ABDUL REHMAN Versus THE STATE
ORDER
Applicant Abdur Rehman is facing trial under section 302, Qisas and Diyat Ordinance, 1991, which is the outcome of an F.I.R. No.66/93, Police Station Kalakot, Karachi.
2. The facts of the case appearing from the record disclose that S.I. Dilbar Khan reached Civil Hospital vide entry No.47, dated 24‑4‑1993 Police Station Kalakot and recorded the statement of injured Amjad Ali Shah (deceased) resident of New Kumbharwara near Hanfia Masjid, Karachi under section 154, Cr.P.C. and the said statement was reproduced in the F.I.R. which runs as under:‑‑
"I reside with my wife in the house of my in‑taws on the address mentioned above. Today on 24‑4‑1993 at 10‑15 p.m. I was present in the house while my wife and in‑laws had left for a marriage ceremony. In the meanwhile one person namely Abdul Rehman son of Suleman, who is a criminal and resides in our Mohallah came to my house, knocked at the door. He alleged that I supply secret information against him to the police as such he would not spare me. He then at once took out one T.T. Pistol and fired at me in order to cause my death. As a result of that one bullet hit me on the left side of the stomach, above the ribs, and got through from my back. I raised commotion and fell down. I was removed to Civil Hospital in a Suzuki by P.W. Saddique and Abid, where I am being treated. My complaint is against accused Abdul Rehman son of Suleman who caused me injury with pistol. This incident was witnessed by the Mohallah people. I lodge such report and the action be taken against him.
Sd. (in English)
S.I. Dilbar Khan."
This statement bears the thumb‑impression of the deceased (as claimed by the prosecution) and the signatures of S.I. Dilbar Khan.
2. After usual investigation, the challan was submitted against the applicant and evidence of several material witnesses was recorded by the trial Court. The applicant/accused, then, moved bail application before the trial Court but the same was rejected by the Court on 12‑7‑1994. Being aggrieved by the said order the present bail application has been brought before this Court.
3. The learned counsel for the applicant has emphasised that two P.Ws. mentioned in the F.I.R./statement under section 154, Cr.P.C. of the deceased, have not supported the prosecution case and this reality has been admitted by the trial Court in the impugned order. It has been contended by the learned counsel that the alleged statement of the deceased, as deemed by the trial Court, cannot be treated as dying declaration but only a statement under section 161, Cr.P.C. and even if the said statement is treated by the prosecution to be a dying declaration the same cannot be relied upon because it is the most doubtful piece of evidence.
The learned counsel has drawn my attention to the evidence of Mst. Zeenat, the wife of the deceased, in which she stated that her deceased husband was an educated person and he was working as head constable. Hence it was urged that under such circumstances, it cannot be believed that the deceased had put his thumb‑impression on his statement instead of putting his signatures. In support of his contention the learned counsel has also brought on record the National Identity Card of the deceased which shows the signatures of the deceased. It was further contended by the learned counsel for the applicant that the said statement does not bear the signatures of any doctor, Magistrate or any other independent witness before whom it was recorded.
It was also urged by the learned counsel that admittedly the post-mortem of the deceased was not done. Hence the cause of death of the deceased cannot be ascertained.
4. Mr. K.M. Nadeem, AA.‑G. for the State has strongly controverted the submissions made by the learned counsel for the applicant. He has drawn my attention to Article 46(1) of the Qanun‑e‑Shahadat which is related to the statement by persons who cannot be called as witnesses. For ready reference, Article 46(1) of Qanun‑e‑Shahadat is reproduced below:‑‑
"46. Statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:‑‑
(1) When it relates to cause of death:‑‑
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
5. The contentions of learned counsel appearing for the applicant and the State, thus revolve around the authenticity of the statement of the deceased by treating the same to be reliable dying declaration or only a statement under section 161, Cr.P.C.
6. Admittedly the statement of the deceased in the present case does not possess the status of his written statement because it is not in the handwriting of the deceased. It can be called a recorded statement which is more or less equal to verbal statement. Hence application of Article 46(t) of the Qanun‑e‑Shahadat, in the present case, would be dependent upon Article 71 of the said Order which reads as under:‑‑
"Oral evidence must, in all cases whatever be direct; that is to say:‑‑
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;--
If it refers to a fact which could be perceived by any other sensor in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the ant 15ur is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided further that, if oral evidence refers to the existence or a condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection:
Provided further that, if a witness is dead or cannot be found or has become incapable of giving evidence, or his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case the Court regards as unreasonable, a party shall have the right to produce Shahadat ala Al‑Shahadah by which a witness can appoint two witnesses to depose on his behalf, except in the case of Hudood."
The last or the third proviso reproduced above was introduced when section 6(l of the Evidence Act, 1877 (Repealed) was replaced by Article 71 of the Qanun-e-Shahadat in 1984. According to the said proviso the prosecution has a right to produce" (means "evidence upon evidence") because if a witness is unable to give his evidence then he can appoint two witnesses to depose on his behalf, except in the cases of Hudood. As the prosecution cannot produce a deceased person as a witness, so it has right to produce twc, witnesses on behalf of the deceased in support of the prosecution case. . Although the word "Qisas" has not been used with the word Hudood in this proviso yet there is no dispute over this fact that the standard of evidence in the cases of Iludood is totally similar‑as iii the cases of Qisas, This reality can be easily derived from the case of Haider Hussain v. Government of Pakistan reported in P L D 1991 FSC 139/171 where it was observed that;‑‑
"The submission of Mr. Muhammadi seeking for the exception in Article 16 of the Oanun‑e‑Shahadat in respect of the offence punishable with Qisas, like that of Hadd, is based on sound reasoning inasmuch as according to the oft‑quoted tradition of the Holy Prophet (p.b.u.h.) the punishment of Qisas, is also repulsed on account of doubt like that of Hadd."
I was, incidentally, one of the advocates, in the above‑cited judgment which was challenged by the Federation of Pakistan before the Supreme Court by filing appeals but all those appeals were dismissed as reported in 1994 SCMR 932. It can be said that the cited judgment was related to Article 16 of the Qanun‑e‑Shahadat (section 133 of the Repealed Evidence Act) but there is no doubt in my mind that the whole spirit of the judgment was encircling the standard of evidence in Islam notwithstanding to any of the Article of Oanun e‑Shahadat.
In the present case the two possible witnesses who could support the submissions of the deceased were P.W. Siddique and Abid (as mentioned in the F.I.R./statement under section 154, Cr.P.C. of the deceased). Although it is claimed by Mst. Zeenat and her uncle Muhammad Akbar were also present when the said statement was recorded but they were never treated to be the witnesses of that statement by the prosecution except by the witnesses themselves. Admittedly their statements were recorded after three days and there is no explanation of such delay. Thus main witnesses who could support the version of the deceased were Siddique and Abid who did not support the A prosecution. As P.Ws. Mst. Zeenat and Muhammad Akbar are relatives of the deceased, therefore, their statements have to be judged very carefully notwithstanding to their legal status with reference to the third proviso of Article 71 of the Oanun‑e‑Shahadat, 1984.
7. Learned counsel for the State, while opposing the bail application, relied upon the case of Darcy Khan v. Usman Khan and others reported in PLD 1967 Pesh. 379. The facts of that case are totally distinguishable because in the cited case injured witness was the eye‑witness who had not died as in the present case. Moreover in that case the statement of two eye‑witnesses had been recorded under section 164, Cr.P.C. while in the present case no such statement is found on the record. In the cited case the bail application had been moved in the Court when no witness had been examined while in the present case important witnesses have been examined. Moreover, in the cited case, the Honourable Judge of Peshawar High Court had treated the F.I.R. to be a substantial piece of evidence. But there are large number of judgments wherein it has been held that F.I.R. cannot be treated as substantial piece of evidence. Reference can be made to the case reported in P L D 1964 SC 26, 1971 S C M R 398, P L D 1982 Pesh. 136, 1985 S C M R 838,1991 S C M R 1608.
However, I am of the considered opinion that it depends upon the circumstances of each case to consider an F.I.R. to be a substantial piece of C evidence or otherwise. I consider an F.I.R. to be a substantial piece of evidence if it is an undisputed dying declaration otherwise it could be treated only a prosecution story stated by the police.
The learned counsel for the applicant has also contended that for the purpose of treating any statement as a dying declaration, it is necessary that the same should be signed by doctor or any independent person in whose presence the said statement was recorded but I think that it is not the necessity of law. If such statement is countersigned by a doctor Magistrate or an independent person then it can only increase the authenticity of such statement. However, to find out the credibility of such statement several judgments can be taken under consideration such as P L D 1977 SC 612 and 1972 S C M R 40. As the said statement was recorded by one Police Officer, therefore, its credibility has also to be judged very carefully. In this connection reliance can be placed upon the cases reported in 1975 P Cr. L J 590 and P L D 1978 Kar. 792.
There cannot be two opinions about this reality that the dying de0aration is a weak piece of evidence because it cannot be controverted by the advocates in cross‑examination. Therefore, it requires many conditions to rely upon the same. Similarly it is also pertinent to point out that a dying declaration is a statement made by a person as to the cause of death or as to the circumstances of the transaction resulting in his death. Admittedly in the present case post‑mortem of the deceased's body has not been done. Therefore, the cause of death can be ascertained unless proved by the prosecution. Besides the above and according to the general principle, the statement of a deceased may be treated as dying declaration when the deceased is at the point of death and loses every hope of survival in this world. G Under such stage of extremity, every motive of falsehood becomes out of questions. The trial Court has to consider whether the alleged statement under section 154, Cr.P.C. possesses all these requirements to declare it as dying declaration i.e. to see whether the accused had lost all hopes of his survival at the time of giving his statement under section 154. Cr.P.C.?
8. Without touching the merits or demerits of the case, I think that the trial Court has to decide the following questions before reaching any final conclusion about the guilt or the innocence of the applicant i.e.:
(a) Whether the alleged statement under section 154, Cr.P.C. should be treated as dying declaration or only a statement under section 161, Cr.P.C.?
(b) Whether the statements of close relatives of the deceased can meet the requirement of third proviso of Article 71 of Qanun‑e‑Shahadat?
(c) Whether the alleged statement under section 154, Cr.P.C. can be a doubtful document His alleged by the learned counsel for the applicant on account of thumb‑impression of a person who was an educated w police official?
(d) Whether the allegation of firing by the accused can be treated as cause of death when there is no post‑mortem report of the deceased especially in the light of Article 46(l) of Qanun‑e‑Shahadat?
9. For the reasons recorded above there are sufficient grounds for further enquiry into the guilt of the applicant. He is therefore, entitled to be released on bail. I, therefore, direct that the accused/applicant he released on bail provided:‑‑
(i) He furnishes solvent surety in the sum of Rs.2,00,000 (Rupees two lac only) and P.R. bond in the like 11110LInt to the satisfaction of the trial Court.
(ii) If the applicant becomes cause of delay in proceedings on account of this concession of bail, the trial Court would be at liberty to cancel his bail.
N.H.Q./A‑1493/K Bail allowed.