2003 P Cr (PLP)

EJAZ AFZAL KHAN, J.

On 25-6-1995, Faridullah, deceased and his cohorts including P.W. Aftab Ali were busy in playing volley ball that appellant Maqsood Khan, armed with a Klashnikov came and fired at him who in consequence was hit on his left thigh. After being taken to the police station he reported the incident and pursuant thereto a case was registered against the appellant under section 324, P.P.C., vide F.I.R. No.90 dated 25-6-1995, Police Station, Sabir Abad. When later on the deceased then injured succumbed to his injuries, the section of law was altered to section 302, P.P.C.

2. As the appellant became fugitive from law, the Investigating Officer after completing the necessary investigation and initiating the requisite proceedings for declaring him proclaimed offender sent the case to the learned Judge Special Court for under section 512, Cr.P.C. which was accordingly done.

3. After the arrest of the appellant, he was sent to the Court of the learned Judge Special Court, Kohat, Camp Karak for trial who on its completion sentenced him to death and directed him to pay a compensation of Rs.20,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to undergo one year's S.I. under section 302(b) of the P.P.C., vide his judgment dated 13-2-2002.

4. The appellant to assail his conviction filed the instant appeal whereas the learned Judge Special Court sent the murder reference for its confirmation which are disposed of by this single judgment.

5. The learned counsel appearing on behalf of the appellant contended that the occurrence had not taken place in the manner described by the prosecution as according to the report made by the deceased which later on became a dying declaration, he was hit when he was busy in playing volley ball but according to the site-plan he was hit at point No. 1 which is at a distance of 80 paces from the place where the volley ball was being played. The learned counsel next contended that the nature of 'injury on the person of the deceased, which is horizontal, would show that he could not have been hit in the manner as spelt out in the narration given in the report, it rather shows that the deceased was hit by some one in a sitting posture. The learned counsel by visualizing the scenario in the volley ball ground sought to canvass at the bar that the participants of this game being mobile every second could not have been singled out for hitting with fire-arm from such a distance. Similarly he urged with much greater vehemence that the witnesses being busy in playing volley ball could not have seen the assailant from a distance of more than 90 paces, as such it was pre-eminently a blind occurrence. While questioning the genuineness of the charge as made in the dying declaration of the deceased, the learned counsel by referring to the presence of other relatives of the deceased argued that it was not free from the tinge of tutoring and therefore, it is not worthy of reliance. The learned counsel by referring to the testimony of P. W.9 Aftab Ali contended that it being studded with afterthoughts and improvements which do not find mention either in the F.I.R. or the statement recorded under section 512 of the Cr.P.C. is not worthy of reliance in a case involving capital punishment. The learned counsel by placing reliance on the case of Zarif Khan v. The State (PLD 1977 SC 612) contended that even if the deceased was in a fit condition to make a dying declaration, nonetheless, the prosecution was bound to prove that the deceased had had an opportunity to see and identify the assailant which being conspicuously absent would inevitably bring about the collapse of the whole edifice of the prosecution case and thus make out a case for the acquittal of the appellant.

6. As against that, the learned State Counsel assisted by the learned counsel for the complainant contended that the charge against the appellant has been proved beyond any shadow of reasonable doubt as the question of mistaken identity, false implication or substitution is a rare phenomenon where the accused is, single and the occurrence has taken place in the broad daylight. While controverting the arguments of the learned counsel for the appellant, with regard to the afterthoughts and improvements in the prosecution version, the learned State Counsel argued that F.I.R. is not an exhaustive document and cannot be expected to cover the entire spectrum of the occurrence, therefore, the additions, if any, as are explanatory of the facts mentioned in the F.I.R. cannot be termed either an afterthought or an improvement.

7. We have gone through the record and carefully considered the submissions of the learned counsel for the parties.

8. A perusal of the F.I.R. which was subsequently treated as dying declaration shows that the deceased then injured has given a simple and straightforward account of the occurrence though he has not mentioned the details about the origin of the altercation and cause therefor, as could constitute a motive on the part of the appellant for, going to such an extreme.

9. P. W.9 is the only witness, besides the deceased himself, who has also given a simple and straightforward narration of the occurrence which inspires confidence, except the part relating to the altercation and the events preceding and following that, which appears to be an improvement on the face of it over the original version as set forth in the F.I.R. and in the statement recorded under section 512, Cr.P.C. therefore, it has to be looked at with much greater care and circumspection inasmuch as it seeks to establish pre-concert or pre meditation on the part of the appellant.

10. The ocular account as spelt out in the dying declaration and in the statement of P.W.9 is perfectly in accordance with the medical evidence: Minor discrepancies or even exaggerations are bound to creep in every narration, even if, it is meticulously honest, moreso when it is rehearsed or repeated after the lapse of more than half a decade.

11. The argument that the dying declaration is not free from the tinge of prompting does not enjoy the virtue of being tenable from any point of view particularly when there is nothing on the record to show that the persons accompanying the deceased to the police station had has a motive to falsely implicate the appellant and that to achieve that they prompted him. Absence of enmity between the parties is another factor which rules out the possibility of prompting the deceased to falsely implicate the appellant, moreso when it has never been a case of the defence that some other person having motive to kill the deceased came armed on the spot and bolted away after doing the job. Even the possibility of substitution is reduced to nil when admittedly the accused is single and the occurrence has taken place in the broad-daylight. The distances so called shown in the site-plan, which have been capitalized by the learned counsel for the appellant to the maximum extent, cannot be of much consequence as the site-plan is not a substantive piece of evidence unless the witnesses admit, if and when confronted with its details, that it was prepared at their instance, which is not the case here, as the eye-witness was not confronted therewith.

12. Quite apart from all this, the prolonged noticeable anf unexplained abscondence of the appellant for more than four years would go a long way .to corroborate and strengthen the truth of the prosecution version. We, therefore, have no hesitation to hold that the charge against the appellant has been proved beyond any shadow or reasonable doubt and he has been rightly convicted by the learned trial Court.

13. Now the question which emerges for the consideration of this Court is whether in the circumstances of the case, the appellant could be awarded' the sentence of death? We would answer this question in the negative firstly because the cause of altercation or what preceded it as a factor constituting the motive to kill the deceased is shrouded in mystery as none of the witnesses including the dying declaration of the deceased has shed sufficient light on this aspect of the case and secondly because the appellant despite being armed with kalashnikov did not hit any vital part of the body of-the deceased and did not repeat fire notwithstanding the fact that there was noire to intervene. We, therefore, are of the firm and considered view that it is not a case where an extreme penalty of death could be awarded.

14. For the reasons discussed above, we partially allow this appeal convert the death sentence into imprisonment for life but in the circumstances of the case, we would enhance the compensation from Rs.20,000 to Rs.50,000 (Rs. Fifty thousand) in default whereof he will further undergo (sic) months' S.I. in addition to the mode prescribed by law for the recovery of such amount. The murder reference is thus answered in the negative. The benefit of section 382-B, Cr.P.C. however, extended to the appellant. H.B.T./780/P Order accordingly.