1976 P Cr (PLP)

4. Hazara appellant when examined under section 342, Cr. P. C. denied the prosecution allegations. The following questions and answers given by him are relevant for the purposes of this case:‑ "Q There is evidence against you that you illegally occupied portion of the land of Qutub Din, P. W. the father‑in‑law of deceased Niamat prior to this occurrence and you were ejected from the said land through the Revenue Department on the basis of an order issued by Tehsildar and on that account you became inimical towards Qutub Din and his family members. What do you say about it? A. No. Qutub Din and his son Anwar wanted to oust me from the land belonging to me and occupied by me. Q. Is it a fact that you damaged turmeric crop of Qutub Din P. W. and on the report of the said P. W. a case under section 44u, P. P. C. was registered against you. What do you say about it? A. No. A false case was registered against me by Anwar son of Qutub Din P. W. for damaging his turmeric crop. When asked why the P. Ws. had deposed against him, he stated as under:‑ "Due to previous enmity and close relationship with Qutub Din P. W." When asked if he had anything else to say, he replied as under:‑ "I am innocent. I had no enmity with Niamat deceased. He did not reside in our village. On 18th August 1970 he was found lying injured outside the village in the early hours of the morning and due to previous enmity and suspicion and my co‑accused were falsely implicated in this case."

5. Muhammad Ali appellant also denied the prosecution allegations. When he was asked the following question, he replied as under:‑ "Q. Is it a fact that on 21st August 1970 the police arrested you and at the time of the arrest you were having gun P. 3 in your right band which was taken into possession by the police and on search six live cartridges were also recovered from your right fold of your chadar by the police and do these articles belong to you? A. I was not arrested on 21st, August 1970 as alleged by the prosecu tion. In fact, I joined the investigation on 18th August 1970 but was taken into custody formally on 21st August 1970. The gun and the cartridges belong to my father who also holds a licence and were taken into possession from our house." When asked why the P. Ws. had deposed against him, he stated as under:‑ "I have been falsely implicated at the instance of Jan Muhammad who bad contested B. D. elections against my father and had lost. He agreed to become a witness in this case only on the assurance of Qutub Din to falsely involve me and my father in this case. Nazar Hussain P. W. is the nephew of Jan Muhammad P. W. while Shafi is his party-man." When asked if he had anything else to say he stated as follows:-- "I am innocent. Shafi P. W. is the brother‑in‑law of Jan Muhammad and is also inimical towards us." Siraj Din (acquitted co‑accused) also denied the prosecution allegations and relied upon the statement of his son Muhammad Ali. He further stated that Jan Muhammad P. W. contested elections against him and was defeated and that he belonged to the party of Qutub Din P. W. and his son Anwar. The accused persons, however, produced no defence evidence.

6. In support of its case the prosecution relied upon the dying declaration made by the deceased (Exh. P. F.), the ocular evidence of Jan Muhammad, Muhammad Shafi and Qutub Din P. Ws., the motive; the medical evidence and recoveries. The trial Court acquitted Siraj Din co‑accused but convicted and sentenced the present two appellants as mentioned above.

7. According to the prosecution, its main reliance is on the dying declaration (Exh. P. F.) of Niamat deceased. The injured person reached the Civil Hospital at Qasur at about 10 a.m. He was medically examined by Lady Doctor Miss Shamim Zafar at 10‑20 a.m. on 18‑8‑1970. S.

1. Shabbir Hussain Shah on reaching the hospital enquired from the Medical officer through ruqqa (Exh. P. H.) whether Niamat injured was fit to make a statement. On the same ruqqa the Lady Doctor replies to the police officer that Niamat was fit to give his statement. Accordingly, the inves tigating Officer at 11‑15 a.m. recorded the following dying declaration of Niamat deceased:‑ This dying declaration was also signed by the Lady Doctor. A perusal of the above dying declaration shows that Hazara appellant fired a shot which hit the deceased at his abdomen. Muhammad Ali appellant fired ineffective shot which did not hit anyone. Siraj (acquitted co‑accused) reached the spot when both the appellants had already fired their shots. The part attributed to him was that he raised a lalkara that Niamat should be killed. No doubt, the dying declaration was recorded by the Investigating officer himself, but it has also been signed by the Lady Doctor. It is not denied by the defence that generally great importance is attached to a dying declaration and in certain circumstances conviction can be based upon such dying declaration alone. However, as an abundant caution, the Courts before relying upon a dying declaration seek corroboration from some independent source. In the instant case, the Investigating Officer took the necessary precautions to enquire from the Medical Officer whether Niamat was fit to make a statement or not. It was after the reply of the doctor that the injured was fit to make a statement, that the dying declaration was recorded by the police officer. The learned defence counsel has tried to argue that looking at the nature and location of injuries on the body of the deceased, it should be inferred that he was not fit to make a statement. However, in the presence of positive evidence in the form of certificate by a competent doctor, the defence cannot rely upon mere inference. Further we observe that Niamat had no injury on his head and, therefore, the certificate of the doctor seems to be correct. However, as regards the other objection raised on behalf of the defence that before convicting the appellants on the basis of dying declaration independent corroboration is necessary, the learned counsel for the State and the complainant also agree to this legal proposition. Hence, we proceed to find out whether there is any independent corroborative piece of evidence to support the dying declaration or not.

8. The first corroborative piece of evidence relied upon by the prosecution is the motive against Hazara appellant. Niamat deceased was the son‑in‑law of Qutub Din P. W. who has stated that his land was in an unauthorised occupation of Hazara appellant for which his son Anwar had initiated ejectment proceedings in the Court of the Tehsildar, Qasur. That case was ultimately decided against Hazara appellant and the land was taken from the possession of the appellant. It is also alleged by the prosecution that there were security proceedings under section 107/151, Cr. P. C. between the parties as a result of which Qutub Din, Shafi, Anwar son of Qutub Din, Jan Muhammad P. Ws. and Niamat deceased were bound down on one side and Hazara appellant, Khushi and Hassan on the other side. After that Hazara appellant also ploughed the standing turmeric crop cultivated by the complainant party for which a case under section 440, P. P. C. (Exh. P. W. 13/C) was got registered by Muhammad Anwar, son of Qutub Din P. W., against Hazara appellant, Khushi and Inayat. Hazara appellant in his statement under section 342, Cr. P. C. has admitted that a case under section 440, P. P. C. was registered by the complainant party, but it was false. He has, however, denied the prosecution allegation that he was ejected from the land by the complainant party. Confronted with these circumstances the learned defence counsel has half‑heartedly admitted before us treat so far as Hazara appellant is concerned, there was some dispute regarding land between him and Qutub Din complainant and, therefore, there could be some motive so far as he is concerned. However, as regards Muhammad Ali appellant, there was Lo motive. We will deal with the case of Muhammad Ali separately. After going through the relevant material we are convinced that the prosecution has established the motive against Hazara appellant only and, therefore, it can be used as corroboration.

9. Another corroborative piece of evidence relied upon by the prosecution in this case is the medical evidence. As mentioned earlier, the Lady Doctor Miss Shamim Zafar at the time of the medical examination of Niamat deceased and subsequently Dr. Nasim Ahmad Qureshi at the time of post‑mortem examination found three injuries on the body of Niamat deceased. These injuries are on the front portion of the body and mainly on the abdomen. There is no dispute that all these injuries are caused by a firearm. The learned counsel for the appellants has, however, tried to argue that these injuries were caused by two shots and not by one as mentioned in the dying declaration. According to him, injury No. 3 was caused by an independent fire as the direction and location of its exit was different from the location and exit of injury No.

2. We have carefully scrutinized the location of these injuries. The exit of injury No. 3 is not on the front side of the body, but it is also on the back side about 2' below the exit of injury No. 2 which is on the right hip. After examining the nature and location of the injuries and hearing the arguments of the learned defence counsel we find that these injuries found by the doctor on the body of Niamat deceased duly corroborate the dying declaration.

10. Another corroborative piece of evidence relied upon by tire prosecution is the recoveries. Gun (Exh. P. 5) was recovered at the instance of Hazara appellant vide Memo. Exh. P. D. The recovery of this gun is supported by Ranjha (P. W. 10) in addition to the Investigating officer. This gun was recovered out of a box lying inside the house of Hazara appellant. The appellant could not produce any licence for this gun. After going through the statement of Ranjha P. W. and the Investigating Officer, we are inclined to believe the recovery of this gun at the instance of Hazara appellant. At the time of arrest of Muhammad Ali appellant, he is alleged to be armed with gun (Exh. P. 3). After his arrest this gun along with six live cartridges (Exh. P. 4/1‑6) were taken into possession. This recovery is supported by Nazar Hussain (P. W. 11) and the Investigat ing Officer. He could not produce any licence for this gun. We are inclined to believe the recovery of this gun and the cartridges. Since no empty was recovered from the place of occurrence which could match with these guns, the mere recovery of such unlicensed guns may be an offence under the Arms Ordnance, 1965, but will have a little corroborative value to support the dying declaration. The learned State counsel, however, has argued that the recovery of these guns from the appellants supports the dying declaration to the extent that the appellants had fired the gun shots at the relevant time and the injuries found on the person of the deceased are also gunshot wounds. After going through the relevant material and hearing the arguments of the counsel for the parties, we are of the view that in the absence of the recovery of any empty it is unsafe'' to hold that these were the guns which were used by the appellants for committing the present offences.

11. Out of the ocular evidence, Qutub Din (P. W. 8) is the father -in‑law of Niamat deceased and his enmity with Hazara appellant has been established on the record. He is, therefore, an interested and inimical witness, hence his testimony cannot be helpful to the prosecution as corroboration. In fact, the learned counsel for the State himself does not rely upon his statement. The position of Jan Muhammad (P. W. 6) is more or less the some as that of Qutub Din P. W. However, the prosecution has placed great reliance upon the testimony of Muhammad Shafi (P. W. 7) who according to the learned State counsel, is an independent and disinterested witness and was rightly believed by the trial Court. On the other hand, the learned counsel for the appellants has taken us through his statement and has contended that he is also an interested and inimical witness. Muhammad Shafi P. W. has admitted that his wife is the sister of Jan Muhammad P. W. It is also not denied that he was a party in the security proceedings under section 107/151, Cr. P. C. and he was on the side of Qutub Din complainant against Hazara appellant. Muhammad Shafi P. W. has also admitted that he was a witness in a case under section 440, P. P. C. filed by Anwar son of Qutub Din complainant against Hazara appellant, On the basis of these circumstances it is vehemently argued by the learned defence counsel that the position of Muhammad Shafi P. W. is in no way better than Qutub Din and Jan Muhammad P. Ws. Further we find that there are certain discrepancies and contradictions in his statement as compared with his statement before the Committing Magistrate and before the police under section 161, Cr. P. C. His statement under section 164, Cr. P. C. was also recorded by the Magistrate. After minutely going through his statement, we feel that it is not safe to treat him as an independent and disinterested witness. He more or less stands at par with the remaining two eye‑witnesses namely, Qutub Din and Jan Muhammad P. Ws.

12. After hearing the lengthy argument, of the counsel for the parties and going through the relevant material available on the record, we have reached the conclusion that the dying declaration of Niamat deceased recorded by the Investigating Officer (Exh. P. F.) in the presence of Lady Doctor Miss Shamim Zafar vas a genuine and true one made voluntarily by the deceased without an tutoring from any quarter. The learned defence counsel has tried to point out certain discrepancies in the statements of the eye‑witnesses regarding their presence near the dying man when his statement was recorded by the police officer. We have minutely scrutinized the dying declaration and the other surrounding circumstances and find that such discrepancies and contradictions are not material to discard the dying declaration. According to the medical evidence the deceased was in a fit condition to make that statement. We, therefore, do not attach much importance to these minor discrepancies and contradictions in the statement of these eye‑witnesses regarding their presence. The trial Court has rightly believed the dying declaration and we also agree with him as observed earlier, the dying declaration itself is not sufficient to maintain the conviction unless the same is corroborated by independent evidence. We find that such corroboration is available so far as Hazara appellant is concerned. As discussed above, motive and medical evidence are two independent corroborative pieces of evidence against Hazara appellant. The recovery of gun (Exh. P. 5) at the instance of Hazara appellant can be used only to this extent that the injuries found on the person of the deceased were the result of fire shots from a 12 bore gun. Thus, after anxious consideration of the relevant material, we are clearly of the view that the prosecution has established its case against Hazara appellant beyond any doubt. The dying declaration (Exh. P. F.) of the deceased has been duly corroborated by the motive, the medical evidence and to soma extent the recovery of gun (Exh. P. 5). Accordingly, we maintain his conviction under section 302, P. P. C. for the murder of Niamat. We find no mitigating circumstances available on the record to justify lesser penalty, Accordingly, we confirm the sentence of death awarded to Hazara appellant by the trial Court. We also maintain the sentence of fine imposed upon him by the trial Court. We further maintain his conviction and sentence under section 13 of the Arms Ordinance, 1965. The sentence of imprison ment under the Arms Ordinance will take effect only if the death sentence its not executed.

13. As regards Muhammad Ali appellant, although he is mentioned in the dying declaration, yet there is no corroboration available on the record against him. He has no direct motive against the deceased. Similarly, the medics; evidence cannot be used against him as his fire did not hit anyone. Thus, both the corroborative pieces of evidence relied upon by the prosecution are missing against Muhammad Ali appellant. The result is that so far as he is concerned, there is no corroboration D whatever available on the record to support the dying declaration. As observed earlier, it is not safe to maintain his conviction on the basis of mere dying declaration. The trial Court has already held that he had no common intention with Hazara appellant so far as killing of Niamat deceased is concerned. He was convicted under section 307, P. P. C. for firing ineffective shot. In the absence of any independent corroboration it is not safe to convict this appellant on the basis of dying declaration alone. Thus, the case of the prosecution against Muhammad Ali appellant is doubtful. Accordingly, giving him the benefit of doubt, we set aside his conviction and sentence awarded to him by the trial Court under section 307, P. P. C. and acquit him. However, we have believed the recovery of gun (Exh. P. 3) from him. Accordingly, we maintain his conviction and sentence under section 13 of the Arms Ordinance, 1965. He was convicted by the trial Court on 31‑5‑1973 and this sentence was ordered to run concurrently with the sentence of seven years awarded to him under section 307, P. P. C. He has, therefore, already undergone this imprisonment. The result is that he shall be set at liberty forthwith if not required in any other case.

14. Criminal Appeal No. 390 of 1973 stands disposed of in the above terms. Criminal Appeals Nos. 412 and 418 of 19,73 are dismissed and the convictions and sentence awarded to the appellants under the; Arms Ordinance, 1965 are maintained. Criminal Revision No. 955 of 1973 is rejected. Order accordingly.