' KHAWAJA MUHAMMAD SfIARIF, J.---This judgment will dispose of Criminal Appeal No,782 of 2001, filed by Tasawar Hussain alias Tassoo appellant, who was convicted and sentenced by learned Additional Sessions Judge, Vehari, vide his judgment dated 24-10-2001 to death under section 302(b), P.P.C. And to pay Rs,100,000 as compensation to the legal heirs of the deceased or in default six months S.-I.
' Murder Reference No,745 of 2001 for confirmation or otherwise of death sentence of the appellant shall also be disposed of through this single judgment.
2. Brief facts of the case, as disclosed by Muhammad Qadeer complainant (P.W.1), are that he is working as a Dispenser in Veterinary Hospital, Karampur. His son Muhammad Abid Qadeer aged about 25 years was running a Veterinary Medical Store in Mailsi Town. He often used to stay at night in Veterinary Hospital, Mailsi. On the previous evening he alongwith Abdul Waheed (P.W.4) and Abdul Salam (given up P.W.) came to Muhammad Abid Qadeer and they slept in a plot of "Veterinary Hospital, Mailsi on separate cots. It was about 1-30 a.m. When he alongwith Abdul Waheed (P.W.4) and Abdul Salam (given up P.W.) woke up on the noise of Muhammad. Abid Qadder and saw Tasawar. Hussain alias Tassoo accused armed with a pistol present there, who in their presence fired pistol shots at Muhammad Abid Qadeer hitting him at his abdomen and left thigh, who fell down on the ground. Tasawar Hussain accused then decamped from the place of occurrence. They shifted Muhammad Abid Qadeer to Civil Hospital Mailsi in an injured condition, where he succumbed to the injuries.
' Motive behind the occurrence was that Tasawar Hussain accused had borrowed the medicine from Muhammad Abid Qadeer deceased and on demand of the payment of price of the medicines, an altercation had taken place between them and out of the said grievance, he committed the murder of the deceased.
3. Investigation of the case was taken over by Bashir Ahmad S.-I. P.W.B. He went to Civil Hospital, Mailsi, inspected the dead body of Abid Qadeer, prepared injury statement Exh.P.G. And inquest report Exh.P.H., then, visited the spot, collected blood-stained earth, which was taken into possession vide memo. Exh.P.C., also collected three empties P.1/1-3, which were taken into possession vide memo. Exh.P.D. On 8-7-1997 he arrested the accused, who while in police custody led to the recovery of pistol 30-bore along with a bullet P.2, which was taken into, possession vide memo. Exh.P.E, After, completion of the investigation he prepared report under section 173, Cr.P.C.
4. At the trial, prosecution in order to prove its case produced 10 witnesses in all, thereafter, learned S.S.P. Tendered in evidence certified copies of report of Chemical Examiner Exh.P.M., report of Forensic Science Laboratory Exh.P.N., that of Serologist Exh.P.O. And closed the prosecution case, then, the statement of the appellant under section 342, Cr.P.C. In which he pleaded innocence. After conclusion of the trial, the accused was convicted and sentenced as stated above by the learned trial Court.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that it was an un-witnessed occurrence, that there is no eye-witness, who had seen the appellant committing the murder of the deceased. Learned counsel has referred the application Exh.P.K., submitted by Bashir Ahmad S.-I./Investigating Officer to Dr. Abdul Ghaffar P.W.10 and stated that no time is given there. He has also referred to the statement of said Bashir Ahmad S.-I./Investigating Officer and stated that'no eyewitness was mentioned in the inquest report, that Exh.P.K./1 cannot be treated as dying declaration for the reason that this is a fake and fabricated document and was even prepared after the burial of the deceased and this document should be scrutinized with great care and caution by this Court, that surrounding circumstances should also be observed by this Court while making a decision because the F.I.R. Has not been believed because the eye-witness account has also been disbelieved by the learned trial Court, that dying declaration should be seen with the nexus about the motive, that as the eye-witness account has been disbelieved so the motive has also been disbelieved and in the dying declaration no motive has been mentioned. Learned counsel submits that dying declaration is only to the effect that firing has been made by Taswar Hussain accused/appellant but no time, date and place including the motive has been mentioned there, that learned trial Court has not correctly relied upon the two judgments of Hon'ble apex Court while believing the dying declaration. He submits that in view of the said two judgments cited by learned trial Court for believing the dying declaration, the earlier application regarding believing and disbelieving the dying declaration cannot be brushed aside and in this regard, he has relied upon 1994 SCMR 1852.
He further submits that it would not be safe in the interest of justice to maintain conviction of death awarded to the appellant. Also submits that this is a circumstantial and a weaker type of evidence against the appellant because the maker is not available for cross-examination. In this regard, he has relied upon PLD 2005 Pesh. 172 and in view of the above said judgment the contention of learned counsel is that this is not a case of death sentence. He has also referred Exh.D.A. To Exh.D.D regarding F.I.Rs, lodged against the deceased during his lifetime and adds that possibility of some other has committed the murder of the deceased cannot be ruled out. He lastly, submits that prosecution failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. On the other hand, learned State counsel submits that he agrees with the findings of learned trial court about the disbelieving of eyewitness account but submits that Dr. Abdul Ghaffar P.W.10 is the most natural witness in this case, he had no animus against the appellant, there is no reason on his part to concoct this dying declaration, that the said doctor had also stated that delay in recording the statement of the deceased (dying declaration) was that though he made this statement orally to the Investigating Officer but the Investigating Officer presented the application Exh.P.K. With the delay of 24 yours, so this P.W.10 had explained the delay. He has relied upon 2001 YLR 1470 and submits that statement of the deceased to Dr. Abdul Ghaffar P.W.10 legitimately can be considered under Article 46 of Qanun-e-Shahadat, 1984. Further submits that three crime empties were recovered from the spot, then the appellant led to the recovery of pistol and the report of Forensic Science Laboratory in this regard is positive in nature. He supports the judgment of the learned trial Court.
7. We have heard lengthy arguments from both the sides and have also gone through the record With the able assistance of learned counsel for the parties. This case is based upon the dying declaration of the deceased. The learned trial Court had disbelieved the eye-witness account, where the first informant was father of the deceased and the other eye-witness was his brother, even the learned State counsel had conceded and supported this part of the judgment of the learned trial Court for disbelieving the eye-witness account. The conviction and sentence had been awarded to the appellant on dying declaration. This Court has to scrutinize whether the dying declaration was genuine one or not. We have gone through the reasons given by .The learned trial Court at page 108 of the paper book by citing two judgments of the Hon'ble Supreme Court of Pakistan and we also concurred the findings of learned trial Court after going through the same.
Learned counsel for the appellant while arguing the case has referred the statement of Dr. Abdul Ghaffar P.W.10, lengthy cross-examination was conducted on him, his statement is so natural and genuine one and we are convinced in .Our mind regarding the genuineness of dying declaration. In this regard, we would like to refer some paragraph from the cross-examination of Dr. Abdul Ghaffar P.W.10, who was so truthful as he himself stated during cross-examination that complainant was not present at the spot, he stated that when he woke up on hearing the three consecutive reports of fires, Liaqat Ali Dispenser, who used to work with him and also his relative was sleeping in the courtyard of his residence, he and Liaqat Ali Dispenser had just opened the outer door of his residence, then he heard the voice of an unknown person saying "if you will come, then you will be shot dead". After about five minutes, he heard the noise of the boys of Gujjar Family,who were living adjacent to the place of occurrence and were sleeping on the top of roof, they asked him to come out as the assailant had fled away, thereafter, he and Liaquat Dispenser came out of his residence, likewise boys of Gujjar Family, also came down and in the meanwhile, Ramzan an employee of the hospital came there, who told him that Abid Qadir is lying on the ground in an injured condition, he then immediately boarded the injured on his personal car with the help of Ramzan and Liaquat and according to him the deceased was fully conscious at that time, Liaquat and Ramzan also accompanied him to THQ Hospital, Mailsi. He also stated that complainant was already known to him. The said doctor tried to arrange the medicine as those were not available' in the hospital but outside the hospital and also tried to arrange the doctor but before the doctor should reach there, the injured succumbed to the injuries. He at page 73 of the paper book very categorically stated, during cross-examination that complainant was not available there and when he went to the house of father of the deceased, he informed him, about the injury of his son but did not inform him about his death. During cross-examination of the said doctor, it has also come on record at page 74 of the paper book that he had informed the police orally about the statement given by the deceased to him on oral questioning. He further stated that police did not record his statement under" section 161, Cr.P.C. When this P.W. Brought heirs of the deceased in the hospital. He also stated during cross-examination that police did not inquire from him or from Dr. Muhammad Razzaq, if Abid Qadir is fit to give a statement ; he stated in his statement that deceased informed him at the place of occurrence that Taswar accused had fired at him. We do not agree with the submission of learned counsel for the appellant that this piece of prosecution evidence is a fabricated one. To our mind, the learned trial Court and learned State counsel had rightly relied upon 2001 SCMR 1474 and 2001 YLR 1470), then a big circumstance against the appellant was that crime empties recovered from the spot on the day of occurrence by the Investigating Officer matched with the pistol got recovered by the appellant on 14-7-1997, so the report of Forensic Science Laboratory in this regard is positive in nature. There is another important aspect of the case such as according to the doctor, who conducted post-mortem examination on the dead body of the deceased, he gave the duration between injury and death as one hour, which also proves the dying declaration to be sacrosanct because Dr. Abdul Ghaffar P.W .10 had reached at the place of occurrence within 5 to 7 minutes so dying declaration was made to him by the deceased and the said doctor was not asked even a single question whether the deceased was fit to make a statement within one hour before his death. Court has to see the I quality of evidence and not the quantity of evidence. We have no hesitation in our mind to believe the statement of Dr. Abdul Ghaffar P.W.10.
Now the only question before us and as submission has been made that while maintaining the death sentence the Court should be a very careful when except dying declaration and the report of Forensic Science Laboratory, there is no other evidence, so taking this case and applying the rule of safer administration of criminal justice, though we maintain the conviction and sentence of the appellant under section 302(b), P.P.C. But convert the same from death to imprisonment for life with the benefit. Of the section 382-B, Cr.P.C. For the reasons that in the dying declaration no motive was mentioned, eye-witness account had been disbelieved by the learned trial Court and the appellant while producing this defence evidence submitted copies of four F.I.R Exh.D.A. To Exh.D.D. Lodged against the deceased during his lifetime.
' With the above said modification in the conviction and sentence, this appeal filed by the appellant is disposed of. His death sentence is not confirmed and murder reference is replied in negative.