2001 SCMR 94 (PLP)

ABDUL HAMEED DOGAR, J.

The above appeals with the leave of this Court are being disposed of by common judgment as they arise out of judgment, dated 18-1-1994 passed by learned Division Bench of Peshawar High Court, Circuit Bench, Abbottabad.

2. In Criminal Appeal No.259 of 1994 the appellants Sabir and Juma have assailed the above mentioned judgment whereas in Criminal Appeal No.260 of 1994 appellant Habib-ur-Rehman son of deceased has urged for the enhancement of sentence of appellants Sabir and Juma and whereas challenged the acquittal of co-accused Mushtaq alias Fareed and Abdul Sattar.

3. The facts of prosecution case are that on 19-8-1990 at about 18-40 hours Khalil-ur-Rehman deceased reported the matter in injured condition to A.S.-I. Muhammad Anwar Khan of Police Station Haripur in Emergency Ward of Civil Hospital, Haripur to the effect that on the said date at about 5-30 p.m. "Digar Qaza Waila" he alongwith his son, Habib-ur?-Rehman, Muhammad Khalil, Iqbal and other people were coming back home after attending the funeral ceremony of the wife of one Munsif Khan when reached near the house of Jehandad there appeared all of a sudden appellant Sabir and Juma and acquitted accused Mushtaq alias Fareed and Abdul Sattar and asked him as to what "Badmashi" he was doing. In the meanwhile acquitted accused Mushtaq and Abdul Sattar caught hold of him, while appellants Juma and Sabir started giving Chhuries blows to him, as a result he sustained injuries on the various parts of the body and became seriously injured. The motive for the crime was that some time back one Haji Yousaf was murdered, Juma Khan and others were charged for the murder and deceased Khalil-ur-Rehman allegedly helped the opposite-party of appellant Juma Khan and that he had also enmity with him over the matter of the elections. Initially F.I.R. was lodged under section 307/34, P.P.C. which was later on substituted by section 302, P.P.C. on the death of complainant injured Khalil-ur-Rehman.

4. The appellant and respondents/acquitted accused were arrested and on the pointation of appellants Juma and Sabir weapons of offences viz. Chhuris were recovered from the land of Karim Bakhsh under Mushirnama. After completion of investigation they were sent up to face trial.

5. In support of the case prosecution examined as many as nine witnesses. P. W.1 Abdul Aziz, IHC prepared inquest report of the dead body. P.W.2 Haji Muhammad Younas acted as Mushir to the recoveries of Churies at the behest of appellants Sabir and Juma, P.W.3 Zafar Khan S.-I. incorporated Murasla in F.I.R. P.W.4 Dr. Ali Fawad conducted post?mortem of deceased, P.W.5 Dr. Masaddaq examined the deceased in injured condition, P.W.6 Habib-ur-Rehman son of deceased who narrated the eye?witness account of incident P.W.7 Muhammad Iqbal another eye-witness of incident P.W.8 Muhammad Anwar, A.S.-I. he recorded first report of deceased in hospital P.W.9 Muhammad Fareed Khan, Inspector Investigation Officer.

6. Appellants Sabir and Juma did not examine themselves on oath as required under section 340(2), Cr.P.C. but Sabir examined Muhammad Riaz, Record keeper in Identity Card Registration Office, Abbottabad and Zaka A. Malik, Handwriting Expert, Lahore in his defence.

7. We have heard M/s. Mian Aftab Farrukh, Senior Advocate Supreme Court and Syed Zafar Ali Shah, Advocate Supreme Court on behalf of the appellants, Muhammad Rashid-ul-Haq, A.A.-G., N.-W,F.P. for the State and Abdul Karim Kundi, Advocate Supreme Court for the complainant at length and have gone through impugned judgments as well as record and proceedings of case in minute particulars.

8. Learned counsel for appellants mainly attacked upon the dying declaration of deceased Khalil-ur-Rehman and argued that the same cannot be relied upon for maintaining the conviction of appellants on the ground that no sanctity can be attached to the same as it has been disbelieved by the learned High Court in respect of acquitted accused Abdul Sattar and Mushtaq alias Fareed. The Medical Officers out of whom one examined the deceased in injured condition and the other who conducted his post-mortem clearly suggested that deceased was not physically capable to make a statement looking towards the number of injuries on his person. According to him the said dying declaration was not countersigned by Medical Officer who was available at the time of statement of deceased as such it is in violation of Police Rule No.25.21 and is not admissible in evidence. He further argued that since the High Court has disbelieved the presence of P.Ws. Habib-ur-Rehman and Muhammad Iqbal the eye-witnesses at the spot and had also observed the recovery of daggar at the instance of appellants unnatural and fabricated as such appellants are entitled to the acquittal. He lastly contended that appellants have nearly completed their sentence of imprisonment for life as such their sentence cannot be enhanced which would otherwise be a double punishment. In support he relied upon the case of Mst. Razia Begum v. Jehangir and others (PLD 1982 SC 303).

9. Learned counsel on the other side vehemently controverted the contentions of appellants' counsel and argued that prosecution has been able to place on. record sufficient evidence in the shape of dying declaration, eye-. witnesses account furnished by P.Ws. Habib-ur-Rehman and Muhammad Iqbal and recoveries of daggers from the appellants as such it is a fit case for enhancement of their sentence. According to them the reasoning furnished by the learned High Court in lessening the sentence of appellants Sabir and Juma and acquittal of Abdul Sattar and Mushtaq alias Fareed are not convincing as all of them have been fully implicated by the deceased as well as the P.Ws. in the commission of offence. Mr. Abdul Karim Kundi, learned counsel relied upon case of Mewa v. Emperor (AIR 1935 Lahore 337).

10. The factum of incident is admitted and was not disputed by the defence. The case of prosecution hinges upon the statement of deceased, testimony of P. Ws. Habib-ur-Rehman and Muhammad Iqbal, recoveries of Chhuries, medical evidence and the motive. As more stress has been placed upon the statement of deceased, as such, it would be appropriate to examine the same in its true perspective. As per the statement of A.S.-I. Muhammad Anwar it was he who recorded the report of deceased Khalil-ur-Rehman in injured condition in the Emergency Ward of Civil Hospital, Haripur and after recording the same as read over to him who after admitting it correct signed the same. From this it appears that the report of deceased was not recorded as dying declaration because at the time apparently there was no apprehension of the death of deceased who died after five days of tile occurrence. The fact that injured was in complete senses was confirmed by P.W. Dr. Muhammad Tariq, Medical Officer who examined him in injured condition, by stating that he was in complete control of his senses. Since immediate apprehension of the death of deceased was not eminent as such the non-attestation of the report either by Medical Officer or any other person would not render it to be false. About the signatures of the deceased on the report the learned trial Court has disbelieved the evidence of D.W. Zaka A Malik, Handwriting Expert as he was famous for giving false opinion and that strictures were passed against him by the various Courts.

11. The learned High Court has also held that there was nothing unusual for the deceased to have given seats as well as the number of injuries which would rather establish that he was in a fit state of mind and could furnish all requisite information. It was also observed that the F.I.R. which assumed the character of dying declaration after the death of deceased was fully proved and was also truthful. There can be no doubt that when a dying declaration is recorded the person who records the statement must be satisfied that the person who makes the statement is consciously making the statement understanding the implications of the words he used. In other words he should be in fit state of mind. In the present case there can hardly be any doubt that deceased while injured was not only conscious and able to speak out also but made the statement voluntarily which fact stands corroborated by the statement of A.S.-I. Muhammad Anwar who recorded the same and Dr. Muhammad Tariq who examined him at the first instance. The fact that deceased expired after five days further confirms to show that there was no eminent danger of his death and made the statement consciously. In the case of K. Ramchandra Reddy and another v. The Public Prosecutor (AIR 1976 SC 1994), it has been held that conviction can alone be, based on dying declaration if it is found true and voluntary. The statement of deceased is corroborated by medical evidence and the motive. We have given anxious thought to the reasoning of the Appellate Court with regard to the acquittal of accused Abdul Sattar and Mushtaq alias Fareed and discarding the ocular evidence. The same seems to be reasonable. Even otherwise according to the case of prosecution they had not played any role in the commission of offence. The reasoning furnished for converting death sentence into life imprisonment of appellants Sabir and Juma are also convincing. We find no reason to interfere with such findings of the High Court. The contention of complainant's counsel as well as State Counsel are devoid of force and the case of Mst. Razia Begum (supra) referred by them is also on different facts and circumstances.

12. The contention of appellant's counsel that they have served out the sentence of imprisonment for life, therefore, they should not be sentenced to death has force. This aspect of the-matter has been discussed in detail by this Court in the case of Mst. Razia Begum (supra) and in the similar circumstances refrained from awarding the sentence of death to the respondents. Having, therefore, considering the evidence discussed above, we are satisfied that the findings of the learned High Court are not fit for interference. Accordingly both appeals are dismissed. However, the amount of fine of Rs.20,000 is converted into compensation and the same is' enhanced to Rs.80,000 to be paid by each appellant under section 544-A, Cr.P.C. and if the same is realised, it will be paid to the legal heirs of the deceased. In case of non-payment of the same they shall undergo further R.I. for one year. N.H.Q./S-53/S ?????????????????????????????????????????????????????????? Appeal dismissed.