2006 SCMR 1796 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.

Nasir Shah son of Pir Badshah, through this jail petition, seeks leave to appeal against the judgment, dated 12-1-2005 of a learned Division Bench of Peshawar High Court, whereby, the conviction under section 302(b), P.P.C. and the sentence of death in addition to a compensation under section 544-A, Cr.P.C. of Rs.1,00,000 recorded against the petitioner by the learned Additional Sessions Judge-III, Kohat vide judgment, dated 31-5-2004, was upheld and the murder reference was answered in the affirmative.

2. Brief facts of the case as narrated by Mukhtiar Khan son of Madan Khan deceased, then injured, are that the deceased on 1-12-2000 at about 1800 hours was present in the shop of one Anwar tailor master when Sher Muhammad Khan alias Maikh, an Afghan Refugee came there and informed him that he was being called by some one outside. He came out and saw Nasir Khan convict armed with a .12 bore pistol, who fired a shot at Bukhtiar Khan with which he got hit at abdomen in the front area. Motive was not known to the convict.

3. Both, the convict Nasir Shah and Sher Muhammad alias Maikh were tried under section 302/34, P.P.C. The trial concluded into the conviction and sentence aforesaid of the present petitioner and conviction under section 302(c), P.P.C. of Sher Muhammad alias Maikh, who" was sentenced to rigorous imprisonment for five years and a compensation of Rs.25,000.

4. The substantive piece of evidence in the instant case is the report of the deceased himself, which was lodged by the deceased in the emergency room of Liaquat Memorial Hospital, Kohat. The veracity as well as the strength of this dying declaration is to be determined by the evidence as well as the attending circumstances. It has come on record that the deceased, Sher Muhammad messenger and the convict Nasir Shah were friends inter se. In such circumstances and in the wake of no enmity at all, the charge brought about by a friend against a friend seems to be true and genuine, more particularly when the petitioner stood singularly charged for the fatal act.

5. It is a promptly lodged F.I.R. within 30 minutes and hence, in view of the singular charge and the absence of enmity, it excludes all the possibilities of prompting, deliberations and concoctions. Rather, the record shows that even his father was not present when the deceased lodged the report.

6. It is proved by Anwar Ali Khan, tailor master (P.W.12) that after Aftari which they had together, Bukhtiar was called out by someone. That soon thereafter, he heard the report of single fire shot, that he rushed out to see that the deceased was lying injured only seven paces away from the shop. He did not see anyone because by that time, which could be a matter of seconds, the petitioner as well as the c messenger had decamped. The second phase of dying, declaration in the hospital, is also proved by the same witness who, being a friend, had admittedly accompanied the injured to the hospital. He confirmed that the report was lodged by the deceased in his presence and that he had lived thereafter for about three hours. The veracity of dying declaration is above all proved by the doctor according to whose medico-legal report the injured was mentally alert.

7. The medical evidence is in accord with the statement of the deceased. Both the accused though friends otherwise, had absconded and the petitioner Nasir Shah was arrested more than five months after the occurrence on 7-5-2001. The abscondence being a supportive evidence, proves the involvement of the petitioner. All these circumstances, taken together go a long way to prove that the dying declaration in hand was promptly lodged, leaving no room for consultations or deliberations. Rather, there was no one available for such consultations and deliberations. That it is spontaneous and rings true. We hold that in the light of evidence and the attending circumstances, both the learned courts have rightly recorded and maintained the conviction as well as the sentence.

8. The learned counsel for the petitioner contended that no blood was recovered from the spot and hence the prosecution failed to prove that the occurrence took place near the shop of Anwar Ali tailor. It may he emphasized that the recovery of blood is a circumstance proving only the place of occurrence. When there is overwhelming evidence on record to sufficiently prove the place of occurrence, it makes the least difference whether the blood is recovered or not. Anwar Ali tailor is the most independent witness who has proved that the occurrence had taken place only seven paces away from his shop. The objection is not well-founded.

9. Next contention of the learned counsel for the petitioner was that the confessional statement of Sher Muhammad Khan was exculpatory and hence no conviction could be based thereon. We agree that it was exculpatory but the prosecution case is fully proved even if such statement of Sher Muhammad co-accused is excluded.

10. Learned counsel further alleged that the petitioner Nasir Khan was a juvenile and hence could not have been sentenced to death. A certificate from Principal, Pakistan Public School, Havelian, dated 12-6-2004 was produced in support of the assertion that he was born on 6-5-1985 and was more or less 15/16 at the time of occurrence. The enclosures shown in the certificate were not produced. The learned High Court has rightly discarded this certificate considering the same to be subsequently procured and afterthoughts, for, no such plea was taken at the trial. Apart from the fact, that how could an Afghan refugee belonging to and resident of Kohat would go all the way to Havelian about 150 miles away for getting admitted in a private school, there is sufficient evidence on record to suggest otherwise. In the inquest report the age of the petitioner is mentioned as 21/22 years. From statement under section 342, Cr.P.C., his age can be calculated as 20 years. At the time of charge he was 22 years. All these pieces of evidence sufficiently proved that the certificate produced at such a belated stage, was a procured one and fake altogether. No benefit can, therefore, be extended.

11. Coming to the question of sentence, it was alleged that the motive is shrouded in mystery and hence the petitioner was not liable to be imposed the normal sentence. This Court has held in numerous cases that when a case is otherwise proved, the knowledge and proof of motive is not at all necessary. Sometimes, it is known to the assailant and the Almighty alone. The evidence is suggestive of the fact that the petitioner was around and in search of the deceased, already armed with a weapon especially carried for criminal purpose. He knew as to where the deceased was and he sent a messenger after him to call him out. It is a sufficient evidence indicating premeditation of the petitioner using a weapon that does not fail and at the same time can conveniently be concealed. In the circumstances, we hold that it was never a case of mitigation in the sentence.

12. The prosecution having proved its case beyond any shadow of reasonable doubt, the learned trial Court has rightly convicted and the learned High Court has rightly maintained the conviction as well as the sentence. There being no merit in the petition, it is hereby dismissed and leave to appeal refused. S.A.K./N-12/SC Leave refused.