- موت کے قریب دی گئی بیان ایک ذاتی فرد کے سامنے بھی دیا جا سکتا ہے، لیکن یہ بیان کسی بھی قسم کے اثر و رسوخ سے پاک ہونا چاہیے اور جس.............

 PLJ 2024 SC (Cr.C.) 230
[Appellate Jurisdiction]
Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ.
MUHAMMAD SAEED and anothers--Petitioners
versus
STATE and others--Respondents.
Crl. P. Nos. 968 and 891 of 2017, heard on 20.5.2024.
(On appeal against the judgment dated 19.06.2017 passed by
the Islamabad High Court, Islamabad, in Criminal Appeal
No. 154/2015, Jail Appeal No. 153/2015, Crl. Revision No. 23/2016
and M.R. No. 14 of 2015)

Pakistan Penal Code, 1860 (XLV of 1860)--

--Ss. 302/324/34--قتل عمد--بیانِ نزع--متوفیہ کی غیر فطری موت، پیٹ پر چھری کے زخم کی وجہ سے رات کو اس کے گھر میں--مجرم نے چھری کے وار کر کے فرار ہو گیا--مدعی نے گلی میں مجرم کا پیچھا کیا مگر مجرم فرار ہونے میں کامیاب رہا--بیان مذکورہ گواہ PW-8 کے مطابق اس نے مجرم کو متوفیہ کو چھری گھونپتے ہوئے دیکھا تھا مگر اس بیان کے اس حصے میں عدالت میں بے ایمانی کی بہتری دیکھی گئی--گواہ PW-8 اور PW-13 کے بیانات سے تصدیق ہوتی ہے کہ دونوں نے فوراً زخمی کی پکار پر جواب دیا، جس نے انہیں مجرم کی طرف سے کیے گئے چھری کے وار کے بارے میں بتایا--زخمی کو فوراً PW-10 کی گاڑی کے ذریعے ہسپتال پہنچایا گیا--PW-10 کے بیان سے تصدیق ہوتی ہے کہ ہسپتال جاتے ہوئے زخمی کلمہ پڑھ رہی تھی اور PW-13 سے کہہ رہی تھی کہ مجرم نے اسے چھری مارا ہے--PW-10 کے مذکورہ بیان پر جبری تفتیش میں اعتراض نہیں اٹھایا گیا--زخمی کے پیٹ پر گہرا چھری کا زخم تھا؛ وہ صدمے کے حال میں تھی؛ اس کی نبض غائب تھی اور اسے مردہ قرار دیا گیا--PW-8, PW-10 اور PW-13 کے سامنے دی گئی موت کا بیان، جو مجرم کو ملوث کرتا ہے، انکوائری رپورٹ، طبی معائنہ کی رپورٹ (MLC)، پوسٹ مارٹم رپورٹ، خون سے آلودہ لباس کے حوالے سے کیمیکل ماہر کی رپورٹ اور دیگر حالات سے ثابت ہوتا ہے--PW-13 کی غیر متنازعہ گواہی، جو ایک خودمختار گواہ ہے اور مجرم کے جھوٹے الزام میں کوئی دشمنی نہیں رکھتا--FIR میں محرک کی عدم موجودگی، مقدمے کی کارروائی میں استغاثہ گواہوں کے ذریعے مجرم کے زیرِ بحث محرک بحیثیت متوفیہ سے پہلے اس سے شادی کی خواہش ثابت نہ ہونا اور متوفیہ کے پیٹ پر صرف ایک چھری کے وار کو اپیل کورٹ نے ہلکی سزا کے طور پر عمر قید دینے میں نرمی کے طور پر صحیح طور پر غور کیا--دونوں درخواستیں مسترد کی گئیں اور اپیل کی اجازت نہیں دی گئی۔

----Ss. 302/324/34--Qatl-i-Amd--Dying declaration--The un-natural death of deceased due to stab wound on her abdomen in night in her house--The convict has fled after inflicting Churri blows to her--The complainant chased convict in street but convict succeeded in fleeing--According to statement of PW-8,she had seen convict while stabbing deceased but this portion of her statement reveals of dishonest improvement at trial--The statement of PW-8 and PW-13 confirms that they both had immediately responded to hue and cry of injured who told them about Churri blows inflicted by convict--Injured was immediately taken to Hospital in vehicle of PW-10--Statement of PW-10 confirms that on her way to hospital, injured was reciting Kalima and was telling PW-13 that the convict had stabbed her--The above statement of PW-10 was not disputed during cross-examination--The injured was examined with a deep stab wound on her abdomen; she was in state of shock; she was pulse less and she was declared dead--Dying declaration made by deceased before PW-8, PW-10 and PW-13 implicating convict is supported/ corroborated by inquest report, MLC, postmortem report, report of chemical expert with regard to blood stained clothes of deceased and surrounding circumstances--Un-challenged testimony of PW-13 who is an independent witness having no enmity for false implication of convict--Absence of motive in FIR, non proving of motive introduced by prosecution witnesses at trial about desire of convict to marry deceased prior to her marriage with PW-9 and single stab wound on abdomen of deceased have rightly been considered as mitigating circumstances by Appellate Court to award lessor sentence of imprisonment for life to convict--Both petitions were dismissed and leave to appeal was refused.

[Pp. 232, 233, 234] A, B, C, D, E, F, H, I & J

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

آرٹیکل 46 - موت کے قریب دی گئی بیان ایک ذاتی فرد کے سامنے بھی دیا جا سکتا ہے، لیکن یہ بیان کسی بھی قسم کے اثر و رسوخ سے پاک ہونا چاہیے اور جس شخص کے سامنے یہ بیان دیا گیا ہو اسے امتحان میں لیا جانا ضروری ہے۔ یہ جانچنا ضروری ہے کہ موت کے قریب دیا گیا بیان ایمانداری سے دیا گیا تھا، بیان دینے والا ذہنی طور پر بیان دینے کے قابل تھا، بیان دینے والا بیرونی اثرات سے آزاد تھا، وہ موت سے خوفزدہ تھا اور اس نے سچ بولا تھا۔

----Art. 46--A dying declaration can be made before a private person but it should be free from any influence and person before whom it is made has to be Examined--It is necessary to as certain that dying declaration was made honestly, Its maker was in a fit state of mind to make statement--Its maker was free from out side influence, its maker was fearing death and had made truthful statement.

[P. 233] G

2001 SCMR 1474; 2010 SCMR 55 ef.

Raja Khalid Mehmood Khan, ASC for Petitioner (in Crl. P. No. 968/2017)

Mr. Talat Mahmood Zaidi, ASC for Petitioner (in Crl. P. No. 891/2017).

Mr. Fauzi Zafar Iqbal, ASC for State (As State Counsel).

Date of hearing: 20.5.2024.

Judgment

Naeem Akhtar Afghan, J.--On the charge of committing murder of Nagina Bibi by stabbing in her abdomen in the night of 23.10.2013 at 3:30 am in her house, in respect whereof FIR No. 175/2013 dated 23.10.2013 was lodged with Police Station (PS) Secretariat Islamabad by Waqar Ali Khan (brother of deceased), the accused Muhammad Saeed was convicted under Section 302(b) of the Pakistan Penal Code (PPC) and sentenced to death by learned Additional Sessions Judge VII (West) Islamabad (the Trial Court) vide judgment dated 5.09.2015. The convict (Muhammad Saeed) was also made liable to pay compensation of Rs. 1,00,000/- under Section 544-A of the Code of Criminal Procedure (Cr.P.C.) and in default thereof to further undergo imprisonment for six months.

2. The conviction and sentence awarded by the Trial Court was challenged by the convict initially by filing Jail Appeal No. 153/2015 before the Islamabad High Court (the Appellate Court). Subsequently, the convict also filed Criminal Appeal No. 154/2015 before the Appellate Court. The Trial Court forwarded Murder Reference No. 14/2015 to the Appellate Court for confirmation or otherwise of the death sentence of the convict. The complainant (Waqar Ali Khan) also filed Criminal Revision No. 23/2016 for enhancement of the compensation amount.

3. After hearing all the concerned, vide impugned common judgment dated 19.06.2017, while maintaining the conviction of the convict under Section 302(b), PPC, the Appellate Court converted the death sentence of the convict into imprisonment for life with benefit of Section 382-B, Cr.P.C. and enhanced the amount of compensation from Rs. 1,00,000/-(rupees one hundred thousand) to Rs. 10,00,000/-(rupees one million) in default whereof the convict was held to undergo simple imprisonment for six months.

4. Feeling aggrieved of the impugned judgment passed by the Appellate Court the convict has filed Criminal Petition for leave to Appeal No. 968/2017 and the complainant has filed Criminal Petition for leave to Appeal No. 891/2017 for enhancement of the sentence of the convict to death penalty.

5. After hearing learned counsel for the convict, learned counsel for the complainant and learned counsel for the State we have perused the available record. The un-natural death of deceased Nagina Bibi due to stab wound on her abdomen in the night of 23.10.2013 at 3:30 am in her house has not been disputed/denied by the defence.

6. The evidence available on record reveals that when on hue and cry of injured Nagina Bibi, her mother (PW-8 Shujat Bibi), her sister Sakeena Bibi) (not produced at trial) and her brother (the complainant/PW-13) came out of their rooms and reached the injured, she informed them that Muhammad Saeed (the convict) has fled after inflicting Churri blows to her; the complainant chased the convict in the street but the convict succeeded in fleeing towards the Quaid-e-Azam University, Islamabad whereafter the complainant alongwith his mother and sister took the injured to hospital in the vehicle of neighbor (PW-10 Muhammad Akram).

7. According to the statement of PW-8, she had seen the convict while stabbing the deceased but this portion of her statement reveals of dishonest improvement at the trial. However, the statement of PW-8 and PW-13 confirms that they both had immediately responded to the hue and cry of the injured Nagina Bibi who told them about Churri blows inflicted by the convict.

8. Evidence reveals that the injured Nagina Bibi was immediately taken to Hospital in the vehicle of PW-10. Statement of PW-10 confirms that on her way to the hospital, the injured Nagina Bibi was reciting Kalima and was telling PW-13 that Muhammad Saeed (the convict) had stabbed her.

Surprisingly, the above statement of PW-10 was not disputed by the learned defence counsel during cross-examination of PW-10.

9. It was contended by learned counsel for the convict that during investigation, statement of PW-10 was not recorded by the Investigating Officer under Section 161, Cr.P.C. but record transpires that 161, Cr.P.C. statement of PW-10 was duly recorded by the Investigating Officer during investigation and his name was also mentioned in the calendar of witnesses contained in the report (challan) under Section 173, Cr.P.C.

10. The deceased had received stab wound on her abdomen in the night of 23.10.2013 at about 3:30 am. The MLC (Ex.PE) issued by PW-5 Dr. Tanvir Afsar Malik, CMO, Federal Government Hospital (FGH) Islamabad reveals that the injured Nagina Bibi was examined by him at 4:15 am on 23.10.2013 with a deep stab wound on her abdomen; she was in the state of shock; she was pulse less and she was declared dead at 5:00 am.

The postmortem report (Ex.PG/1-6) issued by PW-6 Dr. Sabina Akhter, MLO, FGH Islamabad also confirms that the deceased had sustained stab wound on her abdomen which had resulted into her death. According to the postmortem report, time between injury and death of the deceased was one hour and 35 minutes approximately.

The above confirms that the deceased Nagina Bibi remained alive for a considerable period before reaching the hospital.

11. Under Article 46 of the Qanun-e-Shahadat Order, 1984 the sanctity of a dying declaration has to be evaluated with great care and caution and the evidence consisting of dying declaration has to be appreciated with due diligence.

A dying declaration is a question of fact which has to be determined on the facts of each case. To find out truth or falsity of a dying declaration, a case is generally to be considered in all its physical environment and circumstances.

A dying declaration can be made before a private person but it should be free from any influence and the person before whom it is made has to be examined. It is necessary to ascertain that the dying declaration was made honestly, its maker was in a fit state of mind to make the statement, its maker was free from outside influence, its maker was fearing death and had made truthful statement.

Reference in above regard is made to the cases of ‘Farmanullah v. Qadeem Khan’[1] and ‘Majeed v. the State’.[2]

12. In the instant case, the dying declaration made by deceased Nagina Bibi before PW-8, PW-10 and PW-13 implicating the convict is supported/corroborated by the inquest report, the MLC, the postmortem report, the report of the chemical expert with regard to the blood stained clothes of the deceased and the surrounding circumstances.

Apart from consistent and confidence inspiring statements of PW-8 and PW-13, the dying declaration of deceased Nagina Bibi is duly supported/corroborated by un-challenged testimony of PW-13 who is an independent witness having no enmity for false implication of the convict.

13. On re-appraisal of the evidence available on record and after considering the circumstances of the instant case, we have no reason to discard/disbelieve the dying declaration of deceased Nagina Bibi which is supported by the confidence inspiring testimony of PW-8, PW-10 and PW-13 and is also corroborated by the inquest report, MLC, postmortem report and report of the chemical expert.

14. The Appellate Court has disbelieved the recovery of Churri on the pointation of the convict on 8.11.2013 from an open place of Quaid-e-Azam University Islamabad.

The above as well as absence of motive in the FIR, non proving of the motive introduced by the prosecution witnesses at the trial about the desire of the convict to marry the deceased prior to her marriage with PW-9 Sabir Ullah and single stab wound on the abdomen of deceased have rightly been considered as mitigating circumstances by the Appellate Court to award lessor sentence of imprisonment for life to the convict.

The impugned judgment passed by the Appellate Court is not suffering any illegality or irregularity warranting interference by this Court.

The above are the reasons of our short order dated 20.05.2024 whereby both the petitions were dismissed and leave to appeal was refused.

(K.Q.B.) Appeal dismissed

[1]. 2001 SCMR 1474.

[2]. 2010 SCMR 55.