2001PCr (PLP)

3. Briefly stated facts of the case are that Ranju deceased while in injured condition reported the occurrence to the police in District Headquarters Hospital, D.I. Khan at 10‑40 p.m. on 30‑8‑1993 stating that at Khuftan Qaza Vela' he alongwith his son Umar Daraz (P. W.12), son‑in‑law Umer Hayat deceased and Adil, a relative (P.W.13), were present in their house when Muhammad Nawaz appellant called out‑‑the complainant at the threshold of the house. The complainant/deceased accordingly went to the door and saw the appellant standing armed with a .303 bore rifle. The appellant is alleged to have asked the complainant/deceased as to why he has not chained his dog which resulted in altercation over which the person named above also came out of the house. Appellant fired a shot hitting Ranju and the second shot hit Umer Hayat with which two of them got wounded the appellant ran way while the two injured were brought by the villagers to the hospital. The motive given was that Mst. Musarrat Bibi; wife of Muhammad Ayaz, a son of Ranju, had deserted her husband house and her sister, Mst. Shazu, had illicit connection with the appellant and that the two ladies were instrumental in instigating the appellant for the commission of the crime.

3. The prosecution in this case, had relied on the dying declaration of Ranju deceased who succumbed to the injuries after about six hours while in the hospital and they also rely on the statement of Umer Hayat deceased ‑‑?then injured recorded on 8‑9‑1993 by the police as dying declaration. Reliance is also placed on the statement of two eye‑witnesses, namely, Umer Daraz and Adil supported by medical evidence, motive and long abscondence of the appellant who was arrested on 7‑2‑1995 by Shah Nawaz (P.W.7).

4. The defence, on the other hand, has argued that F.I.R. made by Ranju is a fabricated piece of evidence. Imdad Hussain, A.S.‑I. (P.W.11) who has previously recorded such statement was not competent to record as he, was posted in a different police station than the one to which the occurrence pertains. That although the doctor was available in the Emergency Room where Ranju was being treated, yet no certificate has been obtained from him as to the .condition of the deponent, that the dying declaration was recorded in utter disregard to Police Rules and reference was made to Rule 25.21. It was argued that a dying declaration shall be recorded in the presence of a Magistrate and if not then in the presence of two gazetted Police Officers and if it was not possible, then at least two unconnected persons should have been ‑made attesting witnesses to the dying declaration.

5. While referring to statement of Umer Hayat recorded on 8‑9‑1993, it was argued that it was a simple statement recorded under section 161, Cr.P.C. and by virtue of section 162, Cr.P.C. is inadmissible in evidence and if not, the objections with regard to irregularities in recording statement of Ranju are equally applicable to the statement of Unter Hayat.

6. It was argued that the two eye‑witnesses are inconsistent with the statement of Ranju deceased, because according to the latter, the occurrence took place in the door of the house of the complainant, whereas the two eye?witnesses have shifted the venue of the crime qua murder of Umer Hayat to a different street running north‑south as shown in the site plan. It was also argued that Adil is a chance witness who admittedly hails from a different village and had not given any plausible explanation about his presence at the relevant time. It is also submitted that Ranju deceased had five sons and because they were all present in the house, therefore, they being natural witnesses should have been the eye‑witnesses of the crime and in view of socio‑cultural norms should have accompanied their injured father and injured brother‑in-?law to the hospital. Their non‑citing as eye‑witnesses would reflect that the best evidence has been withheld from the Court. It is also argued that according to the site plan, the occurrence has taken place not in the manner as given by Ranju in his dying declaration and, therefore, where dying declaration is contradicted, the same would not be relied upon. It is most vehemently argued that the motive set up by the prosecution has not been proved and even otherwise such motive was not sufficient for compelling the appellant in any manner to commit the crime.

7. PLD 1959 Pesh. page 144 has been relied by the defence in support of the proposition that where a dying declaration is contradicted by other evidence, the same is to be ruled out of consideration. 1994 SCMR page 1852 was cited to show that where doctor was available but no certificate was obtained as to the condition of deponent, such dying declaration was held doubtful. On the same point, reliance was placed on 1997 SCMR page 450 and 1998 PCr.LJ 1769. 1997 PCr.LJ page 545.was cited in support of the contention that statement of Umer Hayat cannot be termed as dying declaration. .8. We would first take up the dying declaration/report trade by Ranju deceased then injured. It gives a very straightforward version of the occurrence where a single accused; namely, the appellant is charged for causing fire‑arm injuries to the maker of the report and to Umer Hayat. Previous motive is also given in such report including the immediate motive. A Although such report has not been recorded in consonance with Police Rule No.25.21, but its evidentiary value has to be determined on the basis of all surrounding circumstances, i.e. to see if the deceased was capable of making any statement and was in his senses and if Imdad Hussain, A.S.‑I. (P.W.1) scribe of such report had any ill‑will against the sole appellant for fabricating a false statement attributing it to the injured. The procedure is laid down in Police Rules cannot be termed to be mandatory as no consequential penalty is prescribed for non‑observance of such rules. These rules are for attaching additional authenticity to the statement of the deponent. Dying declaration is made admissible under Article 46 of Qanun‑e‑Shahadat which Article does not provide any particular method and manner for recording such I 8 declaration. It can be either oral or written, signed or thumb‑impressed but it must be statement of person made by him with regard to circumstances which resulted into his death. The rule‑makers out of abundant caution ruled that it should be recorded in the presence of a Magistrate and if a Magistrate is not available, then in presence of two gazetted Police Officers and if they are not available, then two notables who are unconcerned with the maker of the statement. If in a case such procedure is not adopted and‑ if it is laid that in absence thereof the statement of an injured which later became dying declaration would be inadmissible as it would be in direct conflict with the statutory provision as embodied in Article 46 of Qanun‑e‑Shahadat. Rules IC cannot displace the effect which is ‑provided by the Statute. In view of the above proposition, the statement of Ranju recorded by A.S.‑I. Imdad Hussain when there is no challenge made to his statement that Ranju was incapable to make the statement, would be sufficient proof as to the capacity of deponent to have made the statement. The Medical Officer, Doctor Izzatuallah (P.W.3) who initially examined the injured Rajnu, has not been questioned by the defence as to the capacity of Ranju to make the statement. It was rather brought in the cross?examination that the two injured when brought to the hospital were not in shock.

9. Umer Hayat, the second deceased, admittedly died on 8‑10‑1993 whose statement under section 161, Cr.P.C. was recorded on 8‑9‑1993 while the injury was caused to him on 30‑8‑1993. The time‑gap between the injury and recording of statement and the time‑span between the recording of the statement and his death is? so wide that by no stretch of imagination one can even infer that he was not capable to make statement. The question, however, is that if such statement would be hit by section 162, Cr.P.C. or is protected under Article 46 of Qanun‑e‑Shahadat. Again, we are of the view that it is Qanun‑e‑Shahadat which makes the evidence admissible and relevant. Criminal Procedure Code provides procedure for recording such piece of evidence, therefore, where a statement made by a person with regard to circumstances which led to his death would be a statement under F Article 46 of Qanun‑e‑Shahadat and would not be subject to control under the Criminal Procedure Code where statement of a witness is recorded under section 161, Cr.P.C. during the investigation because a person who later died cannot be called a witness of the prosecution as he cannot appear nor be produced before the Court.

10. As held above; we are satisfied that the two statements though recorded by the police, one that of Ranju and other that of Umer Hayat, were dying declarations and are admissible. Whether such statements are reliable for basing conviction, is to be determined by seeing corroboration. The argument of the learned counsel for defence that the two statements are contradictory to each other is not correct. Ranju has given his statement omitting unnecessary details whereas some necessary details have been given in the statement of Umer Hayat. The main venue of the crime to the extent of few paces is varied by Umer Hayat as compared to statement of Ranju which could not detract the evidentiary value of statement of Ranju. Both the deponents have charged a single accused for the commission of the crime when there is no direct enmity between the parties.

11. The motive as set up by the prosecution with regard to appellant for the illicit relations with Mst. Shazu, sister of Mst. Musarrat wife of Muhammad Ayaz a son of Ranju deceased N not correct, as was argued by the learned defence counsel, Then tire second motive given by the prosecution regarding non‑chaining of the dog was not only alleged but consistently maintained. Absence of motive or non‑setting up of any motive cannot be detrimental to the case of the prosecution if on the basis of direct evidence the charge has been brought home against the accused. Such can be a circumstance where Courts may, keeping in view other circumstances of the case, consider it to be case of mitigation while awarding sentences.

12. Umer Daraz (P.W.12) is son of the deceased Ranjti and as the occurrence took place in front of the house of the witness and at Khuftan Vela time in the village, his presence in the house was but natural. He has no enmity of his own to charge the appellant for the commission of the crime. He has been very thoroughly cross‑examined but all could not be persuaded on a single point to discard his testimony or to hold that he was not present and has not seen the occurrence. Similar is the statement of Adil (P.W.13) I who although belongs to a different village but has testified against the single appellant for commission of the double murder. He is though distantly related to Ranju deceased, but the relationship of a witness with the deceased will only make him an interested witness but. not inimical towards the appellant. His statement and statement of Utner Daraz P.W. are consistent with regard to the main occurrence and the only inconsistency is if other sons of deceased Ranju have accompanied the injured to the hospital or is for something which is ancillary to the main occurrence and would not make the statements of two witnesses to be discardance on this ground alone.

13. The occurrence took place on 30‑8‑1993 whereas Muhammad Nawaz appellant was arrested on 7‑2‑1995 where he, is singly charged with no background of enmity between the parties. Such a prolonged abscondence would furnish additional corroboration to the statements of the two deceased as well as the eye‑witnesses. The blood‑stained earth has been recovered from the spot, also a spent bullet from near the spot which would prove the venue of the crime. The upshot of the above discussion is that the case of the prosecution stands proved against the appellant and he has been rightly convicted by the trial Court.

14. Revision has been tiled for the enhancement of the sentence from life imprisonment to death and with the prayer that compensation amount be enhanced. Perusal of paragraph No.27 of the judgment of the trial Court shows that accused was held guilty of killing both the deceased and has been sentenced to life imprisonment with a line of Rs.40,000 or in default to undergo two years' S.I. The amount of tine if recovered, half of it is payable in equal portions to the legal heirs of both the deceased under section 544‑A, Cr.P.C. The impugned judgment is not clear that the life imprisonment sentence is on two counts. In view of the fact that there is reference to altercation between Ranju and the appellant preceding the occurrence, .and the nature of altercation was not .highlighted at the trial, the awarding of sentence of death is uncalled for in circumstances of the case. However, while maintaining the conviction, we specify the sentence as under:‑‑‑ (a)??????? As charge of double murder of Qatl‑e‑Amad has been proved against the appellant, he is sentenced to life imprisonment on two counts. (b)??????? Under the law as it now stands no fine is imposable under section 302, P.P.C., therefore, instead of fine, we order that the appellant shall pay compensation under section 544‑A, Cr.P.C. to the tune of Rs.40,000 for each deceased payable to their respective legal heirs and in default of payment of such compensation to suffer two years' S.I. on each count. The revision tiled by the complainant party is allowed to the above extent. Appeal of the appellant, however, stands dismissed. N.H.Q./228/P????????????????????????????????????????????????????????????????????????????????????? Order accordingly.