SIRAJ Versus State
ASSADULLAH KHAN CHAMKANI, J.--- This criminal appeal is directed against the judgment dated 26.02.2014, rendered by learned Additional Sessions Judge-VI, Peshawar, whereby appellant Siraj has been convicted under section 302(b), P.P.C. for committing murder of deceased Zafar Ali Shah, and sentenced to undergo life imprisonment and to pay Rs.1,00,000/- to LRs of deceased, as compensation in terms of section 544-A, Cr.P.C. in case FIR No.137 dated 05.03.2008, registered under sections 302/34, P.P.C., at Police Station Shah Qabool, District Peshawar.
2. On 05.03.2008 at 2035 hours, Zafar Ali Shah reported to Muhammad Gul Khan SI (PW.11), in injured condition in LRH Peshawar, that on the fateful day, on receipt of mobile call of Siraj (appellant-convict herein) to see him in Manda Beri in connection with some urgent piece of work, he closed his shop situated in Mohallah Jhangi and proceeded there, where he found Siraj along with co-accused Sajjad standing there, with whom the complainant conversated, but accused Siraj told him to go now as they would have chat tomorrow. At 1945 hour, when complainant reached Manda Beri road, both the accused named above opened fire at him with intention to do him away, resultantly, he was hit on front of his abdomen, buttock and thigh. The occurrence is stated to have witnessed by people present there. Motive behind the occurrence is stated to be an altercation inter se the accused and complainant some two months prior to the incident. The injured complainant was shifted to hospital by Suleman (abandoned PW) where his report was reduced into writing in shape of murasila Exh.PA/1 on the basis of which FIR Exh.PA was registered. Later on, complainant-injured Zafar Ali Shah succumbed to injuries in the hospital and section 302, P.P.C. was inserted in the FIR.
3. Initially, after completion of investigation, complete challan under section 512, Cr.P.C. was submitted against both the accused. Accused Sajjad was arrested and tried by the learned Additional Sessions Judge-IX, Peshawar and on conclusion of trial vide judgment dated 11.05.2010, convicted and sentenced him under section 302(b), P.P.C., against which convict Sajjad filed Cr.A. No.440-P/2010, which is also fixed today along with the instant criminal appeal.
4. Later on, accused/appellant Siraj was arrested. Supplementary challan was submitted against him before the learned Trial Court, where he was charge sheeted, to which he pleaded not guilty and claimed trial. To prove his guilt, prosecution examined eleven witnesses. After closure of the prosecution evidence, statement of accused/appellant was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath under section 340(2), Cr.P.C. nor opted to produce evidence in defence. On conclusion of trial, the learned Trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above. Hence, this appeal.
5. Learned counsel for the appellant argued that impugned judgment of the learned Trial Court is perverse and against the principles of appreciation of evidence; that the occurrence is nocturnal and the deceased then injured has not disclosed about any source of light in his report, nor any source of light has been shown in the site plan or recovered therefrom by the I.O. during spot inspection, so identification of the assailant/assailants from back, that too at night time, is highly improbable; that the learned Trial court has wrongly considered the report of deceased then injured as a dying declaration because the same neither bear any endorsement of the medical Officer nor any certificate to the effect that the deceased then injured was able to talk; that there is no ocular account of the incident while PW Haider Ali, brother of the deceased then injured has totally shattered the prosecution case; that accused has neither confessed his guilt before the competent court of law nor weapon of offence has been recovered from his possession or pointation; that three empties recovered from the spot neither commensurate with the number of injuries on the person of the deceased nor the same has been sent to the FSL so as to determine the occurrence to be the job of one or more than one person. He went on to say that keeping in view the dimension of injuries on the person of the deceased the charge has been exaggerated. He added that prosecution has miserably failed to prove the occurrence through cogent and concrete evidence in the mode and manner as alleged by the deceased then injured, thus, by extending benefit of doubt to the accused, he be acquitted of the charge.
6. Conversely, learned counsel for the complainant argued that accused/appellant along with his co-accused has been directly charged by the deceased then injured in his dying declaration; that the place of occurrence is Bazaar where street lights are always available hence question of mistaken identity does not arise; that medical evidence fully proves consciousness and orientation of the deceased then injured at the time of report; that recovery of 3 crime empties of 30 bore pistol and blood from the spot coupled with unexplained noticeable abscondence of the appellant, corroborate the prosecution case. He while supporting the impugned judgment sought dismissal of the appeal.
7. Learned A.A.G. adopted the arguments of learned counsel for the complainant and supported the impugned judgment.
8. We have considered the respective submissions of learned counsel for the parties and perused the record with their valuable assistance.
9. The learned Trial Court while considering the report of the deceased then injured Zafar Ali Shah Exh.PA/1 as a dying declaration and relying on the same recorded conviction of the appellant. In addition to above, learned trial court has also taken into consideration medical evidence and recoveries from the spot in support of the dying declaration.
10. Incident of the instant case is nocturnal, took place in the month of March, at 07.45 p.m. Neither the deceased then injured has uttered a single word about any source of light in his report nor the I.O. has recovered any electric bulb during spot inspection nor shown in the site plan. As per version of deceased then injured he was fired at from his back, so identification of the accused in a dark night, that too, from the back, would create a doubt about identification of the assailant by the deceased then injured, benefit of which would definitely go in favour of the accused. Moreover, Haider Ali, brother of the deceased, who appeared as (PW.8), has totally contradicted the story of the deceased then injured. According to deceased then injured, on the fateful night he was present in his shop when he was called on mobile phone by accused Siraj to visit him, and on his visit, he found accused Siraj with co-accused Sajjad, who conversated with them, and when left them and reached the place of occurrence, both the accused fired at him from his back, but Haider Ali (PW.8) deposes something else in these words "Stated that on the day of occurrence I was present in my home along with my brother Zafar Ali Shah deceased. Zafar Ali Shah deceased received a phone call, on my inquiry my deceased brother disclosed me that he is going to meet Sajjad. Thereafter hue and cry started in the Illaqa that my brother was hit. On this information I rushed to the hospital where my brother was lying in injured condition. I enquired from my brother who informed me that he was shot dead by Siraj and thereafter his treatment was started" . So we are confronted with two versions, one that of the deceased then injured, who has not stated about his presence in home with his brother PW Haider Ali and has charged both the accused for the occurrence, while the other furnished by PW Haider Ali, where he has shown deceased with him in home at the time of phone call of the accused and has exonerated co-accused Sajjad from the occurrence, as according to him he was told by the deceased then injured only about Siraj. At this juncture we would like to refer also to the statement of PW Haider Ali recorded as PW.3 in earlier trial of co-accused Sajjad which read as "Deceased Zafar Ali Shah was my brother and PW Akhtar Ali is also my brother. Accused Sajjad has called my brother Zafar Ali Shah through telephonic message to his baithak and accused Siraj Khan fired at my brother. I charge the accused for the murder of my brother". These contradictory versions create serious doubts in the prosecution case.
11. Despite that, if we considered the version of the deceased then injured to be correct, the moot question before us would be as to whether report of the deceased then injured can be termed as a dying declaration in terms of Article 46 of the Qanun-e -Shahadat Order, 1984, which postulates a particular mechanism for recording dying declaration. To find out truth or falsity of a dying declaration, a case is generally considered in all its physical environments and circumstances. It is necessary to find out how far the evidence or its different parts fit in with the circumstances and possibility that can safely be deduced in a particular case. Therefore, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that such statements are made in the absence of an accused who has no opportunity of testing the veracity of the statement by cross-examination. In examining the intrinsic worth of dying declaration the inherent consistency, genuineness and truth of the statement in the context of surrounding circumstances, the fact that the deceased was not tortured or motivated by hate or other mercenary motives to give an untrue account or substitute or falsely implicate persons in the crime, its credibility according to normal human standards and the absence of any inherent infirmity or weakness therein, all have to be apprised. Similarly, in examining its extrinsic value, an appraisal of surrounding circumstances i.e. that the deceased was in a fit condition to make the statement would also have to be carefully examined.
12. Article 46 of the Qanun-e-Shahadat Order, 1984, postulates a mechanism for recording the dying declaration, according to which, dying declaration, whenever possible, preferably be recorded by a Magistrate, and if Magistrate is not available or if there is no time to call the Magistrate due to deteriorating condition of the victim, it can be any body e.g. public servant like a Medical Officer or any other person. Likewise, in case of absence of the Magistrate and the Police Officer, such statement should be recorded in presence of two or more reliable disinterested witnesses to the case. If availability of two independent witnesses is not possible then it should be recorded in presence of two or more police officials. No doubt, conviction can be based on dying declaration alone, provided it is true and free from prompting from outside. To accept such statement, without considering the surrounding circumstances of the case, would not be safe administration of justice to convict accused merely on the basis of so called dying declaration.
13. Taking the report/statement of the deceased then injured Zafar Ali Shah on the touchstone of the principles referred to above, it appears from the record that his report was recorded by Muhammad Gul Khan SI (PW.11) in LRH Peshawar in the shape of murasila Exh.PA/1. Dr. Javed Hussain Khattak SMO who examined the deceased then injured vide MLC Exh.PW.12/1, has only mentioned that "the patient was conscious". In cross-examination he admitted that statement of the injured was not recorded by the police in his presence. He further admitted that report was not made in his presence. Statement/murasila Exh.PA./1 of deceased then injured does not bear the endorsement of the medical officer. The medical officer has not issued any separate certificate qua condition of the deceased then injured that he was well oriented in time and space and capable to make statement. Mere mentioning of word "conscious" would not be sufficient to prove that the injured was able to talk. Consciousness is something else which does not mean able to talk. Despite availability of the doctor the report of the deceased has not been endorsed from him by the author of murasila. In cross-examination PW.11 Muhammad Gul Khan admitted that murasila was not endorsed by the doctor and that the other medico legal staff also did not endorse the same. Suleman who shifted the deceased then injured from the spot to the hospital, has been abandoned in this trial, however, he was examined as PW.5 in earlier trial of accused Sajjad, wherein he deposed that deceased then injured was lying on the spot in injured condition and he along with one Arshad shifted him to LRH, Peshawar wherein he lodged the report and thereafter he was admitted in the hospital, meaning thereby the PWs Salman and Arshad were also present at the time of report, but none of them has endorsed or signed the report/statement of deceased then injured nor the author of murasila did bother to sign the report from these PWs. In the circumstances, it can be safely concluded that the report of the deceased then injured cannot be termed as a dying declaration because neither the same has been recorded by a Magistrate nor by the Medical Officer nor in presence of two or more reliable and independent witnesses nor the medical officer has furnished any certificate regarding capability of the deceased to give statement. In the circumstances, the status of statement of the deceased then injured would not be more than a statement under section 161, Cr.P.C. and not a dying declaration. Admittedly, dying declaration or a statement of a person without the test of cross-examination is a weak kind of evidence and its credibility depended upon the authenticity of the record and the circumstances under which it is recorded. Dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie. In this respect reliance can be placed on case titled, Mst. Zahida Bibi v. The State" (PLD 2006 Supreme Court 255).
14. The report of the deceased then injured does not find support and corroboration from medical evidence, where dimensions of the entrance wounds are same while the deceased has charged two persons for firing. The recovered empties of .30 bore pistol has not been sent to the FSL for analysis, so as to determine the occurrence to be the doing of one or more than one man. The deceased then injured has not stated about description of the weapon of offence in his report. If he was also to identify the accused, he ought to have also mentioned the kind of weapon. The appellant has not confessed his guilt before competent court of law nor weapon of offence has been recovered from his direct or indirect possession. Mere recovery of the empties in absence of direct and substantive evidence, would not be sufficient to prove the guilt of the appellant. Similarly, bloodstained earth from the place of deceased, his bloodstained garments and positive FSL report, could only advance the prosecution's case to the extent that deceased was done to death on that particular place/spot, but would not be sufficient to prove that the murder has been committed by the appellant. These being corroborative pieces of evidence, by itself would not be sufficient for conviction of accused in absence of substantive evidence. Guidance may be derived from Riaz Ahmed's case (2010 SCMR 846) . As per the dictum of the apex Court, corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. Wisdom in this regard may be derived from Ijaz Ahmed's case (1997 SCMR 1279) and Asadullah's case (PLD 1971 SC 541). It has been held by the apex Court in case titled, "Saifullah v. The State" (1985 SCMR 410) , that when there is no eye-witness to be relied upon, then there is nothing, which can be corroborated by the recovery. Similarly, in case titled, "Riaz Masih v. The State" 1995 SCMR 1730, the honourable apex Court held that recovery of crime weapon by itself is not sufficient for conviction on murder charge. Same view has been expressed by the apex Court in Saifullah's case (1985 SCMR 410).
15. Motive alleged also remained unproved. Rather, keeping in juxtaposition the story of prosecution with motive, it disturbs a prudent mind that if there was an altercation between the deceased and accused some two months prior to the incident, then why the deceased then injured at the spur of moment on one call of the accused followed the instruction of the accused. Prosecution though is not called upon to establish motive in every case, yet once it has set up a motive and failed to establish, it would be the prosecution to suffer the consequence and not defence. In this regard reference may be made to case titled, "Hakim Ali and 4 others v. The State and another" (1971 SCMR 432).
16. So far as abscondence of the appellant is concerned. No doubt, proceedings under section 512, Cr.P.C. were initiated and completed against him however, the appellant has denied abscondence in his statement under section 342, Cr.P.C. It is settled law that abscondence alone, cannot be a substitute of real evidence. It has been observed by the apex Court in Farman Ali and others' case (PLD 1980 SC 201) that abscondence by itself would be of no avail to prosecution in absence of any other evidence against the absconding accused. Mere abscondence of accused would not be enough to sustain his conviction. Reliance placed on case titled, "Muhammad v. Pesham Khan (1986 SCMR 823).
17. The crux of the above discussion is that prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring evidence beyond shadow of doubt. The prosecution evidence is pregnant of doubts and according to golden principle of benefit of doubt, one substantial doubt is enough for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error". The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice. In the instant case, the prosecution evidence is highly discrepant, full of infirmities and doubts. The learned trial Court has not evaluated the evidence in its true perspective thus reached to an erroneous conclusion by holding the appellant guilty of the offence. Resultantly, this appeal is allowed. Conviction and sentence of the appellant recorded by the learned trial court vide impugned judgment are set aside and he was acquitted of the charge.
18. These are reasons of our short order of even date, which is reproduced below:-
"For reasons to be recorded later on, this appeal is allowed. The conviction and sentences of the appellant namely, Siraj, awarded to him in case FIR No.137 dated 05.03.2008 under sections 302/34, P.P.C. Police Station Shah Qabool by learned Additional Sessions Judge, Peshawar vide impugned judgment dated 26.02.2014 are set aside and he is acquitted of the charges leveled against him. He be released from jail forthwith, if not required in any other case".
HBT/438/P Appeal allowed.