corroboration specifically in cases where there is no allegation of the
substitution of real culprit with that of accused. In this regard we are fortified by the
dictum laid down in Niamat Ali v. The State 1981 SCMR 61. A careful analysis of the
dying declaration would reveal that the fateful incident has been narrated in a simple and
straightforward manner by the injured who was not sure at the moment when it was being
recorded that he would remain alive and more so, it finds full corroboration from medical
evidence, s urrounding circumstances and confidence inspiring eye account furnished by
Farmanullah (P.W.5) and Muhammad Nabi (P.W.6). As mentioned hereinabove no
corroboration is required and as a matter of caution the eye account, motive and medical
evidence are suff icient to lend corroboration to the dying declaration. In this regard
reference can be made to Hazara v. The State 1976 PCr.LJ 106. It is well -entrenched
legal position that "sanctity is attached to dying declaration by the statute and it is to be
respected unless clear circumstances are brought out showing it not to be reliable. There
is no absolute rule that dying declaration cannot be made sole basis of conviction unless
corroborated" Zarif v. The State PLD 1977 SC 612. As mentioned hereinabove sufficient,
corroborative material is available to support the dying declaration which was made by
the deceased and who also affixed his thumb- impression on the same. It may not be out
of place to mention here that "a dying declaration made soon after the incident or at a
time when the deceased expected death or at a time by which the deceased could not have
consulted others or received hints from others will, ordinarily, be deserving of great
weight. Similarly, if, the contents of the dying declaration indicate tha t what is alleged
there is probably true, that no apparent attempt has been made to exaggerate the incident
or to rope in false persons, it will ordinarily be considered to be a dying declaration worth
reliance". Asiq v. The State 1970 PCr.LJ 373. There is absolutely nothing on record to
infer that the dying declaration is a result of consultation or tutoring. The injured has
nominated the only person regarding whom he was sure that firing was made by him. The
importance, the evidentiary value and implicati on of dying declaration was discussed by
this Court and relevant portion whereof is reproduced hereinbelow for ready reference: -
"Expressions like 'weaker type of evidence', as employed in some of the precedent cases
to describe the evidentiary value of th e dying declaration are likely to produce a
misleading impression as to the quality of such evidence and the reliance which may be
placed upon it in the particular circumstances of each case. It has to be remembered that
the Legislature has advisedly, as a matter of sheer necessity, incorporated in section 32 an
exception to the general rule that hearsay is no evidence. In the very nature of things the
sanctity of oath and the test of cross -examination are not available to ascertain the
veracity of a dying statement, but the nature of the statement itself and the circumstances
under which it is made make probable the truth of the statement and thus, take the place
of oath and cross -examination. On first principles, the sanctity attached to such
statements by the statute should be respected unless there are clear circumstances brought
out in the evidence to show that a dying declaration is not reliable for any reason.
It cannot be laid down as an absolute rule of law, nor even of prudence, that a dying
declaration cannot form the sole basis of conviction unless it is corroborated "Each case
must be determined on its own facts keeping in view the circumstances in which the
dying declaration was made so that the Court satisfied that the same is true and genuine".
In order to test the reliability of a dying declaration, the Court has to keep in view the
various circumstances like the opportunity of the wing man for observation and whether
the capacity of the deceased to remember the facts stated had not been impair ed at the
time he was making the statement, by circumstances beyond his control; whether the
statement had been consistent throughout if he had made several dying declarations; and
whether the statement had been made at the earliest opportunity and was not the result of
tutoring by interested patties. It also goes without saying that the exact contents of the
dying statement should be proved by reliable evidence, and for this reason a dying
statement recorded by a competent Magistrate in the proper manner i n the words of the
maker of the declaration would obviously carry greater weight than an oral statement
which may suffer from all the infirmities of human memory and human character. If the
Court comes to the conclusion that the dying declaration was the t ruthful version as to the
circumstances of the death and the identity of the assailants, there is no need for further
corroboration. But if it appears to be unreliable by itself, or suffers from some infirmity,
then it cannot form the basis of a conviction without corroboration." PLD 1977 SC 612,
Chanderasekar v. The King 1937 AC 220; re: Guruswamt v. Tevar AIR 1940 Mad. 196,
Khushal Rao v. 'The State of Bombay AIR 1958 SC 22; Taj Muhammad v. The State
PLD 1960 Lah. 723; Muhammad Khan v. The State PLD 1961 Lah. 939; Abdul Raziq v.
The State PLD 1964 Pesh. 67; Tawaib Khan v. The State PLD 1970 SC 13; Ekabbar Ali
v. The State 1971 PCr.LJ 275 ref" (Kashif -ur-Rehman v. The State 1996 PCr.LJ 1689)."
Underlining has been supplied for emphasis.
13. Now adverting t o the question that the dying declaration was not written on the
prescribed form and same does not carry the certificate from the doctor nor in the beginning it
contains the routine observation by the police. Such omission should not detract the evidentiar y
value of the dying declaration, if the court is otherwise satisfied from the record and from the
circumstances leading to the occurrence that firstly, there was no delay, secondly that the
deceased could speak, thirdly there is no doubt about identity of the accused, fourthly here is no
motive for which the deceased while nearing his death would lie and fifthly that there is no
element of prompting. Thus, it can safely be concluded that when a man, who is dead and has
recorded his statement prior to his death shed light upon the cause of his death and as such
statement would be admissible in evidence under Article 46 of Qanun- e-Shahadat Order, 1984.
14. No doubt dying declaration can be challenged on any ground on which the evidence of a
witness can be challenged. So for instance it can be challenged on the ground of enmity but the
accused would not be in a position to prove the hostility of a person who has died. Thus, in case
of such an eventuality the dying declaration stands on the same footing as any other piece of
evidence and has to be judged in the light of surrounding circumstances and with reference to the
principles governing the appreciation of evidence in criminal cases. Therefore, it cannot be laid
down as an absolute rule of law nor even of pr udence that dying declaration cannot form sound
basis of conviction unless it is corroborated.
But as already discussed herein above that when a man, who is dead and has left a
statement throwing light upon the cause of his death, it becomes relevant unde r Article 46 of
Qanun- e-Shahadat Order, 1984. A dying declaration made soon after the incident or at a time
when the deceased could not have consulted others, will ordinarily be of immense importance if
from the facts and circumstances of the case it is gathered that what has been alleged in the dying
declaration is probably true because no apparent attempt has been made to exaggerate the
incident or to drag -in an innocent person, therefore, such dying declaration is worthy of credence
for recording convict ion, particularly, when there is neither any evidence on record nor even a
suggestion that a dying complainant submitted his report after consultation or receiving hints
from others.
15. The Hon'ble Supreme Court in the Mst. Zahida's case supra has also opined that dying
declaration could not be treated as admissible evidence without the test of cross -examination.
The judgment passed by the Hon'ble Supreme Court was rendered by a bench comprising of two
Hon'ble Judges of the Supreme Court. In view of princi ple of law of precedents, whenever in
respect of a proposition decided or law settled, two dichotomous opinions of Hon'ble Supreme
Court come forward, usually the view expressed by a bench of greater numerical strength is to be
followed. Even if its view w as expressed prior in time to a different view expressed by a bench
of smaller numerical strength at some subsequent stage.
Accordingly we are inclined to take a view, that the dying declaration made soon after the
incident or at the time when the deceased except death or at a time at which the deceased could
not have consulted others or received hints from others, will ordinarily be deserving great weight
and importance. Similarly if the contents of dying declaration indicate that what is alleged is
proba bly true and no apparent attempt has been made to exaggerate the incident or falsely
implicate someone it would be considered as dying declaration and will also be termed as strong
piece of evidence.
16. In the instant case soon after the occurrence the re port Ex.P/11- A submitted by deceased
Abdul Hameed looks to have been submitted promptly without any consultation and
deliberation. It cannot be pointed out from the record that same was rendered on the instance of
anyone else or the deceased had submitted the report after being tutored by someone else. The
submission of report and contents therein has sufficiently been corroborated by the statements of
PW-3 Abdul Karim, PW -5 Ghulam Mustafa and PW -6 Safar Khan. The report Ex.P/11- A was
rightly treated as dying declaration and injuries mentioned therein were further corroborated by
the medical evidence furnished by PW -5, Dr. Ghulam Haider Sameejo.
17. It is worthwhile to add here that the erstwhile High Court of West Pakistan in case of
Crown v. Abdul Ghani (P LD 1956 (WP) Lahore 300), while dealing with the question of dying
declaration has elaborated the circumstances of the transaction which resulted in death, in the
following manner:
"The rule in this country obviously rests upon the principle of necessity a lone. This
principle may, in the first place, mean that as the declarant if not available for
examination and cross -examination on oath, his statement may be admitted to help the
Courts of justice to arrive at correct findings of fact. It, however, also me ans that only so
much of a declaration of such a person be admitted in evidence as the necessary, or
absolutely necessary for the purpose of the case. In either view, the rule according to
logic and common- sense should extend to all matters which are logic ally relevant and,
therefore, necessary for a correct decision of the case. The legislature, however, in the
wisdom, has chosen to make admissible only such facts as can be treated as the
"circumstances of the transaction which resulted" in the death of the declarant. While it is
true that the Courts must respect, and keep within, the limit prescribed by the legislature,
there seems to be no justification in principle to construe the limit thus imposed narrowly.
Any fact which can reasonably be treated eith er as a part of the transaction itself or as its
circumstance, is admissible under that subsection."
The passage supra in the aforesaid judgment further attracts the principles of res gestea
and Article 19 of Qanun -e-Shahadat Order, 1984 clearly stipulate s that the facts disclosed and
details of the occurrence stated by the injured witness soon after the occurrence will also be
forming part of res gestea. The statement of PWs with report Ex.P/11- A submitted by the
deceased Abdul Hameed in their presence was also admissible as the forming part of res gestea
evidence. Thus, on this score too, the statement of deceased complainant cannot be brushed aside
for any erroneous reasons, which are not supported by record.
For the above reasons and having found no me rits in the appeal the same is dismissed.
JK/43/Bal. Appeal dismissed.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,
let us know.