2018 PLP 112 (YLRN)

QAISER RASHID KHAN, J.

This appeal has been filed by the appellant-convict Basheer against the judgment dated 26.11.2015, rendered by the learned trial court/Additional Sessions Judge-V, Charsadda, whereby appellant, on having been found guilty of the murder of Abid, in case FIR No.1091, dated 25.8.2012, registered under sections 302/ 34, P.P.C. of Police Station Charsadda, has been handed down penalty of death as Ta'zir under Section 302(b) with payment of compensation of Rs.1,00,000/- to the legal heirs of deceased in terms of section 544-A, Cr.P.C., together with benefit of section 382-B, Cr.P.C. The learned trial court has sent Murder Reference No.16-P/2015, for confirmation of sentence of death of the appellant-convict in terms of Section 374 Cr.P.C.

2. Since, both the matters are the outcome of one and the same judgment of the learned Trial Court, therefore, this common judgment shall govern both.

3. The prosecution case as gleaned from the first information report is that on 25.8.2012 one Abid in injured condition reported to the police in the casualty of DHQ Hospital Charsadda to the effect that on the eventful day and time, he was proceeding to Tehsil Bazar from his house on his motor cycle and when reached the place of occurrence, Basheer (convict-appellant) and Naseer who had already waylaid at the spot, started firing at him, resulting into injuries to him. Motive for the occurrence was stated to be a dispute over womenfolk. Initially, the FIR was registered under section 324/34. P.P.C., however, when the complainant then injured succumbed to the injuries in the hospital, the section of law was altered from 324, P.P.C. to section 302, P.P.C.

4. After abscondence of more than 20 months, the appellant was arrested on 26.4.2014 and was formally charge sheeted by the learned trial court to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as fourteen witnesses. Gist of the prosecution evidence is discussed briefly as under.

5. PW.1 is Mir Bahadar DFC who was entrusted with the warrants (Ex.PW.1/1 and Ex.PW.1/2) issued under section 204, Cr.P.C. which could not be executed because of abscondence of appellant, vide reports Ex.PW.1/3 and Ex.PW.1/4 . He was also entrusted with proclamation notices Ex.PW.1/5 and Ex.PW.1/6 and reports Ex.PW.1/7 and Ex.PW.1/8.

6. Khawaja Muhammad ASI (PW.2) stood marginal witness to the recovery memos Ex.PW2/1 and Ex.PW.2/2, vide which the I.O. took into possession one motor cycle of deceased without document and 7 empties of 30 bore Ex.P-1 giving smell of fresh discharge which were sealed into parcel in his presence, respectively. He is also marginal witness to the recovery memo Ex.PW.2/3, whereby the I.O. took into possession blood from the spot through cotton.

7. Muhammad Zaman Khan, Inspector (PW.3) has recorded the report of the deceased then injured in the hospital vide murasila Ex.PA/1. He prepared the injury sheet Ex.PW.3/1 of the victim and referred him to the doctor for treatment. He also sent murasila to the police station for making formal report. According to him, the deceased then injured was fully conscious at the time of giving statement.

8. Shah Jehan Muharrir (PW.4) is marginal witness to the recovery memo Ex.PW.4/I vide which the I.O. took into possession blood stained garments of the deceased then injured consisting of qamees, shalwar and one white banyan which were packed and sealed in parcel in his presence.

9. Similarly, PW.5 Mujahid Ali is a marginal witness to the pointation memo Ex.PW.5/1 vide which the appellant led the police to the place of occurrence and pointed out various places to the I.O. who in turn prepared the pointation memo. He owned his signature on the aforesaid pointation memo. The PW admitted that various shops, houses and petrol pump were located at the venue of occurrence.

10. Dr. Manzoorullah, SMO, DHQ Hospital, Charsadda (PW.6) examined the deceased then injured and found the injuries as per medico legal report Ex.PW.6/1. He deposed that after providing first aid to the injured complainant, he referred him to the Lady Reading Hospital, Peshawar for further treatment and management. This witness further stated in his cross-examination that he had not given separate certificate qua consciousness of the deceased then injured complainant in Ex:PW-6/1. Rokhanzeb Khan, DSP (PW.6-A) stated that on completion of investigation, he submitted complete challan (Ex.PW.6A/1) against the accused under section 512, Cr.P.C.

11. Wilayat Khan, SI (PW.7) partially investigated the case. He obtained warrants under section 204 Cr.P.C. against the appellant and the co-accused vide application Ex:PW-7/1 and handed over the same to the concerned DFC for execution but returned unexecuted. Thereafter, vide application Ex:PW-7/2 he applied and obtained proclamation notices under section 87, Cr.P.C. against both the accused and handed over to the DFC for execution.

12. Fazle Subhan, Inspector (PW.8) arrested the appellant and prepared his card of arrest Ex.PW.8/1, produced appellant for seeking 7 days police custody vide his application Ex.PW.8/2 and was granted two days custody, prepared pointation memo at the instance of appellant, recorded statement of accused and other PWs under section 161, Cr.P.C., also produced the appellant before the court for recording his confessional statement to which the appellant refused and on completion of investigation, he handed over the case file to the SHO for submission of supplementary challan.

13. PW.9 is Tauheed Khan Inspector who deposed qua incorporation of Murasila into FIR Ex.PA.

14. Gul Shahzada SI (PW.10) stated that after expiry of the deceased then injured in the Hospital, he prepared his inquest report Ex.PW.10/1, sent the dead body of deceased to the mortuary for P.M. examination.

15. PW.11 Amjad identified the dead body of the deceased Abid Khan before the Police as well as at the Hospital at the time of P.M. examination.

16. Liaqat Ali Khan Inspector (PW.12) is the investigation Officer in the case who stated that after registration of case, he proceeded to the spot and prepared the site plan Ex.PB at his own observation, as according to him, the complainant was injured, took into possession a motorcycle, in presence of marginal witnesses, took into possession 7 empties of 30 bore , giving smell of fresh discharge, obtained blood through cotton from the place of deceased, vide recovery memos already exhibited, took into possession on phial containing spent bullet P-3 sent by the Doctor. Further took into possession the blood stained garments of the deceased consisting of one shirt, shalwar and banyan in the presence of marginal witnesses, sent the said garments and the crime empties to the FSL for analysis.

17. Dr.Muhammad Ismail MO (PW.14) conducted autopsy on the dead body of deceased Abid and found the following wounds:- i. One F.A. entry wound on back of right chest size 1.5.x 01 c.m. , 10 c.m. from midline and 03 c.m. above costal margin. ii. One stitched laparatomy wound on front of abdomen. iii. One surgical stitched wound on right side of chest (for intubations), 12 c.m. below axilla and 19 c.m. from midline. iv. One lacerated wound on left palm size 9 x 2 c.m. According to Doctor, he recovered one bullet from left side of chest below the skin, 4 c.m. below and in level left nipple. Thorax:- Walls, ribs and cartilages, pleurae, right and left lungs and blood vessels are injured and rest healthy. In the opinion of doctor, the deceased died due to injuries to both lungs and thoracic blood vessels due to forearms. He owned his signature on the P.M. report Ex.PW.13/1, injury sheet Ex.PW. 13/2 and inquest report Ex.PW.13/3.

18. Ijaz Khan SHO (PW.14) submitted supplementary challan against the appellant before the trial court.

19. After closure of the prosecution evidence, statement of the appellant was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. However, he did not wish to be examined on oath under section 340(2), Cr.P.C. nor intended to produce any evidence in his defence. On conclusion of trial, the learned Trial Court, after hearing both the sides, convicted and sentenced him as mentioned above.

20. The learned counsel for the appellant contended that the accused-appellant has been falsely implicated in the instant case. He contended that the statement of the injured complainant which was treated as a dying declaration by the learned trial court, that cannot be relied upon as the same suffers from legal infirmities. In this respect he contended that as per medical report, the appellant had received serious injuries and thus due to profuse bleeding for 30 minutes till the lodging of the report, could not have been in his true and full senses to make a statement and moreover, no certificate from the doctor regarding his ability to record such statement is available and the same per say puts the so-called dying declaration under serious doubts. He thus contended that the same could not have been made the basis for conviction of the appellant by the learned trial court by sentencing him to death. He in this respect placed reliance upon 2011 SCMR 646 titled Tahir Khan v. The State 1993 PCr.LJ 1547 (Shariat Court AJ&K) titled "Jamait Ali Shah v. The State" 1997 SCMR 449 titled "Mst.Ghulam Zohra and another v. Malik Muhammad Sadiq and another" PLD 2006 Supreme Court 255 titled "Mst.Zahida Bibi v. The State".

21. The learned AAG assisted by learned counsel for the complainant on their turn defended the impugned findings of the learned trial court on almost the same grounds as detailed therein. In support of their contentions, they placed reliance on 2010 SCMR 55 titled Majeed v. The State PLD 2004 SC 367 titled Zafar Iqbal alias Shahid v. The State, 2001 SCMR 1474 titled Farmanullah v. Qadeem Khan and another.

22. We have heard the respective arguments advanced from either side and perused the record carefully.

23. As the record unfolds, it was the deceased complainant (then injured), namely Abid son of Hameed Khan who in injured condition reported at the Casualty DHQ Hospital, Charsadda, on 25.8.2012 at 8.45 a.m. as to how while proceeding from his house on a motorcycle to Tehsil Bazaar Charsadda when reached at the place of occurrence, the appellant namely Basheer and his brother Naseer who had already waylaid at the spot, started firing at him with which he was seriously injured. The report was reduced into Murasila Ex.PA/1 by Muhammad Zaman Khan, Sub-Inspector and carries the thumb impression of the complainant. As per injury sheet Ex.PW.1/1, the injured was referred by the same Muhammad Zaman Khan, S.I. posted at Casualty DHQ Hospital, Charsadda to the doctor on the same day and he was in turn examined, vide Ex.PW.3/1 at 8.40 a.m. PW.6, Dr.Manzoorullah, SMO, DHQ Hospital, Charsadda who examined the deceased then injured, appeared before the trial court as PW.6 and stated on oath to have examined the deceased then injured on 25.8.2012 at 8.40 a.m. and found the following:-- i. Firearm entry wound 2x2 c.m. on right lateral chest with no exit. ii. Firearm entry wound of 1.5x1.5 c.m. on left side of right side thumb, and exit 2x2 c.m. During the course of cross-examination, he stated to have started examination of the injured at 8.40 a.m. and to have given medico-legal report Ex.PW.6/1 on the injury sheet. To a question, he replied not to have given any certificate qua consciousness of the injured on Ex.PW.6/1 and the duration between the injury and the examination to be 15 minutes.

24. Though in the Murasila Ex.PA/1, it has not been mentioned from the mouth of the complainant as to at what time he met the fateful incident, but somehow, the scribe of the Murasila noted down the timing as 8.15 a.m. Secondly, the injured was allegedly brought to the Casualty DHQ Hospital, Charsadda at 8.45 a.m and reported the matter to PW.3 Muhammad Zaman Khan who reduced it into writing in the shape of Murasila (Ex.PA/1) which was then read over and explained to the injured complainant and the latter thumb impressed the same as a token of its correctness and after preparation of the injury sheet (Ex.PW.3/1) referred the injured to the doctor under the escort of a constable Maazullah (examination-in-chief of PW.3 referred). Obviously, all this activity right from the arrival of the injured Abid to the hospital at 8.45 a.m., reporting the occurrence to PW.3, scribing the same by the latter and reading and explaining the same to the injured complainant, taking his thumb impression on the Murasila, preparing the injury sheet and then referring the injured to the doctor must have consumed some time, at least 15 minutes and that certainly makes his arrival with the doctor at around 11.00 a.m. However, surprisingly, he was referred to the doctor as per the injury sheet at 10.40 a.m. i.e. even 5 minutes prior to his arrival with PW.3 Muhammad Zaman Khan at 10.45 a.m. Dr. Manzoorullah (PW.6) also in turn stated to have examined the injured Abid at 10.40 a.m. Accordingly, both the time and mode and manner of the report (Ex.PA/1) considered as dying declaration comes under a heavy shadow of doubt, on which reliance cannot be placed in the absence of strong corroboration which we are afraid is seriously lacking in the present case. Even otherwise, where the entire prosecution case hinges upon the dying declaration which entails in its wake capital punishment for the accused/ appellant, then such statement of deceased then injured would require very close and serious scrutiny. However, despite the presence of the Doctor, no certificate to this effect was obtained regarding the capability of the injured complainant to record such statement, i.e. as to whether he was conscious or if conscious, was he in full senses or for that matter in proper frame of mind to make such statement. In case titled "Mst.Zahida Bibi v. The State" (PLD 2006 Supreme Court 255), it has been held by the august Apex Court that a dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that a dying person is not expected to tell a lie. It has been further held that a "dying declaration or a statement of a person without the test of cross-examination was a weak kind of evidence and its credibility depended upon the authenticity of the record and the circumstances under which it was recorded". Reliance is also advantageously placed on 1997 SCMR 449 titled "Mst.Ghulam Zohra and another v. Malik Muhammad Sadiq and another" 2011 SCMR 646 titled "Tahir Khan v. The State" and 2016 SCMR 1233 titled Muhammad Ameer and another v. Riyat Khan and others.

25. Though the complainant reported that the occurrence was witnessed by other persons on the spot but no one came forward to lend support to such assertion of the complainant. The site plan in this case was prepared by Liaqat Ali Khan (PW.12) Inspector, Police Station Crime Branch, Peshawar, who at that point of time was posted at Police Station Charsadda and stated that as I.O. he prepared the site plan Ex.PB on the basis of his own observations and that during the spot inspection, he took into possession a 70 CC red colour motorcycle, vide recovery memo Ex.PW.2/1 and also took into possession 7 empties of 30 bore (P-1) in a scattered condition from the spot as well as blood Ex.P-2 from the place of the deceased then injured, vide recovery memo Ex.PW.2/3 and that he sent the empties to the Arms Expert, result whereof is Ex.PZ/1. As per laboratory report, all the 7 empties of 30 bore have been fired from one and the same 30 bore weapon. Given the fact that both the appellant and his absconding brother Naseer were charged by the complainant to have fired at him with their respective weapons with which he was injured but the recovery of 7 empties of 30 bore from the spot and the laboratory report Ex.PZ/1 that all the empties were fired from the one and the same weapon, clearly suggests that it could be the doing of one person but then two real brothers were charged for the commission of the offence. Non-recovery of any other empties to have been fired from some other weapon simultaneously suggests that either one of the accused was not involved in the firing at the deceased or he might not be even present at the spot.

26. So far as the abscondence of the appellant is concerned, it is by now settled law that where the other evidence is not sufficient to record conviction then mere abscondence of an accused cannot be taken into consideration for such purpose. Reliance is advantageously placed on PLD 1980 Supreme Court 201 titled Farman Ali and 3 others v. The State, 1986 SCMR 823 titled Taj Muhammad v. Pesham Khan and others and Mitho Pittafi v. The State (2009 SCMR 299).

27. Thus were a dying declaration replete with several legal infirmities loses its probative value, is thus disbelieved and kept out of consideration, then the other factors including the recovery of empties from the spot and the abscondence of the appellant recede into the background. The learned trial court has thus not been able to appreciate the evidence of the parties in their true perspective and has fallen into patent illegality through misreading and non-reading of evidence and the impugned judgment has thus caused miscarriage of justice warranting interference of this court in its appellate jurisdiction.

28. For the foregoing reasons, this appeal is allowed, accordingly, the conviction and sentence of the appellant, awarded to him by the learned Additional Sessions Judge-V, Charsadda, vide impugned judgment dated 26.11.2015, stands set aside and he is acquitted of the charge. He be set free forthwith, if not required in any other case. The Murder Reference is answered in the negative. JK/205/P Appeal allowed.