P L D 1984 Supreme Court 375 (PLP)

ASLAM RIAz HUSSAIN, J.-Muhammad Afzal appellant (complainant) sought leave to appeal against the dismissal of his revision petition against the acquittal of the four respondents in a murder case. The facts, briefly, are that respondents Nos. 1 to 4 and Akbar Khan (since deceased) were accused for the murder of as many as four persons, namely, Muhammad Gul, Fazal Malik, Faizullah Khan and Shafi-ur-Rehman and the attempted murder of Sher Alain and Noorul Haq. The accused respondents are related Inter se and also closely related to some of the deceased persons; inasmuch as wife of Muhammad Gul and the wife of Akbar Khan accused (since dead) were real sisters inter se, while Zar Muhammad accused-respondent was the real son of Said Akbar Khan and Faqir Muhammad was the nephew of Akbar Khan.

2. The motive for the offence is that two/three months before the occurrence there was an exchange of fire between Akbar Khan etc. on the one side, and some members of the Mohmands Tribe on the other, in which two sons of the aforesaid Akbar Khan had lost their lives while Zar Muhammad, respondent was injured and one person from the side of the Mohmands was also killed. Cross-cases were registered, which were still pending. Muhammad Gal (deceased) who was an elder of the Mohmands Tribe used to pursue the case on behalf of the Mohmands.

3. The incident took place at about 10 a. m. on 14-9-1975, when Muhammad Akbar and the 4 respondents, who were armed with fire-arms, ambushed Muhammad Gal (deceased) and his two relatives, namely, Fazal Malik (deceased) and Faizullah (deceased) on the road running between Nowshera and Mardan and moved them down. Shafi-ur-Rehman, the gatekeeper of a nearby building was also killed while two other persons, namely, Sher Alain and Noorul Haq also got injured during the firing. These two persons had witnessed the occurrence. So, had Muhammad Jan (P. W. 8) who was present nearby. The accused, thereafter, decamped alongwith their respective weapons. A car coming from the direction of Nowshera was stopped and the injured persons were carried in it to the D. H. Hospital, Mardan. In the hospital Dr. Said Saboor (P. W. 10) recorded the statement of Muhammad Gal (deceased) in Urdu at the dictation of Dr. Muhammad Alain Khan (P. W. 11), who was simultaneously translating it from Pushto. It was then signed by both the doctors. This statement formed the basis of the formal F. I. R., recorded subsequently at the Police Station, and after the death of Muhammad Gul it was treated as his dying declaration. It is a very short statement and reads as follows:

5. Since Akbar Khan accused (now dead) had absconded and could not be traced, only respondents Nos. 1 to 4 were sent up for trial.

6. At the trial the prosecution case was supported by Muhammad (P.W. 8), who gave the eye-witness account, but Sher Alam and Noorul Haq who were injured during the incident, considered it safer to compromise4the matter with the accused and not to appear as witnesses against them. They were consequently not produced. The prosecution also relied on the dying declaration made by Muhammad Gul (deceased); the motive and the medical evidence. The prosecution evidence was, however, not relied upon by the trial Court, which acquitted them. The appellant filed a revision against the acquittal of all the respondents, but subsequently the complainant requested for the deletion of the name of Said Rehman as he could not be served. The revision was, therefore, heard by the High Court only as against the remaining 3 respondents. It was, however, dismissed by the High Court vide the impugned judgment. Consequently the complainant came upto this Court for grant of leave to appeal against the said judgment and also included the name of Said Rehman amongst the respondents. Leave was granted to him for reappraisal of the evidence in order to ensure that the respondents had been rightly acquitted.

7. We have gone through the judgments of the Courts below as also the relevant portions of the evidence on the record, and have also heard the learned counsel for the appellant who supported the reasoning of the High Court for disbelieving the dying declaration, the eye-witnesses and the other prosecution evidence.

8. We notice that the two Courts below had disbelieved the dying declaration made by Muhammad Gul deceased. One of the reasons given by the High Court for disbelieving the dying declaration was that Muhammad Gul was so badly injured that he was probably not in a fit condition to make a statement. But after having carefully gone through the description and location of the injuries sustained by Muhammad Gul (deceased), we find that, it is not at all impossible for a man having sustained these injuries to have) spoken a few words. This is supported by the fact that the two doctors present with him at that time had certified that he was in a fit condition to make such a statement. The main attack against the veracity of the dying declaration, however, was that it was fabricated by the two doctors of the hospital where Muhammad Gul (deceased) and other injured persons were brought. Both the doctors certified as to its correctness and the fact that Muhammad Gul was in a fit condition to make it. The High Court, however, expressed the view that since Dr. Muhammad Alam (P. W. 11) also belonged to Mohmand Tribe, to which the deceased belonged, he fabricated the dyiny declaration to create false evidence against his (to the deceased's) enemies and also persuaded Dr. Said Saboor (P. W. 10) to collaborate with him in this nefarious act. The learned High Court has observed in this connection that :- "In our society the tribal rivalry and affiliations are so embodied that it is hardly possible even for a civil servant to detach himself " With utmost respect, we are unable to subscribe to the view that simply because Dr. Muhammad Alam belonged to Mohmand Tribe, be would stoop to fabricating a false statement and that the second doctor i. e. Dr. Said Saboor Shah (P. W. 10) who is not alleged to be a Mohmandan, would connive with him in certifying a false document. If the view expressed by the learned Judge in Chamber about the inability of a civil servant to detach himself from tribal or affiliations was to believe, many a judicial officer in this Province (N.-W. F. P.) may become disqualified from hearing a number of cases. It may be mentioned that one of us, who belongs to this Province has with due respect to the High Court, strongly disagreed with the above-mentioned view expressed by it.

9. Another attack on the veracity of the dying declaration is that it is a very short one, so much so that "even the doctor's certification thereon is longer than it". On the contrary, we are of the view that the brevity of the dying declaration itself is strongly indicative of the truthfulness. The maker of the statement was obviously in a very critical state, and probably knew that he was to face his Creator in a short time. The brevity of the statement, therefore, lends support to its veracity. Had it been fabricated document prepared by the doctors in order to implicate some enemies of the Mohmands, they would have taken care to name all the accused persons and given full details of the incident, ascribing specific parts to individual accused persons and would have also contained the names of the alleged eye-witnesses.

10. We feel that in view of the truthful nature of the dying declaration it formed a sufficient basis for the conviction of the accused-assailants named therein. Reference in this connection may be made to Zarif Khan v. The State. PLD 977SC612 according to which conviction can be based even on the dying declaration without any independent corroboration.

11. The learned Courts below have also disbelieved Jan Muhammad (P. W. 8) the solitary eye-witness of the incident merely on the ground that he escaped injury during the incident and was not, therefore, a truthful witness. We have gone through his testimony and find no serious contradictions therein. No specific enmity between him and the accused party has been alleged which could have induced him to involve the accused-respondents falsely in this case. The mere fact that he has escaped injury cannot belie his statement. The accused-respondents are not alleged to have bad any direct hostility with him. It is, therefore, not one of those cases where it can be argued that had he been present on the scene the assailants would not have let him escape unhurt. The fact that two of the witnesses who were in fact injured have not been produced in this case merely goes to show in own opinion the desperate nature of the accused persons otherwise they would certainly have taken their stand in the witness-box and name the persons who shot at them or would have been produced by the defence to depose that it were in fact some other persons who were the real assailants. These witnesses did not appear because they thought it more expedient to avoid incurring the wrath of the accused persons. Their non-production by the prosecution would not. therefore, detract from the veracity of Jan Muhammad P. W.'s testimony. Another fact that gives support to the prosecution version is that Muhammad Gul has named his very close relatives inasmuch as his wife and the wife of Akbar Khan (since dead) were real sisters inter se, while Zar Muhammad accused-respondent was the real son of Said Akbar Khan and Faqir Muhammad was the nephew of Akbar Khan. We are, therefore, inclined to believe the version put forward by Jan Muhammad P. W. 8, but considering however that the names of Muhammad Amin and Said Rehman are not mentioned by Muhammad Gul in the dying declaration, we think that they should be given the benefit of doubt. In any case as mentioned above the complainant party itself got their names deleted from) their revision petition filed before the High Court.

12. As a result of the above discussion the appeal of the appellant with regard to Muhammad Amin is dismissed inasmuch as his name is not mentioned by Muhammad Gul in the dying declaration and he deserves to be given the benefit of doubt.

13. As far as Zar Muhammad we feel that guilt has been sufficiently brought home to him. The appeal qua him is accepted and the order of his acquittal is set aside. He is, therefore, ordered to be retried.

14. As far as Faqir Muhammad respondent is concerned although he has not yet been arrested in pursuance of this Court's order, dated 26-4.1980. His case is covered by the observation of this Court inn Hayat Bakhsh v. The State 1081 SCMR 1, in which the relevant observation reads as follows : "The practice and procedure of this Court is well-known that on grant of leave to appeal or on filing of a direct appeal by a convict, normally the Court issues orders and directions including the issuance of warrants of arrest so as to secure the custody and presence of the appellant, if he is not held in custody. This, of course, is subject to the power of the Court to grant bail. It is only in and exceptional occasion when no serious controversy arose that on this issue notice was not taken of the effect of the abscondence of the accused on the hearing of the appeal. Otherwise, when the question was debated and decided, it was declared as a law, as in the case of Gul Hassan that the appeal of absconding convict could be concluded without hearing the same on merits " We feel that in view of what bas been observed above the acquittal of Faqir Muhammad must also be set aside, notwithstanding the fact that he has not yet been arrested and as such not represented before the Court. We, therefore, order accordingly. It is also directed that he should be retried whenever he is arrested. M. Z, M. Order accordingly.