2004 PLP 971 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by Sikandar Shah son of Abdul Aziz and Akbar Shah son of Qalandar Shah from Central Jail, Haripur, seeking leave to appeal against the judgment dated 27-4-2000 passed by a Division Bench of Peshawar High Court, Peshawar, in Criminal Appeal No.242 of 1997 and the murder reference sent to the High Court by the learned Sessions Judge/Zila Qazi, Bunair at Daggar. The petitioners were tried under sections 302/34 and 307/34, P.P.C. for committing murders of Gul Taj, Noor Muhammad Khan and Sarzamin, and for causing injuries to Mst. Sherinai and Bakhtmand. The learned Sessions Judge/Zila Qazi, Bunair at Daggar upon conclusion of trial having found the petitioners guilty of the charge convicted and sentenced them vide judgment dated 2.9.1997 as under:-- "(a) Under section 302/34, P.P.C. for the murder of Noor Muhammad, sentence of death with a fine of Rs.20,000 each and in default of payment of fine to undergo R.I. for one year each. Half of the fine, if recovered was ordered to be paid to the legal heirs of the deceased as compensation. (b) Under section 302/34, P.P.C. for the murder of Sarzamin, sentence of death with a fine of Rs.20,000 each and in default of payment of fine to undergo R.I. for one year each. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation. (c) Under section 307/34, P.P.C. for causing fire-arm injuries to Mst. Sherinai, R.I. for three years with a fine of Rs.2,500 each and in default of payment of fine to suffer R.I. for one month each. (d) Under section 307/34, P.P.C. for causing fire-arm injuries to Bakhtmand, R.I. for three years each with a fine of Rs.2,500 each and in default of payment of fine to suffer R.I. for one month each." In consequence to the compromise between the petitioners and legal heirs of Gul Taj deceased, the petitioners were acquitted from the charge of murder of Gul Taj deceased. The case was registered against the petitioners at Police Station Daggar, on the basis of statement made by GuI Taj deceased before Muhammad Amin Inspector/S.H.O. Police Station, Daggar, at 12-15 noon in the hospital in injured condition who sent a Marasla to the police station and subsequently on death of Gul Taj, the F.I.R. was treated as his dying declaration. The relevant facts contained in the F.I.R. are that on 11-7-1990 at about 12-00 noon Gul Taj, Noor Muhammad Khan and Sarzamin Khan boarded together in a bus bearing No.SW-2485 to go back to their village after attending a case in a Court at Daggar at 12-00 noon, when the accused namely Akbar Shah armed with single barrel shot gun and Sikandar Shah, armed with 7 MM rifle opened firing at them in the bus which proved fatal to their lives. It was stated in the F.I.R. that the shot fired by Akbar Shah hit Sarzamin and the shot fired by Sikandar Shah hit Noor Muhammad whereas Gul Taj, Mst. Sherinai and Bakhtmand sustained injures as a result of the firing made collectively by the accused. The occurrence was also witnessed by the passengers present in the bus and the accused after firing made good their escape from the bus. The motive behind the occurrence as disclosed by the complainant was the blood feud and enmity between the parties. Noor Muhammad and Sarzamin succumbed to the injures at the spot whereas Gul Taj was taken to the hospital in serious condition for medical aid. Muhammad Amin, S.H.O. of the Police Station, Daggar recorded the statement of Gul Taj deceased with the permission of doctor Zafar Ali, (P.W.5) in his presence. The doctor had also issued a Certificate that the injured was in senses and he was fit to make the statement. The same doctor medically examined Gul Taj, Mst. Sherinai and Bakhtmand on the day of occurrence and later conducted the post mortem on the dead bodies of Noor Muhammad and Sarzamin. In view of precarious condition of Gul Taj he was sent to Peshawar for medical treatment but he could not survive. Dr. Zafar Ali (P.W.5) also conducted post-mortem on his dead-body. Sakindar Shah petitioner while running from the place of occurrence was arrested with 7MM rifle at a short distance from the spot whereas Akbar Shah surrendered before the police on 16-7-1990 with a single barrel shot gun and 7 cartridges in his possession. Sakindar Shah petitioner while in police custody made a confession before a local Magistrate on 16-7-1990 and Akbar Shah confessed his guile before the same Magistrate on 17-7-1990. During the spot inspection, the Investigating Officer collected blood-stained earth and three crime empties from the spot and also took into possession bug bearing No.2485 in which occurrence had taken place. The criri6 empties in question and the weapon of offence recovered from the petitioners were separately sent to fire-arm expert and as per report of the expert, the crime empties were found to have been fired from the weapons recovered from the petitioners. As per report of the chemical examiner, the origin of blood on the clothes of the deceased and earth collected from spot was found as human blood. The prosecution in support of the charge produced 11 witnesses in all including Noorzada son of Wazirzada an eye-witness of the occurrence. Noorzada, the sole eye-witness, has stated that he alongwith the deceased and injured witnesses boarded the bus in which the firing was made by the petitioners and corroborated the dying declaration of Gul Taj deceased. The petitioners in their statements under section 342, Cr.P.C. denied the charge and pleaded false implication due to the enmity. They however, did not prefer to make a statement on oath under section 340(2), Cr.P.C. The learned Judges of the Division Bench in the High Court while maintaining the conviction and sentences awarded to the petitioners by the trial Court dismissed the appeal of the petitioners with the observation that prosecution was successful in establishing the charge against them and that there was no mitigating circumstance in their favour for lesser punishment. Learned counsel for the petitioners in support of this petition has raised the following contentions:-- (a) That injured eye-witnesses namely, Mst. Sherinai and Bakhtmand were not produced and instead Noorzada P.W.7 was examined as eye-witness who was not named in the F.I.R., therefore, his presence in the bus was not established and was subsequently introduced by police to create an expression that it was a case of direct evidence. (b) That with the exclusion of his statement from consideration, the conviction and sentence on the basis of retracted judicial confession and uncorroborated dying declaration would not be sustainable. (c) That doctor, Zafar Ali (P.W.5) who medically examined Gul Taj when he was still alive, has stated in the cross-examination that at the time of examination, the deceased was in bad condition and this fact would lead to a reasonable suspicion that deceased was not in a position to make the statement and consequently, the dying declaration of the deceased would not be admissible to evidence. In nutshell, the learned counsel argued that it was not safe to place reliance on such shaky evidence of dying declaration, the ocular account furnished by Noorzada P.W.7 and the retracted judicial confession of the petitioners to sustain the conviction and capital punishment under section 302, P.P.C. (d) That suppression of injuries sustained by Akbar Shah accused in the occurrence by the prosecution in the F.I.R. would suggest that occurrence did not take place in the manner as stated and the benefit of doubt arising to this behalf would provide a sufficient ground for the lesser punishment in case the conviction is maintained. We have heard the learned counsel for the petitioners and gone through the record with his assistance. The occurrence took place at 12-00 noon in broad day light in a bus at Adda in which three persons lost their lives and two passengers sustained injures. The case was registered on the basis of statement made by Gul Taj deceased before the S.H.O. of Police Station, Daggar in the hospital which was recorded in presence of doctor Zafar Ali, Medical Officer (P.W.5) who having conducted medical examination of Gul Taj while in injured condition prepared his medical report as under:-- On examination (1) Fire-arm entrance wound lateral side and back of left upper arm about " x ". (2) Fire-arm exist wound, middle side of back of left upper arm about 14" x " with fracture of humerus bone. The same bullet then entered in the left side chest. There is profuses bleeding from the wound with surgical empysena. Patient condition is progressively becoming worse. Emergency treatment in the form of infusin to combat shot given and patient referred to Peshawar. Weapon: Fire-arm: Nature: dangerous to life. The Medico-legal Report and the post-mortem report of Gul Taj deceased and two other deceased, were proved by the said doctor in his statement and opined that the death of victims was caused as a result of sustaining the fire-arm injures. The relevant portion of the statement of the doctor is reproduced hereunder:-- The Medico-Legal Reports of Mst. Sharinai and Bakhtmand who sustained injures in the occurrence were also placed on record. However, they were given up as they were not willing to appear before the Court and make the statement against the accused. The confessional statements of the petitioners were recorded by Masudur Rehman, Magistrate Bunair (P.W.8) who in his statement before the trial Court has stated that he after putting the certain questions to the accused and satisfying himself about their willingness to make the confessional statements recorded their confessions. The witness has deposed that in his impression the accused had confessed their guilt voluntarily. The presence of Noorzada (P.W.7) in the passenger bus cannot be disbelieved for mere reason that he was not named in the F.I.R. as an eye-witness of the occurrence. Gul Taj deceased and witnesses were strangers to each other at the time of occurrence, therefore, it was not possible for the deceased to mention the name of witness in his statement. However, it is mentioned in the dying declaration that occurrence was seen by the passengers present in the bus. It is a matter of common knowledge that people do not involve themselves in such cases, therefore, non appearance of any other passenger except Noorzada P.W. 7, in the witness-box would neither suggest that Noorzada was not present in the bus at the time of occurrence or the prosecution case was doubtful. This witness having no concern with either of the party, was entirely an independent person. Learned counsel for the petitioners has not been able to convince us from the record that either the presence of Noorzada at the time of occurrence in the bus was not believable or he deposed against the accused for any other consideration or personal reason. The driver and conductor of the bus and two injured person were natural witnesses of the occurrence but according to the prosecution they avoided to appear as witness and their reluctance was not uncommon in our society as the people avoid to involve themselves in such matters and thus no adverse inference can be drawn for non-appearance of any other person from the bus except Noorzada who volunteered to appear in the witness-box. The conclusion is that presence of Noorzada in the bus at the relevant time would be free from any doubt and he being entirely independent witness would be truthful, reliable and dependable. The statement of Gul Taj deceased was recorded by the S.H.O. of the concerned police station in the hospital in presence of the doctor who medically examined the deceased in injured condition and said doctor has also issued a certificate, that the deceased was in senses and could make a statement. This statement of deceased was subsequently treated as dying declaration on his death, therefore, the reliability of dying declaration would be free from any doubt, having been recorded in presence of doctor. It does not appeal to mind that doctor would issue a false certificate and further make a false statement if the deceased at the time of making statement was not in senses or was unable to speak and make the statement. Gul Taj deceased having sustained injures on sensitive part of the body while struggling for the life in the hospital, would not be expected to make a false statement against his opponents. The perusal of dying declaration of the deceased would show that it was seeking corroboration from the medical evidence and statement of Noorzada, the sole eye-witnesses. In addition to the evidence discussed above, the judicial confession of the petitioners is also available on the record. The perusal of the statement of the Magistrate who recorded the confession of the petitioners and also the confessional statements of the petitioners, would show that they confessed their guilt voluntarily and free from any outside pressure or influence. The statement of Akbar Shah was that Muhammad Noor Khan, Sarzamin and Gul Taj deceased and two unknown persons sustained injuries as a result of cross-firing which had taken place between the deceased and the petitioners due to the old enmity. Sakindar Shah almost made the similar statement and subsequently they both retracted their judicial confession. We may observe that this retraction would not ipso facto make the confession untrue and doubtful as it is settled principle of law that a retracted judicial confession if is found confidence inspiring, would alone be sufficient to sustain the conviction. The judicial confessions made by the petitioner have been found free of any outside pressure and influence and being voluntarily, were also seeking ample corroboration from the medical evidence and the dying declaration of Gul Taj deceased. The parties admittedly were inimical to each other and the enmity despite being a double edge weapon, in the circumstances of the present case, it would be strong source of motive for the petitioners to commit the murder of their opponents. The unimpeachable character of direct and circumstantial evidence brought on record would establish the murder charge against the petitioners beyond all reasonable doubts and the finding of guilt arrived at by the trial Court and maintained by the High Court would be unexceptionable. However, we find the injured persons were not examined as witnesses to establish the fact that they sustained injuries in the occurrence, therefore, the conviction and sentence of the petitioners under section 307/34, P.P.C. for causing injures to Mst. Sherinai and Bakhtmand is set aside. For the foregoing discussion, we, while upholding the conviction and sentences of the petitioner under section 302/34, P.P.C. on two counts awarded to them by the trial Court and confirmed by the High Court dismiss this petition. Leave is refused. M.B.A./S-215/S Petition dismissed.