2022 Y L R 522
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, haraabah--- Appreciation of evidence---Dying declaration---Scope---Accused was charged for committing murder of the deceased/complainant while snatching money---Admittedly, the statement of the deceased then injured incorporated in the FIR was recorded in the hospital but neither his statement was attested by the concerned Medical Officer to verify that the deceased then injured was medically fit and was in his senses to make such statement nor had been verified and signed by any other Police Official or any private witness---Statement of deceased then injured was accepted as a whole truth without opportunity of cross-examination on the hypothesis that a person on the death bed could not lie---Present case was distinguishable, for the reason that the deceased then injured did not die within a short spell of time rather he remained alive for 39 days---In such scenario, it was obligation upon the Prosecution, in circumstances, was obliged to have proved on record through medical evidence that during such period of treatment he was able and fit to make statement---Investigating Officer in his examination-in-chief stated that he had been visiting the injured admitted in hospital but deceased then alive was unable to give his statement and that he only stated that he had been fired at by accused just for snatching money---If the statement of Investigating Officer was believed to be true and correct then question mounted that if he was not able to make statement during his treatment in a hospital wherein he remained for 39 days, how could he make statement on the day of incident---In absence of such explanation, the need of medical evidence arose to prove such factum, which was missing---Prosecution had to establish through cogent evidence that the dying man was in full sense, conscious, alert to surroundings, fully orientated to time, space and able to make such statement, whereof a fitness certificate about the medical condition of declarant was must, which had not been obtained and brought forward on record---Such declaration of deceased could not be considered as a dying declaration---Circumstances established that the prosecution had failed to bring home the charge against the accused---Appeal against conviction was allowed, in circumstances.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 46---Dying declaration---Scope---Dying declaration, being a very weak type of evidence, required strong, independent and reliable evidence for the sake of safe administration of justice---Relying upon such statement alone will be un-safe.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Accused was charged for committing murder of the deceased/complainant while snatching money---Ocular account had been furnished by mother of deceased and another witness---Statements of said two witnesses had been contradicted by Investigating Officer who testified that the accused was arrested on the next day about 04:15 p.m. from his room---No clothes of the accused were taken into possession to corroborate the statement of witness, who stated that the clothes of the culprit, white in colour were smeared with the blood of his son, which was intriguing---Statement as dying declaration of deceased was incorporated in the shape of mursaila on the basis whereof FIR was lodged, which had been found to be inconsistent to the depositions of said two witnesses, rather contrary regarding said dying declaration, arrest of the accused on the spot and then handing over to the police in the hospital---Circumstances established that the prosecution had failed to bring home the charge against the accused---Appeal against conviction was allowed, in circumstances.
(d) Penal Code (XLV of 1860)---
----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, haraabah---Appreciation of evidence--- Withholding material evidence---Scope---Accused was charged for committing murder of the deceased/ complainant while snatching money---One of the material witnesses who along with other witness brought injured/ deceased then alive, to hospital was not produced and abandoned for being unnecessary without assigning any reason---Said fact inferred to believe as provided under Art. 129(g) of the Qanun-e-Shahadat, 1984, that had he been produced before the Court he would have not supported the prosecution version---Circumstances established that the prosecution had failed to bring home the charge against the accused---Appeal against conviction was allowed, in circumstances.
(e) Penal Code (XLV of 1860)---
----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, haraabah---Appreciation of evidence---Confessional statement of accused--- Infirmities--- Accused was charged for committing murder of the deceased/ complainant while snatching money---Record showed that in cross-examination Judicial Magistrate admitted not to have asked any question other than mentioned in the questionnaire---After recording confessional statement, Judicial Magistrate committed the accused to judicial custody through Naib Court--- Judicial Magistrate admitted that the confessional statement was not written by him by his hand but was scribed by the steno of the Court on his dictation---Admittedly, Recording Magistrate had provided only one opportunity with a single warning for reflection---Usually, the Naib Court was in the uniform, thus shifting of the confessor through a Naib Court also offended the pre-caution---By not providing two opportunities for reflection with intervals intentionally violated the directions rendered by the Supreme Court---Presence of Court Official and writing the confession by him without offering explanation and such fact not contained in the certificate made the entire proceedings of confessional statement un-voluntary and erroneous, making the same inadmissible---Circumstances established that the prosecution had failed to bring home the charge against the accused.
(f) Penal Code (XLV of 1860)---
----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Recovery of weapon of offence from the possession of accused---Reliance---Scope---Accused was charged for committing murder of the deceased/ complainant while snatching money---Pistol being crime weapon of the murder of the deceased was recovered from a room being in possession of the accused---Arrest of the accused on the said date and the recovery made at the same moment from the room of the accused was diverse to the testimony of alleged eye-witnesses that the culprit, who committed murder was apprehended at the spot by the deceased himself, which was handed over to Police Official in the hospital and that the police praised the deceased for doing so bravely---Since the recovery of pistols had not been effected in consequence of disclosure and the police had raided the room on prior information, therefore, it was incumbent upon Police Officials to have had associated compulsorily private witnesses from the locality to become marginal witness of recovery, which offended provisions of S.103, Cr.P.C.---Prosecution had also procured the Forensic Science Laboratory Report to establish that an empty recovered from the crime scene had been fired by the pistol recovered from accused from his room beneath the pillow---One of the fascinating statements which had come on record was that Investigating Officer testified that, while inspection of the crime scene, he secured an empty, giving fresh smell of its discharge, which was taken into possession through recovery memo---Occurrence having taken place at about 07:00 p.m., then how come would it be possible, till next day, the empty giving fresh smell of its discharge---Record reflected that the recovery of pistols were made and sent on the same day to Forensic Science Laboratory, but the same were received after four days; whereof no explanation had been offered to justify late receipt of the aforesaid weapons, which made the Forensic Science Laboratory Report unworthy of reliance---Recovery having been considered to be highly doubtful and thus discarded as such the Forensic Science Laboratory Report could not be considered as helpful to the case of prosecution for being redundant---Circumstances established that the prosecution had failed to bring home the charge against the accused.
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