2002 PLP 1843 (YLR)

(6) An exit wound according to MLC 2/3 c.m. x 2/3 c.m. on the posterial lateral. aspect of left buttock but injuries Nos.5 and 6 were not visible due to surgical incision.

11. Dr. Azmat Ullah P.W.14 conducted the post‑mortem examination of Atta Muhammad deceased and observed the following injuries:‑‑ (1) An entry wound of fire‑arm 1/2 x 1/2 c.m. on the back of right thigh, 20 c.m. above the pint and 30 c.m. blow the crest of hip bone. Edges were burnt and blackening was present around the wound. (2) A wound of fire‑arm 7 x 4 c.m. on the front of right thigh, 14 c.m. above the knee and 20 c.m. below the enterior, superior, illica spine, The bullet was recovered from this wound. It was an exit wound. (3) An entry wound of oblique 2 x 1 c.m. of fire‑arm on the outerside of left knee joint, 40 c.m. above the ankle joint left side. Blackening was present and the edges were burnt. (4) An exit wound of fire‑arm 9 x 4 c.m. on the inner side of left thigh about 17 c.m. below scrotum and 4 c.m. above the knee joint. The death had been caused as a result of Injuries Nos. 1 and 3 which were ante‑mortem and sufficient to cause death in ordinary course of nature.

12. This doctor on the same day, also conducted the post‑mortem examination of Muhammad Amir deceased and observed the following injuries on his dead body:‑‑‑ (1) An entry wound of fire‑arm 1/2 x 1/2 c.m. on the outer surface of left shoulder joint, 6 c.m. below the tip of the left shoulder and 25 c.m. above the left elbow joint. Edges were burnt and blackening. (2) An entry wound of fire‑arm 1 x 1 c.m. on the back of left shoulder, 10 c.m. below the top of the shoulder and 10 c.m. from mid line. Edges were burnt. (3) An exit wound of injury No. 1, 11 x 4 c.m. on the right side of back, starting from mid line and 13 c.m. below the top of shoulder. (4) An entry wound of fire‑arm 1‑1/2 c.m. x 1 c.m. on the left side of base of penis, 15 c.m. below the umbilicus and 20 c. m. from the left enterior, superior illica spine. Edges were burnt. (5) An exit wound of injury No.4, 3 x 1 c.m. on the right side of base of penis, 18 c.m. below the umblicicus and 22 c.m. from the right enterior, superior illiac spine. The same exit wound caused the entry wound from the inner side of right thigh 20 c.m. below the umbilicus and final made the exit wound 2‑1/2 x 1‑1/2 c.m. on the lateral side of right thigh outerside about 18 c.m. below the illica crest and 24 c.m. above the knee joint. (6) An entry wound of fire‑arm 1 /2 x 1/2 c.m. on the inner side of right thigh, 21 c.m. above the knee joint. Edges were burnt and blackening. (7) An exit wound of injury No.6, 3 x 2‑1/2 c.m. on the outer side of right thigh, 20 c.m. above the right knee joint. (8) A fire‑arm wound on the little finger of left hand which led to the fracture of bone and the finger was hanging with the tag of skin. All the injuries were ante‑mortem, had been caused with fire‑arm and Injuries Nos.1, 2 and 4 were sufficient to cause death in ordinary course of nature.

13. This Doctor i.e. Dr. Azmat Ullah P.W.14 made the statement on 12‑8‑1998, reference to which has been made supra as well, that a query was made from him vide, Exh.PT regarding the capability of Muhammad Naseer injured to make a statement and this witness vide Exh.PT/1 declared that patient was unfit for statement. Subsequently anyhow the patient was again examined by this doctor and vide his Certificate. Exh. PT/2 he observed that patient was fit to make a statement. Exh.PT/2 had been signed by this witness which was proved by him in Court. The patient was examined by Ghulam Murtaza Inspector P.W.17. In his presence the statement Exh. PU was made which was read over to Muhammad Naseer injured at that time who accepting the same affixed his thumb‑impressions on it. The statement was duly attested by the doctor by affixing his signatures thereon. It was certified that Muhammad Naseer remained in senses during his statement throughout. During the course of cross‑examination in answer to question, the doctor explained that there was no, relation of the deceased present when his statement was recorded in Ward.

14. Dr. Muhammad Saleem P. W .15 issued the Death Certificate on 2‑9‑1998 that Muhammad Naseer had expired in the Hospital at 8‑00 a.m. The gun shot injury had shattered rectum causing septicimia and multi failure of organs. The cause of death was cardio pulmonary arrest. The death certificate Exh.PV was filed by him.

15. Amongst the remaining witnesses, the most relevant witnesses are Gul Muhammad P. W .16 who is an eye‑witness of the occurrence and Zamurd Abbas P.W.13 who is witness of encounter which he. had with the accused just after the occurrence. According to Gul Muhammad P.W.16 he was present in his house and on hearing the reports of fire rushed towards the lane near the Baithak of Atta Muhammad where he saw Tahir Khan appellant present in Court, armed with Klashnikov behind the wall of Baithak of Atta Muhammad deceased. Due to fires made by Tahir accused, Atta Muhammad, Muhammad Amir and Muhammad Naseer were injured. Atta Muhammad and Muhammad Ameer died at the spot. Tahir Khan fled away after the occurrence. Ghulam Hussain the first informant reached the site of occurrence and removed Naseer to the Hospital. He, however, remained present with the dead bodies. The motive was stated to be that Tahir Khan appellant intended to take away Zamurd Abbas P.W. with him but Muhammad Naseer and Atta Muhammad forbade and prevented Zamuid Abbas not to accompany Tahir Khan accused due to which the appellant bore grudge against the deceased. This. witness joined the investigation and the recoveries effected from the place of occurrence were attested by him. He was subjected to quite lengthy cross -examination. He stated that Ghulam Hussain (the first informant not produced) reached the spot two mintues after the occurrence and by that time Tahir Khan had already fled away. This witness made a statement to the police whereas Ghulam Hussain made a supplementary statement, wherein, he, according to him, put up the true version. A straight question was put to this witness as to whether he was aware who were the accused nominated in the F.I.R, to which he answered in negative. He, however, supplemented by saying that Ghulam Hussain had nominated some accused out of some misconception and confusion, which of course had wrongly been done. This witness furnished the details of the occurrence which establishes the fact that he had in fact seen the occurrence and had come forward with truthful account of the incident. He denied the allegation that he implicated the accused at the instance of Ikram Ullah Khan, a former MPA of the area.

16. The next witness from public is Zamurd Abbas P.W.13. He is son of Muhammad Naseer deceased, paternal nephew of Atta Muhammad deceased and also nephew of Muhammad Ameer deceased who was cousin of his father Naseer. On 11‑8‑1998 at about 9‑00 p.m. he alongwith Ghulam Abbas was present at a distance us about one Killa from his house. On hearing the reports of fires he (Zamurd Abbas) and Ghulam Abbas were attracted to the site of firing. They saw that Tahir Khan armed with Klashnikov passing by them, they enquired from him as to what was the firing about, on which he aimed his Klashnikov on them that he has already murdered three persons, therefore, he will kill them also. This witness went forward to the place of occurrence and found that Atta Muhammad and Muhammad Ameer were lying dead and his father was injured, who was despatched to the Mianwali hospital. This witness also stated about the motive that appellant wanted him to become his companion in his errands for committing offences but the deceased persons forbade and stopped him from joining Tahir Khan accused appellant due to which the appellant nourished grudge against the deceased which culiminated into their murders.

17. Ghulam Murtaza, Inspector P.W. 17 carried out the investigation. He moved application Exh. PT for obtaining permission from the doctor and verification of the fitness of Muhammad Naseer injured to make a statement. He after obtaining Certificate Exh.PT/2 by the doctor proceeded to record statement of Naseer Exh.PU which was read over to the deceased and this witness attested the same by affixing his signatures. Detailed questions with regard to abscondence of the appellant were put to him, who had absconded after the occurrence and Muhammad Aslam, Constable vide Exh.PF had obtained warrants of his arrest, subsequently vide Exh.PB proclamation under section 87, Cr.P.C. was obtained from concerned Magistrate, Mianwali and thereafter, appellant was declared as absconder. He was arrested about nine months after the occurrence on 17‑5‑1999 by a raiding party convened by D.S.P. CIA, of which this witness i.e. Ghulam Murtaza, Inspector was also a member. Various raids were conducted, whereafter, the appellant was arrested alongwith Klashnikov, five magazines P‑6/1‑5 containing 125 live bullets P.7/1‑125 containing a bandoleer P.8. The klashnikov and other articles were secured into possession vide memo. Exh.PA. On completion of the investigation, as sufficient material and evidence had been collected, the appellant was sent up to face trial in the Court of Ch. Javed Iqbal, learned Special Judge A.T.A., Sargodha. 18. 'The appellant was examined under section 342; Cr.P.C. wherein he denied the allegations against him and in answer to Question No.9, he made the following reply:‑ "During the days of my absconsion in an other case, Mst. Beebo came over to me as my beloved. She is the daughter of Muhammad Amir deceased. On interference of elders she was sent back to her parents. On that account the complainant party had animus against me and on that account I had been falsely implicated in this case. All the witnesses are family members of the deceased and due to his grudge they appeared against me. I am innocent." He did not produce any evidence in defence nor he opted to appear as his own witness.

19. From the above description of facts end narration of incidence, the prosecution case rests upon the evidence of dying declaration Exh. PU and statement of Gul Muhammad and Zamurd Abbas P.W.16 and P.W.13 respectively. As described in brief all the three pieces of evidence are corroborative to each other on all material points. The learned counsel for the appellant has, however, assailed and challenged the conviction rather vigirously and advanced arguments. The main thrust of argument was of course with regard to the F.I.R. Exh. PZ which had been recorded at the instance of Ghulam Hussain who is a close relation of the deceased. According to the learned counsel, it was not unconsidered or wanton statement made by Ghulam Hussain, rather he made the statement by giving the details of the incident and he specifically named four accused persons alongwith their respective weapons and they had been specifically attributed fire arm injuries on the person of the deceased. According to the learned counsel, it was he who removed the injured to Hospital. According to learned counsel Exh.PZ being the first version merits reliance and the subsequent version put forward by the witnesses and the deceased is doubtful and may not be relied upon; that in fact the occurrence took place at 9‑00 p.m. when it was quite dark being late evening, therefore, it could not be ascertained as to who could be assailant: The prosecution version that accused appellant was one who had committed the murder could not have been identified at the place of occurrence; that had Gul Muhammad or Zamurd Abbas seen the occurrence or the appellant soon after the occurrence then they must have informed Ghulam Hussain and he would not have come forward with story as put forward in the F.I.R. It is, therefore, inferred that these two witnesses have not seen the occurrence; that although empties have been recovered from the place of occurrence but Klashnikov and the empties were not sent to the Forensic Science Laboratory for comparison and for getting the Klashnikov and empties examined together; that the dying declaration is not acceptable for the reason that no Magistrate was asked to superwise the statement made by Naseer deceased, therefore, in absence of any attestation by a Magistrate, statement recorded at the instance of Naseer deceased becomes doubtful and should be excluded from consideration.

20. The learned counsel for the complainant and the State have fully supported the prosecution version. According to them, witnesses are truthful and the dying declaration made by Naseer deceased was absolutely true and reliable, a perusal of the same inspires confidence. They therefore, have supported the conviction and sentence as awarded to the appellant.

21. The first contention with regard to non‑production of Ghulam Hussain and the fact that first version contained in Exh.PZ is altogether different from the subsequent version brought on record, i.e. report under section 154, Cr.P.C. It is true that normally the first version given to the police by way of F.I.R. is treated quite significant and importance is attached to it. However, it stands undisputedly settled that F.I.R. is not a substantive piece of evidence. It can be uses as previous statement of a witness and he can be confronted with the same if the first informant appears in Court and makes a statement. In absence of examination of maker of the F.I.R., same cannot be treated as a part of evidence. Apart from that legal hitch or technicality, an extremely credible evidence has come on record which negates and nullifies the story of Ghulam Hussain. Not only that Gul Muhammad P.W.16 has unequivocally stated on oath in Court that Ghulam Hussain reached the place of occurrence about 2/3 minutes after the incident and by that time Tahir Khan had fled away. It appears that as it has become a practice with the police or with the prosecution that efforts are made to obtain statements of close relations or some other person who in the opinion of the police would be acquainted with the facts of the case. If the first informant or the complainant appears to be undoubtedly present at the time of incident or had seen the occurrence then this statement or version would carry a substantive weight but if it transpires that the first informant had not seen the occurrence or had just acquired the knowledge from some unreliable source or his version was based on mere presumption or suspicion then the Investigating Agency as well as the Court should make all the just and fair attempts to dig out the truth and ascertain true facts. The F.I.R. after all cannot be equated with the plaint in a civil suit. It has been noticed in number of cases that F.I.R. is regarded like a plaint and even if some erroneous information is laid down out of some confusion or misconception, the same is adhered to or is treated as substantive piece of evidence. Adverting to the facts and circumstances of the case in hand and not considering the F.I.R. in generality, an undeniable fact has come on record that Naseer deceased did not die at the spot and was removed to the Hospital in an injured condition. Obviously he was under a shock and distressed trauma when he was examined by the doctor. The doctor also described that patient was under a deep shock. Naseer being victim of the assault was one of the deceased person. He had definitely seen his assailant who mounted attack on him and his two companions who succumbed to the injuries at the spot. At the time of his medical examination by the doctor he (Naseer) was not fit to make a statement. The opinion of the doctor is supported by the gravity of injuries sustained by him which must be extremely painful. After receipt of some aid or medical treatment, the injured gained senses and he was in a better frame of mind and as such was certified to be capable of making a statement.

22. The statement Exh. PU is most credible and valuable piece of evidence brought on record. The doctor who examined the patient on first examination did riot find him fit to make statement but subsequently he was found to be fit to make a statement. First query was made by the Investigating Officer and then the second query was made by him which indicate and suggest the efficiency and anxiety of the Investigating Officer to find out the truth as to who were the real culprits. This anxiety on the part of the Investigating Officer is indicative of the fact that he perhaps was not satisfied with the description of the accused persons in the F.I.R. When the statement of Naseer was recorded only thin Investigating Officer and the doctor were present and no other witness or relation or any friend was present near the injured. Had that not been so, he perhaps would not have come forward with the statement as has been made by him. The very perusal of the statement reflects that same was made voluntarily. The injured was under imminent danger of death. He was suffering from tremendous pain, in such a situation it appears not only improbable rather impossible that the injured would have made a false, statement. According to him the attack was mounted and all the three victims including Naseer himself lost their lives, as a result of shots fired by Tahir Khan appellant. At the close of his statement, Naseer deceased was so firm and positive that he reiterated by pressing that Tahir Khan alone was the culprit and no one else was associating with him. This sentence adds a lot to his credibility because no attempt was made to falsely implicate any innocent person. It is generally known that in District Mianwali where the occurrence took place enmities in between the various persons and factions are very common. The deceased did not in any manner intend to pollute his statement with even a trace of falsehood. A short and concise statement was made which was read over to him and on re-verification it was attested by the doctor. A doctor to our mind is absolutely independent witness. In the circumstances of I, the case, his credence or testimony cannot be doubted. His attestation as such is as authentic as that of any Judicial Magistrate. An explicit reliance can safely be placed on the testimony of Naseer deceased (Exh. PU) and there is no doubt that same in any manner lacks any of the ingredient of dying declaration. It is also settled law that if a dying declaration appears to be truthful and voluntary then conviction can be based on this sole piece of evidence.

23. The dying declaration is supported by Gul Muhammad P.W.16 whose testimony I cannot be undermined or doubted because he is also a natural witness. He resides within the vicinity of the place of occurrence and his attraction to the place of occurrence and having witnessed the same cannot be doubted. He has supported the statement dying declaration made by Naseer deceased, on all material points. His statement is further supported by Zamurd P.W.13 who is son or one of the deceased and close relation of two other deceased. After his father had been murdered and two of his uncles also met the same fate, he could not have falsely implicated Tahir Khan appellant. Assessing and analysing the intrinsic value of the dying declaration and the statements of the witnesses, fact that inspite of murder of three persons no attempt has been made to implicate anyone else other than Tahir Khan appellant, had there been any intention to falsely implicate any innocent, person out of some vindictive purpose the same could have very conveniently been done by the witnesses, the fact that all the three murders have been attributed to appellant Tahir Khan alone, leave no doubt in mind that he is the actual culprit. The implication of Tahir Khan appellant further finds strength from his conduct. He after the occurrence fled away from the place of occurrence and could be arrested nine months after the incident. He was arrested while armed with Klashnikov and with heavy amount of ammunition carried by him. Although the learned counsel has contended that abscondence has not been proved and even if same is done, abscondence by itself cannot be treated as an incriminating evidence. The contention may contain some substance but the fact remains that abscondence in the present case does lend credible support to the prosecution case. The statements of the witnesses are supported by the medical evidence. All the three doctors have described the injuries on the persons of dead had been caused with fire‑arm as alleged by the prosecution. This support by medical evidence is another reliable piece of evidence.

24. Although evidence with regard to motive has not been brought in detail vet the fact remains that two witnesses have stated on oath that appellant intended to associate Zamurd P.W.13 with him as a member of his gang. As he was prevented by his elders, all the three had been done to death. This motive not only proves the case of the prosecution, rather further specifies that how dangerous and desperate person the appellant is.

25. By taking all the aforesaid pieces of evidence together, we find that prosecution has proved the guilt of the appellant beyond any doubt. He has rightly been convicted under section 302, P.P.C. for the murders of three deceased. His conviction under section 302, P.P.C. on three counts is, therefore, upheld and maintained.

26. Although the learned counsel argued half heartedly that it was a night ‑occurrence and possibility cannot be ruled out that Tahir Khan may be accompanied by someone else as well, therefore, sentence of death may be converted to that for imprisonment for life. The contention does not contain any force. All the three murders stand proved to have been committed by Tahir Khan accused appellant, therefore, there is absolutely no extenuating or mitigating circumstance in his favour. The imposition of death on all the three counts is fully justified which is upheld and maintained.

27. An error appears to have crept‑in while recording the Judgment by the learned trial Judge with regard to imposition of fine, as under section 302, P.P.C. no fine can be imposed, therefore, the same is set‑aside. however, under section 544‑A; Cr.P.C. the imposition of fine of Rs.50,000 on three counts is converted into compensation after notice to the learned counsel for the appellant. The appellant would, therefore, pay Rs.50,000 as compensation to the legal heirs of each three deceased. In absence of which, he will further suffer six months' S.I. on each of three counts:

28. The conviction has been passed under section 7 of A.T.A. as well. The manner in which the occurrence took place and loss of three lives was caused does not leave any doubt that the appellant committed a terrorist act within the meaning of section 6 of the Anti‑Terrorism Act. Therefore, his conviction and sentence under section 7, A.T.A. is also upheld and maintained. As a result of above discussion, Criminal Appeal No.426 of 2000 on behalf of Tahir Khan accused appellant is dismissed. Murder Reference is answered in affirmative. Sentence of death on three counts is confirmed. N.H.Q./T‑91/L Appeal dismissed.