MUHAMMAD RAFIQ vs The STATE
This matter arises from a criminal petition for leave to appeal before the Supreme Court of Pakistan, challenging the judgment of the High Court which maintained the conviction of the petitioner for murder while acquitting a co-accused. The petitioner and his co-accused were tried for murder, where the trial court convicted both based on eye-witness testimony, motive, and a dying declaration, sentencing the petitioner to death. On appeal, the High Court discarded the eye-witnesses and the first dying declaration, but relied partially on a second dying declaration to uphold the petitioner's conviction while reducing his sentence to imprisonment for life, and acquitted the co-accused by disbelieving the remaining portion of that same dying declaration. The core legal question is whether the High Court was justified in splitting a single dying declaration to convict one accused without corroborative evidence while acquitting the co-accused based on the disbelieved portion. The Supreme Court granted leave to examine this question.
- Whether a court is justified in relying on a portion of a dying declaration to convict an accused while discarding the remaining portion regarding a co-accused?
- Is independent corroboration required when a conviction is based solely on a portion of a dying declaration?
- Section 302, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
ORDER
ASLAM RIAZ HUSSAIN, J.-Muhammad Rafiq petitioner was tried along --with Liaqat Ali co-accused, for the murder of Farzand Ali. The learned trial Judge (Additional Sessions Judge, Muzaffargarh) convicted both of them under section 302, P. P. C. Muhammad Rafiq petitioner was sentenced to death while Liaqat Ali co-accused was sentenced to imprisonment for life.
2. At the trial the prosecution relied on the ocular testimony of Mumtaz Ali (P. W. 14) and Taj Muhammad (P. W. 15) ; two dying declara--tions made by F4rzand Ali (deceased) (Exhs. P. J. And P.
K. Respectively) ; the first was recorded by Muhammad Ali, S. H. O. (P. W. 17) and the second was recorded about 1J hours later by Muhammad Khan (P. W. 9) a Magis--trate ; recovery of .32 bore pistol (P. 10) from Muhammad Rafiq petitioner which matched with the four empties recovered from the spot ; motive and the medical evidence.
3. The learned trial Judge disbelieved the first dying declaration (Exh. P., J.) recorded by the S. H. O.
But, relying on the second dying declaration (Exh. P. K.) ; testimony of the eye-witnesses and the motive, convicted both the accused. The High Court while deciding the appeal, did not rely either on the eye-witnesses or on the recovery evidence. It also disbelieved the first dying declaration recorded by the S. H. O. And observed that the trial Court had rightly discarded it. It, however, relied on earlier portion of the second dying declaration (Exh. P. K.) and maintained the conviction of Muhammad Rafiq thereon but reduced his sentence from death to imprisonment for life and awarded a sum of Rs. 5,000 as compensation under section 544-A, Cr. P. C. To be paid to the heirs of the deceased. But disbelieving the remaining portion of the same dying declaration (Exh. P K) which related to Liaqat Ali co-accused (who is respondent in the connected Criminal Petition No. 374 of 1979 filed by the complainant) acquitted him (i.e. Liaqat Ali).
4. Leave is granted in this case to consider whether, in the circum--stances of this case the High Court was justified in disbelieving a portion of the dying declaration (Exh. P. K.) and acquitting the accused implicated in that portion, while believing the remaining portion of the same dying declara--tion for basing the conviction of the co-accused (petitioner herein) without any independent evidence corroborating thatportion of the dying declaration.