P L D 1976 Lahore 520 (PLP)

There is also suo moto notice issued to Muhammad Ashraf convict to xshow cause as to why his sentence should not be enhanced to that of death 'by Mr. Justice Ata Ullah Saj]ad vide order dated the 24th of January 1975, ,which constitutes the basis of Criminal Revision No. 81 of 1975. These connected matters are being taken up and disposed of together by Ahis judgment.

2. The occurrence took place on the 23rd of May 1973, at 7‑30 zp. m. in Mohallah Ahmadpura, at a distance of 2J furlongs from Police Post Ghanta Ghar and at a distance of 1f miles from Police Station City, Gujranwala. Muhammad Saddiq in an injured condition was removed to the hospital in Oujranwala where on being informed by the medical .officer, Abdul Aziz A. S. I. (P. W. 10) arrived and recorded his statement :Exh. P. E., at 9‑20 p. m. on the same day. Formal F. I. R. (Exh. P.E./2) ,was registered at Police Station City, Gujranwala, by Muhammad Hussain A. S. 1. (P. W. 6) on the same date at 9‑45 p. m Muhammad Saddiq injured was subsequently removed to the Mayo Hospital, Lahore, where he died at 3‑25 a. m. on the 1st of June 1973. Thus, his statement (Exh. P. E.) became a dying declaration in this case.

3. The motive for crime as set up by the prosecution is that about ,four years prior to the present occurrence the brother of Muhammad Ashraf appellant, namely, Muhammad Akram, was murdered by Muhammad Saddiq deceased in the present case, his brother Ashraf (P. W. 13), his nephew Muhammad Riaz (P. W. 14) and two other nephews of the deceased. They were challaned and tried but were acquitted except one Ijaz. It is stated that Muhammad Saddiq was attacked by the accused party in order to avenge the death of Muhammad Akram.

4. The prosecution has produced two eye‑witnesses of the occurrence, namely, Ashraf (P. W. 13) brother of the deceased and Muhammad Riaz 4P. W. 14) nephew of the deceased. Their names were also mentioned as such in the dying declaration of the deceased which is F. I. R. in the present case. It may be noted at this stage that both the afore mentioned eye‑witnesses had been challaned alongwith the deceased and .others in the earlier murder case of Muhammad Akram belonging to the accused party. It may be further noted that the learned trial Judge has. disbelieved both these eye‑witnesses for the reasons stated in paras. 17 and 18 of his judgment at pages 63 and 64 of the paper book.

5. Muhammad Ashraf appellant was arrested on the 8th of August 1973, by Muhammad Saeed Khan S. I. (P. W. 5). He had absconded after the occurrence and was accordingly declared a proclaimed offender. Muhammad Anwar and Zafar Ali acquitted co‑accused were' arrested by Rao Muhammad Ayub S. I. (P. W. 15) on the 23rd of May 1973, whereas Muhammad Ismail and Muhammad Aslam acquitted co‑accused were arrested by the same police officer on the 28th of May 1975. No recovery could be effected from the appellant and the acquitted co accused. However, from the spot were picked up three crime empties and two lead bullets which were taken into possession by the police.

6. In the dying declaration/F. I. R. Muhammad Saddiq deceased had stated that the occurrence took place in the following manner :‑ "I run a shop of chemicals in Pak Bazar, Gujranwala. Today at, about 7‑30 p. m. after closing my shop I returned to my house. I had just arrived at the door of my house in the street when the appellant and the acquitted co‑accused all armed with pistol&. appeared and confronted me. They all started firing at me indis criminately and the shots hit me on my chest, belly, and left flank. The motive is that about four years prior to the present occurrence Muhammad Akram son of Muhammad Anwar was murdered and in that connection myself, my brother Ashraf and three of our nephews were arrested. Subsequently, with the exception of one the rest of us were acquitted. For this reason five of the members of the accused party, retaining that grudge had opened fire at me in order to make an attempt on my life. Ashraf and Muhammad Riaz had also arrived at the scene of crime and they witnessed the occur rence." The aforementioned statement was signed by Muhammad Saddiq deceased, and there is also a note on it (Exh. P. E./1) of the medical officer to the effect that the patient was fit to make statement and remained fit throughout while making statement dated the 23rd of May 1975, at 9‑15 p. m.

7. Dr. Muhammad Iqbal (P. W. 1) medically examined Muhammad Saddiq on the 23rd of May 1973, and noted the following injuries on his: person : (1) inlet firearm wound on the left forearm, blackening around the wound was present ; (2) inlet firearm wound on the back and outer aspect of upper arm middle part with a wound of exit, blackening around the wound was present. Probe between the two wounds could be com municated ; (3) inlet wound of firearm below the left axilla, blackening around the wound was present ; (4) lacerated wound on the front of left chest ; (5) inlet wound of firearm on the back of the left lower chest,, blackening around it was present; and (6) lacerated wound on the front of left chest. These injuries according to him were caused by firearm and were kept under observation. They were all of two hours duration. He stated in the cross‑examination that when there' was blackening around the wounds, the distance between the deceased and the firearm would be less than four feet. He stated that the possibility of these injuries being inflicted: by one firearm could not be ruled out. He also stated that it was possible that all the injuries were caused by different firearms because their dimensions were different. According to him it was also possible that dimensions of firearm injuries would be different in case these were caused on different parts of the body by the same firearm. He stated that a lacerated wound ciuld also be caused by a blunt weapon and that it was remotely possible that injuries Nos. 4 and 6 in the present case had been caused with blunt weapon. The deceased was brought in an injured condition at Civil Hospital, Gujranwala, at 8‑30 p. m. and he was medically examined by him at 8‑35 p. m. He was brought by his brother Ashraf P. W. The record indicates that this medical officer informed the police vide Exh. P. G., at 8‑40 p. m. about this matter. Abdul Aziz A. S. I. P. W. arrived at the hospital in response to Exh. P. G. and vide Exh. P. H. inquired from the medical officer as to whether the patient was fit to make a statement, The medical officer vide Exh. P. H /1. certified that he waa fit to make a statement at 9‑15 p. m. on the 23rd of May 1975. It was them that Exh.. P. E. was recorded by Abdul Aziz A. S. I. P. W. Dr. Sabir Ali (P. W. 2) conducted post‑mortem examination on the dead body of the deceased at 12‑10 p. m. on the 1st of June 1973, and noted the same injuries on his person. By this time the wounds had become scabbed. In his opinion the injuries had been inflicted by firearm and that the deceased bad died of toxaemia due to septic process in the abdomen which according to him was a complication of the injury that proved fatal. He stated in the cross‑examination that the possibility that injuries on the person of the deceased were the result of four shots could not be entirely ruled out. He also stated that a lacerated wound could also be caused by a bullet or pellet released from a firearm. He stated that injuries to the large intestines could give rise to septic process which had occurred in the present case and that such complication could occur despite best possible treatment.

8. The appellant and the acquitted co‑accused in their statements before the trial Court totally denied having participated in the occurrence. They stated that they had been falsely implicated due to enmity with the P. Ws. Muhammad Ashraf appellant admitted that his brother Muhammad Akram had been murdered by the deceased, his brother Ashraf P. W. and three of his nephews and that he was an injured P. W. in that murder case. In reply to the question as to why he had absconded after the present occurrence, he stated that he never absconded. Muhammad Anwar acquitted co‑accused also stated that he was a P. W. in the murder case of his son Muhammad Akram. He further stated that his criminal revision against the acquittal of the deceased, Ashraf and Muhammad Riaz P. Ws. etc. in that murder case was still pending in the High Court. The other acquitted co‑accused made identical statements. They stated that the dying declaration in the present case was false as it was tutored or that even if it had been made by the deceased, they all had been falsely implicated due to previous enmity.

9. We have heard learned counsel for the parties and carefully perused the record. It is an admitted fact that the accused and com plainant parties in this case are highly inimical towards each other. Learned trial Judge has disbelieved the ocular testimony because according to him Muhammad Riaz P. W. was a chance witness who had no business to be present at the place from where he had stated that he witnessed the occurrence ; and that Ashraf P. W. could have not seen the occurrence from inside the room. In any case, both these P. Ws. had been implicated alongwith the deceased in the earlier murder case of Muhammad Akram I e. brother of the appellant. If they had been present on the spot along with the deceased when the attack had been launched on him by the accused party, they would have certainly not been spared. Learned trial Judge had also not relied on the dying declaration of the deceased in its entirety. Firstly, he bad disbelieved the eye‑witnesses whose names had been mentioned as such in the dying statement and secondly, in the background of enmity between the parties, he arrived at the conclusion that prudence demanded that before acting upon the dying declaration, corroboration should be sought. Thus, he disbelieved the dying declaration in respect of the four acquitted co‑accused but relied upon it only as against Muhammad Asbraf appellant for the reason that in respect of him the dying declaration was corroborated not only by motive but also by absconsion of the appellant for a period of about two months and a half .after the occurrence. There is no denying the fact that the accused and complainant parties are highly inimical towards one another. The deceased in the present case as well as the two eye‑witnesses had been implicated in the murder of Muhammad Akram, brother of the appellant and in that case the appellant had also sustained injuries and was a P. W. like Muhammad Anwar and Muhammad Ismail acquitted co‑accused. In that case, they had even filed a criminal revision against the acquittal of the deceased, and two eye witnesses in the present case etc., which was still pending in the High Court. It is, therefore, evident that the accused party in the present case had a motive to avenge the murder of Muhammad Akram. But the diffi culty is that the complainant side, namely, the two eye‑witnesses in the present case as well as the deceased were interested, hostile and partisan. Consequently in the circumstances their testimony required corroboration from some independent source which was unimpeachable or the evidence must be supported by strong circumstances. It is quite probable that the crime in the present case might have been committed by more than one accused person, say two or threb. or more of them. But since the prosecu tion evidence was tainted, being interested, the possibility of false implication of innocent persons alongwith the guilty could not be completely ruled out. There are no recoveries in the present case. The case of the prosecution is based on the ocular testimony of two interested eye‑witnesses, namely, Ashraf and Muhammad Riaz P. Ws., dying statement of the deceased who was laso interested, hostile and partisan, the motive and the medical evidence. There is also another piece of evidence, i. e. abseonsion of Muhammad Ashraf appellant for about 2'/Z months after. the occurrence. It was argued by learned counsel for the appellant that although the names of the eye witnesses, namely Ashraf and Muhammad Riaz P. Ws., were mentioned as such in the dying statement, they had been disbelieved by the trial Court. According to him if false witnesses had been included in a dying declara tion, it must not be relied upon. Reliance has been placed in support of this argument on Ali Akhtar Hassain v. The State (1972 S C M R 40). It was then submitted that the deceased was removed to the hospital in an injured condition and it is stated by the medical officer in the cross‑examination that at the time of the arrival of the deceased he did not apprehend that because of his condition he would breathe his last immediately. The statement of the deceased was recorded by Abdul Aziz A. S I. P. W. as if it was a statement under section 161, Cr. P. C. becauce according to learned counsel at that stage it was being made by the deceased without any immediate expectancy of death. It was further argued that even otherwise if it was considered as a dying statement, it had not been recorded in accordance with the provisions laid down in Rule 25.21 of the Police Rules. It was also submitted that the dying statement was not made spontaneously. The deceased bad been removed to the hospital by Ashraf P. W., his brother, and that the possibility could not be ruled out that it was tutored and, therefore, false. It was argued that the occurrence was stated to have taken place at 7‑30 p. m. whereas according to the prosecution the statement of the deceased was recorded at 9‑2U p. m. and that during this period interested ac well as partisan P.Ws. grad been around the deceased who himself was partisan. According. to learned counsel since there was no evidence. that the deceased had become unconscious after sustaining injures. he being interested and partisan himself anti surrounded by interested and partisan P. Ws. could have only made such a statement in which the possibility of innocent persons having been falsely implicated alonnwith the guilty could not be ruled out. It is evident from the record that the deceased in the present case died about 7 days after the occurrence. He was given about six bottles of blood during this period. Nevertheless he died because of toxaemia as a result of septic process. We have carefully considered the arguments of learned counsel. In our considered opinion it does not make any difference as to whether Ashraf and Muhammad Riaz P. Ws. were present at the time of cccurrence and they witnessed the same. Ashraf P. W. resided with the deceased in the same house. He had stated that he saw the occurrence from a window of baithak of their house. Muhammad Riaz P. W. did not reside in the vicinity. He was a chance witness. He stated that he saw the occurrence from the deorhi of the adjoining house. Irrespective of the fact as to whether they saw the occurrence or not, they are both interested, partisan and highly inimical witnesses. In any case they took the deceased in an injured condition to the hospital (about Ashraf P. W. it is stated by the medical officer that he brought the deceased in an injured condition to the hospital) or they were around him at the time when his statement was recorded by Abdul Aziz A S. I. P. W. At that stage when the statement of the deceased was recorded the deceased had bled profusedly and was given six bottles of blood. The deceased himself was interested, partisan and hostile towards the accussed party. He mentioned the names of Ashraf and Muhammad Riaz P. Ws. in his statement as eye‑witnesses of the occurrence and had further stated that he was attacked by the appellant and the four acquitted co‑accused who were all armed with pistols and fired at him indiscriminaA, tely. Even if we were to accept the statement of the deceased as a dying' declaration, in the circumstances of the case, we are of the considered) opinion that it would not be safe to rely on it unless and until it isl corroborated by some unimpeachable source or was supported by stroagl circumstances. For this purpose reliance can be placed on Bagh Ali and 4 others v. The State (PLD1973 SC 321). It is evident from the medical evidence that the deceased was shot at from the back, front as well as a side. From the spot three crime empties and two lead bullets were picked up, From the injuries sustained by the deceased it appears that he had received six "shots possibly of firearm such as pistol/pistols. It reasonably probable that .the crims was committed by more than one person. The assailants might have been two or three or four or more. We are also of the view that the accused party in the present case had a motive to commit the crime. However, generally speaking the prosecution evidence in the present case is tainted and there is no corroboration of the same from any independent source except that there is a strong circumstantial piece of evidence and that is absconsion of the appellant after the occurrence. It is agrued by learned counsel that absconsion by itself could not form a basis for conviction as held in Mesal and another v. The Crown (1971 SCMR 239) for it can only give some kind of support to other evidence strong enough to sustain conviction. It is further agrued by learned counsel for the appellant that interested dying declaration could not be corroborated by interested ocular testimony. Reliance was placed on Ali Asghar and another v. The State (P L D 1968 Pesh. 47). It was next argued that it would not be consistent with safe administration of justice to rely on such a dying declaration in which admittedly enemies of the deceased person were implicated even in respect of an absconding accused person among them. Reliance was placed on Abdul Razik v. The State (P L D 1965 S C 151). It was submitted that admittedly the relations between the complainant and the accused parties were highly inimical and that in such circumstances the mere abscondence of one of the accused persons was not of any significance because the possibility of false implication by opposite‑party could not be brushed aside. Reliance was placed on Muhammad Aslam and another v. The State (69 S C M R 333). It was further argued that in the present case the absconsion of Muhammad Ashraf appellant after the commission of crime was not established. According to learned counsel the testimony of two witnesses produced in this connection was unreliable. Rao Muhammad Ayub S. I P. W, had stated that Muhammad Ashraf appellant had absconded. He moved the Illaqa Magistrate for proceeding against him under section 87/88, Cr P. C. He thus obtained non‑bailable warrants for his arrest, necessary proclamation and attachment warrants which were entrusted by him to Ghulam Muhammad A. S. I. (P. W. 11) for compliance. He further stated in the cross‑examination that although he had obtained warrants for attachment of the property of Muhammad Ashraf appellant, he did rot remember the particulars of the property for which warrants had been obtained. Warrants and other connected papers were not attached with this file because they were not available in the Court of the concerned Magistrate. These papers were neither shown to him before the Committing Magistrate nor did he see them in trial Court. He further stated that it was incorrect that all proceedings under section 87/88, Cr. P. C. were fictitious. Ghulam Muhammad A. S. I. P. W. stated that he was entrusted with non‑bailable warrants for the arrest of the appellant. He went in search of him but could not find him. Thus, he could not execute the warrant of arre<.t and then returned it to the Assistant Commissioner, GuJran wala. His statement was recorded in that Court and that the appellant was thereafter, proceeded against under section 8 1/88, Cr. P. C. This witness received the proclamation order against the appellant in three copies. One of these copies was affixed by him at the house of the appellant on a conspicuous place, the other was pasted in the Court premises and the third was returned after necessary report. He stated in the cross examination that one copy of the proclamation was affixed on the corner of the street but again said that this was not done but this copy was returned to the Court with his report. He had made the necessary entry in the Roznamcha about service of proclamation. However, he was not confronted with these papers before the Committing Magistrate or before the trial Court. It is agrued by learned counsel that this evidence indicated, in the absence of record pertaining to proceedings under sec tion 87/88 against tie appellant, that the prosecution was not successful in proving or establishing the same. Reiiance was placed on Wali Muhammad and another v. The State (P L D 1973 Pesh.l35) and K. R. Easwaramurthi Goundan v. Emperor (AIR 1944 PC 54). In short the reasoning of learned counsel is that since the absconsion of the appellant was not strictly proved by the prosecution, it could not be said that this piece of circumstantial evidence supported the dying declara tion so far as the appellant was concerned. We have already observed that admittedly the parties are inimical in the present case. According to the medical officer the deceased was given six bottles of blood as he had bled profusedly. We are, therefore, of the considered view that his statement Exh. P. E. was recorded by Abdul Aziz A. S. I. P. W. while the deceased was under the apprehension of death, although he died after about seven days of the occurrence. Hence we consider it as a dying declaration. We are aware that the appellant and the acquitted co‑accused were enemies of the deceased. We are also of the view that the accused party bad a motive to murder the deceased. Since the accused party were enemies of the deceased, there is a possibility that the deceased might have implicated alongwith the guilty also innocen persons. In our view, it is, therefore, necessary that the dying declaration should be accepted only if it is supported by some strong circumstance .qua each of the accused persons, particularly when it is supported by interested eye‑witnesses. From the evidence on record we find that it was .only the appellant from amongst the accused persons in this case, who had absconded after the commission of crime. Two police officers bad .appeared and had stated before the trial Court about the taking of proceed ings under section 87/88 Cr. P. C. against the appellant. On the basis of the authorities cited above learned counsel for the appellant wants us to arrive at the conclusion that the absconsion of the appellant was not strictly proved; but in our view there is no reason why the testimony of the two police officers in this respect should be disbelieved when they had no motive to falsely implicate the appellant. If the two police officers had made false statements about the absconsion of the appellant, they could have done the same in respect of the acquitted co‑accused. Had we disbelieved the testimony of the police officors in this respect, we could have held that the absconsion .of the appellant could not be proved by the prosecution. But in the circums tances of the present case we have no reason to doubt the testimony of the two police officers respecting the absconsion of the appellant even though the relevant record connected with the matter bad not been placed on the file. 'We are, therefore, of the opinion that the dying declaration in the present .case at least qua the appellant was reliable where it is also supported by motive. In Khanan Khan and others v. The State (P L D 1966 Pesh. 232) it was held that the abscondence of the accused was a piece of evidence to be taken note of in considering the guilt of accused person in the given circumstances of a ease and could be used as a piece of corroborative evidence of his guilt. It is not unusual that a person accused of a murder might make himself scarce because of fear, but it was equally not unusual that when he had been rightly accused, he ran away to escape from the clutches of law in order to avoid answering his guilt, and his proclaimed abscondence in spite of the legal proceedings against him would be a pointer to his guilt. In that case four persons were convic!ed of an offence of murder. There was blood fued between the parties and two eye‑witnesses were interested. Benefit of doubt was given to two of them but the conviction of remaining two ,was maintained in appeal as they had absconded after the occurrence and this circumstance was considered sufficient corroboration of their participa tion in the crime. This judgment was upheld by the Supreme Court in Gul Hassan and another v. The State (P L D 1969 S C 89). Relying on the above authorities ,we are of the considered opinion that the absconsion of the appellant in the present case is sufficient corroboration of the dying declaration of ,the deceased respecting participation of at least the appellant in the commis sion of crime. Consequently, we are of the view that the conviction of Muhammad Ashraf appellant under section 302, P. P. C. was quite proper and well deserved. As for the sentence, it may be noted that the injury which proved fatal could not be specifically ascribed to Muhammad Ashraf appellant. Besides, admittedly the brother of the appellant, namely, Muhammad Akram had been murdered by the deceased in the present case alongwith others and consequently the appellant had participated in the commission of crime in order to avenge the death of his brother. These ,could be considered as extenuating circumstances for the awarding of lesser penalty to the appellant. The sentence, therefore, awarded to him by the Sessions Judge was in the circumstances also quite proper and is accordingly maintained. The result is that the appeal of the appellant, namely, Criminal Appeal No. 30 of 1975 is hereby dismissed.

10. As for Criminal Revision No. 85 of 1975, we are of the view that in the circumstances no case is made out for the enhancement of the sentence of Muhammad Ashraf appellant to that of death, nor any case is made out for the retrial of the four acquitted co‑accused in the present case. The interested dying declaration or interested ocular testimony in the present case is not corroborated by any independent evidence nor it is supported by any strong circumstance respecting the participation of the four acquitted co‑accused in the committing of the murder of the deceased in the present case. In our considered opinion, therefore, they were rightly, given the benefit of doubt by the learned trial Court. The result is that Criminal Revision No. 85 of 1975 is dismissed.

11. As for Criminal Revision No. 81 of 1975, whereby suo moto notice was issued to Muhammad Asbraf appellant by this Court to show cause asp to why his sentence should not be enhanced to that of death. In the light of above discussion, we are of the opinion that the said notice should be discharged as no case was made out for enhancement of sentence to that of death in the case of Muhammad Ashraf appellant. The result is that Criminal Revision No. 81 of 1975 is also dismissed. s. Q. Appeal dismissed.