Law: Pakistan Penal Code (PPC),1860

Section: 302(b),324

Law: Criminal Procedure Code (V of 1898)

Section: 544-A,382-B,265-C,342 , 340(2)

REMARKS

i. We do not deny the subsequent arrival of the witness to the hospital, but in our understanding, by then no report was made, as the deceased then injured had already been shifted for surgery. The attending circumstances of the present case leave no ambiguity in mind that neither the witness accompanied the deceased then injured from spot to the hospital, nor the witness was present in the hospital when the injured was received, so the witness had no occasion to talk to the injured and the injured had no occasion to explain the circumstances.
ii. True that in case of a proved dying declaration the normal penalty of death can be awarded, but even there the learned trial Court must take into consideration the attending circumstances of each particular case. While placing reliance on the declaration, the Court must take into consideration the circumstances which led to the tragedy and also the circumstances which urged the killer to kill.
iii. We would not hesitate in accepting the witness if, the information received from the deceased was limited only to the identity of the accused, but the explanation of minute details, to him, by the deceased, has put us on guard that the witness was trying to convince that the injured was not only oriented in time and space, but was relaxed, composed and was capable to talk. The witness struggled hard to create a space for himself in the tragedy, but he failed to convince that he accompanied the deceased from spot to the hospital, this failure of the witness has questioned the very existence of the dying declaration of the declarant.
iv. The report surprised us, as the complainant easily disclosed the identity of the assailant and also the locale of the injuries on his body. He was in great pain with his vital organs damaged, can we expect such a narration from an injured who was not only in the 67th year of his age, but also with a body riddled with bullets. We do not expect such a narration from an injured who on his very arrival to the hospital was declared critical with a threat to his life if not operated.
v. True that the best relevant witness is the doctor who would confirm the condition of an injured, his capability to talk and his consciousness, but his statement alone should not be the determining factor, rather the prosecution must collect evidence which in turn would glorify the opinion of the doctor regarding the fact that the injured was capable to talk.
vi. Mere consciousness would hardly convince that the injured was oriented in time and space, capable to respond and had the capacity to understand the circumstances prevailed at the time. Before accepting the doctor as correct, we must assess the procedure undertaken, before reaching to the conclusion. We should not lose sight of the fact that dying declaration is the statement of an interested person which requires corroboration.
vii. We are not in a hurry to dislodge the very existence of the dying declaration, but we are not in a haste to accept the same, without asking for corroboration. There is no cavil with the preposition that dying declaration is a weak kind of evidence which always needs independent corroboration.
viii. It is not the consciousness of the deceased which alone would serve the purpose, rather the prosecution must prove that the deceased then injured was in a fit state of mind and that the injured had the opportunity to identify the accused, but keeping in view the critical condition of the deceased then injured, this Court is confident in holding that he was not in a fit state of mind and that because of profuse bleeding and injuries caused to the vital organs, he was unable to record the event meticulously.
ix. The dying declaration failed to inspire confidence and its failure has broken the chain, so the relevant link is missing. When such is the situation, then this Court is Confident in hold ing that the learned trial Court failed to appreciate the evidence on file and it failed to apply extra care and in our understanding, miscarriage of justice has occasioned.

ORDER