1998 P Cr (PLP)

(5) Three fire‑arm exit wounds on the anterior part of lower 1/3rd of left thigh 3" x 2", 1/2" x 1/2" and 1/4" x 1/4". (6) Fire‑arm exit wound on the anterior part of left thigh just above knee joint 1/2" x 1/2". Since the injured complainant succumbed to the injuries the same night at 1‑00 a.m. on 30‑6‑1986, therefore, his post‑mortem examination was conducted by the same doctor (P.W.10) at 5‑15 a.m. From the internal examination it was found as follows:‑‑ "Walls, peritonium, stomach, pancreas, small and large intestine and liver were found injured. Stomach was empty. Inferior vanae cavae were found injured. 1st and 2nd lumber vertebrae found fractured. Spinal cord and membrane were found injured." The doctor has stated in his remarks that deceased has died due to the injuries to bones, big vessels, inferior vanae cavae bleeding and shock. The left feamer was also found fractured. A bullet was recovered during autopsy. The post mortem report is Exh.P.M. The time between injuries and death was given 5‑15 to 5‑45 hours, while that between death and post‑mortem was given 4 hours and 15 minutes to 4 hours. The inquest report was exhibited as P.W.5/1 and the injury sheet was exhibited as P.W.8/1 in the earlier trial, The doctor also admitted the issuance of certificate Exh.P.W.10/1 to the effect that complainant was in senses and capable of giving statement while examined for the first time in injured condition.

7. On 27‑7‑1992 the appellant Mehmood Sultan was arrested in a raid and a supplementary challan was put in Court against him on 31‑7‑1992 and is convicted and sentenced as stated earlier. The prosecution case rests upon the dying declaration in shape of "Murasila" Exh.P.A., ocular testimony of Muhammad Farooq, the medical report recoveries of two empties from the spot, the blood‑stained garments having corresponding cut marks of the deceased the blood recovered from the spot, a phial containing bullet recovered during the autopsy of the deceased by the doctor, motive of altercation between appellant and deceased a day prior to occurrence and long abscondance of the accuse appellant.

8. The learned counsel for the appellant contended that the "Murasila" Exh.P.A. could not be treated as a dying declaration as it was not recorded in accordance with the provision of Rules 25.21 of the Police Rules, 1934 and placed reliance on Banaras Khan v. State PLD 1995 Pesh. 144 and Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another 1997 SCMR 449.

9. It would be advantageous to reproduce the above relied rules, which read as follows:‑‑ "25.21. (1) A dying declaration shall, whenever possible, be recorded by a Magistrate. (2) The person making the declaration shall, if possible be examined by a Medical Officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucing statement. (3) If no Magistrate can be obtained, the declaration shall, when a gazetted Police Officer is not present, be recorded in the presence of two or, more reliable witnesses unconnected with the Police Department and with the parties concerned in the case. (4) If no such witness can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more Police Officers. (3) A dying declaration made to a Police Officer should under section 162, Code of Criminal Procedure, be signed by the person making it. "

10. A bare reading of the aforesaid rule indicates that preferably dying" declaration shall be recorded in the presence of a Magistrate, but even in the absence of a Magistrate a dying declaration can be recorded if the person making the statement/declaration is examined by a Medical Officer ascertaining that he is capable of giving statement. Under para. 3 of the said rule it is laid down that in a case where dying declaration is recorded in the absence of a Magistrate, the gazetted Police Officers shall be witnessed by two reliable witnesses and the dying declaration shall be signed/thumb‑impressed by the person making it.

11. In the present case, Muhammad Arif Khan was seriously injured as appears from the medical report. The Investigating Officer realizing the condition of the injured person recorded his statement in the absence of a Magistrate which was also signed/thumb‑impressed by two marginal witnesses. Muhammad Farooq (P.W.9) was subjected to lengthy cross‑examination at the trial, but nothing favourable to accused was brought on the record. In these circumstances, the objection of the learned counsel for appellant viz‑a‑viz dying 1 declaration is without any substance.

12. The cited judgment in Banaras Khan's case is distinguishable on the ground that in the facts and circumstances of the cited judgment the dying declaration was lacking material details of occurrence inasmuch as the injuries on the person of deceased were not explained. The dying declaration was contradicted by prosecution witnesses and was not otherwise proved or corroborated by other prosecution evidence. Conversely, in the instant case, all the material facts were disclosed in dying declaration and it was duly corroborated by medico‑legal report, recoveries of crime empties on the spot and ocular testimony of Muhammad Farooq (P.W.9). The judgment delivered by august Supreme Court of Pakistan in the case of Mst. Ghulam Zohra referred above is mainly based on the fact that the injured complainant was brought unconscious to the hospital, 75 % of his body was burnt, and neither any certificate from the doctor was obtained to verify that she was capable of giving a statement, nor any reasonable explanation for such omission was tendered by the Investigating Officer. But, in the instant case, the injured/complainant was brought in his full senses to the hospital and a certificate to this effect was also obtained from the doctor, who had certified that the injured/complainant was in senses and capable of giving statement. The Medical Officer while appearing as P,W.10 had also proved in Court the said certificate and his testimony was not shattered through cross‑examination by the learned defence counsel.

13. The learned counsel for the appellant next contended that the ocular testimony of P.W.9 as also the dying declaration were disbelieved in the earlier trial against the acquitted accused and the same cannot be made basis for conviction of the appellant.

14. As regards dying declaration in Tawaib Khan and another v. The State PLD 1970 SC 13. their Lordships of the Supreme Court have observed as follows:‑‑ "The dying declarations of the deceased have a degree of sanctity under the law, being the statements of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundance affairs, he would not tell a lie and implicate innocent persons on false charges. But in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence, so as to find out what is true and what is false therein. In this effort the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age‑old habits and deep‑rooted rancour and enmities. Even, assuming that the pangs of conscience are there at the time of prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses, become absolutely necessary."

15. The maxim "falsus in uno falsus in omnibus" (false in one false in all) cannot be applied for administration of criminal justice as in the present day society it has been noticed in most of the cases that the witnesses of complainant party always throw the net very wide to implicate a large number of actual culprit's family and due to this phenomenon, the burden of Court in administering criminal justice has arisen and the Courts have to shift the chuff\from grain. In the facts and circumstances of the present case, Mehmood Sultan appellant was attributed the motive of altercation a day before the occurrence and he was solely charged for three consecutive effective firing at the deceased. The version of complainant has got due corroboration from the medico‑legal report and recoveries of two empties of 8 mm rifle from the spot, a point closer to the place allocated to Mehmood Sultan appellant. Muhammad Farooq (P.W.9) has categorically charged the appellant for effective firing at the deceased and the convict/appellant absconded immediately after the occurrence and remained fugitive from law for more than six year till 27‑7‑1992. All these facts are sufficient to establish that deceased was done to death by the appellant. The role of command attributed to the acquitted co‑accused Khan Sardar and the mere presence of Umar Sardar on the spot was in fact an exaggeration made by complainant as well as Muhammad Farooq (P.W.9). In the earlier proceedings against the acquitted co‑accused a Division Bench of this Court has observed as follows:‑‑ "In view of what has been discussed above, it is clear to us that in view of facts and circumstances of the case in hand, the dying declaration, Exh.P.A., recorded by Muhammad Khan, Sub‑Inspector, (P.W.9)cannot be accepted in toto. The appellant, it appears to us, has been implicated in the instant case due to his close relationship with the absconder in order perhaps to disable his from pursuing the case of the absconder or else following the tradition of the country to implicate as many persons of his family as possible."

16. A bare reading of the aforesaid paragraph reveals that the dying "declaration (Exh.P.A.) was not disbelieved in toto but was disbelieved against the acquitted co‑accused on the ground that they (acquitted co‑accused) were traditionally implicated with the actual culprit to disable them from pursuing the case against the absconder.

17. The learned counsel further contended that the medical report and the pictorial indicates injuries on the front as well as on the back of the deceased but Muhammad. Farooq (P.W.9), an alleged eye‑witness of the occurrence, had not explained as to how the deceased received the injuries on the front as also on the back. Injuries Nos.5 and 6 have been shown as exit wound of injury No.4 which is impossible because the inlet injury No.4 and the outlet injuries Nos.5 and 6 are on the front part of the thigh. The contention of the learned counsel cannot be accepted for the simple reason that bullet after entering the body may slept into places after striking bone in the body and travelled in opposite direction. The doctor was subjected to lengthy cross‑examination, but he has fully supported his medico‑legal report, autopsy and the certificate (Exh.P.W.10/1). There are no reason to disbelieve the contents of Exh.P.A., statement of, Muhammad Farooq, an eye‑witnesses of the occurrence and doctor Asmatullah Khan (P.W.10) viz‑a‑viz Mehmood Sultan, appellant.

18. The learned counsel for the appellant also submitted that abscondance by itself does not bring home guilt of appellant Mehmood Sultan. It is a fact that mere absconsion is not sufficient to bring home guilt of the accused but absconsion without any reasonable explanation coupled with other circumstances of the case may form a strong evidence for holding the accused guilty of the commission of offence. Mehmood Sultan when examined under section 342, Cr.P.C. in the trial Court explained his abscondance in the following words:‑‑ Q.12. It is in evidence that you absconded just after the occurrence and remained as such till your arrest on 27‑7‑1992. How do you explain this? Ans. To give an honest account after coming to know about the false charge against myself, my father and brother, all of us tried out level best and is approached the complainant with the request to withdraw the false charge. It was further requested that all of us were ready to satisfy the complainant party about our innocence according to the Rawaj and tradition of the area. All other brothers of deceased were agreed and were not going to charge us but Muhammad Farooq for certain personal seasons remained stuck to the false charge which are to some extent brought on record during the trial. We were only 3 male members, I, my father Khan Sardar and my brother Umar Sardar having 3 major sister and an old mother. There was none else except us to take care of the women‑folk of our house. So, in the given circumstances all of us could not afford appearance to the police, therefore, I could not appear Beside this, I was a young boy at the time of occurrence and I was afraid of police torture which was sure to be given to me. It is also pertinent that due to criminal charge we were afraid that our women fold may be attacked by the other side, so in order to save their lives and honour I had to take then away from the village.

19. In the said reply Mehmood Sultan has admitted his deliberate absconsion and the reason for his said absconsion is not convincing. His father being elder of the family should have absconded for looking after the lives and honour of the women‑folk members of his family and not the appellant being the youngest male member of the family. If the explanation tendered by the appellant is accepted for the sake of arguments, then there was no reason for him to remain absconder after 24‑9‑1989 when his brother Umar Sardar was granted acquittal by the trial Court or at least after the acquittal of his father Khan Sardar by this Court on 5‑9‑1990. Leave to appeal was also refused by the Supreme Court of Pakistan vide judgment, dated 9‑5‑1991 and even thereafter the appellant remained absconder till his arrest in a raid on 27‑7‑1992.

20. From the aforesaid discussion, it is abundantly clear that the prosecution has successfully brought home guilt of the appellant.

21. As regards Criminal Revision No.10 of 1994 for enhancement of sentence to death and adequate compensation to the legal heirs of the deceased under section 544‑A of the Cr.P.C., suffice it to say that keeping in view the age of the Mehmood Sultan and the fact that the motive behind the occurrence was found shrouded in mystery coupled with the facts that complainant party has thrown a wide net to involve innocent person, the accused Mehmood Sultan has rightly been not awarded death penalty, and transportation for life with a fine of Rs.50,000 (Rupees fifty thousands), is sufficient to meet the ends of justice. So far as the compensation to the legal heirs of deceased under section 544‑A of the Cr.P.C. is concerned, the trial Court has given no reasons for not awarding compensation although the Court after holding the accused guilty of offence must direct payment of compensation to the legal heirs of deceased provided reasons are recorded. The law as envisaged in subsection (3) of section 544‑A of the Cr.P.C. provide that the compensation shall be in addition to any sentence which may be imposed for the offence. Being a legal requirement, the trial Court should have awarded compensation under section 544‑A of the Cr.P.C. Resultantly the criminal revision is partly accepted to extent that Mehmood Sultan, convict‑appellant shall also pay an amount of Rs.50,000 (Rupees fifty thousands) as compensation to the legal heirs of deceased in addition to the fine imposed on him by the trial Court failing which he shall suffer a further imprisonment for six months S.1. Consequently, the appeal filed by Mehmood Sultan, appellant is dismissed Using without substance and Criminal Revision No.10 of 1994 is partly allowed in the above terms. H.B.T./81/P Appeal dismissed.