' ASLAM RIAZ HUSSAIN. J.-This is an appeal by Nazir Hussain against the judgment dated 6th November, 1975 of a Division Bench of the Lahore High Court hereby his appeal against his conviction and sentence for an offence under section 302/34, P. P. C. Was dismissed.
2. Nazir Hussain, petitioner, was accused along with his father Muhammad Yaqub and his Brother Shabbir Hussain for the murder of Abdu! Majeed. The murder took place on 15th May, 1970. During the course of commitment proceedings Nazir Hussain Shah appellant absconded from the District Court, Lyallpur on 5th September, 1970. In view of his abscondance, the enquiry proceeded only against his father and brother and after its completion, they were sent up for trial before the Sessions Judge, Lyallpur. The learned trial Judge acquitted both of them as there was no evidence of their having taken part in the murder. Thereafter, Nazir Hussain Shah was arrested on 9th October, 1973, after a lapse of more than 3 years. He too. Was sent up for trial. He was convicted by the learned trial Judge under section 302, P. P. C. And sentenced to death and a fine of Rs, 1,000. In default of payment of fine, he was ordered to undergo further two years' R. I. His appeal was dismissed by the High Court vide the impugned Order. Leave to appeal was granted to him by this Court to consider whether the eye-witnesses were chance witnesses whether the dying declaration made by Abdul Majeed (deceased) was reliable whether the procedure adopted by the Investigating Agency in using one of eye-witnesses namely Muhammad Yasin P. W. 9, and Ejaz Ahmad P. W. 8, a relative of the deceased as witnesses to the recovery of the crime weapon (revolver P. 4) and the lead pieces found at the spot, was not improper and Whether in view of the above-mentioned procedure the evidence of recoveries could be considered to be reliable enough to be used as corroboration of the ocular testimony and of other evidence on the record.
3. According to the prosecution, the motive for the offence was that some time before the occurrence Nazir Hussain Shah, appellant, who is a police constable, borrowed Rs, 50 from Abdul Majeed, deceased, but he failed to repay this debt in spite of several demands made by the deceased. Ultimately, in view of the persistent demands of Abdul Majeed, deceased, Nazir Hussain Shah, appellant, promised to repay the money after about a fortnight. On 15th May, 1970. He, however, failed to fulfil his promise. On the same day (i. e. On 15th May, 1970) at about 10. P. M. Abdul Majeed, deceased, saw Nazir Hussain Shah, appellant, sitting opposite the Khokha of Sardar Muhammad, Pan seller, situated at Rahmania Road, Street No, 1, Lyallpur City and repeated his demand for repayment of the loan. The accused pleaded shortage of funds but the deceased insisted on the payment of the debt. Thereupon Nazir Hussain, appellant, replied that he would pay him the money in short while and left the spot asking Abdul Majeed to wait for him at the Khokha.
After a short time, Nazir Hussain returned with his father Muhammad Yaqub and his brother Shabbir. Shabbir (acquitted accused) caught hold of the deceased from the collar of his shirt but his father Muhammad Yaqub (acquitted accused) intervened and asked Shabbir to leave the deceased's collar and assured the deceased that the money will be paid to him. Shabbir (acquitted accused) obeyed his father and stepped aside. It was at that time that Nazir Hussain, appellant, took out a revolver from the fold of his shalwar and fired six shots at Abdul Majeed, emptying the revolver. Abdul Majeed was badly hit at different places of his body. The occurrence was witnessed by Muhammad Yasin P. W. 9 and Muhammad Zikria P. W.
10. Muhammad Yasin immediately put the deceased in a Rickshaw and took him to the D. H. Q.
(Civil) Hospital'. Zikria P. W. Also followed him there. At the Hospital, Dr. Imtiaz Ahmad Gill examined Abdul Majeed, who was still alive. The Doctor also informed the police about the arrival of Abdul Majeed, deceased, at the Hospital in an injured condition, vide Ruqqa Exh. P.E. This Ruqqa was received by Bashir Husain, A. S. I. P. W.
11. On receiving it, he immediately went to the Hospital. He found that Abdul Majeed was still in his senses and recorded his statement Exh. P.E. It was read over to Abdul Majeed who thumb-marked it. The document was also countersigned by Dr. Imtiaz. The doctor also certified that Abdul Majeed, who was still alive, was in a fit condition to make the statement in question and he had remained fit while making it. The doctor also put the date and the time of the recording of the statement under his signatures. Subsequently, when Abdul Majeed succumbed to his injuries and his postmortem examination was conducted by the same doctor who found seven fire-arm injuries on his person.
Five of these injuries were wounds of entry, one was a grazed wound and one was wound of exit.
After the death of Abdul Majeed the'F. I. R. Was converted to one under section 302 and was subsequently treated as a Dying Declaration. The investigation was conducted by Ch. Muhammad Nawaz, Inspector Police. He inspected the spot soon after getting the information of the occurrence and took into possession some blood-stained earth and also recovered two pieces of lead from the spot. He arrested the appellant and recovered revolver P. 4 from him, which contained six empty cartridges.. The revolver as well as the empties and the two lead pieces were sent to the fire-arm expert, who found that the empty cartridges as well as the two lead pieces had been fired from the revolver P.
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4. In support of its case, the prosecution relied on the evidence of motive, the ocular testimony of Muhammad Yasin and Muhammad Zikria P. Ws. The dying declaration ; the recovery of revolver P. 4 with six empty cartridges and two pieces of lead from the spot together with the report of the fire- arm expert.
5. The appellant denied his guilt and disowned the recovery P-4 and stated that he had been falsely involved in the case by the police at the instance of the Lines Officer who was his enemy.
6. We have heard the learned counsel for the parties and gone into the entire evidence as well as the judgments of the two Courts below.
' The learned counsel for the petitioner submitted that the motive was improbable ; that the eye- witnesses should not have been relied upon as they were chance witnesses ; that the dying declaration is unreliable ; and that the evidence of recovery of revolver P-4 could not be used against the appellant because it had not been proved through independent witnesses and moreover the evidence of recoveries could not be used to corroborate the testimony of Muhammad Yasin as an eye-witness as he was himself a witness to the said recoveries.
7. On going through the evidence of the two eye-witnesses namely Muhammad Yasin P. W. 9 and Muhammad Zikria P. W. 10 we find that they are absolutely independent persons having no hostility whatsoever against the appellant. In fact the defence did not even suggest during the cross- examination that they had any enmity with the appellant. These A witnesses lived in the same locality, namely Mohallah Nazimabad, in Lyallpur City, which is not far from the place of occurrence.
They cannot, therefore, be termed as 'chance witnesses'. Their testimony is consistent and the discrepancies therein are very trivial and inconsequential. There is, therefore. No reason to disbelieve them. In fact we feel that the conviction could have been based solely on their testimony. The same is, however, corroborated by the dying declaration and the recovery of the come weapon, together with the report of the fire-arm expert and the medical evidence.
The learned counsel for the appellant attacked the dying declaration on the ground that Abdul Majeed could not have made a statement after receiving the fire-arm injuries. We however, noticed that the dying declaration, which was recorded at the Hospital, as an F. I. R., has been signed by Dr. Imtiaz Ahmad Gill, the Medical Officer of the District Headquarters Hospital, Lyallpur, who had certified not only that Abdul Majeed had made the statement but also that he had remained fit during the making of the statement. Even in his statement as a witness he has reiterated this fact. There is no reason for us to disbelieve the doctor.
' The evidence of motive does not appear to be unusual to us only because a police constable had asked for a loan. On the other hand it is quite likely that being a police constable the appellant might have cons ide red himself to be in the privileged position of refusing to repay a loan, with impunity. The witnesses to the motive are the same persons, whom we have already found to be independent and reliable witnesses, namely, Muhammad Yasin P. W. 9 and Muhammad Zikria P. W.
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8. Moreover, it would be noticed that in the present case, the conduct of the appellant in absconding during the enquiry proceeding and resurfacing after 3 years when his two co-accused had been acquitted by the D trial Court, is itself a circumstance which would tend to corroborate the direct evidence against him.
9. As for the procedure adopted by Ch. Muhammad Nawaz, Inspector Police the Investigating Officer, in using one of the eye-witnesses namely Muhammad Yasin P. W. 9 and Ejaz Ahmad P. W. 8 who is admittedly related to the deceased, as witnesses to the recoveries, we are of the view that in doing so the Officer has exhibited great carelessness in the conduct of investigation which, to say the least, amounts to serious negligence in the performance of his duties, if not a deliberate effort to spoil the prosecution case. With his experience he should have known that the recoveries would be attacked on the ground that the same could not be used to corroborate the ocular testimony of the person who was himself a witness of the recoveries in question. Moreover, he should not have made Ejaz Ahmad P. W., who is a relative of the deceased, a witness of the recovery because his statement was bound to be attacked on that ground. However, the requirement of section 103, Cr. P.
C., namely that the recoveries should be made in the presence of two respectable persons of the locality, has been technically fulfilled in the present case. The attack on Muhammad Yasin, and Ejaz Ahmad P. W. Is not as to their respectability but only that Ejaz Ahmad being related to the deceased is not independent and secondly that since Muhammad Yasin P. W. Is a recovery witness, the recoveries in question cannot be used to corroborate his own ocular testimony. But in the circumstances of this case, the testimony of the Investigating Officer, who made the recoveries and is also signatory to the Recovery Memo, is sufficient to prove the same in view of the dictum of this Court in Muhammad Khan v. Dost Muhammad (1).
10. In any case, as already mentioned the testimony of the eyewitnesses which is corroborated by the dying declaration is sufficient to uphold the appellant's conviction. As a result of the above discussion we dismiss the appeal as being without merit.
(I) PLD 1975 SC 607