P L D 1977 Supreme Court 41 (PLP)

MUHAMMAD AFZAL CHEEMA, J.-Mehr Khan and his servant Nawab petitioners herein seek leave to appeal from a Division Bench Judgment of the Lahore High Court, dated 4-2-76 by which their respective convictions under section 302, P. P. C. with an award of life imprisonment and a fine of Rs. 7,000 or in default of payment of the same a further three years' R. I to Mehr Khan and 6 months' R.1. under section 323, P. P. C. to Nawab recorded by the Additional Sessions Judge, Sahiwal, were upheld. The occurrence took place on 5-2-71 at 7-0U p.m. Mohr Khan petitioner sent for Bakhtawar deceased on a false pretext through his tenant Sharif a co-accused who was acquitted at the trial. He grappled with him while Nawab petitioner gave sots blows and Sharif gave him fist blows. Falaksher P. W. 11 son of the deceased also arrived and tried to rescue his father whereupon Mehr Khan petitioner took out a revolver and mortally wounded the deceased with 3 successive shots. The occurrence was witnessed by Sadan P. W. 13, Muhammad P. W. 14 and Ghulam P. W.

15. Bakhtawar was removed in an injured condition to Mian Channu Hospital in the first instance and on the refusal of the doctor to admit him which position was of course denied by him in the witness-box as C. W. 1 and was later taken to Civil Hospital, Sahiwal. Ashiq Ali A. S. I. on receipt of information went to the hospital, recorded the statement of Falakaber P. W. 11 which subsequently led to the formal registration of the case, arranged for the recording of the dying declaration of Bakhtawar by Raja Hamesh Gul Magistrate I Class P. W. 2 and prepared injury statement of Falaksher. He then repaired to the spot and completed the formalities of investigation. The two petitioners disappeared and had to be formally declared as proclaimed offenders. Nawab was arrested by Chicha Watni Police while Mehr Khan appeared before the Ilaqa Magistrate on 24-4-71 and on being arrested produced his licensed revolver which on being tent to the Fire Arms Expert was not found to be connected with the 2 bullets extracted from the dead body of Bakhtawar in the course of post-mortem which was performed at 11-00 a.m. soon after his death on 7-2-71. The prosecution case rested on the dying declaration of Bakhtawar deceased, the ocular testimony of his son Falaksher P. W. 11 who was himself injured, Sadan P. W. 13, Muhammad P. W. 14 and Ghulam P. W. 15. supported by the medical evidence and that of motive which otherwise was unusual and far-fetched. According to the prosecution Muhammad P. W. 14 who was declared hostile at the trial and whose statement before the Committing Magistrate was transferred to the Sessions' file under section 288, Cr. P. C., was a tenant of the deceased in the sense that he lived in his Ihata. He owed a sum of Rs. 275 to somebody connected with Mehr Khan petitioner as balance of the price of a pair of bullocks but refused to pay. Mohr Khan in vain pressed the demand on behalf of the unknown creditor and having unsuccessfully sought the co-operation and intervention of the deceased in this regard on the morning of the day of occurrence left him threatening with dire consequences. Placing reliance on the evidence detailed above, the trial Judge convicted the two petitioners for their individual act without invoking section 34, P. P. C. and acquitted their co-accused Sharif. The appeal filed by the petitioners as also a private revision filed by Falaksher complainant for enhancement of sentence were dismissed by the High Court vide impugned judgment dated 4-2-76 from which leave to appeal is now sought. In support of the petition learned counsel tried to criticise the judgments of the Courts below on the point of delay in the lodging of the report, the delay in preparation of the injury statement of Falaksher by the A. S.1. and his medical examination. He also questioned the genuineness and the evidenciary value of the dying declaration on the basis of a frank admission by Hamesh Gul Magistrate who recorded the same that the name of Mohr Khan as the principal accused might also have been mentioned by somebody sitting close to the deceased who was lying in an injured condition. Learned counsel also took exception to the mode of transfer of the statement of Muhammad P. W. 14 under section 288, Cr. P. C. before he was cross-examined. Lastly the consideration of the absconsion of the petitioners as an incriminating circumstance was also challenged on the ground that Siraj Din F. C. to whom warrants for the arrest of Mohr Khan were entrusted while examined as P. W. 5 did not say a word about his disappearance or non-availability. In support of these contention learned counsel also cited authorities which proceeded on distinguishable facts. As would be evident from the points raised by the learned counsel they essentially pertain to re-appraisal of evidence which is not the normal function of this Court unless a clear disregard of well-settled principles stands established as laid down by this Court in Noora's v. State PLD1973SC

469. On the point of delay learned counsel tried to capitalise the statement of doctor Farooq Ahmad C. W. 1 of Mian Channu Hospital who denied that the deceased was brought to his Hospital as alleged by the prosecution. We are not impressed by the argument. In the first instance it is common knowledge the doctors are often hesitant to accept medico-legal cases of serious nature from places beyond their jurisdiction, Mian Channu being in Multan District whereas the case pertained to Sahiwal District. Again having once refused the doctor could not have been expected to admit the patient as this could possibly expose him to the risk of departmental enquiry for dereliction of duty, as rightly held by the High Court. No fault can therefore be found with the conclusion reached by the learned Judges that the delay stood fully explained. As regards the injuries of Falaksher P. W. 11 allegedly suffered by him during the occurrence learned counsel submitted that he was not examined till 1-30 p.m. on 6-2-71 when only 3 bruises on his chest were detected whose duration was mentioned as 2 hours in the first instance which did not fit in with the time of occurrence and even otherwise according to the doctor the injuries could possibly be self-suffered. There is no force in these arguments as a specific reference in the F.

1. R. to the injuries sustained by Falaksher offers a complete answer to them. Likewise nothing would run on the rough estimate of the age of injuries given by the doctor or the mere possibility of their being self-suffered. A specific reference to them in the F.

1. R. completely excludes fabrication. It cannot therefore be said that the concurrent finding of the Courts below on the genuineness of the injuries suffered by Falaksher is open to a valid objection on the legal plane. As regards the genuineness of the dying declaration recorded by Raja Hamesh Gul P. W. 2, his frank admission of the possibility of some person attending the deceased having mentioned the name of Mehr Khan petitioner the principal accused only confirms the straightforwardness of the witness whose testimony taken as a whole leaves one in no manner of doubt that the dying declaration was free from prompting or extraneous influences as held by the Courts below. As regards the absconsion of the petitioners this fact does not stand established on the basis of the statement of F. C. Siraj Din P. W. 5 alone but the more relevant evidence is that of the Investigating Officer himself who made detailed reference to the steps taken by him in obtaining warrants of arrest and warrants of attachment. The explanation offered by Mehr Khan on his voluntary appearance before the Committing Magistrate a little less than 3 months after the occurrence showing complete ignorance of the registration of a case of murder against him was simply absurd and rightly discarded by the Courts below. As a result of the foregoing discussion I am convinced that the offences were fully brought home to the petitioners on the basis of unimpeachable ocular testimony which received full support from medical evidence and stood corroborated by the petitioner's absconsion. In my view nothing turned on p the far-fetchedness of the motive as rightly held by the High Court. In consequence, therefore, no fault can be found with the impugned judgment which proceeds on correct appraisal of evidence in accordance with well-' settled principles. The petition is, therefore, dismissed. MUHAMMAD AKRAM, J.-I have the advantage of having gone through the order passed by my learned brother, Muhammad Afzal Cheema, J. But I regret that I am unable to agree with it and, in my respectful opinion, the judgment of the High Court requires further consideration. The facts of the case are sufficiently stated by my learned brother in his order and it is not necessary to recapitulate them here at length. Suffice it to mention here that the occurrence took place on the 5th February 1971, at 7 p.m. and Meter Khan petitioner is alleged to have seriously wounded Bakhtawar deceased by firing three successive shots into him with a revolver. The occurrence was witnessed by Falak Sher (P. W. 11), Sadan (P. W. 13), Muhammad (P. W. 14) and Ghulam Muhammad (P. W. 15). The prosecution case rested on the dying declaration of Bakhtawar deceased and the ocular evidence of the witnesses supported by the medical evidence. It is not disputed that the motive attributed by the prosecution is both unusual and far-fetched. As already stated above, the occurrence took place on the 5th February 1971, at 7 p.m. in Chak No. 23/14-L at a distance of 6 miles from the Police Station Shahkot, District Sahiwal, but the F. I. R. in the case was not recorded until 5.20 p.m. on the 6th February 197 ) . With a view to explain this delay, it was made to show that after the injuries, Bakhtawar was brought to the Hospital at Mian Channun where under the advice of Dr. Farooq Ahmad (C. W. 1). he was taken to the Civil Hospital, Sahiwal at about 5 a.m. On learning about the occurrence, Ashiq Ali, Sub-Inspector (P W. 16) reached the Hospital in the morning of the 6th February 1971. and recorded the statement (Exh. P. A.) of Falak Sher (P. W. 11) at about 9-40 a m. on the basis of which the formal F. I. R. was recorded at the Police Station, Shahpur. C. W. 1, Dr. Farooq Ahmad, Deputy Medical Superintendent, Services Hospital, Lahore was examined at the trial. He deposed that in February 1971, he was posted as Medical Officer at Civil Hospital, Mian Channun and denied that Bakhtawar deceased was brought him in injured condition or that he had advised that he should be taken to Civil Hospital at Sahiwal. He deposed that he used to attend all emergency cases and if any injured person in a serious condition was brought to him and if be was to be referred to any hospital, an entry to that effect is made in the Out-door Register. lie further deposed that he would not refuse to provide necessary first-aid if an injured person is brought to him before he is referred to some other Hospital. It is difficult to get rid of this forthright statement made by the Doctor merely on surmises and conjectures alone. According to the prosecution Falak Sher informant, who was an eyewitness. had also sustained injuries at the time of the occurrence. But no injury statement in respect of him was at all prepared by the Investigating Officer and he was not medically examined till 1-30 p.m. on the 6th February 1971, when only three bruises were detected on his chest and their duration was mentioned as two hours in the first instance. This gave a complete lie to the prosecution version that he had sustained these injuries at the time of the occurrence on the 5th February 1971 at 7 p.m. Even otherwise, according to the opinion of the Doctor, these injuries could possibly be self-suffered. In the circumstances, with due deference, I cannot subscribe to view that merely because there is a specific reference to these injuries in the F. I. R. that completely excluded the possibility of a fabrication. The dying declaration of Bakhtawar deceased was recorded by Raja Hamesh Gul, Magistrate (P. W.), Sahiwal. He deposed that on the 5th February 1971, at 12-20 p.m., he had gone to the District Headquarters Hospital, Sahiwal and recorded the dying declaration of Bakhtawar deceased. He, however, admitted in his cross-examination that 7 or 8 persons were present near the injured talking to him when he reached there. He deposed : "I do not remember if some one near the injured person had named Mehr Khan. I think I so stated before Committing Magistrate (confronted, so recorded)." In my opinion, this admission by the Magistrate considerably detracts from the veracity of the dying declaration thus recorded by him. Reliance was also placed on the absconsion of the petitioner, but, at best, this is by-far the weakest corroborative piece of evidence on which reliance could be .placed. In the Law of Evidence by M. Monir (Vol. I, page 61, 1974 Edn.), it is stated that absconding is equally consistent with innocence and guilt and that it is a proper matter to be considered alongwith the other facts of the case, whether they bear upon guilt or upon innocence and that different persons are differently constituted and some accused persons, innocent, deliberately abscond rather than face the ordeal of a criminal trial. The injuries belatedly discovered on the person of Falak Sher (P. W. 11), are doubtful in nature and it is doubtful if at all he was actually present at the time of the occurrence. Moreover, Muhammad (P. W. 14) did not support the prosecution version at the trial. In the light of these facts and circumstances, in my respectful opinion, leave to appeal should be allowed to the petitioners in this case. MUHAMMAD GUL, J.-I have had the advantage of reading in advance the divergent orders proposed by my learned brethren Muhammad Afzal Cheema and Muhammad Akram, JJ., I agree entirely with the conclusion reached by the former that the petition be dismissed. What follows are additional reasons in support of that conclusion. It is true, that it was observed by this Court in the recent case of Noora v. The State that this Court as a Constitutional Court of Appeal functioning at the apex of the judicial system in the country is no more inhibited by the practices of the Privy Council and the former Federal Court, which imposed restriction on the ambit of their jurisdiction in criminal matters. But at the same time the Court drew a clear distinction between an appeal as of right, or the scope of an appeal after grant of leave and a petition for the grant of leave in a criminal matter. On that aspect of the matter it was observed at pp. 492, 493 of the Report as follows : "In the matter of granting leave, this Court undoubtedly has a discretion vested in it which, as has been pointed out by Lord Watson in Dillet's case, may well not be exercised in favour of an applicant for leave, even though the Courts below might have committed an error of law of such a grave nature as would have justified leave. The Court would, in such cases, be entitled to refuse leave, if it comes to the conclusion that the Court below had on the whole done substantial justice and no useful purpose will be served by granting leave and thereby raising a false expectation in the minds of the persons affected. From this it would also follow that, in the matter of granting leave to appeal, as this Court has repeatedly emphasised, it does not function "as an ordinary Court of criminal appeal". In order to justify the grant of leave, at least some serious question of law must prima facie be made out or some case of grave miscarriage of justice established either by reason of the fact that the findings sought to be impugned could not have been arrived at by any reasonable person or that the findings were so ridiculous. shocking or improbable that to uphold such a finding would amount to a travesty of justice. The limitations, which the Court imposes on its powers are, however, only such as are implicit in the nature and character of the power itself. They cannot be defined with any precision, because, it is not advisable to fetter the exercise of this discretionary power by any set rule. The Court will no doubt use its good sense in determining the circumstances in which it will grant leave and will exercise its, discretion on well-established principles; but where the Court reaches the conclusion that a person has been dealt with in violation of the established principles of the administration of criminal justice, then no technical hurdles should be allowed to stand in its way of doing. justice and seeing that injustice is not perpetuated or perpetrated by the decisions of the Courts below." In the same context the Court went on to observe : "As an ultimate Court, we must give due weight and consideration to, the opinions of the Courts below, and normally we should not interfere with their findings where we are satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below; but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the Court to come to its own independent finding upon a re-examination of the evidence untrammelled by the opinions of the Courts below." These then are the limitations, which are to be clearly borne in mind in deciding this leave petition. The point to emphasise is that at the present stage, the case, according to the practice of the Court followed over the years since commencement of the 1956 Constitution, has to be considered subject to the above limitations. Else the distinction between an appeal as o right and a petition for special leave will be obliterated and the meticulous provisions in the Constitution separately dealing with appeals as of right an appeals by special leave of the Court would be rendered in vain. Coming to the facts of the case, the trial Court and the High Court have accepted the prosecution version by relying upon the dying declaration and the statements of the Falak Sher, Sadan and the statement of Muhammad Khan brought on the record of the Sessions Court under section 288, Cr. P. C. The first-named is son of the deceased but is an injured witness The injury on his person confirms his presence on the spot. Delay in the F. I. R. and the medical examination of Falak Sher has been amply explained., Sadan is unrelated witness so also Muhammad Khan. Then there is the statement of Ghulam who has been treated by the Courts as natural witness, It may be that the motive for the incident is rather unusual. But it is common experience in life that human mind at times works mysteriously. And this appears to be a case of that kind. Nevertheless, the evidence relating to motive was not rejected by the Courts either. As to the evidentiary value of the dying declaration, merely because the Magistrate did not ask others to clear out is no reason for its rejection. There is no law requiring that a dying declaration should be recorded in camera: all that is necessary is that the dying declaration, must be voluntary, spontaneous and unprompted statement of a dying man as to cause of his approaching death. The fact that the incident took place at about 7-00 p m. in the month of February, after sunset would not make any difference. The parties belonged to the same village and fully knew each other, therefore it is not reasonable to suggest that it is a case of mistaken identity or false implication. Why should the complainant or the deceased spare the real culprits if the were not the respondents is not explained. Speaking for myself and I say so with respect that there is overwhelming evidence to sustain the conviction of the petitioners. To grant leave on the points canvassed in their behalf would be contrary to numerous case decided by this Court. I would therefore, refuse leave. ORDER OF THE COURT In view of the majority opinion of the Court, the petition is dismissed. S. A. H. ????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.