2002 P Cr (PLP)

ABDUR RAUF KHAN LUGHMANI, J.‑‑‑ Haji son of Aziz, aged about twenty years, was tried for having committed the murder of Abdur Rashid by firing with kalashnikov on 18‑3‑1996 at evening time close to the house of the deceased by the learned Special Judge, D.I. Khan, who at conclusion of the trial found him guilty and convicted under section 302, P.P.C. and sentenced to death as Qisas, vide order, dated 30‑8‑2000. The convict has through Appeal No.79 of 2000 challenged his conviction and sentence. There is also a revision filed by Ramzan, brother of the deceased, seeking award of compensation in terms of section 544‑A, Cr.P.C. We have also before us Murder Reference No. 10 of 2000 and these cases are being disposed of by this single judgment.

2. On 18‑3‑1996 at about 9‑20 p.m., Abdur Rashid son of Raza Muhammad in injured condition reached Police Station Choudhwan and lodged F.I.R. (Exh.P.A.) to the effect that on the fateful day sometime before evening he had gone to the house of blacksmith and after staying there for some time he was on way back home at about evening. Reaching near his house, he was fired at by appellant Haji from the back with which he was hit and fell down. The occurrence was witnessed by his brother Atta Muhammad and one Shahnawaz. The appellant, after commission of the crime, bolted away from the spot. Motive is stated to be that the appellant suspected that he (complainant) had illicit liaison with his sister.

3. During investigation, Muhammad Amin (P.W.9) prepared site plan (Exh.P.B.), recovered blood‑stained earth, one empty of 7.62 bore and one live cartridge of the same bore. He recorded statement of the witnesses and successful applied for warrant of arrest and proclamation as the appellant was avoiding his arrest who was later on arrested on 6‑1‑1998.

4. Doctor Rashid Ahmad (P.W.2) examined the complainant on 18‑3‑1996.and found the following injuries on his person:‑‑ (1) One entry wound on the sacral region on the back about 1/2" right to the midline measuring 1/4"‑x 1/4". (2) One exit wound on right alliac fossa size 1/2" x 1/2" loopes of intestine are protruding from wound. Corresponding cuts were present on Shalwar.

5. The injured was admitted in the hospital and later on referred to Peshawar by the Surgeon where he remained under treatment but could not survive and expired on 20‑7‑1996, whereafter the offence was altered to section 302, P.P.C. There is nothing significant in statement of the appellant except that he denied the charge as well as the recoveries. He did not admit to have absconded and claimed to have gone out of village for earning livelihood. However, no evidence was led in evidence.

6. The case of the prosecution is based on the dying declaration, ocular testimony consisting of Atta Muhammad (P. W.6) and Shah Nawaz (P.W.7), recoveries, medical evidence and abscondence of the appellant.

7. The dying declaration (Exh.P.A.) was criticized on the ground that the deceased succumbed to the injuries much alter the occurrence and in absence of proof that he died of those injuries, it cannot be treated as a valid dying declaration. It was also submitted that the matter was reported after considerable delay which would indicate consultation etc. so as to falsely involve the appellant. The occurrence took place at evening time and the matter was reported on the same night at 9‑20 p.m. in the police station which is at a distance of 14/15 kilometers from the spot. The occurrence took place all of sudden and sometime must have consumed in arranging transport etc. One person has been charged in a simple and straightforward manner without any exaggeration or material omissions. The deceased suffered injury on the sacral region on the back which caused much complication as is evident from the treatment chart Exh.P.W.I/2 to EXh.P.W.1/17 and the death summary of the Khyber Hospital EXh. P. W . l / 1 . The injury directly caused fecal fistula and he breathed his last in the hospital on 20‑7‑1996 and this is evident from Exh. P. W.5/9. The evidence, therefore, speaks volumes that it was the result of fire‑arm injury which caused death of the deceased. The report can be safely treated as dying declaration.

6. Apart from dying declaration; Exh.P.A., there is qualitative and quantitative ocular testimony furnished by the two eye‑witnesses Atta Muhammad and Shah Nawaz. Both the witnesses at the trial C squarely charged the appellant for having fired in their presence at the deceased at the relevant time. They were cross‑examined and nothing damaging to the prosecution or favourable to the appellant could be brought on record.

7. As stated earlier, the Investigating Officer effected certain recoveries i.e. blood‑stained earth, one empty of kalashnikov and one live cartridge. The size of injury suggests that it was caused with 7.62 bore. and the weapon was obviously kalashnikov. Further, the appellant remained an outlaw for about one year, 10 months and has not been able to satisfactorily and convincingly account for his abscondence. His mere statement to have gone .out of the village to earn livlihood cannot be accepted. This piece of evidence lends independent corroboration to the ocular testimony as well as the dying declaration.

8. The quantum of sentence, however, needs consideration. It is on record, noteably in the dying declaration, and also in the statement of the two eye‑witnesses that the appellant suspected the deceased for having illicit relations with his sister. This appears to be the cause of annoyance. The deceased wag fired at once although the appellant was in a position to fire more shots with the assault rifle but he refrained from so doing. We, therefore, alter the sentence of death to imprisonment for life. No compensation under section 544‑A, Cr.P.C. was awarded and the trial Court also did not give any reason as to why the compensation was nor awarded. The provision makes it obligatory on the Court to award compensation to the legal heirs of the deceased. We would, therefore, accept the revision petition to the extent that the appellant shall pay rupees one lac as compensation to the heirs of the deceased, or in default thereof to suffer further six months' R.I. The murder reference is answered in negative. H.B.T./513/P