MUHAMMAD SHABBIR vs MUHAMMAD ASLAM And Another
This matter involves two criminal petitions: one challenging the acquittal of Muhammad Aslam and the other challenging the conviction and sentence of Zia-ud-Din for the murder of Munawar Hayat. The prosecution case relied on an oral dying declaration incorporated into the F.I.R., ocular testimony, and forensic evidence matching a recovered gun to crime-empties. The trial court and the High Court disbelieved the alleged motive and, while rejecting the statement of the deceased recorded under section 161, Code of Criminal Procedure 1898, relied on the oral dying declaration. The petitioner argued that the absence of exact words in the dying declaration, combined with the High Court's rejection of the presence of the co-accused (Muhammad Aslam) and other discrepancies in ocular evidence, rendered the conviction unsafe. The Supreme Court, upon reviewing the arguments regarding the reliability of the evidence and the implications of the co-accused's acquittal, determined that the evidence required a deeper appraisal to ensure the safe dispensation of justice. Consequently, the Court granted leave to appeal in both petitions and issued bailable warrants for the acquitted accused.
- Does the absence of the exact words spoken by a deceased person in an oral dying declaration necessarily render it unreliable?
- Can a conviction be maintained when the ocular testimony and dying declaration are challenged due to the acquittal of a co-accused and the failure to establish the alleged motive?
- When is it appropriate for the Supreme Court to grant leave to appeal in criminal cases involving the appraisal of evidence?
- Section 161, Code of Criminal Procedure 1898
ORDER
1. MUHAMMAD HALEEM, .J.--In Criminal Petition No. 479 of 1981, the acquittal of Muhammad Aslam is challenged while Criminal Petition No.500 of 1981 is directed against the conviction and sentence of Zia-ud-Din, the brother of Muhammad Aslam. Both of them were charged for the murder of Munawar Hayat The role of firing the shots at Munawar Hayat and Muhammad Nawaz, who though injured was not examined, as having been won over, was attributed to Zia-ud-Din. Both of them at the relevant time were in the tractor driven by the deceased Munawar Hayat. The eye-witnesses were also allegedly sitting in the tractor. Muhammad Nawaz on being shol fell from the tractor while Munawar, in an injured condition, drove the tractor to the house where he gave the narration to his father Muhammad Shabbir, who lodged the F.I.R. At 9.15 P.M.
2. The evidence against the two consisted of the oral dying declaration incorporated in the F.I.R. And the statement of the deceased recorded under section 161, Cr.P.C. On 18th of April, 1977, the ocular testimony of P.W. (9), Muhammad Aslam and P.W. (10). Ibne All Shah, the motive and the matching of the gun secured at the pointation of Zia-ud-Din with the crime-empty found at the spot. There was also another F.I.R. Recorded earlier in which it was alleged that Zia-ud-Din had come armed at the Dera of the deceased, but not finding him there he could not pursue his purpose of killing the deceased, and, accordingly, a case under the Arms Act was registered.
3. The Courts below disbelieved the motive which, in substance, was that Zia-ud-Din had suspected the deceased to have had a hand in the murder of his brother committed by some other persons.
4. The Courts below did not accept the dying declaration as a statement under section 161 Cr.P.C. But placed reliance on the narration recorded in the F.I.R as having been given by the deceased orally.
5. The ocular testimony was also believed and so also the recovery of the gun and its matching with the crime-empty.
6. The learned counsel for Zia-ud-Din vehemently argued that in the absence of the exact words spoken by the deceased, it was difficult to say whether it was a true reproduction of what he stated to his father, the moreso in the light of the finding of the High Court that there could be possibilty of an addition nonetheless the High Court did not think that this was a case where another person had been substituted for the real culprit. The learned counsel also contended that the High Court not having believed the presence of Muhammad Aslam at the spot and for other discrepancies in the ocular evidence it should not have maintained the conviction as these features reacted against the veracity of the dying declaration and the ocular testimony in the context of the motive not having been established and the false implication of Muhammad Aslam.
7. We are of the view that the evidence requires appraisal in the interest of safe dispensation of justice. Accordingly, we would grant leave to appeal in both the petitions. Bailable warrants to issue against Muhammad Aslam in the sum of Rs.20,000 with one surety in the like amount to the satisfaction of Assistant Commissioner, Sargodha.