MALIK SAEED EJAZ, J. - Rafaqat Hussain- appellant was tried by Sardar Muhammad Babar, learned Additional Sessions Judge, Gujjar Khan, in case F.I.R. No. 211 registered on.16.7.2001 at Police Station Mahdra, District Rawalpindi, for offence under Section 302, P.P.C. Vide judgment dated 30.9.2004, the learned Trial Judge convicted and sentenced the appellant for offence under Section 302(b), P.P.C. To death plus payment of rupees onedf lac as compensation to the legal heirs of the deceased, in default whereof to further undergo S.I. for six months.
2. Aggrieved by his above-noted conviction and sentence, the convict/appellant has filed the instant appeal, while the learned Trial Court has made a reference bearing Murder Reference No. 865 of 2004, seeking confirmation or otherwise of death sentence imposed upon the convict. Both these matters are being decided through this consolidated judgment.
3. Brief facts of the prosecution case per F.I.R. (Ex.PH/1) based on the statement (Ex.PH). Of Amjad Hussain-deceased, complainant, are that he was resident of Para Urjan and working as Ambulance Driver in K-2 Factory, Mandra. On 16.7.2001 at about 9.00 p.m., he was present in the factory, when Rafaqat Hussain/appellant called him and took him to Abbasi Hazara Hotel Al- Rahman on G.T. Road and said there that be would teach a lesson to him. For getting a criminal case registered against Bashar; The complainant was standing while putting his both hands on his abdomen when the appellant made a fire with his carbine, which hit him on his belly and hands.
Then the appellant left the place of occurrence. The occurrence was alleged to have' been witnessed by the persons present in the hotel, including Aurangzeb/PW-12. The complainant was taken to Mandra JHospital.
4. On 16.7.2001, Muhammad Sabir, S.I. (retired)/PW-13, who was present in R.H.C., Mandra in connection with investigation of case F.I.R. No. 230/01, recorded the statement Ex.PH of Amjad Hussain- deceased/complainant, which was sent to the Polite Station where formal F.I.R; Ex.PH/1 was registered by Imdad Hussain, S.I./PW-8. Thereafter, he prepared injury statement of Amjad Hussain and. Got him medically examined through application Ex.PM. On 17.7.2001, he inspected the- spot; prepared its rough site plan Ex.PN and recorded the statement of Aurangzeb/PW under Section 161, Cr.P.C. On 20.7.2001, the appellant was arrested. On 23.7.2001, the appellant, while in custody, led to the recovery of carbine P-3, which was taken into possession through memo. Ex.PF, attested by Malik Allah Ditta (given up PW) and Zabarat Hussain/PW-6. On receipt of information about the death of Amjad Hussain, The I.O. Amended the offence from Section 324 to Section 302.
He got conducted post-mortem examination on the dead-body of the deceased through Muhammad Azam, Constable/PW-4, vide application/injury statement Ex.PD. He prepared his inquest report Ex.PE. On 26.8.2001, he took into possession scaled site plan Ex.PA to PA/1, prepared by Qamar-ud-Din, Draftsman/PW-1. After completion of investigation, the accused were challaned to face the trial. As they denied the charge, the trial commenced.
5. To substantiate its version at the trial, prosecution produced thirteen witnesses. Ocular account was sought to be proved through Aurangzeb/PW-12, who did not support the prosecution case and was declared hostile and cross-examined by the learned Special Prosecutor. Zabarat Hussain/PW- 6 stated about the recovery of carbine effected at the instance of the appellant. Dr. Irfan Bashir/PW-11, who, on 16.7.2001 medically examined Amjad Hussain, while observing three injuries on the person of the injured, as detailed in M.L.R. Ex.PL, opined that all the injuries were kept under observation and the patient was referred to Holy Family Hospital, Rawalpindi, for X-ray of abdomen and for expert radiological opinion. According to him, probable duration of injuries was about within six hours, caused by fire-arm. Dr. Muhammad Ateeq/PW9, who conducted operation of Amjad Hussain on account of fire-arm injury in the abdomen on 17.7.2001, while observing four injuries on his person, as detailed in Ex.PJ/1, opined that the injuries in the abdomen was the result of fire-arm; condition of patient was serious. Amjad Hussain remained in the hospital till 24.8.2001 and died at 9.35 a.m. On the same day. Lady Dr. Shazia Ateeq/PW-10 stated that Amjad Hussain was admitted in the hospital on 17.7.2001 and remained there till 24.8.2001 at 9.35 a.m. When he expired.. Dr. Jamil Ahmad/PW-5, who, on 24.8.2001, conducted autopsy on the dead-body of the deceased Amjad Hussain, while observing seven injuries on his person, as detailed in post-mortem report Ex.PD/1, opined that cause of death was the septicemia and infection of the wound which resulted due to the fire-arm injury. According to him, probable time between injuries and death 'was one month and seven days,, while between death and post-mortem examination; it was about three and a half hour. Muhammad Sabir, retired S.I./PW-13, stated about the drafting of Complaint at the instance of Amjad Hussain, complainant/deceased; its dispatch to the Police Station for registration of formal F.I.R. And the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed. After placing on record the report of Forensic Science Laboratory Ex.PR, the prosecution closed its side.
6. In his statement recorded under Section 342, Cr.P.C., the accused pleaded his innocence and false implication. The applicant neither appeared as his own witness as contemplated by Section 340(2), Cr.P.C. Nor produced any witness in his defence.
7. Learned counsel for the appellant contends that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt because the sole eye-witness in this case was Aurangzeb, who has not supported the prosecution version; and that the statement of the deceased-complainant cannot be treated as dying declaration, as there was no apprehension of his immediate death and he died after one month and seven days of the occurrence on account of septicemia, which might have happened due to the negligence of the doctor; that the recovery of carbine at the instance of the appellant is also of no use, as no empty was collected from the spot.
8. On the other side, learned A.P.G., assisted by the learned counsel for the complainant, has vehemently defended the impugned judgment, contending that the prosecution has successfully proved its case against the appellant through dying declaration Ex.PH of the complainant- deceased, coupled with the fact that Aurganzeb/PW-12, who although did not support the prosecution version but admitted the presence of the appellant in the company of the deceased- complainant; that in order to treat the statement of the deceased as dying declaration, it is not necessary that there must be an immediate apprehension of death; that the prosecution case is fully supported by the recovery of carbine at the instance of the appellant and such weapon of offence, as per report of the Forensic Science Laboratory, was in working order; and that the prosecution version is further strengthened by the medical evidence.
9. Arguments heard. Record perused.
10. First of all we would like to take up the main contention of learned counsel for the appellant to the effect that statement of the complainant in the shape of F.I.R. Could not be treated as "dying declaration", as at the time of recording of such statement the injuries had not been declared by the doctor to be dangerous to life and that there was no corroboration to the said statement, as the only eyewitness to the ocular account namely Aurangzeb had resiled. So far as admissibility of "dying declaration" is concerned, there is no doubt about admissibility of "dying declaration" under Section 32(i) of. The Evidence Act and the logic behind it is that the person in such a precarious condition by fear of Allah Almighty is not supported to tell a line in that situation when he is either under genuine impression of death or actually and imminently embraces the death after making such a statement. It is also not acceptable that a person almost lying on the death bed would chose to let off the actual culprits and instead would opt to pick some else as dishonest substitution.
11. Although, it may be preferable that such a statement which subsequently is to be treated as "dying declaration" may be made before or in the presence of the Magistrate, medical officer or any other independent person, but strict sense it is not the requirement of law that such "dying declaration" must in any eventually be made before such witnesses, because it heavily depends upon the facts and circumstances of the case, in which the occurrence takes place or the situation in which the injured is placed. At times, the person making such statement may be surrounded by so many persons at the crucial moment making it possible for him to make "dying declaration" before so many persons, but it may also be a reality that at certain moments the injured may be placed in such a situation where during the interregnum period i.e. Sustaining of injury and the making of such statement, the injured may face either by none or at the most one or two persons, as such, it heavily depends upon the prevailing circumstances that where and in whose presence such a statement is made by the deceased. Similarly, it is also not requirement for acceptance of such statement as "dying declaration" that danger to life or expectancy of death must be imminent or that maker of such statement must dye then and there. A simple and straightaway statement made by any person, who receives even remotest injury during the occurrence without their being imminent danger and threat to his life, can subsequently become a "dying declaration" if because of the same injury the maker of such statement losses his life and once a "dying declaration" is proved to have been made genuinely, it alone can be made basis of recording conviction and imposing sentence upon the accused. However, at the same time, it would not be apt to believe every such statement as gospel truth merely on the ground that same is being posed as a "dying declaration" and before relying on any such statement; its authenticity is to be assessed by the Courts on the following touchstone:---
(I) The medical and mental condition of the person making such statement and the ultimate outcome of the injuries;
(II) The credibility and dignity of the person who makes such a statement "dying declaration";
(III) The author of such statement may be a police man, but his equal handedness for each of the- party i.e. The maker of such statement and the once against whom such statement is made, meaning thereby, the author must be independent minded;
(IV) The time consumed in-between the occurrence and making of such statement i.e. Promptness;
(V) The surrounding corroborative material in support of such statement, if at all required and available.
Now, we assess and analyze the instant case on the above yardstick. It is matter proven on record that the deceased had received fire shot and was subjected to repeated surgery for those injuries.
Therefore, it is quite natural that once some one receives fire-arm injuries in his belly, vital part of the body, the foremost and natural impact would be that such person would definitely carry a strong, apprehension about his life, though at times even a single injury, may that be of blunt weapon, may give rise to such an apprehension in the mind of injured. It is also proved on record that during the period between sustaining the injuries and the death, the deceased remained in his senses, as such; his capability to make statement cannot be doubted. Therefore, in the case in hand the prosecution has sufficiently proved that Amjad Hussain (deceased) had been severally injured and in that condition he had made a statement. Furthermore, according to the doctor, although the death had occasioned because of septicemia, but even septicemia was result of the same fire shot which had been inflicted upon him during the occurrence, as such the mere fact that deceased took a little long to succumb, does not change the nature of his "dying declaration".
Reliance in this respect is placed upon Wazir Gut v. The State (1976 SCM R 471), wherein it was held as under:- "..... The law does not insist that for the purpose of being treated as a dying declaration, the statement should have been made under immediate apprehension of death. We cannot import into the statutory requirement in such extraneous limitations. In the absence of a statutory requirement in this regard, the last incriminating statement made by the deceased could be legitimately treated as dying declaration."
12. As regards the credibility and integrity of Amjad Hussain (deceased), although he could not survive because of his injuries as such could not be brought before the Court for recording his statement, but, we note that the accused/appellant in his statement under Section 342, Cr.P.C.
Although denied that no such statement had-been made by the deceased, however, there is no allegation that maker of such a statement was either dishonest or in any way inimical towards him to have made such statement, if any, to falsely involve him.
13. As regards the independent nature of Muhammad Sabir, Sub-Inspector PW-13, the scribe of the "dying declaration", naturally he is police man and unless anything is brought to the contrary, his impartially could not be doubted. When this witness was cross-examined by the defence, no question had been put to him to attribute any mala fide or ulterior motive for making a false and baseless statement about "dying declaration". Apart from that during cross-examination no question was put to this witness to suggest that he did not record such statement of Arnjad Hussain or that he made any omission or dishonest addition in such statement. It is by now settled that when a witness is not cross-examined on a specific point coming in his examination-in chief, such part of his statement shall be deemed to have been admitted. Therefore, genuineness of such statement, which ultimately formed basis for registration of formal F.I.R.,. Remains unchallenged. Furthermore, the statement of this witness cannot be discarded merely for the reason that he is a police man, because the statement of a personnel is as good a statement, as any one else. Apart from that when such statement was being recorded by Muhammad Sabir, Sub- Inspector PW-13, it could not be said that its very purpose was to use such statement as "dying declaration" and it was only after the death of the maker, that his such statement turned into "dying declaration", therefore, for this reason also the strict criteria about recording of "dying declaration" could not be applied. While dealing With similar situation, it was held in the case of Ejaz Hussain and 2 others v. The State (1971 SCM R 516) as follows:- "Apparently, the statement of the deceased was recorded by the Head Constable to utilize it as a basis for a formal F.I.R. And was not initially intended to be used as dying declaration. In this circumstance, the value of the dying declaration, though recorded by the Head Constable, did not diminish."
14. As regards promptness of such statement, it is noticed that fn the case in hand the occurrence took place on 16.7.2001 at about 9.00 p.m. Whereas, statement of the deceased was recorded on the same date at 10.00 p.m. i.e. Just one hour after the happening of the occurrence. Therefore, recording of statement "dying declaration" with such promptness, further eliminates the possibility of any deliberation, consultation or interference and mingling of any third person, who could have influenced the maker of such statement to depose falsely.
15. Although, where "dying declaration" itself is proved to have been made and recorded genuinely there is v no strict requirement to still find out its corroboration, but in the case in hand, we see that in the dying declaration Amjad Hussain had also cited one Aurangzeb as eye-witness and when examined before the Court, although this witness made some deviation and for this reason he was got declared hostile by the prosecution and subjected to cross- examination by the defence as well as prosecution, but we observe that despite the above fact of his having been declared hostile, in his examination-in-chief Aurangzeb had stated that when he saw, the deceased was sitting in the company of Rafaqat accused/appellant and two other unknown persons and they were engaged in chatting. It had also come in his statement that Rafaqat accused ordered to bring tea and water and before the arrival of tea, Rafaqat accused and Amjad deceased left the place and after 5/10 minutes he heard sound of fire shot. When he went to the spot, Amjad Hussain was found lying injured. As such, although according to this witness he had not seen the actual culprit, but even if statement of this witness is not taken as any eye-witness to the occurrence for any reason i. e. Either he might not have seen the occurrence for any person i.e. Either he might not have seen the occurrence or might be telling a lie, but the fact remains that in any eventuality, his above statement was more than sufficient to hold that this person was a witness of last seen, admittedly having witnessed the deceased in the company of the accused just before the occurrence.
Therefore, this fact alone is enough to lend sufficient corroboration to the "dying declaration".
16. According to medical evidence, as noted above the deceased sustained fire-arm injuries and on account of such injuries, he had to-undergo many surgical operations and he remained admitted in the hospital till his death, i.e. 24.8.2001. The doctor who conducted the post-mortem examination on the dead-body of the deceased opined that the cause of death was septicemia, the origin whereof was the fire-arm injuries. Hence, the prosecution case is strengthened by the medical evidence.
17. The resume of the above discussion is that the prosecution has proved its caused against the appellant through the dying declaration of the deceased, supported by the statement of the Investigating Officer and the medical evidence; hence, he has rightly been convicted by the learned Trial Court.
18. As regards the quantum of sentence, it has been noticed that according to the dying declaration there is only one fire shot made by the appellant upon the deceased; that even according to the prosecution story itself, there was some altercation just prior to the occurrence which can be smelled from the contents of F.I.R.; that no body knows as to what happened between the deceased and the appellant immediately before the occurrence, which prompted the appellant to fire at the deceased; hence, the motive is shrouded in mystery; and that the deceased died after one month and seven days after the occurrence the septicemia, which might have occurred due to negligence of the doctors. Thus, there are sufficient mitigating circumstances for lessor punishment. Accordingly, we, while dismissing the appeal; maintaining the conviction and the order of the learned Trial Court passed under Section 544-A, Cr.P.C., commute the death penalty to imprisonment for life, with benefit of Section 382-B, Cr.P.C. The death sentence is NOT confirmed and the Murder Reference is answered in the negative.