PLJ 2021 Cr.C. (Lahore) 752 (DB)
Statement of injured person u/S. 161, Cr.P.C.--
----Statement under Section 161, Cr.P.C. of an injured is an admissible evidence though injured had died much later after occurrence.
[P. 758] A
1976 SCMR 471.
----S. 302(b)--Anti-Terrorism Act, (XXVII of 1997), S. 7(a)--Conviction and sentence--Challenge to--Qatl-e-amd--Dying declaration--Statement of deceased is a substantive piece of evidence and can easily be used against appellant and there is nothing to suggest that deceased had substituted an innocent person in place of real culprit of occurrence--Moreover, statement of deceased about circumstances of her death is admissible under Section 32(1) of Evidence Act and it becomes substantive piece of evidence if it is trustworthy--Corroboration between dying declaration and other pieces of evidence--There is no reason to disbelieve incriminating material in record against appellant in shape of ocular account furnished by witness and dying declaration of deceased--By way of her supplementary statement has made improvements in her earlier statement, suffice it to observe that deceased had only mentioned names of witnesses who were present at place of occurrence at relevant time--She has not stated about mode and manner of alleged occurrence--Another objection raised by appellant is that dying! declaration has not been made by deceased-- Law does not denote any specific form for recording dying declaration of a deceased person--Prosecution witnesses have duly proved deceased’s dying declaration before trial Court--Defence, despite lengthy cross-examination, could not succeed to shatter credibility of witnesses--Prosecution, in order to prove its case, has produced confidence inspiring evidence which is fully supported by medical evidence--Dr. (PW) conducted postmortem examination on dead body of deceased and found above-mentioned injuries on her person and post-mortem examination report issued by her fully corroborates ocular account furnished by PW--There is hardly any contradiction or improvement in depositions of PWs--Trial Court has rightly appreciated evidence adduced by prosecution, therefore, conviction and sentence of appellant was quite justified and does not warrant any interference by High Court--Appeal was dismissed.
[Pp. 758 & 759] B, C, E & F
2001 SCMR 1474.
Dying declaration--
----Principle--It is settled principle of law that if dying declaration is made even before a private person, is free from influence and person before whom such dying declaration was made, later on was examined as witness then it becomes substantive piece of evidence and no corroboration is required and such declaration can be made basis of conviction of an accused. [P. 758] D
M/s. Javed Iqbal Bhatti and Asma Khan, Advocates for Appellant.
Malik Riaz Ahmad Saghla, Addl. Prosecutor General for State.
M/s. Muhammad Sharif Karkhi Khera and Ejaz Ahmad Lodhi, Advocates for Complainant.
Date of hearing: 2.6.2020.
PLJ 2021 Cr.C. (Lahore) 752 (DB)
[Multan Bench, Multan]
Present: Tariq Saleem Sheikh and Anwaarul Haq Punnun, JJ.
versus
STATE--Respondent
Crl. A. No. 707-ATA of 2012, heard on 2.6.2020.
Judgment
Anwaarul Haq Pannun, J.--Rashid Ali son of Munir Ahmad, the appellant, through the captioned appeal has challenged the impugned judgment dated 29.09.2011 passed, on the conclusion of trial, in a case registered vide FIR No. 712/2010, dated 30.12.2010, under Sections 302, 324, PPC read with Section 7 of ATA, 1997 with P.S. Jahanian, District Khanewal, whereby learned Judge, Anti-Terrorism Court No. II, Multan has convicted and sentenced him, as under:
Under Section 302(b), PPC
Life Imprisonment with direction to pay Rs. 2,00,000/- as compensation to the heirs of deceased. In case of default in payment whereof, to further undergo SI for six months.
Under Section 7(a) of ATA 1997
Life Imprisonment with order to pay fine Rs. 1,00,000/-. In case of default in payment whereof, to further undergo SI for one year.
Both the above said sentences were ordered to run concurrently. He was also extended the benefit of Section 382-B, Cr.P.C.
2. Briefly the facts of the case as embodied in FIR (Exh.PC) are to the effect that 5/6 months prior to the occurrence, complainant/deceased was married to Rashid Ali (appellant). Due to domestic worries (gharelu naachaqi) there remained dispute between husband and wife. Her husband off and on used to beat her on petty matters. 5/6 days ago, she being annoyed with her husband went in the house of paternal uncle of the Appellant namely Nazir Ahmad. On 30.12.2010 at 1:10 P.M., she was present in the Courtyard of said house, abruptly, Rashad Ali (appellant) entered in the house and poured/threw acid from the plastic bottle on her chest and mouth, she burnt badly and gave information of occurrence to her maternal uncle namely Manzoor Hussain (PW-6) and brother Maqsood Hussain (given up).
3. The investigation was encapsulated into submission of a report under Section 173, Cr.P.C., the learned trial Judge took the cognizance, supplied the requisite statements under Section 265(c), Cr.P.C., framed the charge against him to which he pleaded not guilty and claimed trial. Thenceforth, the prosecution leads its evidence in order to substantiate the charge against the accused.
4. The prosecution, at the trial, in order to prove the charge produced as many as 09 P Ws besides tendering in evidence report of the Chemical Examiner Exh.PK.
5. The ocular account in this case has been furnished by Muhammad Alam (PW-5). Muhammad Razzaq, ASI (PW-7) on receipt of information about the occurrence reached in hospital and recorded statement of Mst. Fozia Bibi and sent a complainant for registration of the case. He also conducted partial investigation of this case. Riaz Ahmad Inspector (PW-8) also conducted investigation of this case.
6. Dr. Amer Ghaffur, WMO, THQ Hospital Jahanian (PW-1), on 30.12.2010 medically examined Mst. Fozia Bibi and observed that partient was conscious but in a state of agony, according to her, her husband threw acid upon her, her clothes were burnt and she observed following injuries on her body:
1. Hair are burn on top of head and from hair line on forehead.
2. On face, eyebrows are burnt; eye-lashes burnt and matter together, redness of eye also present. There is redness and swelling of face, skin is redant, upper and lower lip also burn with skin peeling, both ear also burn with blackening of skin.
3. On neck, front of neck burnt with skin peeling, page of skin hanging with inflame i.e. multiple blisters also present on neck and on front of chest (upper), both shoulders front and back side burnt with skin peeling and inflame i. e’.
4. On front of upper chest, blister are present.
5. Front of abdomen with blisters are present on right side along with a lupus, skin tag hanging on his hip joint, both sides.
6. Skin tags with skin peeling in both axilla.
7. Upper limb also burnt with blisters and skin peeling. Dorsum of right hand, thumb burn with blisters. Left thumb also burnt, left hand normal.
8. Skin tags, blisters are present on both lower lips, front and back side, mentioned in sketch.
9. Glutiar region burned with skin tags.
10. Genitalia externally burnt with blackening.
11. Scapular region, both skin tags present. Dorsum of fore burnt with blisters.
12. Back of body lower part is blackened only.
All the burns are deep, patient referred to
After the death of Mst. Fozia Bibi, Dr. Shahida Aslam (PW-2) on 18.01.2011, while posted at THQ Hospital Jahanian conducted post-mortem examination over her dead body. She stated the body of young woman and her medico-legal check-up was conducted on 30.12.2010 at THQ Hospital Jahanian and she also found the stomach injuries as described in the MLC. She gave the opinion that cause of death is due to complications of burns and the burn injuries were stated as ante-mortem.
Probable time between injuries and death was about 19 days while approximately time between death and postmortem was about 15 hours.
7. Learned DDPP vide his statement dated 21.09.2011 closed the prosecution evidence.
8. When examined under Section 342, Cr.P.C., the appellant denied every bit of incriminating material put to him. While replying to the question that as to why this case and why the prosecution witnesses had deposed against him, he had replied as follows:
“Mst. Fauzia was a girl of bad character who usually remained talking on phone with strangers. I, numerously forbade her from doing so but she refused to do so upon which I, about 14/15 days ago from the date of occurrence, pushed her out from my house and asked to go her parents’ house. I told Mst. Fauzia that I was going to complaint her parents about her bad character but Mst. Fauzia due to fear of her defame, instead to going to her parents’ house went to the house of Nazir Ahmad. After about one week, Mst. Fauzia called me and my parents and apologized for her act and requested for reconciliation but I flatly refused to reconcile her in any state.
3 days prior to the occurrence Mst. Fauzia threatened me on phone that if I would not take her back to home, she would burn herself because with this stain of defame she could not face her parents and to others but I flatly refused for reconciliation, due to this she became disappointed and by throwing patrol upon herself, she committed suicide.
The parents and brothers got knowledge about the commission of suicide by Mst. Fozia due to this they did not proceed against me, nor they appeared in the Court against me, whereas the other remote relatives of Mst. Fauzia, under the grab of compromise, just to extort money from me, on the basis of wrong facts got registered a false case against me, in connivance with local police and just to prove the case, they deposed falsely against me.”
The appellant did not opt to make statement on oath in disproof of the charge as required under Section 340(2), Cr.P.C., however, he opted to adduce defence evidence but subsequently vide his statement dated 26.09.2011 did not produce the same.
9. On conclusion of trial, the learned trial Court has convicted the appellant in terms as described in para No. 1 of this judgment hence this appeal.
10. Arguments heard. Record perused.
11. As per prosecution’s version, the appellant committed Qatl-e-Amd of his wife by throwing acid upon her body creating a sense of fear and insecurity in society. The appellant is named in the promptly lodged FIR with abovementioned specific role of pouring/throwing acid from the plastic bottle on her chest and mouth resulting into her death. The alleged occurrence had taken place on 30.12.2010 at about 01:10 p.m., which was reported to the police on the same day with promptitude at 01:40 p.m. After the alleged occurrence, the deceased was taken to hospital where she was medically examined by Dr. Amera Ghafoor (PW-1) on the same day and observed the above-mentioned injuries on her body. Thereafter, due to her critical condition, the deceased was referred to Nishtar Hospital Multan where she remained admitted and died on 18.01.2011 and after her death, Dr. Shahida Aslam, Senior Medical Officer Tehsil Headquarter Hospital Jahanian (PW-2) conducted the post-mortem examination over her body.
12. The FIR was lodged on the statement of the deceased on the same day of occurrence i.e. 30.12.2010. On the same day, the deceased got recorded her statement under Section 161, Cr.P.C. wherein she had only mentioned the names of witnesses of ocular account who were present at the place of occurrence at the relevant time. Besides ocular account and medical evidence furnished by Muhammad Alam (PW-5), Dr. Amera Ghafoor (PW-1), and Dr. Shahida Aslam (PW-2), recovery of bottle of acid (Exh.PF) allegedly recovered by Riaz Ahmad Inspector/SHO (PW-8) on pointing out of the appellant, most important piece of evidence against the appellant available on record is the Dying Declaration of the deceased. According to Muhammad Razzaq ASI, Investigating Officer (PW-7), on receiving information regarding the alleged occurrence, he along with other police officials, reached the hospital where the deceased was admitted and recorded her statement and sent a complaint through Rafaqat Ali to the police station for registration of FIR. After conducing medical examination, Dr. Amera Ghafoor W.M.O (PW-1) referred the deceased to Nishtar Hospital Multan where she died subsequently. The law does not prescribe any specific mode of recording the dying declaration. The statement of an injured recorded by the police under Section 161, Cr.P.C., during the course of investigation is not hit by Section 162, Cr.P.C. as such the dying declaration is a good piece of evidence and it can be relied upon by the prosecution. Learned counsels for the appellant have taken objection that the deceased remained alive for about 18/19 days after the occurrence so her statement recorded by the police cannot be termed as dying declaration. In this regard, it is suffice to observe that statement under Section 161, Cr.P.C. of an injured is an admissible evidence though the injured had died much later after the occurrence. In Wazir Gul vs. the State (1976 SCMR 471), it has been observed that “the dying declaration need not be made under immediate apprehension of death”. Moreover, a dying declaration is to be adjudged on its own merits. The statement of the deceased is a substantive piece of evidence and can easily be used against the appellant and there is nothing to suggest that the deceased had substituted an innocent person in place of real culprit of the occurrence. Moreover, statement of deceased about the circumstances of her death is admissible under Section 32(1) of the Evidence Act and it becomes substantive piece of evidence if it is trustworthy. We have observed that here is corroboration between the dying declaration and other pieces of evidence. There is no reason to disbelieve the incriminating material available on record against the appellant in the shape of ocular account furnished by the witness (PW-5) and dying declaration of the deceased. So far as the objection taken by learned counsels for the appellant that the deceased, by way of her supplementary statement dated 30.12.2010 has made improvements in her earlier statement is concerned, suffice it to observe that the deceased had only mentioned the names of witnesses who were present at the place of occurrence at the relevant time. She has not stated about the mode and manner of the alleged occurrence. Another objection raised by the learned counsels for the appellant is that the dying declaration has not been made by the deceased as per law. In this regard, it is observed that the law does not denote any specific form for recording the dying declaration of a deceased person. It is settled principle of law that if dying declaration is made even before a private person, is free from influence and the person before whom such dying declaration was made, later on was examined as witness then it becomes substantive piece of evidence and no corroboration is required and such declaration can be made basis of conviction of an accused.
(i) There is no specified forum before whom such declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be examined.
(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii) Such declaration when proved by cogent evidence cm be made a base for conviction. .
15. For what has been discussed above, the appeal in hand is without any merit, the same stands dismissed.
(A.A.K.) Appeal dismissed
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