1. Criminal Appeal No. 235 of 2010: At about 12.00 Noon on 24.03.2004 Riyat Khan appellant had allegedly stabbed one Muhammad Afzal on the left side of his chest in Chak Thoa Mahram Khan within the area of Police Station Saddar, Talagang, District Chakwal which injury had proved fatal and the said Muhammad Afzal died two days later, i.e. on 26.03.2004. In respect of the said murder FIR No. 33 was registered at the above mentioned Police Station on 26.03.2004 on the basis of a dying declaration allegedly made by Muhammad Afzal deceased before the local police in a hospital. After a full dressed trial the appellant was convicted by the trial court for an offence under section 302(b), PPC and was sentenced to death and to pay compensation but on appeal his sentence of death was reduced by the High Court to imprisonment for life. Hence, the present appeal by leave of this Court granted on 25.05.2010.
2. Leave to appeal had been granted in this case so as to reappraise the evidence in order to examine as to whether the prosecution had succeeded in establishing the appellant’s guilt beyond reasonable doubt or not. With the assistance of the learned counsel for the parties we have gone through the record of the case minutely.
3. The linchpin of this case was a dying declaration attributed to Muhammad Afzal deceased which declaration he had allegedly made before the local police in an injured condition in a hospital on 24.03.2004 and which was subsequently made the basis of an FIR two days later, i.e. on 26.03.2004. It has been found by us to be rather intriguing that if the dying declaration had actually been made by the deceased on 24.03.2004 before the police itself then why an FIR had not been chalked out on the basis of the same during the next two days. Another factor sufficient to raise an eyebrow in the context of the dying declaration is that Dr. Nazir Ahmed (PW2), under whose medical care Muhammad Afzal deceased was when alive, had categorically stated before the trial court that the police had not recorded any statement of Muhammad Afzal deceased in his presence and he had gone on to state that Muhammad Afzal deceased had never made any statement before him about the alleged occurrence. A dying declaration is an exception to the hearsay rule and, thus, the same is to be scrutinized with due care and caution, particularly in the backdrop of the observations made by different Courts about veracity of a dying declaration in the Province of the Punjab and a reference in this respect may be made to the cases of Bakhshish Singh alias Bakhshi and others v. Emperor (AIR 1925 Lahore 549), Tawaib Khan and another v. The State (PLD 1970 SC 13) and Usman Shah and others v. The State (1969 P.Cr.L.J. 317).
In the case in hand it quite clearly appears that Muhammad Afzal deceased had no regard for the truth because he had categorically stated in the so-called dying declaration that he was taken to the hospital in an injured condition by Ghulam Abbas (PW9) and by one Noor Muhammad but the above mentioned doctor had contradicted the deceased by stating that the deceased had been brought to the hospital in an injured condition by a police constable and on that occasion no private person was accompanying the deceased. Even Ghulam Abbas (PW9) had given a big lie to Muhammad Afzal deceased by unambiguously stating before the trial court that he had not taken Muhammad Afzal deceased to the hospital in an injured condition at all. The other person who had statedly taken Muhammad Afzal deceased to the hospital in an injured condition was Noor Muhammad but the record of the case shows that the said person, though cited in the Calendar of Witnesses, had been given up by the prosecution as unnecessary. The legal inference to be drawn in that context is that if the said witness had entered the witness-box then he would not have supported the case of the prosecution. All this shows that either Muhammad Afzal deceased had economized with the truth while making his dying declaration or the dying declaration itself was a fabricated document which had been manufactured at some subsequent stage for the purposes of implication of the present appellant and to justify availability of the so-called eyewitnesses. In these peculiar circumstances we have decided not to place any reliance upon such a document.
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