1998 PLP 1141 (SCMR)

MUNIR A. SHEIKH, J.

Leave to appeal is sought against the judgment dated 9-6-1993 of the Federal Shariat Court through which the appeal filed by the petitioner was partly accepted and his conviction and sentence under section 302, P.P.C. by the trial Court was upheld whereas that of under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 set aside.

2. The facts of the case in brief are that the petitioner alongwith Mst. Rozan and one Haider was sent up for trial for the murder of Muhammad Arat and for offence under section 10(2) of the Offence of Zina (Enforcement 04 Hudood) Ordinance, 1979. The F.I.R. was lodged by Muhammad Arab deceased which was based on his dying declaration. According to the fact disclosed in the F.I.R., on the night of 8-7-1989 at about 2-00 a.m. in the night the complainant/deceased woke up and found that Mst. Rozan was not on her co and one Haider son of Ellahi Bakhsh was sleeping there. He came out to the supply pond and saw the petitioner in a compromising position with Mst. Rozan, on seeing which the deceased complainant shouted at him. The petitioner fired two shots at him and as a result of the bullet shots, the complainant died iv the hospital. His statement was recorded by Naib-Tehsildar, namely, Imdaa Bugti in Civil hospital, Jacobabad which was treated as dying declaration and on the basis of the same, F.I.R. was registered.

3. In support of the case, the prosecution examined as many as the witnesses. Muhammad Jaffer (P.W.1) and Dilmurad (P.W.2) were the eye witnesses whereas Abdul Rashid (P.W.3) is an attesting witness of the recover, of service revolver of the petitioner. P.W.4, Dr. Muhammad Murad was thi Medical Officer who provided first aid treatment to the deceased, Muhammad Arab. P.W.5, Shabbir Hussain, Constable is a formal witness. P.W.6, Imam Dad, Naib-Tehsildar recorded the dying declaration of the deceased Muhammad Arab. P.W.7, Abdullah Jan, A.S.I. is a witness of recovery of service revolve of the petitioner and P.W.8, is Dr. Jai Chand who conducted post-mortem of the dead body of the deceased, Muhammad Arab.

4. According to the evidence of P.W.1, Muhammad Jaffer, decease( Muhammad Arab was his brother. He stated that his brother Muhammad Arat was murdered in his house when he was sleeping and the incident took place al about 2 a.m. (night). According to his evidence, while sleeping, he heard some commotion and awoke up and, saw that his deceased brother Muhammad Arab was talking with the co-accused, Haider who was sleeping on the cot in their house and the talk was on the point that he was inquiring from Haider as to who he was, why he was present and for what purpose he had come, and in response, Haider, co-accused told his deceased brother his name and caste. When further asked by the deceased as to where was Mst. Rozan who was sleeping on the same cot and as to where she had been sent. On this, Haider told him to accompany him and he would tell the person who had taken Mst. Rozan and who took him to the place of the incident. He stated that after that, he heard gun report and he alongwith Dilmurad (P.W.2) went to the place of incident and saw that his brother Muhammad Arab was lying on the ground with the injury of gun shot and Haider was standing near him and deceased was not talking with them. He stated that he saw Mst. Rozan running away from the place of incident. According to the evidence of Dilmurad (P.W.2), Muhammad Arab deceased was his real brother. According to him when he was in his house, which was adjacent to the water pump of Jhatpat, at about 2-30 a.m., his daughter Mst. Rozan came to him and awaken him that his maternal uncle Arab was running towards Talab and she followed him. After 200/250 paces, he followed the Arab, he heard 2/3 gun reports and saw Arab injured by gun shot and unconscious. He took Arab injured to hospital, Dera Allahyar. He was unconscious. After a while, he died. This witness was declared hositle.

5. The corroboration of the facts stated in the dying declaration by the deceased came from the confessional statement of Mst. Rozan (Exh.P/9-A) recorded by Abdul Hafiz Osmani, the then Tehsildar/2nd Class Magistrate. Mst. Rozan co-accused was arrested on 8-7-1989 and she was produced before the Magistrate on 9-7-1989 for judicial confession. Evidence of P.W.9 Abdul Hafeez shows that while recording the said judicial confession of Mst. Rozan, he had observed the required formalities. It was not alleged in clear terms that the said judicial confession of Mst. Rozan was the result of coercion, inducement or maltreatment. She in her said judicial confession stated that on the night of incident, co-accused Ghulam Haider had come to her who informed her that accused Muhammad Afzal i.e., the present petitioner was waiting for her outside the house. On this, she went with the accused, Muhammad Afzal to water pond of water supply and the petitioner fired on the deceased Muhammad Arab when he was found coming there. She also categorically stated that shot fired by the present petitioner hit the deceased. .

6. During the pendency of the trial on 20-2-1992, Muhammad Jaffer (P.W.1) brother of the deceased Muhammad Arab appeared before the Court and filed a compromise deed which was between him and the present petitioner with regard to murder charge according to which as regards murder charge, the same had been settled between the said P.W. and the present petitioner. Muhammad Jaffer also filed affidavit claiming himself to be the only heir of Muhammad Arab, deceased. He stated in the said affidavit that he had forgiven Muhammad Afzal, accused. Muhammad Jaffer was 13 years old on 10-4-1990 when he was examined as witness in this case and the date on which the said compromise was filed, he was 15 years old, therefore, being minor, the said compromise was not accepted as only a Wali on behalf of the minor could effect the compromise. The assertion in the said compromise that he was the only heir of the deceased which was supported by a certificate of Sub-Divisional Magistrate dated 18-2-1992 was also found to be incorrect. Another certificate was also issued by the Sub-Divisional Magistrate on 23-2-1992 in which it was stated that Muhammad Jaffer was the only male heir of Muhammad Arab, deceased and their were also two sisters, of Jaffer, therefore, the said compromise was not accepted.

7. The petitioner during the trial raised the plea of alibi but the same was neither pressed before the trial Court nor before the Federal Shariat Court. Learned counsel for the petitioner during the arguments before us also did not press the said plea.

8. The trial Court relying upon the dying declaration of Muhammad Arab, confessional statement of Mst. Rozan, the compromise arrived at between the parties and the circumstantial evidence came to the conclusion that the charges against the accused were fully established, therefore, the petitioner was convicted under section 302 P.P.C. and section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance and awarded life imprisonment and fine of Rs.20,000 in default to suffer R.I. for two years more for the offence under section 302, P.P.C. and sentenced to 5 years' R.I., 20 stripes and fine of Rs.5,000 in default to suffer R.I. for 6 months more for the offence under section 10(2) of the Zina Ordinance.

9. In appeal filed by the petitioner, his .conviction and sentence under section 10(2) of the Zina Ordinance has been set aside whereas his conviction and sentence under section 302, P.P.C. has been upheld through the impugned judgment dated 9-6-1993 against which leave to appeal has been sought.

10. Learned counsel for the petitioner submitted that since it was in the evidence of P.W.1 and P.W.2 who according to the dying declaration itself of Arab deceased were present when he suffered the injury, the deceased did not talk to any one at the spot, as such he should be presumed to have remained unconscious till his death`; therefore, the dying declaration attributed to him is false and should be held to have not been made by him. We have noticed that Dilmurad (P.W.2) was declared hostile as in his evidence, he attempted to show concession to the petitioner. Muhammad Jaffer (P.W.1) in his evidence corroborated the general story of the incident as narrated in the dying declaration by Muhammad Arab except that he did not say that he saw the present petitioner running from the spot. Merely because P.W.1 and P.W.2 stated that while after receiving injury at the spot, Muhammad Arab deceased did not talk to any one does not mean that he remained unconscious till his death. Evidence of P.W.9, Abdul Hafeez, Tehsildar who recorded the dying declaration of the deceased has been examined by us. It inspires confidence. He is an independent witness and there was no reason as to why he should mis-state the facts. The general story of incident as narrated in the dying declaration has also been supported by Muhammad Jaffer (P.W.1) and Mst. Rozan in her judicial confession except that she did not state about her involvement in the sexual intercourse with the present petitioner.

11. Learned counsel for the petitioner took strong exception to the acceptance of facts narrated in the confessional statement of Mst. Rozan as to the involvement of the petitioner in the case. He argued that she was a co-accused, therefore, her statement as co-accused could not have been used against the other co-accused and her statement being also exculpatory, therefore, the conviction could not have been based on it. The argument in our considered view is plainly unsound in the facts and circumstances of this case. The conviction of the petitioner was not based solely on the confessional statement of Mst. Rozan but it was only used as corroboration of the facts narrated in the dying declaration for which the same was relied upon which could legally be done. There is no reason as to why the deceased while at the time of death should involve the petitioner falsely. The facts stated by the deceased in the F.I.R. as to the presence of Haider, co-accused at the spot who was lying on the cot of Mst. Rozan and other material particulars were corroborated by Muhammad Jaffer apart from the contents of the compromise deed. After examining the evidence with the assistance of the learned counsel for the petitioner, we find ourselves in agreement with the two Courts below that the prosecution in this case has established the charges against the petitioner beyond any shadow of doubt, therefore, his conviction under section 302, P.P.C. and sentnece awarded to him is not open to any exception.

12. For the foregoing reasons, this petition has no merit which is accoridngly dismissed and leave to appeal refused. N.H.Q./M-116/S Leave refused.