Raja Fayya z Ahmed, J.--Petitioners, Muhammad Hanif and Zulfiqar Ali, seek leave to appeal against the judgment dated 9.5.2002 of a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Appeals filed by the petitioners were dismissed and Murder Reference forwarded by the trial Court to their extent was answered in affirmative.
2. The petitioners have been found guilty under Sections 302(b)/34 PPC and both of them sentenced to death as Ta'zir as well as found liable to pay Rs, 2,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. in default to pay the same to further suffer six months SI each. They have also been sentenced to imprisonment for life under Section 394/34 PPC and to pay fine of Rs, 50,000/- in default of payment of fine to suffer three months SI each vide judgment dated 13.7.2000 passed by the learned Special Judge, Anti Terrorism Court No, III, Lahore in relation to case Crime No, 357 of 1998 registered with Police Station Manga Mandi, District Lahore.
The Murder Reference was also forwarded under Section 374 Cr.P.C. by the learned Anti Terrorism Court No, III, Lahore for confirmation of the death sentence.
3. Learned High Court vide judgment dated 9.5.2002, which has sought for to be impugned through this petition, dismissed the Criminal Appeals Nos, 195/J/2000, 998/2000 preferred by the petitioners against their convictions and sentences and the Murder Reference No, 46/T/2001 was answered in affirmative to the extent to petitioners Muhammad Hanif and Zulfiqar Ali by confirming the death sentence awarded to the petitioners by the learned trial Court except co-accused Ali Asghar and the Murder Reference to his extent has been answered in negative and he was acquitted of all the charges. Accordingly, Criminal Appeal No, 997/2000 filed by accused Ali Asghar was accepted.
4. Pursuant to Fard-e-Bayyan of injured namely, Mulazam Hussain Shah (Exh. PF) recorded on 14.9.1998 by Haji Muhammad ASI (PW-13), transmitted to the police station alongwith his murasila, case FIR No, 357/1998 was registered on 14.9.1998 at 2/30 a.m., initially under Section 394/34 PPC against the nominated accused Muhammad Hanif and Zulfiqar Ali and an unknown person to whom the attributed role was ascribed by the injured in his statement made before the police officer. As the injured succumbed to injures, Section 302/34 PPC were also inserted/added in the relevant column of the papers.
5. Down below the Fard-e-Bayyan of the injured Exh. PF, note has been recorded by the police officer to the effect that on receipt of information of the incident, he alongwith the other officials reached to the place of occurrence before whom Mulazam Hussain made his statement verbally in respect or the incident, which was read over to the injured, who on having admitted the contents of his statement reduced into writing by the police officer, as correct affixed his thumb impression and attested by the police officer. It has further been noted by the police officer in his note written below the Fard-e-Bayyan that on physical inspection of the person of the injured, he found swelling on his both eyes, bleeding from his right ear, swelling wound on the left and right side of his waist and also the injured complained about pain throughout his body. Thus, as per note he sent the injured to the Rural Health Centre Manga Mandi for examination and medical treatment.
6. In his Fard--e-Bayyan, the injured disclosed that he deals in amulets, knotted strings (recourse to deity) and remains under obligation to pay visits to the shrines. On 13.9.1998, according to the injured, he came to the Darbar of Baba Kashmira in Mohallah Ali Hassain Abad, behind Bata Shoe Factory, Multan Road, Lahore and was having with him a cash amount of Rs, 33,300/- and after Ziarat of Darbar, Mutawalis of Darbar namely, Zulifqar Ali and Muhammad Hanif took him to their house as their guest. It has further been disclosed in his Fard-e-Bayyan that he was sleeping in the courtyard of their house when at about midnight he was awakened by the petitioners and another unknown person to whom he could identify if produced before him, who were equipped with sota, danda and churri respectively. The unknown person pointed the churri on him and all the three persons frightened him by threatening him to be killed and took him inside the room forcibly whereupon accused Zulfiqar Ali and Muhammad Hanif subjected him to severe physical assault by means of danda and sota and also took out forcibly the amount from his pocket and he fell unconscious on the ground. Lastly, he disclosed that when he regained his senses, he found the accused having fled away so he came out of the room and was on his way to lay information to the police when a police officer came across to whom he, as above noted, reported the matter. The petitioners and Ali Asghar were arrested during the course of investigation of the case. Finally, on completion of the investigation they were sent up for trial under Sections 302/394/34 PPC before the learned Anti Terrorism Court. The accused persons did not plead guilty to the charge and the prosecution, to substantiate the accusation, produced 13 witnesses namely, Dr. Tahir Ismail M.O.
Rural Health Centre Manga Mandi (PW-1), Muhammad Yaqoob FC No, 4780 (PW-2), Muhammad Nawaz FC (PW-3), Gulab Shah Chowkidar (PW-4), (He identified the dead body of his father Syed Mulazam Hussain), Nasir Ahmed SI PS Manga Mandi (PW-5), Dr. Tanveer Hameed (PW-6), M.O.
Jinnah Hospital; Lahore (He provided emergency treatment to the injured), Dr. Muhammad Aslam M.O. Jinnah Hospital, Lahore (PW-7), (He issued the death certificate Exh. PH), Hameedud Din Chishti, Draftsman (PW-8), Dr. Muhammad Maqsood M.O. of KEMC Lahore (PW-9) (He conducted the postmortem examination of the dead body of the deceased), Muhammad Iqbal resident of Mohallah Ali Hussain Abad, cultivator/peasant (PW-10), (declared hostile), Muhammad Siddique SI/I0 PS Manga Mandi (PW-11) Muhammad Younas SI/2nd IO (PW-12), (He produced the injury statement of Mulazam Hussain Shah, Exh. PB, complaint Exh. PF and an application made to the doctor seeking permission to record the statement of the injured Exh. PJ, reduced into the writing by Haji Muhammad ASI (PW-13) to which he is familiar including the signatures of the scriber) and; Haji Muhammad ASI (PW-13).
7. All the three accused persons in their statements recorded under Section 342 Cr.P.C. denied the accusation and incriminating pieces of evidence adduced at the trial by the prosecution in toto.
None of them opted to record the statement on oath in disproof of the charge within the purview of Section 340(2) Cr.P.C. despite such right and opportunity made available to them by the learned trial Court. However, the petitioner/accused Muhammad Hanif produced two witnesses in defence namely Barkat Masih (DW-1); and Allah Bukhsh (DW-2), who advanced the plea of alibi.
8. We have heard Mr. Sardar Muhammad Siddique Khan, learned counsel for the petitioners at length. The learned ASC contended firstly; that the prosecution's case primarily rests upon the statement of the injured, who later on succumbed to injuries, consequently; the same was treated as dying declaration/statement of the deceased on which simplicitor reliance cannot be placed for the reason that the incident allegedly took place at midnight and was an un-witnessed crime, secondly; that in view of the medical evidence adduced at the trial by the prosecution, it is doubtful that the victim was capable after hours of receiving the injuries to be in proper senses to make the statement before the police officer and thirdly; sequence of events as well, caused serious doubts to believe that the police officer happened to come across the victim, thereafter, recorded his statement, which formed the basis of registration of the case after an unexplained delay but such material aspects of the case germane to the findings of the guilt have not been considered by the learned Courts below in its true perspective. Hence, it is a fit case to grant leave to appeal and the petitioners are entitled for acquittal on the charge as the prosecution case suffered from inherent improbabilities and doubts.
9. The contentions put forth on behalf of the petitioners by the learned ASC have been considered by us in the light of the record of the case carefully and minutely. The judgments sought to be impugned through this Jail Petition rendered by the learned High Court and the trial Court have also been scrutinized in the light of the evidence adduced at the trial by the prosecution, plea of the accused and the defence evidence.
10. Haji Muhammad ASI (PW-13) is the principal witness of the prosecution, who deposed that on 14.9.1998 he was posted at police post Sundar of Police Station Manga Mandi Lahore and was on patrolling duty alongwith some police officials when he received information that an injured person namely Mulazam Hussain Shah, was present at Darbar Baba Kashmira in Mohallah Ali Hassan Abad, therefore, he proceeded to the site where the injured made his statement before him produced by the witness as Exh-PF mentioned in Para No, 6 supra. This part of the statement of the PW was not challenged in the cross-examination conducted by the learned defence counsel on behalf of the petitioners. Hence, the fact stands admitted that PW-13 on receipt of information went to the site and recorded the statement of injured Mulazam Hussain Shah (deceased). The PW categorically stated that a that time the injured was in his full senses and after recording his statement into writing the same was read over to the injured, who in acknowledgement and correctness of the contents of the statement reduced into writing by the Police Officer affixed his thumb impression. He also prepared the injury statement of the injured/deceased as Exh-PB, noted as well, down below the statement of the injured. According to the PW, he sent Exh-PF to Police Station Manga Mandi through Ahmed Yar FC for formal registration of FIR., whereas the injured was sent to Rural Health Centre, Manga Mandi and from there he was referred to Jinnah Hospital, Lahore for management and medical treatment. He also moved an application Exh-PJ at 6.00 p.m. on the same day to the doctor for seeking permission to record the statement of the injured, who made an endorsement on the application that the injured was not fit to make the statement, the witness, however, on his own, explained that the injured had become unconscious. He denied the suggestion put by the defence in cross-examination that when he proceeded to said Darbar and recorded the statement of the injured, the injured, in fact, was unconscious and was ongoing shock. The suggestion put by the defence on the one hand indicate that the defence attempted to introduce the plea that at the relevant time the police officer did come across to the injured but he was found to be in the state of uncunsciousness hence was incapable to make the statement to the police officer and on the other hand the fact deposed by the witness that he went to the given site and was confronted with the injured stands not disputed and, therefore, in view of the trend of cross-examination to which PW-13 was subjected, it was appropriately considered and examined by the learned Courts below as to whether PW Haji Muhammad ASI had any ill-will, grudge or any motive against the petitioners to reduce into writing a false and fake attributed statement of the injured on which he also managed to affix the thumb impression of the said person/injured though allegedly claimed to be incapable to make the statement on account of the injuries suffered, which eventually led him to the state of unconsciousness but nothing has been brought on record, as also rightly held by the learned Courts below to suggest that PW-13 had any reason to falsely involve the petitioners in the case by making a fake attributed statement of the injured and similarly no material could be brought on record through the process of cross-examination and otherwise to indicate reasonably or to believe or be in the circumstances of the case reasonable or probable to believe that the injured had any motive despite having been subjected to serious assault and suffering from severe injuries in the given situation to absolve the real culprit/s and preferred to involve the innocent persons/the petitioners, who provided free boarding and lodging facilities to the injured in their house adjacent/near to the Darbar and were his hosts.
11. Dr. Tahir Ismail, MO RHC Manga Mandi, Lahore has been produced as PW-1 at the trial, who stated that on 14.9.1998, he was posted at the RHC Manga Mandi and medically examined Mulazam Hussain Shah brought by Muhammad Nawaz FC. On examination, he noted the following injuries on the person of the injured:-- "1. A brused swelling 4 x 5 cm with blackening of right eye.
2. A brused swelling 6 x 4 cm with blackening of left eye.
3. A contused swelling 24 x 22 cm over mid of back of right chest.
4. A contused swelling 20 x 16 cm over mid of back of left chest.
5. Bleeding from right ear?
After providing necessary management, PW-1 referred the injured to the Jinnah Hospital Lahore for further treatment and management and according to PW-1 all the injuries noted above in the MLR produced by him as Exh-PA were caused by blunt weapon. The medical officer was not cross examined on behalf of the petitioners by their counsel despite opportunity afforded by the learned trial Court. Hence, the evidence of the medical officer (PW-1) and contents of MLR shall be deemed to have been admitted by the accused persons. The medical officer, who at the first instance examined the injured did not note in the MLR or deposed before the trial Court that the injured when brought to him in the Rural Health Centre Manga Mandi was unconscious and undisputedly sometime for taking the injured to the Rural Health Centre Manga Mandi must have been consumed but till then when examined by PW-1 was not found to be unconscious. Therefore, there seems to be no reason to disbelieve PW Haji Muhammad ASI that the injured was found to be in full senses whose statement he reduced into writing as stated to him by the victim, contents whereof were also admitted to be correct by Mulazam Husain Shah injured/deceased, who in token thereof affixed his thumb impression on such statement. The affixation of thumb impression has also not been challenged or disputed by the defence at the trial and there is no reason to believe that Exh- PF was not made to and recorded by the police officer at the instance of the injured and necessary corroboration as to the capability of the injured to make the statement stands provided from medical evidence of Dr. Tahir Ismail (PW-1). The injuries noticed by PW-13 after the body examination of the injured recorded down below the Exh-PF also get necessary corroboration from the MLR produced by PW-1 in which he noted the injuries found on the person of Mulazam Hussain Shah. On referral to Jinnah Medical Hospital, Lahore, the injured was attended by Dr. Tanvir Ahmed (PW-6) posted in Surgical Unit-I, who conducted the initial resuscitation investigations, provided endotracheal intubation and the chest tube intubation. He produced the endorsement made by him to the above noted effect on the `murasda' sent to the Registrar, Jinnah Medical Hospital, Lahore by Muhammad Siddique S.I. P.S. Manga Mandi stating therein that the injured was brought in hospital on 14.9.1998 but having succumbed to the injuries, the request for conducting post- mortem examination of the dead body of the deceased was made. The same was forwarded to the Registrar Surgical Unit-I for necessary action and to provide operation notes by the DMS Administration on 16.9.1998. On which, PW-6 on the even date made the above referred note. The witness was subjected to cross-examination by learned defence counsel and as regards the condition of the patient as it stood in the hospital ward; the PW stated that in absence of the hospital record he is not in a position to make the answer about the condition of the patient. The fact remains that it does not transpire even from the evidence of Dr. Tanvir Ahmed PW-6 that on 14.9.1998, the date on which injured Mulazam Hussain Shah expired, he was unconscious when brought to the doctor, whereas Dr. Muhammad Aslam M.O. Jinnah Hospital, Lahore (PW-7) issued death certificate of deceased Mulazam Hussain on 16.9.1998, as Exh. PH. Dr. Muhammad Maqsood (PW.9) on 16.9.1998 being on duty at KEMC conducted the autopsy of dead body of deceased Mulazam Hussain Shah brought to him on 15.9.1998 by Muhammad Nawaz FC and Muhammad Saleem and as per death certificate Exh-PH, referred to in the post-mortem report, the deceased died on 14.9.1998 at 10.00 p.m. He noted the following injuries on the dead body of the deceased with the note that Injuries Nos, 1 and 2 were corresponding with those mentioned in the MLR and Injury No, 3 was corresponding with the treatment notes. During the process of autopsy conducted by PW 9, all the observations and findings noted by him have been given in the autopsy report produced as Exh.-PI, Exh.-PI/1, Exh-PI/2. The cause of death of the deceased noted in the autopsy report by the doctor and deposed before the trial Court is reproduced below:-- "The injuries stated above are anti-mortem and Injury Nos, 1 and 2 caused by blunt means. Injury No, 3 was caused due to Surgical Intervention. The cause of death in this case was damage to brain, meninges and their blood vessels under Injury No, 1 bleeding to comma and death of the person who had already received fractures of ribs on right side of chest.
The probable time between injury and death was (Hospital death) and between death and P.M. as 40 to 48 hours."
In our considered opinion the learned Courts below in view of the medical evidence referred to above rightly held that the deceased met with an unnatural death due to the injuries suffered by him on account of violence/severe bodily assault and sufficient in ordinary course of nature to cause death of the deceased, which the defence has failed to discredit and impeach. It has been rightly concluded by the learned High Court and the trial Court on appraisal and scrutiny of evidence that medical evidence furnished due corroboration to the dying statement of the deceased recorded by Haji Muhammad ASI (PW-13). The note appended below the statement of the deceased also render support to the contents of the dying statement of the deceased to the extent, as it pertains to the contents of the recorded Fard-e-Bayyan of the deceased. There is no substance in the contention that on account of injuries suffered by the deceased, he was rendered incapacitated or not even conceivable to have narrated about the alleged incident in detail or spoken about the same to the police officer, who stated to have reduced the same into writing. It is worthwhile to note that opinion of the doctors, who have provided emergency treatment, examined the injured and conducted the post-mortem examination was not given any such suggestion by the defence counsel, therefore, in absence of any positive indication or any supporting material it could not be said that in view of the evidence of the PWs referred to above that the deceased at the relevant time was unconscious or incapable on account of the injuries suffered by him to have spoken to PW-13 about the incident having occurred in the preceding night.
12. The deceased in his statement produced as Exh-PF no doubt had stated that petitioners, Zuffiqar Ahmed and Muhammad Hand caused serious injuries on his person by means of danda and sota blows and took out forcibly a cash amount of Rs, 33,000/- from his pocket and he fell unconscious on the ground and when he regained his senses he found the nominated accused missing/fled away, he came out of the room in order to inform the police and came across the police officer cannot be disbelieved and so even stated by PW-13 at the trial that on receipt of information he went to the site where he found Mulazam Hussain Shah in an injured condition, who made the statement before him and narrated about the incident, which was reduced into writing by the said witness. Also, it can be believed that after having suffered injuries, the deceased fell unconscious and after a while regained his senses, as possibility of regaining senses cannot be excluded on account of the nature of the injuries, which vary from case to case in respect whereof no hard and fast line in absence of supporting material can be drawn. There appears to be no delay in lodging the FIR of the case against the accused persons, as the time of recording of the statement of the injured, who succumbed to injuries on the same day, has not been mentioned/given on it by the police officer, however, the note reduced into writing below the statement of the injured the time has been mentioned as 2.00 p.m. and the FIR Exh. PF/1 was registered with the police station at 2.30 p.m., hence, in such view of the matter, it cannot be assumed that inordinate delay had occurred in the registration of the case, which required explanation on the part of the prosecution. The sequence of events up to the death of the deceased do not indicate any inherent doubt substantial in nature and defect in the proceedings, therefore, in absence of any solid reason or material, the possibility of the manipulation of statement of the injured made before the police officer stands excluded. The medical evidence adduced at the trial referred to hereinabove fully corroborates to the case of the prosecution, which does not suffer from any inherent doubt or material discrepancy. Dr. Tahir Ismail (PW-1) and Dr. Muhammad Aslam (PW-7) were not cross-examined by learned defence counsel whereas Dr. Tanveer Hameed (PW-6) and Dr. Muhammad Maqsood (PW-9) were subjected to cross- examination by the learned counsel for the petitioners but nothing material favourable to the petitioners could be brought on record. The medical evidence, produced through the above said professionals on material particulars, remained firm, consistent and convincing. None of the petitioners, as hereinabove noted, despite the opportunity made available to them by the learned trial Court appeared as his own witness in defence in disproof of the charge within the purview of Section 340(2) Cr.P.C., however, petitioner, Muhammad Hanif, produced two witnesses in defence namely, Barkat Masih and Allah Bakhsh. Barkat Masih (PW-1) deposed that two years ago petitioner Muhammad Hanif was present with him at Wara Tarkhanwala alongwith his cattles and similarly Allah Bakhsh (PW-2), who is the uncle of petitioner Muhammad Hanif, stated that the petitioner had come to Wara Tarkhanwala alongwith his cattles about two years ago. The defence evidence has been disbelieved by the learned High Court and trial Court for cogent and plausible reasons in juxta-position with the prosecution case in the light of well settled principles of safe administration of criminal justice. No part of the evidence available on record has been misconstrued, mis- appreciated or misread by the learned Courts below, which independently scrutinized the entire evidence in depth. The dying declaration of the deceased with stands the consistent and well settled principles set out by the superior Courts for believing or disbelieving such statement, which in our view in the given facts and circumstances of the case leaves no chance of mistake on the part of the dying man in identifying his assailants and the same is also free from being prompted and tipped from any outside quarter nor the same is inconsistent with the evidence and circumstances of the case. Haji Muhammad, ASI (PW-13), appeared in the witness box, has proved such declaration, who recorded the same and unimpeachably proved its contents to be correct as narrated to him by the injured at the relevant time, who also, though not a requirement of law, affixed his thumb impression and has been proved by the witness. Such a declaration becomes a substantive evidence as it has been successfully proved by the prosecution that it was made by the dying man (deceased). The dying statement of the deceased further gets necessary corroboration as hereinabove discussed from the medial evidence and the circumstances of the case, and; the defence has miserably failed to discredit it.
13. For the foregoing reasons, in our considered view, the learned ASC for the petitioners has failed to make out a case for leave to appeal, consequently; the petition is dismissed and leave to appeal is refused.