Syed Musadiq Hussain Gilani, J.--On 25.11.2004, at 4745 hours, Bakht Biland complainant; in injured condition, reported to PW Shah Bostan, ASI, in the Casualty of Civil Hospital, Matta, to the effect that after offering "Maghrib" prayer, he was going home. In the meantime, in the thoroughfare, near Kuzpulo Madrassah Masjid Sinpura, appellant Niaz Muhammad S/O Muhammad Alam of his Village fired at him. As a result of his firing, he sustained injuries on front chest, and left and right hands.
The occurrence was seen by Umar Ali and Bakhtiar. He knew not about the motive. On this report, case vide FIR No, 712, dated 25-11-2004 under Section 324 PPC was registered against Niaz Muhammad appellant in Police Station Matta, District Swat.
'2. Bakht Biland complainant succumbed to the injuries later on and Section 324 PPC was converted to Section 302 PPC in the FIR. Against the appellant, challan was sent to the learned Additional Sessions Judge/Izzafi Zilla Qazi, Matta, District Swat, where he was charged for the offence. On behalf of prosecution, as many as, 9 witnesses were examined and after recording statement of the appellant under Section 342 Cr.P.C, and hearing the learned counsel for the parties, he was convicted and sentenced to imprisonment for life, under Section 302(c) PPC. He was also directed to pay Rs, 280,000/-, as compensation to the legal heirs of the deceased. The benefit of Section 382-B PPC was also extended to him, vide judgment dated 18-1-2006.
3. Having felt aggrieved by the conviction and sentence recorded by the trial Court, the appellant preferred Crl.A.No, 46/2006, to this Court. Mst. Bacha Tahat, widow of the deceased, also filed Cr.
Revision No, 52/2006 for the enhancement of sentenced. Both appeal and the revision are being disposed of through this single judgment for the sake of convenience.
4. The prosecution in support of its case, produced the following evidence, consisting of the statements of PW. 1 Umar Ali, PW. 2 Bakhtiar, PW.3 Khaista Muhammad, PW.4 Sher Amir Khan, PW.5 Dr. Haqnawaz Khan, Medical Officer, PW.6 Muhammad Sharif Khan, PW.7 Jehangir Khan, SHO, PW.8 Shah Joshaf Khan, and PW.9 Akbar Ali. PW.1 Umar Ali stated that after "Maghrib" prayer, he alongwith Bakhtiar came out of Masjid, and started towards the house. In the meantime, Bakht Biland was coming 4/5 paces ahead of them. When they reached near the spot, all of sudden, appellant Niaz Muhammad emerged and fired at Bakht Biland with pistol. After that, he ran away.
He and PW. Bakhtiar, with the help of Taliban of Madrassah, took the injured Bakht Biland to the nearby road, and from there, he was shifted in a Jeep to Matta Hospital, where his report was recorded by the police. From Matta Hospital, he was shifted in Ambulance to Saidu Sharif Hospital.
He was operated upon in the said Hospital, and shifted to the Ward, where he died at about 2.00 p.m. In his presence, the Police Officer inspected the spot, and took into possession, 3 empties of 30 bore, and one Bulb over there. PW.2 Bakhtiar supported the statement of PW Umar Ali. He was also marginal witness to recovery Memo Ex.PW.2/1, vide which the blood stained garments of the deceased were taken into possession. He stated that on his written request, the dead body was exempted from Post Mortem Examination. PW.3 Khaista Muhammad was marginal witness to recovery Memos Ex.PW.3/1, Ex.PW.3/2, Ex.PW.3/3 and Ex.PW.2/1, which were correctly signed by him. In his presence, the I.O. had secured 3 empties of 30 bore, Ex.P/1, Bulb Ex.P/2, on the spot, and blood stained garments of the deceased Ex.P/3. In his presence, PW. Bakhtiar has submitted an application Ex.PW.2/3 for exemption of the dead body from post-mortem examination, and received the dead body vide Memo Ex.PW.3/4. PW.4 Sher Amir Khan IHC was marginal witness to recovery Memo Ex.PW.4/1, vide which the I.O. recovered the pistol Ex.P/4, and Cartridges Ex.P/5, on the pointation of appellant from the house of his uncle. The Memo was correctly signed by him.
PW.5 Dr. Haqnawaz Khan, Senior Medical Officer had examined Bakht Biland in injured condition on 25-111-2004 at 550 hours, vide Medico legal report Ex.PW.5/1, and found the following:-
(1) One F/A inlet wound on the (L) side chest near the sletua size ICM in diameter.
(2) One F.A inlet wound on the (F) side chest near the sternum size ICM in diameter.
(3) One F/A exit wound on the (L) side lumbar region size 2CM in diameter.
(4) One F/A inlet wound on the left forcain frontal aspect-mid zone size ICM in diameter.
(5) One F/A exit wound on the left foreran posterior aspect-mid zone- size ICM in diameter.
(6) One F/A (R) side thumb, bones crush inlet & outlet could not be defined.
(7) One F/A inlet/exit wound on the (R) side front of the shoulder, communicant under the skin, size of each ICM in diameter.
The nature of injuries was opined to be dangerous, having been caused with fire-arm. The patient was referred to Saidu Group of Hospitals for further management. The Medico legal report Ex.
PW.5/1, and Certificate Ex.PW.5/2, were signed by him. He certified that the deceased Bakht Biland, then injured was fully conscious, and could give verbal statement. PW.6 Muhammad Sharif Khan Inspector registered the case vide FIR Ex.PA, on receipt of Murasila Ex.PA/1. PW.7 Jehangir Khan, Inspector, submitted the challan against the appellant. PW.8 Shah Jushaf Khan recorded the report of injured Bakht Biland, vide Murasila Ex.PA/1, gave written application Ex.PW.8/1 and obtained Certificate Ex.PW.5/2 from the Medical Officer regarding his fitness to report the matter. He also prepared the injury sheet, Ex.PW.8/2, of the injured. On death of the injured, he prepared the inquest report Ex.PW.8/3. He also prepared the site-plan Ex.PB at the instance of the eye-witnesses, and took into possession empties Ex. P/1 and Bulb Ex.P/2 on the spot. Similarly, he also took into possession blood stained garments of the deceased Ex.P/3 and to this effect he also prepared recovery Memo Ex.PW.2/1. He also recorded the statements of PWs, and recovered the crime pistol, Ex.P/4, alongwith cartridges, Ex.P/5, on the pointation of the appellant, vide recovery Memo Ex.PW.4/1, and prepared the Sketch Ex.PB/1, of the place of recovery. Similarly, he sent the blood stained articles to the Serologist, and crime pistol with the empties to the FSL, vide applications Ex.PW.8/6 and Ex.PW.8/7, and received reports Ex.PZ, and Ex.PZ/1. He also prepared the Murasila of the case under Section 13 A.O. FW.9 Akbar Ali produced the record dated 25-11-2004 of the Casualty of Saidu Sharif Hospital and placed on file copies thereof, as Ex.PW.9/1, Ex.PW.9/2 and Ex.PW.9/3.
5. Appellant was examined under Section 342 Cr.P.C, who denied the allegations of the prosecution, as well as, the motive discovered by the I.O. subsequently. He stated that the motive was not true because he was minor of the age of 16 years and 7 months, and Hafiz Quraan at the time of occurrence.
6. We have heard the learned counsel for the parties, and perused the record. Learned counsel for the appellant at the very outset advanced argument on one point i,e, age of the appellant at the time of occurrence, and stated that the trial of the appellant by the Sessions Court was invalid because he was juvenile offender at the time of occurrence, and only Juvenile Court constituted under Section 4 of the Juvenile Justice System Ordinance, 2000; was competent to conduct trial of the appellant. He stated that in the charge, the trial Court did not record the age of the appellant, which was also an illegality, and in contravention of the High Court Rules. In the statement recorded under Section 342 Cr.P.C., a tentative age of the appellant was given as 21 years, which too was not established. The learned counsel for the appellant stressed that in view of "Form-Bay" of the National Identity Card, Ex.D/3, and School Leaving Certificate, Ex.D/4, the date of birth of the appellant was 4-4-1988, and he was a child at the time of occurrence on 25-11-2004. He earnestly prayed that the conviction and sentence of the appellant, being void, be set aside, and case remanded to the Juvenile Court for fresh trial, after releasing the appellant on bail. In support of his contention, he placed reliance at NLR 2002 Criminal 643.
7. On the other hand, learned counsel for the complainant contested this point and controverted that the date of birth of the appellant given at the time of recording statement under Section 161 Cr.P.C. by the Investigating Officer was not challenged. Thereafter, this point was also not agitated before the trial Court throughout the trial. Moreover, suggestions were given in the cross- examination to 'PW Umar Ali that the age of the appellant was 19/20 years. Learned counsel for the complainant stressed that the trial Court was not required to give age of the appellant in the charge under Sections 221 & 222 Cr.P.C., as it is only mandatory to the extent that the charge shall contain all material particulars, as to time, , place, specific name of the offence, and the manner in which the offence has been committed. Under Section 225 of the Act, even such omissions, if caused, shall not be considered as material, unless error or omissions have occasioned a failure of justice. The learned counsel for the complainant stated that the Rules cannot over ride the express provisions of the Statute. He stated that this plea regarding age of the appellant was neither raised before the trial Court nor proved.
8. We are afraid; this plea regarding juvenility of the appellant was raised for the first time in the final arguments before the trial Court. The appellant neither agitated this point at the time of investigation, nor before the Magistrate at the time of submission of challan, nor at bail stage, and nor before the trial Court throughout the trial. Even on the age recorded in the statement under Section 342 Cr.P.C., no objection was raised and only two documents were produced in the statement under. Section 342 Cr.P.C., that too to disprove the motive dug out by the Investigating Officer during the investigation, regarding refusal of the deceased to give hand of his daughter to the appellant. "Form-Bay", Ex.D/3, and School Leaving Certificate, Ex.D/4, are not confidence inspiring documents, because attested copies thereof are not available on record, and in the photo copies of the attested copies, there are over-writings in the year of Birth of the appellant. Similarly, there is over writing in the year of birth of the elder brother of the appellant with the intent to cover up the difference. It is laid down in Section 7 of the Ordinance ibid, that if a question arises about age of a person before the Juvenile Court, it shall record the findings after such enquiry, which shall include the medical report for determination of the age of the child. This Section needs no scholarly interpretation. Indeed, the expression "Juvenile Court" is given in the Section, and not ordinary Sessions Court. This provision empowers the Juvenile Court only to determine the age. However, there has been placed no embargo on the powers of the Sessions Court for determining the age of a person during the trial, when it is challenged. The appellant remained dormant during the investigation, at the time of bail, and the trial, and for the first time he raised the plea in this regard in the final arguments. Moreover, the age of the appellant was recorded as 21 years in the statement under Section 342 Cr.P.C., which is part of the judicial record, and presumption of correctness is attached to it, unless rebutted. Both the documents, mentioned above, are not sufficient and reliable to rebut the age recorded in the statement under Section 342 Cr.P.C.
Needless to say, that no evidence in defence in this regard was produced. The remand of the case for second trial would also definitely affect the rights of the parties, as a result of fresh examination, and re-examination of the witnesses. We, therefore, do not agree with the contention of the learned counsel for the appellant.
9. On merits, learned counsel for the appellant contended that the Dying Declaration alone was not sufficient for conviction, because it was the result of consultation and promptitude made in presence of the eye-witnesses and the Investigating Officer. He further stated that the testimony of both the eye-witnesses was also not inspiring confidence, and worth reliance. Learned counsel for the appellant argued that the Post Mortem Examination of the dead body was not conducted, and even the trial Court was not certain about cause of death of the deceased. Similarly, the motive was shrouded in mystery, and not proved at all. Lastly, he urged that in the absence of motive, and due to young age of the appellant, his sentence may be reduced. In support of arguments, learned counsel for the appellant placed reliance at 2000 SCM R-1758, 1999 SCM R-2652, 2002 SCM R-629, PLD 2005-Peshawar-172:
10. On the other hand, learned counsel for the complainant argued that the promptly made dying declaration of the deceased was corroborated by an unimpeachable testimony of two eye- witnesses. There was no previous enmity for false charge against the appellant. The motive was known to the deceased, but due to family honour, it was kept secret. He further stated that the crime pistol was duly recovered, and sent to the Firearm Expert alongwith empties, secured on the spot, and report, in this regard, was in positive. The learned counsel for the complainant stated that it was a cold blooded and pre-meditated murder, and the Post Mortem examination was immaterial, and failure to establish motive cannot be considered as a mitigating circumstance. He prayed for the enhancement of sentence of the appellant. Leaned counsel for the complainant in support of arguments, referred to YLR 2003 Peshawar 753(F), 2008 SCM R 796 (D), 1999 SCMR 1411, 1998 SCM R 1778 and NLR 2004 Cr. Cases 107 (G).
11. The learned counsel for the State argued that single person has been charged in this case, and the dying declaration is supported by the strong ocular and circumstantial evidence, consisting of recovery of pistol and empties and positive report of firearm expert, about the arms and ammunition.
12. The perusal of record would show that the dying declaration of the deceased, which was recorded in presence of the Medical Officer when he was in senses, has been corroborated by unimpeachable testimony of two eye-witnesses. Neither the deceased nor the eye-witnesses, had any malice or grudge against the appellant. The dying declaration was also not proved to be the result of prompting, or consultation. The circumstantial evidence also corroborated the dying declaration as well as the statements of eye-witnesses. In Malakand Division, Post Mortem is not conducted on the request of the legal heirs of the deceased, and only medico legal report is relied upon. Hence, non performance of post mortem is not fatal for the case of the prosecution, as it is establish that the death was material, proximate, and direct cause of injuries sustained by the deceased with firearm. There is brought no evidence to establish that the death was the result of medical, or post surgical negligence. In the circumstances, the case against the appellant was proved beyond any shadow of doubt, and he was rightly convicted by the trial Court. Of course, the motive has not been brought on record for the reasons best known to the parties, but due to absence of motive other overwhelming evidence cannot be brushed aside. Similarly, young age and absence of motive are not always considered as mitigating circumstances and reasons for reduction of the sentence. However, in this case the parties have intentionally suppressed the motive and concealed the facts, therefore, capital punishment would not be justified.
13. Thus, keeping in view all facts and circumstances of the case, we feel no hesitation to maintain the conviction and sentence of the appellant recorded by the trial Court. Accordingly, the instant appeal as well as the connected Cr. Revision for enhancement of sentence of the appellant, are dismissed, being devoid of merits.