Somaid vs Ali Gohar Gohar Zaman & another
These criminal appeals arise out of a judgment of the Peshawar High Court regarding an incident of murder dated 22.9.2005, which resulted in the conviction of the accused under Section 302 of the Pakistan Penal Code, 1860, where the High Court had maintained the conviction but altered the death sentence to imprisonment for life. The core legal question concerns the reliability and evidentiary value of an unverified dying declaration when the identity of the person who actually recorded the deceased's last words remains shrouded in mystery due to contradictory witness testimonies. The Supreme Court held that since the person who records a dying declaration is a crucial witness to verify its veracity, and the prosecution failed to prove who recorded the statement beyond doubt, the dying declaration cannot be relied upon. Consequently, the Court laid down the principle that a conviction based on a dying declaration is unsafe and liable to be set aside, extending the benefit of the doubt to the accused.
- Can a conviction be safely based on a dying declaration when the identity of the person who recorded the deceased's last words remains unverified and shrouded in mystery?
- What is the evidentiary value and legal requirement for the verification of a dying declaration in a murder trial?
- Whether the absence of the scribe of a dying declaration as a witness is fatal to the prosecution's case?
- Section 302, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
Qazi Muhammad Amin Ahmed, J.- Criminal Appeal No.3-P/2014 and Crim inal Appeal No.4-P/2014, by the complainant' s son and convict respectively , through leave of the Court, arisen out of incident dated 22.9.2005 within the remit of Police Station Zaida, District Swabi; with a common thread, are being decided through this single judgment.
2. Prosecution case is structured on the statement of Haji Muhammad Zamin Khan, deceased; he was on way back after attending a condolence meeting when Ali Gohar , appellant fired upon him, as result whereof he sustained four entry wounds with two exits. After making statement to the police; he succumbed to the injuries; the accused absconded; arrested belatedly he was put to trial; when indicted, claimed trial, resulting into his conviction under Section 302 of Pakistan Penal Code, 1860; he was sentenced to death as tazir vide judgment dated 2.12.201 1; the learned Peshawar High Court maintained conviction under clause (b) of the Section ibid, however altered penalty of death into imprisonment for life with a direction to pay Rs.600,00 0/- as compensation to the legal heirs; benefit under Section 382-B of the Code of Criminal Procedure, 1898 was extended to the appellant.
3. Learned counsel for the complainant contends that in the absence of any judicially recognized mitigating circumstance, there was no occasion for the learned High Court to alter penalty of death into imprisonment for life, whereas learned counsel for the convict has questioned the vires of impugned conviction on the ground that case being founded primarily on a dying declaration, the prosecution miserably failed as to who recorded deceased' s last words and thus it would be unsafe to maintain the conviction.
4. Fate of prosecution case is hinged upon dying declaration, purportedly made by the declarant at the police station, converted into first information report. According to the statement of Munawar Khan, PW-6, he received the injured and recorded his statement, however in the next breath, he ascribed first information report to Khan Ghalib Khan statedly recorded on his dictation. The latter is examined as PW-13; he denies to have recorded the first information report, Exhibit PA and thus as to who recorded deceased's last words, is shrouded into mystery.
Dying declaration, in legislative wisdom, is an exception to general rule of direct evidence; it is admitted to the detriment of an accused without opportunity of cross examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Sanctimonious hypothesis notwithstanding before conviction is based upon such a declaration, prosecution must demonstrate beyond shadow of doubt that it comprises of the words of declarant alone without extraneous prompting or additions; the person who records dying declaration is therefore a most important witness to verify veracity thereof. He is conspicuously missing in the array of witnesses and thus declaration, Exhibit PA, cannot be relied upon without potential risk of error. It would be grievously unsafe to maintain the conviction, therefore by extending benefit of the doubt to the appellant, Criminal Appeal No.4-P/2014 is allowed, impugned judgment dated 2.10.2012 is set aside; he shall be released forthwith, if not required in any other case; as a natural corollary Criminal Appeal 3-P/2014 is dismissed.