MUHAMMAD NAWAZ KHAN Versus State

ASSADULLAH KHAN CHAMKANI, J.--- Muhammad Nawaz Khan, the convict-appellant, was charged vide FIR No. 87 dated 11-11-1991 under sections 302, P.P.C., registered at Police Station Sheringal. He was tried by learned Additional Sessions Judge/Izafi Zila Qazi, Dir Upper. Learned trial Court found him guilty of committing the Qatl-i-Amd of Sultan Muhammad, deceased, and he was convicted and sentenced under section 302(b), P.P.C. through judgment dated 14-7-2010 to imprisonment for life. He was directed to pay Rs.2, 00,000 as compensation under section 544-A Cr.P.C, to the legal heirs of the deceased, which shall be recovered as arrear of land revenue or in default to suffer six months SI. Benefit of section 382-B, Cr.P.C. was extended to him. The convict-appellant has filed this Jail Criminal Appeal No.834/2010.

2. Brief facts of the case are that Sultan Muhammad in injured condition lodged a report in a hospital that on 11-11-1991 he was present in his "Dhera", at 17.00 hours Muhammad Nawaz khan son of Muhammad Rafiq Khan came, infuriated over monetory dispute and made fire at him as a result of which he was hit on his right side chest and received injury. Motive for the occurrence was stated to be dispute over money while the occurrence was stated to be witnessed by Subedar Sultan Zareen and Muhammad Latif. His report was reduced into writing in shape of Murasilla Exh.PA/1 and as such, the above referred case FIR was registered.

3. After registration of case, P.W.1 proceeded to the spot and prepared the site plan Exh.PB. On 26-11-1991, the complainant succumbed to his injury; therefore, the section of law was altered into 302, P.P.C. He also took into possession blood stained garments of the deceased, vide memo Exh.PC. Since the accused was avoiding his lawful arrest, therefore, he applied for issuance of warrant under section 204, Cr.P.C. and notice under section 87, Cr.P.C., vide his applications Exh.PF and Ex PF/1. The blood stained clothes were sent to FSL and its report is Exh.PK. After completion of investigation, complete challan in the case was submitted.

4. On 8-8-2009, the convict-appellant was arrested. During interrogation, he confessed his guilt and his confessional statement was recorded by Nasir Khan, Judicial Magistrate (P.W.3). After completion of investigation, supplementary challan against him was submitted before the Court. Learned trial Court after receipt of challan, complied with the legal formalities, framed the formal charge against the convict-appellant, who did not plead guilty and claimed trial. Prosecution in order to prove its case produced seven witnesses. Thereafter, statement of the accused was recorded under section 342, Cr.P.C., wherein he totally denied the allegations leveled by the prosecution. After close of the evidence and hearing the arguments of the parties, learned trial Court convicted and sentenced the accused as stated above, hence, the present jail criminal appeal.

5. Learned counsel for the appellant-convict argued that the prosecution has miserably failed to prove the charge against the appellant beyond reasonable doubt. Learned counsel further argued that the alleged dying declaration was neither verified by the doctor nor certificate regarding the fact that the deceased at the time of report was capable of giving statement or otherwise was obtained, therefore, the same is not proved and the judgment impugned is the result of mis-appreciation and non-appreciation of evidence available on record. Learned counsel further argued that the ocular testimony is not confidence inspiring and is contradictory to the alleged dying declaration. Learned counsel while concluding his arguments submitted that the learned trial Court, under the law, was required to have taken into consideration the confessional statement of the appellant-convict in toto because the complainant party was going to catch hold him and there was reasonable apprehension of danger to the accused, so, he committed the act of murder, therefore, the accused while exercising his right of self-defence fired at the deceased, hence, it is a fit case for acquittal. He argued that the learned trial Court has failed to appreciate the evidence on record on its true perspective by not extending him the benefit of doubt and has wrongly convicted and sentenced him, therefore, the impugned judgment is liable to be set aside and the convict-appellant deserves acquittal.

On the other hand learned DAG and counsel for complainant argued that the prosecution has successfully proved the charge against the appellant-convict beyond any shadow of doubt, through dying declaration, supported by ocular testimony and medical evidence as well as the confessional statements of the appellant-convict.

6. We have heard arguments of learned counsel for parties and have gone through the record carefully.

7. The prosecution relies in the instant case on the dying declaration, ocular testimony, medical evidence, the confessional statements and absconsion.

8. The perusal of record would reveal that the instant case has been registered on the report of deceased then injured Sultan Muhammad. section 46 of Qanun-e-Shahadat Order, 1984 is corresponding to section 32 of the Evidence Act which deals with the matter of dying-declaration. Dying-declaration is accepted on the theory that person on death bed will speak the truth. However great caution must be exercised in considering the weight to be given to this kind of evidence on account of the existence of many circumstances which may affect its truthfulness. Since the accused has no occasion of cross-examination, the Court should insist that dying declaration should be of such a nature as to inspire full confidence of Court in its truthfulness and correctness. It has been held in a case titled Farman Ullah v. Qadeem Khan reported in 2001 SCMR 1474 that in order to prove dying declaration the person by whom it was recorded should be examined but in the case in hand Fateh Rehman IHC, the scribe of the report-cum-dying declaration, was not produced before the Court being dead. According to prosecution story, the dying declaration was recorded in the hospital. There is nothing on record to establish that prior to death of the deceased; he was examined by any doctor to determine as to whether he was capable of giving any rational statement. In a case titled Shahrukh v. The State, reported in 2013 PCr.LJ 237, it has been held that statement of the deceased then injured in form of FIR, though, could be treated as "dying declaration", which itself was good enough under Article 46 of the Qanun-e-Shahadat Order, 1984, for sustaining conviction of accused on a capital charge, but for believing dying declaration, certain essential conditions, must be established by the prosecution---Such conditions were that dying man was in full senses, conscious and alert to the surrounding; that he/she was fully oriented in space and time and was able to make a coherent speech; that the dying declaration otherwise rang true, and was sound in substance to be relied upon; that it was free from promptness given by the outside quarter; that Doctor present at the occasion should give a fitness certificate about the condition of the dying man. In the case in hand, there is no explanation with the prosecution that why the dying declaration was not recorded in the presence of Doctor, particularly, when the report was recorded in the casualty room. There is also no certificate as to whether the dying man was in full conscious, semi-conscious, oriented in space and time and was able to make a rational talking. Besides the above, there is no explanation as to what prevented the prosecution by not obtaining fitness certificate of the deceased then injured from the doctor, which creates doubt regarding the veracity of report-cum-dying declaration recorded by the police official, so, the alleged dying declaration of the deceased was not worth reliance. Reliance in this regard is placed on the case reported in 2012 YLR 636 titled Sajan Nadeem v. The State.

9. Similarly, there is also no mention of time in the report of Dr. Noor Islam (P.W.4) that at what time he examined the deceased then injured. The actual time of examination is thus shrouded in mystery. Besides the above, P.W. Muhammad Latif stated in his statement that he was present with deceased at the time of recording his report, therefore, his statement in presence of his relative is not worthy of credence. The august Supreme Court of Pakistan has laid down in the case of Nazim Khan and 2 others v. The State (1984 SCMR 1092) that Dying- declaration recorded at Police Station in presence of relatives of deceased would not be worthy of credence. So, in these circumstances, no reliance can be placed on the dying declaration, therefore, the same is thrown out of consideration.

10. Now, the prosecution has been left with the oral evidence. Perusal of file would reveal that prosecution examined Muhammad Latif as P.W.5, who deposed the ocular account. The said P.W. is the brother of deceased. Since the vital role is that of the ocular account, therefore, in our view, we would like to discuss it by making careful appraisal first of all to draw conclusion as to whether his presence on the spot at the time of occurrence has been established by the prosecution and whether his testimony is worthy of credence, believable and whether his conduct is natural and in accordance with the ordinary human conduct or otherwise.

The evidence on record would reflect that there are material contradictions in the statement of the ocular account, site plan and dying declaration and his presence on the spot has not been established. P.W.5 stated in his cross examination that:--

But neither the deceased then injured has mentioned the names of those persons in the report-cum-dying declaration nor the Investigating Officer has shown the factum of maize in the site plan. Similarly, the occurrence took place on 11-11-1991 while his statement was recorded by the police on 28-11-1991, i.e., after seventeen (17) days of the occurrence. He admitted in his cross-examination that his statement was recorded by the police on 28-11-1991, therefore, his statement cannot be relied upon, in a case involving capital punishment. In the case of Muhammad Sadiq's case, reported in PLD 1960 SC 223, held that delay of 24 hours in statement of a friend of deceased was considered fatal for prosecution case. Similar views were taken in 1984 SCMR 930, 1993 SCMR 550, 1998 SCMR 570 and 2008 SCMR 1221.

In case of Rahat Ali's case reported in 2010 SCMR 584 it was held:--

"Delay in recording the statement of a witness by police without furnishing any plausible explanation, is fatal to the prosecution case and the statement of such witness is not to be relied upon".

Besides the above, discrepancies in his statement, yet another attempt can be made to consider the straightforwardness or otherwise of his evidence on merits to establish as to whether evidence furnished by him has any intrinsic value for bringing the guilt home against accused or not. According to his statement, the deceased then injured was lying on the spot for about half an hour. Had he been present on the spot, he could have shifted the deceased then injured to hospital or police station at once to save his life. He also made improvement in his Court statement, which also lessen the credibility of his truthfulness. His statement is also not in line with the contents of report. According to report, the deceased then injured was present in his "Dehra" when at 17.00 hours Muhammad Nawaz khan came, got furious on monetory dispute and made fire at him while Muhammad Latif (P.W.5) in his examination in chief stated he along with his brothers Sultan Zarin subedar, Sultan Muhammad, the deceased, and his nephew Muhammad Nawaz Khan, the accused, were present in the Hujra and were busy in settling the account, in the meanwhile, exchange of hot words started and Muhammad Nawaz Khan made fire as a result of which Sultan Muhammad was hit.

The perusal of statement of the above sole witness of the prosecution would lead us to draw an inference that evidence furnished by him suffer from inherent improbabilities, improvements and contradictions which are sufficient to discard his evidence. It is cardinal principle of jurisprudence, that is, to disbelieve a witness, is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful. From the perusal of his statements it is evident that the alleged eyewitness is the brother of the deceased and his presence on the spot is highly doubtful, therefore, it cannot be said that the prosecution has succeeded in proving the guilt against the accused beyond all reasonable doubts. Since, the testimony of the above witness is not believable and appears to be afterthought, so, it cannot be relied upon.

11. Since a dying declaration is substantive piece of evidence and when it is disbelieved and thrown out of consideration then there is no need of its corroboration.

12. Excluding the dying declaration and eye-witness account, we are left with the retracted judicial confession only. We have carefully gone through it. The Judicial Magistrate appeared as P.W.3, who confirmed that it was recorded after fulfilling all the legal formalities. There is nothing on record to disbelieve the confession. Confessional statement even if retracted, subsequently, but found to be voluntary and true and supported by some corroborative material, can solely be made the basis for conviction. Reliance is placed on the case of Miss Naliba and another v. Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988). The appellant-convict narrated the detailed story in his confessional statement, wherein he had stated that when he went out of the shop, he heard the reports of noise. When he saw that his uncle Sultan Zareen along with others duly armed with "lathi" coming towards him, he loaded his pistol due to fear in order to stop them but they did not stop. In the meantime, his other uncle Sultan Muhammad joined him and he made fire due to fear as a result of which he was hit on his chest. The retracted confessions is further supported by P.W.5, who in the first line of his cross examination admitted as correct that accused Muhammad Nawaz is the only son of his father, whose father had died during his childhood. He further stated that they have joint property including accused and they received its produce, however, he added of his own that the share of accused was to be handed over to Mawlvi Sahib. He further stated that the amounts received in share of accused were spending on the case filed under section 145, Cr.P.C. The record reveals that accused was orphan. The record further reveals that the complainant party was powerful than that of accused-convict because the former were large in number and had tried to grab the property of latter. P.W.5 has also admitted the dispute between the parties over landed property. No doubt, the convict-appellant has not taken the plea of self-defence but from the evidence on file, when two interpretations are possible; one favouring to the accused and other to the prosecution then the well settled principle of law is that in such a situation, the interpretation favourable to the accused is required to be taken into consideration. When the prosecution has failed to prove its case against the accused beyond reasonable shadow of doubt then we have been left only to consider the confessional statement of accused. If the conviction is based solely on the confessional statement of accused in absence of prosecution evidence then said statement is to be taken as a whole and from that statement, if any offence is made out then the accused can be convicted for the said offence. If any authority is needed, on the point, we may cite the case of Allah Nawaz v. State reported in 2009 SCMR 736, wherein it has been held that confession is to be rejected or accepted as a whole.

13. The rights of self-defence conferred by section 96 of Pakistan Penal Code. The only consideration for self defence is that a person threatened with danger of injury should not exceed the limits fixed by the law. This, of course, depends upon reasonable apprehension of danger to the person under the particular circumstances of the case. The reasonableness of the apprehension is a question of fact which depends upon the weapon used the manner of using it, the nature of assault or other surrounding circumstances. Perusal of evidence would reveal that the convict-appellant made a single fire shot. The medical report also confirms the fact of single fire shot because the medical officer found single entry wound on the person of deceased. From the above discussion, we are of the firm view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubts and the case of the appellant totally fall under the ambit of self-defence.

14. So far as the abscondence of the accused/respondent soon after the occurrence is concerned, it is an established principle of criminal law that abscondence alone cannot be made basis for recording conviction of an accused when the ocular and circumstantial evidence is not confidence-inspiring.

In the light of the above discussion, we allow this Criminal Appeal, set aside the conviction and sentence dated 14-7-2010 passed by Additional Sessions Judge/Izafi Zilla Qazi, Dir Upper and accused-appellant is acquitted of the charge. He is in custody and be set free if not required in any other case.

These are the reasons of our short order announced on 9-5-2013.

AG/329/P Appeal allowed.