Dying Declaration and Correct Findings of Fact

Dying Declaration and Correct Findings of Fact Case Laws Criminal Appeal Criminal Law Death Penalty Confirmation Dying Declaration Knowledge - Criminal Law Lahore High Court Litigation & Arbitration Murder Solutions - Criminal Law Mr. Justice Raja Shahid Mehmood Abbasi in his judgment has decided the issue regarding conviction, dying declaration and correct findings of fact in Criminal Appeal No. 52-J of 2011.

1. Farhat Abbas Shah, appellant was convicted for an offence under Section 302(b) PPC by the learned Additional Sessions Judge, Gujar Khan, vide judgment, dated 23rd of Julay, 2011 and was sentenced to death and to pay an amount of Rs.1,00,000/- to the heirs of deceased by way of compensation under Section 544-A Cr.P.C. or in default of payment thereof to undergo S.I. for six months. Farhat Hussain Shah, appellant (convict) has challenged his conviction and sentence before this Court through Criminal Appeal No. 52-J of 2011 which has been heard by us along with Murder Reference No. 57 of 2011 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution case as unfolded in the FIR (Ex.PG/1), registered on the statement (Ex.PG) of the then complainant, Salma Bibi (deceased) which she made before Anwar Javed, SI (PW.10), wherein she stated that 10/12 years ago Farhat Abbas Shah was known to her at Sialkot and lateron they contracted marriage and out of the wedlock a daughter namely Gulshan Bibi was born. Presently, she was residing with her husband in street No.1 Paracha Colony, Rawalpindi in a rented house. She was diabetic patient etc. and her husband asked her that they would go to their native town i.e. Dogran Kalan, District Sialkot, as in these days it was hard to live in Rawalpindi as earing of livelihood has become hardened at Rawalpindi; her husband was running a taxi car belonging to one Butt, who was also resident of same vicinity; that at about 10.00 am when they reached at G.T. road near Bhai Khan her husband poured the kerosene oil upon her and set her ablaze after throwing her outside the vehicle and attempted to murder her.

3. After thorough investigation report u/s 173 Cr.P.C. was submitted in the Court. At the commencement of the trial a charge under Section 302 PPC was framed by the learned trial court against the appellant/accused to which he pleaded not guilty and claimed the trial.

4. During the trial the prosecution produced as many as ten witnesses in support of its case against the appellant. Zaheer Hussain, SI (PW.2) is the witness of shifting the burnt lady in hospital, who stated that the injured lady told him about her name, address and that her husband thrown her out of car, sprinkle oil upon her, put her on fire, threw her on the road and fled away.

5. Initially, the deceased Salma Bibi was examined by Doctor Farhat Naveed, WMO, THQ, Hospital Gujar Khan (PW.4) on 06-06-2009 at 9.00 am and observed as under:

“The injured was brought by police in conscious, oriented condition. She was vitally stable.

Burn Areas: Face, skull, upper and lower limbs, front of chest, back of chest and abdomen. Emergency treatment was given and injured was referred to RGH, Rawalpindi. Said injured deposed to me that she was put on fire by her husband. I endorsed the deposition of the injured. The injured was not identifiable from the marks of identification as more than 90 % body had been burnt.”

6. Furthermore, Doctor Sadia Wahid (PW.1), who on 11-06-2009 at 11.30 pm conducted the post mortem examination on the dead body of deceased Salma Bibi and observed as under:

“A fresh dead body of young female covered with white sheet, eyes closed and mouth was semi closed. Burns involving following arrears of the body were as under:

Face, front of chest, abdomen, upper limbs and lower limbs whole back and perineal area. Rigor motes fully developed, postmortem staining were present on back, foot tired with piece of cloths.

Cranium & Thorax
All the organs were normal.

Abdomen
Bladder was containing few cc of urine, uterus was normal size and non-pregnant. Stomach was empty, other organs were normal.

Opinion: The cause of death was burns involving head and neck, front and back of chest, abdomen, both upper and lower limbs, front and back of perennial area leading to damage vital organs and hypovolemic more than 90% burns which was sufficiently fatal to cause death in ordinary course of nature. The probable time between injury and death was about 5 to 7 days, whereas between death and postmortem was about to 4 to 8 hours. Postmortem report Ex.PA and pictorial diagrams Ex.PA/1 and Ex.PA/2 are in my hand writing and bear my signature. I handed over the correct carbon copy of postmortem report to Yasir Ali 6447/C. I also attested the said application for postmortem Ex.PB and inquest report Ex.PC.”

7. Muhammad Sarfraz SI/I.O (PW.9) is the investigating officer of this case. Furrukh Shehzad, Halqa Patwari (PW.3) prepared site plan Ex.PT of the place of occurrence, whereas rest of the prosecution witnesses are formal in nature.

8. In this statement recorded under Section 342, Cr.P.C. Farhat Abbas Shah, appellant/accused denied and controverted all the allegations of the fact leveled against him by the prosecution and professed his innocence. He also maintained that he had been falsely involved in this case. All the PWs are police officials. However, he opted to make statement on oath under Section 340(2), Cr.P.C. and also produced birth certificate of Gulshan Fatima Ex.DA in his defence.

9. Upon completion of the trial, the learned trial court found the case against the appellant to have been proved beyond any reasonable doubt and, thus, convicted and sentenced him as mentioned above, hence, instant appeal before this Court.

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