1968 P Cr (PLP)

ABDUL GHANI KHAN KHATTAK. J: Janat Gul (25), son of Aziz Khan, resident of village Bakhshali, was tried under section 302, P. P. C. for the murder of Mir Hasham (24), son of Akram Khan of the same village. By his order, dated 12th October 1965, the learned Sessions Judge, Mardan, convicted Janat Gul under section 302, P. P. C. and sentenced him to trans portation for life: He has appealed against his conviction and sentence. Mohtasham, brother of the deceased, has come in revision for enhancement of the sentence. This judgment will dispose of both the appeal and revision.

2. The occurrence took place on 27‑2‑1965 in the hujra of Mahmoodian in village Bakhshali. On the night of occurrence at about 10 p.m. Mir Hasham deceased was in the hujra of Mahmoodian along with Zohrab Gul (P. W. 11) and Muhammad Zaman alias Tor (P. W. 12). They had not yet gone. to sleep. In the meanwhile the deceased went out for urinating When be was about to enter the kotha after easing he was fired at and bit in front of the door of the kotha. The fire attracted Zohrab Gul and Muhammad Zaman P. Ws. and the deceased was found injured by them at the threshold of the kotha. The string of the trousers of the deceased was untied, which was fastened by them. Mukammil Sbah P. W. was the first to arrive at the spot, He informed Dost Muhammad (P. W. 9) about the occurrence. Mohtasham, brother of the deceased, had also arrived at the spot. Dost Muhammad (P. W. 9) recorded the dying declaration Exh. P. B. of the deceased, which was thumb‑impressed by him. Mir Hasham was transported in wounded condition to the Police Station where at 01‑15 hours he made the dying declaration Exh. P. 4, which is to the following effect:‑ "Tonight at 23‑30 hours I along with Zohrab Gul, son of Hazrat Gul and Tor, son of Gul Zaman, residents of the village, were sitting in the hujra of Mahmoodian. I went out for making water and after urinating when I was about to go inside I was fired at, which hit me in my chest. I recognized Janat Gul, son of Aziz Khan, in the electric bulb when he fired at me and hit me. The motive is that both of us are in love with Tor and in this connection about six months back there had been a quarrel between us and we had stopped talking to each other. I charge Janat Gul for causing injuries to me."

3. The victim was admitted in the Civil Hospital, Mardan, on 28‑2‑65 at 3‑30 a.m. He was examined by Lady Doctor lqbal Anwar (P. W. 1). The Lady Doctor found him gasping and pulseless, and he died after two minutes. The post‑mortem examination on the dead body of the deceased was conducted by her at 9‑30 a.m., and she found the following injuries on his person:‑ (1) (a) An entrance wound present on the outer‑end of the left clavicle. Charring around it was present. (b) Exit wound present on the back near the end of left scapula. (2) (a) An entrance wound present on the front of left upper arm, about 4" below the tip of the left shoulder. Charring around it was present. (b) Exit wound present on the outer side of the left upper arm, 4" below tip of shoulder. (3) Entrance wound on the front of chest, 3" below the clavicle of left side. (4) Entrance wound on inner end of right clavicle. Charring around Nos. 3 and 4 were present. On dissection, pleura of right lung was found injured, besides right lung injured at the apex. Heart and blood vessels were injured. Death was due to shock and bleeding, as a result of injuries to heart and big blood vessels, caused by firearm.

4. On receiving telephonic message, Darya Khan, A. S. 1. (P. W. 5) went to the hospital, where he prepared the inquest report Exh. P.iB./4 of the deceased. The same day he took into possession one sealed bottle Exh. P. 6, containing a pellet, a blood‑stained militia shirt Exh. P. 7 and blood‑stained chaddar Exh. P. 8 of the deceased, vide memo. Exh.P.D

5. Umara Khan S. 1. (P. W. 13) stated at the trial that on 28‑2‑65.at about 1‑15 a.m Mir Hasham deceased was brought in wounded condition To the Police Station. He was in his full senses and could talk coherently. He gave a statement Exh. P. A. by way of first information report. He (Umara Khan) recorded the same to his dictation. It was read over and explained to the deponent which was thumb‑impressed by him as a token of its correctness in the presence of Wazir Gul and Mukammil Shah P. Ws. The witness stated that Qadim Shah P. W. produced the dying declaration Exh. P. B. of the deceased before he (S. I.) left the police station for the spot. It was taken into possession vide memo. Exh. P. B./1. The injury‑sheet Exh. P. B/3 of the deceased was prepared by him (Umara Khan) in the police station and sent him to the Civil Hospital, Mardan. The S. I. reached the spot at about 4 am. The accused was arrested by him the same day. He inspected the spot wherefrom he recovered one pellet Exh. P. 1 from a wall inside the kotha of the hujra and three pellets Exh. P. 2 were recovered from a piller inside the kotha. He took into possession the bulb Exh. P. 4 of 60 watts from inside the kotha of the hujra and seven cardboard discs Exh. P. 3 were recovered from the courtyard of the hujra, referred to above. These articles were taken into possession vide Memo. Exh. P. C./

1. Another electric bulb Exh. P. 5 of 60 watts, recovered from the south‑eastern corner of the baithak of one Hamid Khan from its outer side, was taken into possession vide memo. Exh. P. C/2. He prepared the site plan Exh. P. C. with the notes drawings and writings in his own hand. All the P. Ws, were examined the same day.

6. The prosecution produced Wazir Gul (P. W. 8), who had thumb‑impressed the dying declaration Exh. P. A. of the deceased made by him in the Police Station. The evidence of Dost Muhammad (P. W. 9) is that on the night of occurrence he was informed by Mukammil Shah, his tongs‑driver. He shouted to Mohtasham. P. Ws., brother of the deceased, and informed him of the occurrence. They both came to the spot. On the inquiry of Dost Muhammad the injured person charged Janat Gul, son of Aziz Khan. The witness recorded the dying declaration Exh. P. B. to which the injured person subscribed his thumb impression. The same was signed by host Muhammad. The witness stated that the dying declaration was handed over by him to Qadim Shah P. W. fraternal uncle of the deceased, for its production at the Police Station. The evidence of Zohrab Gul (P. W. 11) and Muhammad Zaman alias Tor (P. W. 12) is to the effect that in their presence the deceased bad charged Janat Gul. The witnesses stated that the parentage of Janat Gul was not given by the deceased in their presence.

7. At the trial the plea of the accused was that he was innocent and falsely charged. He further stated: "The dying declaration Exh. P. B. is a false document in the first instance, and in the next place, the deceased never charged me initially in his village after the occurrence. To my knowledge the deceased had only named one Janat Gul as his assailant and that the aforesaid S. 1. based the report on the so‑called dying declaration Exh. P. B." When asked as to why the P. Ws. were deposing against him, he stated:‑‑‑ "They are the henchmen and partisan of the deceased party and have conspired against me at the instance of Waris Khan P. W. who is on inimical terms with me. In this behalf 1 produce certified copy of the judgment of Additional Sessions Judge, Mardan dated 17‑11‑

61. It is Exh. D. C."

8. The learned counsel for the appellant tried to take benefit from the following opinion of the lady Doctor:‑ "There were four entrance wounds on the body of the deceased and they could possibly be the result of four separate shots." This argument obviously is without any force for the simple reason that in the dying declarations supported by two witnesses, there is mention of only one shot. In view of the weight of this evidence, the opinion of the lady Doctor does not prevail.

9. The other point urged by the learned counsel is that the cardboard discs recovered from point No. 8 are at a distance of 51 feet from point No. 1, which according to him indicates that the assailant was at a considerable distance from the victim, as such there could be no identification. The place where the card‑board discs were recovered by the Investigating Officer is almost in a straight line with the place (threshold) where the deceased was hit, and the two places where pellets were recovered. The deceased received the injuries at his chest around which charring was found. The cardboard discs do not ordinarily blow off beyond a few feet from the muzzle of the gun. There was sufficient light to facilitate identification. These facts taken together substantially support the deponent rather than casting doubt on his dying declaration.

10. The other point urged by the learned counsel for the appellant was that if the assailant was in fact hiding in wait for the deceased, the latter should have been shot at while he was on his hanches. The argument suffers from the obvious infirmity, in that the factors which deterred the assailant from availing that opportunity are strictly confined to his assailant's knowledge and we do not know about it. The admitted fact is that the victim was hit in front of his body.

11. The evidence is that two electric bulbs, one inside the hujra and the other under the eaves of the baithak of Hamid Khan were lit at the material time, as such the inference is that the deceased could identify hi ‑assailant.

12. The learned trial Court ignored Exh. P. B., the first dying declaration recorded by Dost Muhammad (P. W. 9). We proceed to examine how far it is in accord with the facts of the case and the rules of evidence in a criminal trial. The dying declaration accepted by the learned Judge as true and genuine is an extenso re‑production of Exh. P. B. for discarding which the learned Judge, expressed himself as follows:‑ "The first dying declaration Exh. P. B. purports to have been written by Dost Muhammad (P. W. 9) soon after the occurrence at the spot in the presence of Qadim Shah (P. W. 7), Gul Zaman (P. W. 10), Zuhrab Gul (P. W. 11) and Muhammad Zaman (P. W. 12). Of them Dost Muhammad (P. W. 9) has deposed that on being informed of the occurrence while he was in his house by Mukammil Shah his tongs‑driver, he shouted to Muhtasham (P. W. 2), brother of the deceased, and apprised him of what he had heard, that then both of them set out for the spot where they found Mir Hasham deceased lying wounded on a cot, that, on his enquiry, the deceased told him that he was fired at by Janat Gul accused son of Aziz Khan, and that thereupon, he recorded the statement of the deceased in the shape of Exh. P. B. to which he subscribed his thumb impression. He further added that he then handed over the dying statement Exh. P. B. To Qadim Shah (P. W. 7) for producing the same at the police station. Curiously enough Muhtasham (P. W. 2) who is alleged to have accompanied him to the spot, makes no mention whatsoever of the dying declaration Exh. P. B. In order to meet the situation thus created, Dost Muhammad (P. W. 9) makes it hold to suggest in the cross‑examination that Muhtasham (P. W. 2) was not present at the time when the dying declaration Exh. P. B. was recorded by him. Obviously, Dost Muhammad (P. W. 9) is blowing hot and cold in the same breath and the two divergent versions given by him, as just explained, cannot be reconciled. However, the broad fact remains that the witness had opposed Mansoor Ali, cousin of the accused in the recent Basic Democracy Elections. It is, therefore, possible and the possibility is not fantastic that Dost Muhammad (P. W. 9) in order to feed fat his revenge, might have fabricated the dying declaration Exh. P. B., which he now ascribes it to the deceased. That this is so, attested by the fact that if Muhtasham (P. W. 2) had accompanied Dost Muhammad (P. W. 9) to the spot, and the latter had recorded the dying declaration of the deceased, he would have assuredly supported him. The silence of Muhtasham (P. W. 2) on this all‑important point is not without significance and argues strongly against the assertion of Dost Muhammad (P. W. 9). Even the deceased has made no reference to the writing Exh. P. B. in his report Exh. P. A., which he would have made, had it been recorded at the spot earlier, as is alleged by Dost Muhammad (P. W. 9). On the other hand, Wazir Gul (P. W. 8) has admitted in his cross examination that no body produced the so‑called dying declaration Exh. P. B. before the S. I. This witness as is apparent from the statement of S.1. Umara Khan (P. W. 13) accompanied the deceased to the Police Station and thumb marked the dying declaration Exh. P. A, as a marginal witness, after it was reduced into writing. There is no mention of Qadim Shah (P. W. 7) in a note drawn up at the foot of the report EXH .P.A, or that he had produced any writing in the shape of Exh. P.B. at the Police Station. This fact also shows that Qadim bah (P. W. 7) did not accompany the deceased to the Police Station and that until the deceased had himself made the report Exh. P. A, the dying declaration Exh. P. B, was not in existence. If it had been recorded in the presence of many persons, then Qadim Shah (P. W. 7), Gul Zaman (P. W. 10), Zuhrab Gul (P. W. 11) and Muhammad Zaman (P. W. 12) would have signed or thumb‑marked the writing at their own initiative or at the instance of its scriber namely, Dost Muhammad (P. W. 9). They have not done so‑a circumstance which proclaims loudly that the writing Exh. P. B. attributed to the deceased was brought into existence in a hole and corner fashion and long after the deceased had himself made the report Exh. P. A at the Police Station. The deceased had nothing to do with the parchment on which the writing Exh. P. B. was drawn up nor did he subscribe his thumb impression thereto with conscious knowledge. I therefore, exclude this document from my line of consideration, as being an act of forgery." The point under consideration was the cause of death of the deceased given out by him just after the occurrence and in the police station. Both the dying statements are not only in pari materia with one another but in letters and in the sequence of the incident are exactly alike. If the latter statement was accep table in all respects there is no palpable reason for discarding the earlier one.

13. The learned Judge ignored the fact that the rejection of Exh. P. B. directly reflects on the genuineness of Exh. P. A., as if the deceased had been under the influence of Dost Muhammad in charging the appellant: The reason for tarring Dost Muhammad is not borne out by the facts on the record, In the recent B. D. Elections Dost Muhammad was not a candidate but in fact the contest was between Mansur Ali Roshan_. Khan and Sultan Muhammad and the last one defeated the former two Muhtasham (P. W. 2) identified his brother at the mortuary. It is immaterial if he omitted to make a mention of the initial dying declaration in his statement. It is true and possible as well, that Exh. P. B. might not have been given to the Police officer in the presence of Wazir Gul P. W. In the statement of the same witness (Wazir Gul) we find: "The deceased did tell the S. 10 at the time of making this report that his dying declaration had already been recorded at the spot by. Dost Muhammad P. W." The dying declaration need not be a narrative of all the facts law requires it, only to state the cause of death of the dying man. As such the omission of the first dying statement in the B subsequent one is immaterial. For all these reasons we hold that the learned trial Judge erred in rejecting Exh. P. B.

14. The appellant has been consistently charged. The supporting evidence of Wazir Gul and Dost Muhammad P. Ws. leaves us in no doubt in respect of the charge against the appellant. There is no evidence worth consideration to the effect that the charge against the appellant was made by the deceased at the prompting of some one. The argument of the learned counsel that it was at the instance of Waris Khan, is not borne out by the evidence, as such we do not accept it result is that we maintain the conviction of the appellant. His appeal is accordingly dismissed. I

5. As regards the maintenance, the normal penalty provided, in law, for the offence for which the appellant is found guilty, is death, unless there are grounds for the lesser penalty. The ground that weighed with the learned trial Judge for punishing the appellant with the lesser penalty reads as follows:‑ The dying declaration Exh. P. A makes it reasonably clear to my mind that they were on friendly terms until six months prior to the occurrence when Muhammad Zeman alias Tor (P. W. 12) became the bone of contention between them. Both of them were offering their unholy affections to the aforesaid Toor. In other words, they were equally guilty of pursuing a wicked cause and the conduct of the deceased was definitely immoral. fie aggravated the situation by deliberately exciting the accused when he took the boy to the hujra for sleeping with him in the same room at the fateful night. Since the deceased met his death as a sequel to an affair, which offends against the notions of decency of the society, I do not consider it expedient to visit the accused with capital punishment." If this is considered a mitigating circumstance, we disagree with it, the appellant being equally guilty of the same immorality. In the case of Sheikh Hasan v. Bashir Ahmad and another (P L D 1966 Pesh. 97) the trial Court had awarded, lesser penalty to the accused on account of his youth. The question formulated by the Full Bench was, whether mere youth of an accused is by itself sufficient reason for not inflicting the major penalty in the case of deliberate murder. The learned Judge, after exhaustively taking into consideration the case‑law on the point observed: "It is indeed gravely disquieting and sad to note that of late most of the Sessions Judges under the jurisdiction of this Bench have shown marked reluctance in awarding the capital sentence and saddar still that they labour hard to spell out some mitigating circumstances so as to refrain from awarding death penalty and having failed to find any they invent one it justification for giving light sentence." The reasonings of the learned Sessions Judge proceed on similar grounds which we decline to endorse. The result is that while accepting the revision petition for enhancement of the sentence, the sentence of Janat Gul respondent (appellant) is enhanced from transportation for life to death. Appeal dismissed.