1976 PLP 506 (SCMR)

Mian Ziauddin, Bar‑at‑Law instructed by Amirzada Khan, Advocate-on -Record for Petitioner. Advocate‑General. N: W. F. P., Peshawar for the State. Date of hearing : 3rd February 1975. MUHAMMAD AFZAL CHEEMA, J.‑The conviction of 30isanuddla peti tioner under section 302, P. P. C. recorded by the Additional Session judge, Peshawar, with an award of ca capital punishment was upheld in appeal/refer ence by a D. B. of the Peshawar High Court, vide order, dated 28‑10‑1974, from which leave to appeal is caught in this position.

2. According to the F. I. R., which Was lodged by Qudrat Shah deceased himself on 2‑11‑1971 at 9.30 a.m. at Police Station. Khan Mai. eight miles from the scene of the crime, three years prior to the occurrence the deceased was prosecuted for the murder of shy brother of the petitioner but was acquitted. On 2‑11‑197l at about 7‑00 a.m. when two decreed was waiting for a bus near village Patwar Kili in order try proceed to Khowaishki, the petitioner armed with a rifle appeared on a tractor driven by one Wahab. Seeing the deceased, the petitioner got down from the tractor and fired at him hitting him on the right thigh. The F.I. R. which was later treated as dying declaration further went on to say that the occurrence was seen by Muhammad Rasool (P. W. 5) and Hamzullah (P. W. 6). The deceased of succumbed to the injuries later the same day when the offence was changed from one under section 307, to section 302, P. P. C. The petitioner absconded having remained at large till 16‑3‑1973. Post‑mortem examination revealed an entrance wound x 1' on the mid back of the right thigh with a corresponding exit wound 4' x 3' on the front of the thigh. The muscle and the blood vessels were torn.

3. At the trial, the prosecution case rested on the dying declaration, the ocular testimony of Muhammad Rasool and Hamzullah, the medical evidence, the evidence of motive and the circumstance of abscondence. The petitioner pleaded not guilty, alleged his false implication and tried to explain away his abscoridence on the pretext that he was all along living with his brother at Aza Khel where he was arrested. Since Muhammad Rasool P. W. was a cousin of the deceased and Hamzullah P. W. his sister's husband, besides both of them being chance witnesses, as a matter of abundant caution, both the trial Judge and the High Court excluded their testimony from considera tion. However, the remaining evidence was considered quite adequate to lay the foundation of conviction.

4. In support of the petition, learned counsel contended before us that although the dying declaration gave an impression as if the deceased had been hit on the road yet according to the prosecution evidence as also established by the site plan, the recovery of blood‑stained earth and of the bullet, the deceased was hit in the door of the house of Shah Hassan who did not support the prosecution. It was further argued that likewise Abdul Wahab, the driver of the tractor who was also a natural witness eras not examined by the prosecution and that the dying declaration was palpably false for the reasons that the two witnesses closely related to the deceased were deliberately im ported by him to the scene of occurrence to fabricate evidence. Lastly, it was submitted that the learned Judges of the High Court were clearly in fluenced by the Police diaries having specifically perused the Police statements of Wahab and Shah Hassan who had been given up as won over. It was submitted that this position stood clearly established from paragraph 6 of the High Court's judgment, which contained a reference to the perusal of Police diaries.

5. Having considered the points raised by the learned counsel in the light of the judgments of the Courts below, we don't see much substance in them. It was a case of broad daylight occurrence and the correctness of time having remained unchallenged there could be hardly any doubt or dispute as to the identity of the solitary assailant, The deceased though mortally wounded was nevertheless in a position to personally lodge the report at the Police Station. A strong motive existed for the petitioner of kill the deceased who had been acquitted in the murder case of his brother Zaheer‑ud‑din. There could thus be no question of either mistaken identity of false substitution. Medical evidence lent full support to the version disclosed in the dying declaration and on the top of it was the circumstance of the petitioner's abscondence for more than 16 months of which no satisfactory explanation was offered. He was arrested after having been declared a proclaimed offender. We are, therefore, fully convinced that even though as a matter of abundant caution, the testimony of two interested‑cum‑chance witnesses was rightly excluded by the Courts below, there was ample evidence on the record to justify the conviction of the petitioner. Having perused the dying declaration, we find that though understandably quite brief and condensed it does not come into conflict with the evidence in regard to the precise place where the deceased was hit. By no means does the dying declaration convey an impression that the petitioner was bit on the road from the front side. Finding the petitioner in a threatening posture, the deceased would naturally have tried to seek shelter in the house of Shah Hassan. We are not surprised that being under the shadow of death, the deceased did not furnish all these details in the dying declaration in that state of agony. The withholding of the tractor drives Wahab and Shah Hassan on ground of having been won over does not prejudice the case of the prosecution and makes no difference in the presence of evidence aliened. As regards the last contention about the reference to the Police diaries under section 172 (2) of the Cr. P. C, we feel that the Police diaries being evidently inadmissible in evidence were merely perused by the learned Judges for their moral satisfaction. However, a reference to this in the judgment was rather uncalled for giving rise to an erroneous impression. Mohammad and others v. Emperor (A I R 1926 Lah. 51), the authority relied upon by the learned counsel proceeds on entirely distinguishable facts. In that case having completely excluded ocular testimony, the learned Sessions Judge recorded the conviction of the five accused on the basis of inadmissible evidence.

6. The petition has no substance and is accordingly dismissed. Petition dismissed.