Law:

Section:

Penal Code (XLV of 1860)-------Ss. 302/324---Constitution of Pakistan (1973), Art.185(3)---Re­appraisal of evidence---Unseen occurrence---Dying declaration---Reliance on identification of accused---Prosecution mainly relied upon dying declaration of injured, who subsequently died of injuries---Complainant himself was not a witness to the occurrence and doctor who signed the dying declaration admitted that it was not recorded in his presence but was produced by Investigating Officer and he only signed the same---Investigating Officer admitted that he did not record the declaration rather the injured deceased handed over the same to him---Conviction and sentence awarded by Trial Court was set aside by High Court and accused were acquitted---Validity---Injured deceased remained unconscious for quite some time and was also unconscious when Investigating Officer contacted him in the hospital---Strong presumption could not be ruled out, as rightly held by High Court that the declaration could be the result of consultations and prompting by the relatives of deceased---Such statement could not be relied upon as genuine dying declaration---Torch in the light of which accused were identified, was produced before Investigating Officer sixteen days after the occurrence---Person who produced the torch before Investigating Officer was never produced at the trial, hence, there was no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence---Torch was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along---No evidence was available to the effect that as to how the dying declaration came to the possession of the person who produced it before the Investigating Officer---Such dying declaration was not worthy of credence and could not be placed reliance upon in a case of capital charge---Incident was an unseen occurrence where identity of accused could not be established---Accused were rightly acquitted by High Court---Leave to appeal was refused. S. Ibne Ali, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for…

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