P L D 2003 Supreme Court 635 (PLP)

SARDAR MUHAMMAD RAZA, J.

Niaz Ahmad son of Nazir Ahmad was tried by learned Additional Sessions Judge-11T, Bahawalnagar under section 302, P.P.C, for committing the murder of Mst. Parveen. Vide judgment dated 30-7-1999 of the trial Court, he was held guilty and sentenced to death alongwith a fine of Rs.50,000.

2. He filed Appeal No.128/99 before Lahore High Court, Bahawalpur Bench, which was heard alongwith Murder Reference No.20/99. Learned High Court vide its judgment dated 16-7-2001 dismissed the appeal, answering Murder Reference in the affirmative. Niaz Ahmad has filed this Jail Petition.

3. Deceased Mst. Parveen herself lodged the F. I. R, on 14-5-1997 ate 1245 hours in the hospital, describing that she alongwith her husband lived in an Ahata shared by Niaz Ahmad convict and his wife Mst. Nasreen. That about 7/8 days prior to the occurrence she and Mst. Nasreen had quarrelled on a small matter and she was slapped by Niaz Ahmad. This quarrel was compromised between the parties by Wali Muhammad and other notables but Niaz Ahmad nursed a grudge. On the day of occurrence at 9.00 a.m., she was busy attending to her household when Niaz Ahmad petitioner camel armed with a pistol, proclaiming that he would teach lesson to Mst. Parveen of her having insulted his wife Mst. Nasreen and tired a shot hitting her on right side of her neck. On her hue and cry Wali Muhammad son of Ilam Din and Muhammad Sharif son of Azeem reached the spot. They tried to apprehend Niaz Ahmad but he succeeded in making good his escape. She was brought to the hospital by the aforesaid witnesses. There she lodged the report and subsequently one month and three days after the occurrence, she succumbed to her injuries.

4. Learned counsel for the petitioner seriously challenged her version/prosecution story on the ground that both the eye-witnesses in the case, namely, Muhammad Sharif (P.W.2) and Wali Muhammad (P.W.3) had altogether negated the prosecution story as well as the narration of Mst. Parveen by saying that they were not aware at all of the occurrence. This situation needs to be visualised in the wake of the circumstances add other evidence on record.

5. Both the witnesses had at the very outset stated in Court that they were not aware of the occurrence at all. Upon this, they were declared hostile and were cross-examined by the State as well as the defence counsel. It is admitted in such cross-examination that Wali Muhammad (P.W.3) is a close relative of the petitioner, being his uncle as well as father-in-law, whereas he had not relationship with the complainant. It is also proved that Muhammad Sharif (P.W.2) is again closely related to Wali Muhammad (P.W.3) and thus, indirectly related to the petitioner. As they had no relationship with the deceased lady, they were obvious to have had resiled from their statements before the police to negate the lady-complainant. Their presence, however, is proved from record as well as the cross-examination. It, therefore, proves that the two witnesses being related to the petitioner had been won over and had gone hostile.

6. The law is clear that the statement of a hostile witness to be viewed in the light of the circumstances of the case and thereafter it is to be ascertained as to what truth actually flows from their statement, whether favouring the prosecution or the defence. Their presence appears to be natural from the very fact that despite their close relationship with the petitioner, they were truthfully mentioned by the deceased in her statement which is a complete dying declaration. Had it been a prompted dying declaration or a declaration made after consultations and deliberations, the deceased must have mentioned her own relations as eye-witnesses. This strong inference not only suggests of the presence of the two witnesses but also gives a plausible strength to the dying declaration.

7. The Police Officer who had recorded the dying declaration had done so after ascertaining from Dr. Muhammad Khalid Chaudhry (P.W.4) as to whether the injured was capable of making a statement. The doctor has opined in categorical terms that she was fully conscious and was capable to make a statement. It is only thereafter that the Police Officer took down her statement. This also proves the genuineness of the dying declaration. It may be recalled at this juncture that even the two hostile witnesses are proved to have been present at the time of such declaration. We have no doubt in our mind that the dying declaration in the instant case is a strong piece of evidence, against the petitioner, rendering the hostile witnesses to be untrue. The petitioner lived in the same Ahata where the deceased lived, meaning thereby that the occurrence had taken place almost in his own house yet he remained absconder for a period of 4-1/2 months. This abscondence further supports the dying declaration and is also supported thereby.

8. Learned counsel for the petitioner, with reference to a gap of one month and three days between the injury and death argued that the death had occurred due to improper care and treatment at the hospital. That, had she been meticulously attended to, she would have been saved from death and so the petitioner should not be held responsible for her death. This is totally unreasonable because there are occasions when the injured are not at all taken to the hospital and succumb to their injuries. The instant plea, if allowed to be taken by an assailant, every accused would plead the defence that had the victim been taken to the hospital, he would have survived. The hard fact of the matter is that the deceased provably died of the injury caused to her person by the petitioner with no less a weapon than a fire-arm. The track of the bullet would indicate that it caused such damage which though was fatal yet it did not result into instant or immediate death. The argument, it accepted, would shift the burden of the accused to the doctors. In cases or proved act of aggression such burden should not be allowed to be avoided or shifted.

9. Faced with the aforesaid circumstances of the case, learned counsel for the petitioner limited his arguments confining himself to the question of sentence alone. It was argued that the husband of the deceased being one of the legal heirs had entered into compromise with the petitioner and that this factum be considered as a mitigating circumstance. This Court had already settled this matter in Sh. Muhammad Aslam v. Shaukat Ali alias Shauka (PLJ 1997 SC 1260 also reported in 1997 SCMR 1307); holding that the concession aforesaid is applicable only in a case where the sentence awarded as Qisas and not in a case where the death sentence is awarded as Tazir. The contention of the learned counsel is overruled.

10. The petitioner has committed the murder in cold-blood despite the fact that in previous quarrel it was he who had slapped her. That he nursed the grudge in spite of the fact that the quarrel had been compromised due to intervention of the notables. We cannot, at this stage, lose sight of a glaring fact that at the time of her death, deceased Mst. Parveen was bearing pregnancy of 20 weeks and quite mature a foetus was found dead alongwith the bearer. We hold that there exists no mitigating circumstance at all.

11. The petition is hereby dismissed and leave to appeal refused. M.B.A./N-127/S Petition dismissed.