' SARDAR TARIQ MASOOD, J.---Ali Sher son of Dona along with Ahmad Ali son of Dona was tried by learned Additional Sessions Judge, Sahiwal in case F.I.R. No,75 of 2001 dated 25-3-2001 registered under section 302/34, P.P.C. At Police Station Dera Rahim DistrictSahiwal for the murder of Ibrahim.
The learned trial Judge vide his judgment dated 25-10-2004 convicted the appellant under section 302(b), P.P.C. And sentenced him to death as Ta'zir. He was further directed to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo six months' R.I. Co- accused Ahmad Ali was acquitted by the trial Court vide the same judgment by extending the benefit of doubt.
' The appellant has filed Criminal Appeal No,97 of 2005 against his conviction and sentence whereas the learned trial Court has sent a reference (M.R. No,6 of 2005) for the confirmation of his death sentence or otherwise. We propose to dispose of both these matters by this single judgment.
2. The facts of the case as per F.I.R. (Exh.PD) are that on 25-3-2001 complainant Muhammad Ali at 9-00 a.m. Along with other relatives while standing in the bazaar was waiting for the guests in connection with engagement of his daughter Mst. Salma Bibi with Noor Hassan and within his sight his maternal nephew Ibrahim and Zakir and Muhammad Yousaf were coming towards his house.
When they reached near the school Ali Sher armed with a carbine and his brother Ahmad Ali empty handed at once emerged there and accused Ali Sher fired a straight shot at Ibrahim hitting on his back side as a result of which he fell down. The complainant along with Zakir and Muhammad Yousaf took Ibrahim in injured condition to the DHQ Hospital Sahiwal and then he was referred to Mayo Hospital, Lahore and ultimately he expired on 24-4-2001 in the hospital.
' The motive behind the occurrence was that as the parties are closely related inter se, Muhammad Ali complainant offered the hand of his daughter Mst. Salma Bibi to Noor Hassan, the brother of the deceased. Earlier on the threatening of dire consequences by the accused, Falak Sher refused to give the hand of his daughter to Muhammad Ismail, brother of the deceased. Due to said grudge, accused fired at Ibrahim who subsequently died.
3. After completion of the investigation, report under section 173, Cr.P.C. Was submitted against the appellant. Charge was framed, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as twelve P.Ws.
' P.W.1 Dr. Abdul Jabbar, Medical Officer, DHQ Hospital, Sahiwal conducted the post mortem examination on the dead body of Ibrahim deceased and found five injuries on his person.
' P.W.2 Azad Mahmood, HC received the sealed parcel of blood stained earth from the I.O. For keeping the same in Malkhana in safe custody which he subsequently handed over to Abdul Ghafoor constable for chemical analysis for onward transmission to the office of Chemical Examiner, Multan intact.
' P.W.3 Abdul Ghafoor constable escorted the dead body of the deceased to the mortuary for post mortem examination. After post mortem examination, the M.O. Handed over to him the stitched dead body, police parsers, postmortem report, a sealed phial said to contain bullet extracted from the body of the deceased along with last worn clothes of the deceased which he produced before the Investigating Officer. Moharrir handed over to him sealed parcel said to contain blood stained earth for onward transmission to the office of the Chemical Examiner and he delivered the same in the said office intact.
' P.W.4 Muhammad Siddique ASI recorded the formal F.I.R. Exh. PD.
' P.W.5 Dr. Munir Ahmad Qadri, M.O. DHQ, Hospital, Sahiwal medically examined Ibrahim deceased when he was in injured condition and found multiple lacerated wounds measuring lcm x 1cm caused by fire-arm. Exh. PE is the correct carbon copy of his MLC.
' P.W.6 is Muhammad Azeem constable received the proclamation Exh. PF for the service of accused Ahmad Ali.
' P.W.7 is the eye-witness of the occurrence who supported the prosecution story.
' P.W.8 is Muhammad Saeed Draftsman who on the direction of the police prepared the scaled site plans Exh. PL, Exh. PL/1 and Exh. PL/2 in the scale of one inch equal to 32 feet.
' P.W.9 Noor Hassan received the blood stained clothes of his deceased brother and he also supported the story.
' P.W.10 Ghulam Abbas SI investigated the case.
' P.W.11 Muhammad Yousaf recorded the statement Exh. PD/1 and sent the same to the Police Station for registration of formal F.I.R.
' P.W.12 Manzoor Ali SI/SHO on 20-2-2002 arrested the accused Ahmad Ali on dismissal of his pre- arrest bail.
' Ch. Muhammad Zulfiqar Ali, learned DDA tendered in prosecution evidence, report of the Serologist Exh. PT and closed the case for the prosecution after giving up Mst. Nasreen Bibi wife of Ibrahim deceased, Muhammad Yousaf and Muhammad Ali complainant as having been won over by the accused persons.
4. The statement of appellant under section 342, Cr.P.C. Was recorded. He denied the allegations levelled against him and professed his innocence.
' In answer to the. Question, "why this case against you and why the P.Ws. Have deposed against you" he stated as under:-- "It is a false case against the accused. My daughter Mst. Rani Bibi was divorced by Zakar P.W. On my demand prior to this occurrence, therefore, Zakar Hussain etc. Were inimical towards us, therefore, they have involved us falsely in this case. The relation between the P.Ws. And ourselves were strained and we were not on visiting terms. The P.Ws. Are related inter se with each others as well as with the deceased and also inimical towards us, therefore, they have deposed falsely against us. We are innocent."
' The accused did not opt to appear on oath in rebuttal to the prosecution allegations under section 340(2), Cr.P.C. Nor he opted to produce his evidence in the shape of documentary evidence.
5. Learned counsel for the appellant contended that the motive alleged by the prosecution is flimsy and there is no ,occasion for the appellant to commit the murder of Ibraheem deceased when the complainant was available and according to the motive the first target must be the complainant.
Further contended that Muhammad Ali complainant who had asserted the motive in this case was not produced by the prosecution. His daughter Mst. Salma Bibi was aged 11/12 years whereas Noor Hassan was aged 22 years. Even Noor Hassan when appeared in the Court, although he stated regarding his engagement with the said daughter of the complainant but he was duly confronted and prior to that he never uttered a single word regarding the motive and for the first time in the trial, he stated regarding his engagement with the daughter of the complainant. Further contended that in the F.I.R. There were three witnesses out of which two have been given up being won over and only the interested witness Zakir Hussain, the real brother of the deceased was produced and there is no corroborative piece of evidence to the statement of the said interested witness. Learned counsel further contended that the deceased died after a month of the occurrence and according to the doctor he died due to septicemia and the doctor also admitted during cross-examination that normally wound became septic if the treatment is not made properly. According to the learned counsel the fire-arm injury is not the direct cause of death of the deceased rather due to negligent treatment the deceased died. Learned counsel further contended that the doctor who had allegedly operated the deceased was not produced which indicates that the negligence on the part of the medical department was concealed by the prosecution; that Zakir Hussain P.W.7 while making statement made certain improvements and also told a lie on certain points. There is no corroborative piece of evidence on the file of this solitary interested eye-witness and in such eventuality the capital punishment cannot be passed for the safe administration of justice.
' Learned Law officer contended that it is a broad daylight occurrence and there was no question of false implication of the accused in this case. Learned counsel further contended that statement of this witness is corroborated by the Dying declaration Exh:PS (statement under section 161, Cr.P.0 of Ibraheem deceased). Further contended that the motive and the recovery also corroborate the occular account furnished by Zakir Hussain P.W.7.
7. Arguments heard. Record perused.
8. Admittedly, in this case there were three eye-witnesses namely Muhammad Ali, Muhammad Yousaf and Zakir Hussain. Muhammad Ali is the maternal uncle of Zakir Hussain who is the real brother of Ibraheem deceased, whereas Muhammad Yousaf is not related to the deceased or the accused but the prosecution gave up Muhammad Yousaf and Muhammad Ali being won over. It is understandable that Muhammad Ali being brother of accused Ali Sher is not supposed to make statement against him but Muhammad Yousaf who is an independent witness did not support the prosecution case and only Zakir Hussain P.W.7 remained in field to furnish the occular account.
Although there was some contradiction and improvement in the statement of P.W.7 but otherwise he faced the cross-examination done by the learned defence counsel and remained consistent with his statement. He A cannot be termed as interested witness because nothing was brought on the file by the defence side to prove that he had any motive to falsely implicate the appellant in this case.' Even no suggestion was put to this witness that he had any enmity to involve the appellant in this case, so, his evidence is confidence inspiring. Although the conviction can be based on the testimony of a solitary eye-witness if the same inspires confidence, as in this case but the extreme penalty of death on the statement of a solitary eye-witness is not advisable without any B independent corroboration which is necessary for the safe administration of justice.
' In this case the learned Additional Sessions Judge had sought corroboration from the statement of Ibrahim deceased (Exh. PS). He also sought corroboration from the recovery of carbine P-5 from the appellant.
' So far statement of the deceased under section 161, Cr.P.C. Is concerned that cannot be termed as dying declaration. In the F.I.R. It is specifically mentioned that Ibraheem was admitted in Surgical Ward and the medical officer had opined that he was not fit to make statement. Subsequently, on 30-3-2001 i,e, almost five days after the occurrence the statement of Ibraheem deceased under section 161, Cr.P.C. Was recorded by the Investigating Officer. The trial Court had wrongly considered his statement as dying declaration because the I.O. Had not sought any opinion from the doctor before recording the said statement, whether the deceased Ibrahim was fit to make statement or not? Without such query, the statement under section 161, Cr.P.C. Is not helpful to the prosecution nor the same can be termed as dying declaration. Exh. PS is not signed' or thumb marked by Ibraheem deceased. Even the said statement was not endorsed by the doctor. Even the doctor had not put any signatures on the said statement that Ibraheem during the said period of making statement remained in his senses. On the other hand it is mentioned in the F.I.R. That on 25- 3-2001 the doctor had given a positive opinion that Ibraheem was not fit to make statement. Even the said statement is not signed by any witness who could state that in his presence the deceased made the said statement. These all facts indicate that in order to strengthen the prosecution case this statement was fabricated by the I.
0.
' Use of section 161, Cr.P.C. Is given in section 162, Cr.P.C. According to section 162, Cr.P.C., statement under section 161, Cr.P.C. Can be used by the accused only for the purpose to contradict the said witness, in the manner provided by section 145 of the Evidence Act, 1872 (140 of the Qanun-e- Shahadat, 1984). So, Exh. PS is just a statement under section 161, Cr.P.C. Which cannot be considered as dying declaration. If such practice is allowed then the police officers may record the statement under section 161, Cr. P.C. Of any deceased person by giving the colour of dying declaration to such statement. So, we hold that the statement under section 161, Cr.P.C. Recorded by the I.O. Of the deceased without any endorsement of the doctor on the said statement cannot be termed as a dying declaration Arid the trial-Court had wrongly sought corroboration from the said statement Exh PS.
So far recovery of carbine P-5 from the accused is concerned, admittedly no empty was recovered from the spot. Even no empty was recovered from the said carbine at the time of alleged recovery.
On the file there is no report of the Forensic Science Laboratory, therefore, said recovery of carbine P-5 does not connect the appellant with the alleged crime and the same is inconsequential. It is astonishing that the said carbine P-5 was not sent to the office of FSL to determine whether the same was in working condition or not. So the recovery of carbine P-5 is not helpful to the prosecution in any manner and is inconsequential. The same cannot corroborate the solitary statement of Zakir Hussain.
' In this case the prosecution alleged that Falak Sher the elder brother of Muhammad Ali complainant was ready to give hand of his daughter to Ismail but Ali Sher forbade him and stated that he will not allow this Rishta with Ismail whereupon Falak Sher also refused Rishta to said Ismail.
It was the case of the prosecution that complainant thereafter stated that he would give Rishta of his daughter to Noor Hassan and not to his brother. Due to which Ali Sher etc. Nursed a grudge. In this case the motive is not proved for the reason that Muhammad Ali who intended to give hand of his daughter to Noor Hassan was not produced by the prosecution. According to Zakir Hussain, the daughter of complainant was just about 11/12 years whereas, Noor Hassan was aged 22 years, therefore, no question of said engagement arose. Even otherwise there was no reason for committing the murder of Ibraheem who was no where figuring in the whole motive part.
According to the prosecution the complainant was available at the spot. If the motive asserted by the prosecution was true then the complainant must be the first target of the accused party.
' In this case, Noor Hassan while appearing as P.W.9 admitted that the complainant was going to engage his daughter Mst. Salma with him. He did not utter any word regarding the background of the motive but for the first time in the trial he stated that on the day of occurrence he was going to be engaged with Mst. Salma Bibi the daughter of Muhammad Ali complainant. He was duly confronted with his previous statement, where said fact was not mentioned which indicates that for the first time, in the trial he brought this fact while making improvement and prior to that he had nothing to say about the motive part of the occurrence.
' No witness came forward to state regarding the motive part except Zakir Hussain P.W.7 but before the police in his statement under section 161, Cr.P.C. He never mentioned the motive and for the first time during trial he asserted the motive part. During the cross-examination he stated that:-- "I had stated in my statement under section 161, Cr.P.C. That motive behind the occurrence was that we demanded the hand of Mst. Shehza Bibi daughter of Falak Sher. Said Falak Sher refused to give the hand of his daughter to my brother Muhammad Ismail under the pressure of accused persons as they had threatened him with dire consequences. Muhammad Ali, my maternal uncle offered the hand of his daughter Salma Bibi for Noor Hassan. The accused persons were not agreed with this Rishta as due to this grudge, they murdered my brother Ibrahim." Confronted with Exh: DA where it is not recorded.
' Meaning thereby, it was for the first time that he made improvement during the trial regarding the motive and prior to that he had nothing to say about the motive part.
' In examination-in-chief this witness stated that on the day of occurrence, he along with deceased and others were going to the house of Muhammad Ali for the engagement of his younger brother Noor Hassan with Mst. Salma Bibi. But during the cross-examination he admitted that it is correct that while proceeding' to the place of occurrence from their home, House of Muhammad Ali complainant comes first and then the place of occurrence. If this witness and the deceased were going to the house of Muhammad Ali complainant then there was no occasion for them to reach at the place of occurrence which was ahead of the house of the complainant. In this eventuality this witness made a somersault contrary to his examination-in-chief and stated that:-- "When the occurrence took place, we were returning back after extending invitations to our guests.
We were not going for engagement ceremony at that time."
' So, with one breathe this witness was giving two reasons for his presence at the spot, negating the whole motive part. This fact indicates that the prosecution had suppressed some thing which occurred just prior to the occurrence because if they were going for engagement purpose to the house of the complainant then the place of occurrence does not fall in the way and for the first time P.W.7 took somersault that they were returning after giving invitations to their guests. This fact indicates that some thing was concealed by the prosecution regarding the immediate happening prior to the occurrence.
' As already discussed, there was no corroborative piece of evidence in this case to the statement of P.W.7 and for the safe administration of justice, capital punishment cannot be awarded to the appellant in the absence of any independent corroboration.
9. In this case, the solitary fire shot hitting the deceased on his back is attributed to the appellant.
Initially the case was registered under section 324/34, P.P.C. The injured Ibrahim was shifted to the hospital where he was medically examined vide MLC Exh. PE. There were multiple lacerated wounds on left lumber region of the deceased. The injured was admitted in the DHQ Hospital Sahiwal and thereafter he was referred to the Mayo Hospital, Lahore where he remained admitted for 15 days and then expired. During this period he was operated upon. On 25-4-2001 P.W.1 Dr. Abdul Jabbar conducted post mortem examination on the dead body of Ibrahim. He found laparotomy wounds septic. He also found septic wound and bed sores on the dead body of the deceased. According to the doctor the cause of death in this case was septicemia leading to multiple organs failure, as a result of fire-arm injuries which was sufficient to cause death in the ordinary course of nature.
During cross-examination he admitted that normally wound becomes septic if the treatment is not made properly. It is pertinent to note here that operation notes were not produced by the prosecution. Even the concerned doctor who operated upon the deceased was not produced by the prosecution. In this case the cause of death was septicemia, although the septicemia was the ultimate result of fire-arm injury, but admittedly the death occurred due to negligent treatment provided to the deceased.
' Although the appellant knew that the injuries caused by him on the body of the deceased were likely to cause death but the nature of the wounds that developed later on after treatment has made us understand that in the intervening period of causing injuries and till the death of the deceased wounds became septic and cause of death was septicemia and in that eventuality the extreme penalty of death under section 302(b), P.P.C. Was not warranted. If the prosecution had produced the doctor who had operated upon the deceased Ibraheem and who managed him during his life time then the prosecution can argue that no negligence was done on behalf of the doctors but in this case the evidence/notes of the expert doctor who operated upon and managed the deceased in his life time was withheld by the prosecution. So, there is possibility that the cause of death was due to negligent treatment on behalf of the officials of the hospital.
10. As already discussed above, the motive part of the occurrence brought by the prosecution had not been established and what actually happened prior to the occurrence is also shrouded in mystery. Two eyewitnesses have already been given up by the prosecution as being won over and regarding occular account the only one witness was produced. There was no corroborative piece of evidence on the file to the said occular account consisted of one eye-witness and for the safe administration of justice while relying upon the sole eye-witness extreme penalty is not warranted by law.
' Even otherwise; as discussed above, in this case the cause of death was not the direct result of fire-arm injury caused by the appellant about a month prior to the death. Rather the cause of death was septicemia and the fire-arm injuries caused by the appellant were not the direct result of death of the deceased due to the said injuries. As there are sufficient mitigating circumstances in this case, as discussed above, hence the extreme penalty of death is unwarranted.
11. Consequently, the conviction and sentence awarded to the appellant under section 302(b), P.P.C. Is altered from death to life imprisonment. However, the compensation awarded by the trial Court and the punishment in default thereof is maintained. The benefit of section 382-B, Cr.P.C. Is extended to the appellant.
12. With the above modification into the sentence, Criminal Appeal No,97 of 2005 is dismissed.
13. Murder Reference No,6 of 2005 is answered in the Negative and the death sentence is not confirmed.