2021 LHC 116
Such a statement is relevant under the provision of Article 46 of Qanun-e-Shahadat Order, 1984. The term dying declaration, generally, stands for the statement of a person who is in expectation of his death and relates to the causes of his death. Such a statement is admissible in evidence though its maker does not appear in the witness box so as to provide an opportunity of cross-examination to an accused facing the charge of his murder. The admissibility of the dying declaration is an exception to the general rule which makes inadmissible any hearsay evidence. Dying declaration can be made the basis for awarding conviction provided it is free from the menace of prompting and tutoring and is proved to have been made by none other than the deceased himself. The paramount reason for attaching importance and credibility to such a statement is the presumption that a dying person seldom lies. For the recording of dying declaration no hard and fast rules are laid down, however, a glean through the provisions of the Police Rules, 1934 reveals that a procedure and brief guidelines are provided in chapter-25, Rule 21.
In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon.
Blessing them with such incredible consideration and showing them such favour is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellant did not cause any injury to them. Such behaviour, on part of the accused, runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. This Court thus trusts the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the assailant, as deposed to by the witnesses was opposed to the common course of natural events and human conduct.
On a conceptual plain, Article 117 of the Qanun-eof any fact, it is Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unl ess proved otherwise. Accordingly, the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. That the law is quite se ttled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased.
Crime empties sent for analysis were fired in the pistol recovered from the possession of the appellant were received at the office of Punjab Forensic Science Agency, Lahore on 05.04.2010, whereas the appellant was arrested on 01.04.2010. In this scenario possibility of fabrication on part of the Investigating Officer in order to obtain a favourable report of the Punjab Forensic Science Agency, Lahore cannot be ruled out.
Criminal Appeal No. 306 of 2013. (Muhammad Pervaiz Vs. The State) Criminal Revision No. 155 of 2013.
(Mst Ghazala Khan Vs. Muhammad Pervaiz and another)
Decided on=01.02.2021.
2021 LHC 116
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