Pervaiz alias Irfan vs State Ss — 2026 PCrLJ 134 LAHORE-HIGH-COURT-LAHORE

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Pervaiz alias Irfan VS State Ss. 302(b), 336-B, 338 & 201---anti-Terrorism act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), art. 46---Police Rules, 1934, R.25.21---Criminal Procedure Code (V of 1898), Ss. 161, 162 & 342---Qatl-i-amd, causing hurt with a corrosive substance, 'isqat-i-haml', causing disappearance of evidence of an offence or giving false information to screen an offender, act of terrorism---appreciation of evidence---Benefit of doubt---Dying declaration, recording of---Scope---accused was charged for committing murder of his wife/daughter of complainant along with her unborn child by causing hurt with corrosive substance---In the present lis, the deceased, in injured condition, was taken to the hospital under police docket after registration of FIR, as opposed to the claim of complainant that the deceased was taken by him---at the hospital, Medical Officer observed that the deceased was found conscious, well oriented to time, space and person---Police Officer filed an application to the Medical Officer for recording the statement of the then injured, since deceased---In the meantime, the deceased in injured condition was referred to the Burn Unit, of the Hospital---Investigating Officer reached the hospital and recorded statement of deceased in injured condition under S.161, Cr.P.C. and procured her thumb impression on her statement which was in his hand and bore his signatures---Investigating Officer read over statement of injured to her and she admitted it correct and affixed her thumb impressions thereon and his signatures, were on it---Paramount to observe here that neither the Investigating Officer nor the Medical Officer intimated the nearest Magistrate---Further, Investigating Officer handed over the application to Medical Officer, who permitted recording the dying declaration, however, Medical Officer did not depose in her examination-in-chief about granting permission to record the dying declaration or receipt of said application---Even otherwise, other criteria of R.25.21 of the Police Rules, 1934 had also not been followed, because while recording the statement, the Medical Officer was not associated with it nor was it verified by any official of the hospital that the statement was actually made by the deceased---There was nothing on record to ensure that the so-called dying declaration was made in the presence of Medical Officials who could verify the same---On the contrary, said statement was made in the presence of prosecution witnesses, due to which it could not be stated with certainty that it was not the result of tutoring, prompting or imagination---additionally, the Investigating Officer himself admitted that the "statement of deceased in injured condition" brought on record was a statement under S.161 of Cr.P.C---Since it was mere statement under S.161 of Cr.P.C. of the deceased, it could not be exhibited by the prosecution and only the defence could use it in terms of S.162 of the Cr.P.C. as well as art.140 of Qanun-e-Shahadat to contradict and confront the witnesses in the manner provided therein and even otherwise, due to being signed by the deceased, it was not in consonance with S.162 of the Cr.P.C, an incurable defect and an illegality which vitiated the statement in its entirety---Dying declaration was not put to the appellant in his statement under S.342 of the Cr.P.C, therefore, even if the same was made in accordance with the law, the same could not have been considered as a piece of evidence against the appellant---appeal against conviction was allowed, in circumstances.

Pervaiz alias Irfan vs State Ss — 2026 PCrLJ 134 LAHORE-HIGH-COURT-LAHORE

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