1968 P Cr (PLP)

S. A. RAHMAN, C. J.--The appellant, Zaildar, was convicted of murder and sentenced to death by the trial Judge. On appeal and reference, the High Court of West Pakistan, Peshawar Bench, confirmed the conviction and sentence. . Leave to appeal was granted in this case, as the principal evidence against the appellant consisted of an oral dying declaration made to certain witnesses immediately after the alleged occurrence and the report of the deceased recorded by the Police, which was treate as a dying declaration. The contention was raised that the witnesses for the prosecution were not entitled to be believe, as they had failed to give the details of the statement, alleged to have been made by the deceased, when they were examined by the Police. The details included-,the motive for the crime. There was also some question as to the time of the occurrence. As all the P. Ws. were related to the deceased, the possibility of the deceased having been prompted to name the accused falsely was also said to be open. Lastly it was contended that the sentence of death was not justified in the circumstances of the case owing to the appellant being hardly 17 at the time of the occurrence. The incident took place on the 14th June 1965, at about 7-15 p. m., according to the prosecution story. Shah Baz (P. W. 6) and Ahmad Khan (P. W. 8) were sitting in their hujra at that time when they heard a shot ring out in the lane and on going in .the indicated direction they found Shah Nazar, deceased, lying injured on a cot with Nazifur Rahman (P. W. 10) in. attendance. On being questioned the deceased told them that the appellant had shot at him, because he had refused to be subjected to the unwelcome attention of the appellant, who was a sodomist. The deceased was carried in an injured state on a cot to Police Post Urmar Payan, which was at a distance of 2/3 miles from the spot. The High Court judgment appears to change this distance to 2/3 furlongs, but there seems to be no basis for that change in the evidence. The deceased himself got the first information report recorded at 8-15 p. m. and, Momin Shah, A. S. I. (P. W. 11) took it down. In this report the deceased briefly mentioned that he had been injured by a pistol shot by the appellant, as he was reluctant to be his beloved. He also gave the time of the occurrence as about 7-15 p. m. He added that he did not know as to whether somebody had arrived at the spot or not. The dying declaration had been attested at the Police Post by Shah Baz, Ghulam Hussain, Ahmad Khan and Sher Afzal, P. Ws., who had accompanied the deceased to the Police. The deceased was removed to the Lady Reading Hospital, where he was examined by Dr. Muhammad Shah on 14-6-1965, at 11-20 p. m. The doctor found on his person a firearm entry wound " x 1/3" over the lateral surface of the left chest, 4 " below and lateral to the left nipple. There was a corresponding firearm exit wound 1/2" x 1/3"`, over the right chest, 3" below the right nipple. There was no charring of the wound. The deceased succumbed to his injuries at about mid-night the same day. We have been taken through the evidence on record by Mr. Abdul Qayum Khan, on behalf of the appellant. The criticism of the evidence given by P. W. 6, Shah Baa, P. W. 7, Ghulam Hussain, P. W: 8, Ahmad Khan, and P. W. 10, Nazifur Rahman, was that they were all either closely or distantly related to the deceased and had omitted to state to the Police the motive alleged to have been given to them by the deceased in his dying declara tion, and some other details of the incident to which they deposed in Court. These omissions, however, by these witnesses are not entitled to much weight in the face of the fact that the deceased had himself lodged a report at the Police Station in which the motive as well as the essential facts of the case were given. The circumstance that all these P. Ws. are relatives .of the deceased again does not appear to have prejudiced the accused, who was no stranger to them but who was also described as their tarboor or collateral. No suggestion was made to any single witness for the prosecution that he was actuated by enmity to charge the accused with the crime. The mere fact of relationship of the P. Ws. with the deceased, therefore, would not be enough to condemn them as interested witnesses. Learned counsel also stressed the fact that according to the prosecution story as revealed by the P. Ws., the deceased was hit by the pistol shot at one place from where he moved to another place in the lane, some 127 paces from the first spot, and there he was laid on a cot by Nazifur Rahman. There was nothing extraordinary in the deceased having walked that distance after being injured in the circumstances of this case. Moreover, the absence of any blood spot in the lane was explained by the evidence given by the Investigating Officer to the effect that many persons had walked through the street and any marks that might have existed were obliterated. Again, the fact that the Sub -Inspector was unable to discover, by a local inspection, the place where the bullet, after passing through the body of the deceased, had hit a wall or the ground, cannot take away from the establish ed fact that the deceased was injured with a pistol shot. It was not suggested on behalf of the accused either in his own statement or in the depositions of his defence witnesses that the venue of the occurrence was other than the spot indicated by the prosecution. Two witnesses were examined in defence, by the appellant in the trial Court; who denied the allegations against him as totally baseless and claimed to be only 17 years old. In the committing Court he confined ',he statement to a mere denial of the occurrence but before the trial Judge he alleged that the deceased was a boy of bad character and used to tease the women of the village. On that account he suggested that he had bad relations with many villagers. Two days prior to the occurrence he had checked the deceased from visiting their houses. There was an exchange of abuses between him and the deceased on that account and the appellant had given him a slap. The appellant averred that the deceased was fired tit by somebody at about sleeping time and he was being named merely on suspicion. This version remained unsubstantiated by any evidence and the insinuation against the deceased i3 singularly inapt in view of his being a minor aged about fourteen. The two defence witnesses, Nawab (D. W. 1) and Muslim (D. W. 2), claimed to be residents of the lane in which the occurrence took place. Nawab stated that he was sitting in his house listening to the -radio set at about khuftan prayer time, when he heard the shot being fired. He rushed outside and saw the deceased lying on a cot near the house of Rahim Gul at some distance from his house. It was dark. Many people had gather ed there. No one at that time charged the accused for having fired at the deceased. Only when the Police arrived at the spot, he was informed that the accused was being named in that connection. A similar, statement was made by Muslim, D. W. 2. Considering that the deceased had himself got the first information report recorded at the Police Post, some 2/3 miles away, at 8-15 p.m. and that he was carried on a cot to that place by the P. Ws., is consistent with the timing of the occurrence given by the prosecution rather than by the defence. This circumstance strongly belies the depositions of the defence witnesses. Neither the deceased nor the P. Ws. had any motive for bringing a false charge of this nature against the appellant. The prosecution evidence was accepted as reliable by the Courts below and the points urged by Mr. Abdul Qayyum Khan In support of the appeal, merely go to the appreciation of the evidence on which the conviction of the appellant rests. In this Court's limited criminal jurisdiction, a re-appraisal of such evidence is not under taken normally, unless there are special features justifying that course. No such special features have been pointed out in the present case. Mr. Abdul Qayyum Khan invited our attention to a judgment of this Court in the case of Abdur Razzik v. The State (1) in which certain observations were made as to the necessity of taking into consideration all the surrounding circumstances before a dying declaration alleged to have been made by a deceased person could be accepted as trustworthy. The test is unexceptionable and applying it to the circumstances of this case we do not find anything in the evidence which would cast doubt on the genuineness or the truth of the dying declaration made by the deceased in this case. Learned counsel lastly argued that in view of the appellant's youthfulness the extreme penalty was not called for in the circum. stances of this case. It appears, however, that doctor Muhammad Shah, who was called as a prosecution witness to depose to the injuries of the deceased, examined the appellant in Court and estimated his age to be approximately 20 to 22 years on the 10th January 1966, i. e. about six months after the occurrence. There was no cross-examination of the doctor on this point at that time. After the trial Court's judgment it appears that a copy of a school leaving certificate from the primary school, Urmar Miana, was obtained on behalf of the appellant, which- purported to show that his date of birth was the 20th of December 1949. This, if true, would have made him less than 16 years old at the time of the occurrence. It is, however, notorious that people make under statements of ages of their children while getting them admitted to school. Not much value can be attached to this entry of the date of birth in the circumstances of this case. The certificate was obviously obtained as an after-thought subsequent to the conclusion of the trial and no suggestion was made to the doctor to whittle down his estimate of the appellant's age as 20 to 21 is Court. After giving our full consideration to the arguments advanced on behalf of the appellant we find that the conviction and sentence are unexceptionable on the facts found. The appeal has no force and is hereby dismissed. Appeal dismissed.