' RAUF AHMAD SHEIKH, J.---Lehrasab Hussain, appellant, has challenged the vires of the judgment dated 29-6-2002 passed by the learned Additional Sessions Judge, Gujar Khan. Whereby he was convicted under section 302/34, P.P.C. And was sentenced to imprisonment for life with an order to pay a sum of Rs,1,00,000 as fine, half of which would be paid to the heirs of the deceased on recovery and in case of default in payment, the appellant would undergo S.I. For six months.
2. The appellant and two others were charged under section 302/34, P.P.C. For causing Qatl-e-amd of Karamat Hussain. The appellant and Talib Hussain (since dead during detention in the Jail) were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life each whereas Inayat Hussain was acquitted. The appellant has filed this appeal through the Superintendent, Central Jail, Adyala, along with an application under section 5, of the Limitation Act, 1908, for condonation of delay.
3. It is contended that the weapon of offence was not recovered and false recovery has been planted and that the occurrence was not witnessed by anyone and that P.Ws. Have come forward to support the false allegations due to their relationship inter se and with the deceased. It is further contended that due to poverty the appellant could not file the appeal in-time and that he was under the impression that his relatives might have preferred the same.
4. Briefly stated the prosecution version as set forth in the F.I.R. (Exh.PA/1) recorded on the statement (Exh.PA) of Karamat Hussain son of Allah Ditta, Caste Rajpoot Chohan, aged about 70 years, resident of Ranjali, Police Station Mandra, District Rawalpindi (then injured, who died on the same day at about 12-5 P.M.), are that on 2-6-2000, at about 10-00 a.m., he was grazing his cattle in the land of Maula Bakhsh falling in the area of Dhok Sardar and in the meanwhile Lehrasab Hussain son of Inayat Hussain armed with hatchet, Inayat Hussain son of Meeran Khan empty handed and Talib Hussain son of Mehrban armed with hatchet, residents of Ranjali, arrived there. Inayat Hussain raised a lalkara that Karamat be killed and on this Lehrasab gave a blow with hatchet which landed on the head of the deceased. Thereafter, Talib Hussain gave a blow with hatchet on the lower part of his back and the third blow was also given by Talib Hussain on his back. Karamat Hussain, deceased, fell on the ground and while he was lying there, Talib Hussain and Lehrasab Hussain gave him blows with the handles of their respective hatchets. On his alarm his wife Ayesha Bibi, daughter Nasreen Bibi and grand-daughter Itrat Khatoon arrived there and witnessed the occurrence. The motive was stated to be a previous case got registered by him against them. This statement was recorded at Chakwal Mor at about 11-00 a.m. On 2-6-2000 and case under section 324/34, P.P.C. Was registered and after the demise of the complainant Karamat Hussain section 302/34, P.P.C. Was substituted on the same day. Subsequently, section 201, P.P.C. Was also added.
After investigation the appellant and two others were sent up to face the trial. They were charged under section 302/34, P.P.C. On conclusion of the trial the learned trial court proceeded on to convict the appellant and Talib Hussain (who died in the Jail). He has assailed the conviction recorded and sentence awarded to him. Iftikhar Hussain son of the deceased has filed Criminal Revision No,221 of 2002 praying therein that the sentence awarded to the appellant and Talib Hussain (since dead during the pendency of the criminal revision) be enhanced. Both these matters are interlinked and interconnected so are being decided together through this single judgment.
5. We have heard the arguments advanced by Mr. Aamir Shafiq Qureshi, learned counsel for the appellant and Ch. Muhammad Waheed Khan, learned Deputy Prosecutor General assisted by Syed Hamid Ali Bokhari, learned counsel for the complainant and have minutely perused the record with their able assistance.
6. The learned counsel for the appellant has contended that the appellant was in the Jail and was given an understanding that his appeal has been submitted along with the appeal of his co- convict Talib Hussain and he also remained under bona fide impression that his brothers might have filed the appeal but then it transpired that no appeal was filed on his behalf so immediately he submitted the instant appeal along with an application for condonation of delay. It is contended that in criminal appeals against conviction, the ends of justice should always be achieved and should not be ignored due to technicalities. In this respect reliance is placed on the judgments reported as Ziaul Rehman v. The State (2001 SCM R 1405) and Adil Hussain v. The State (2003 YLR 1901).
7. Controverting these arguments the learned counsel for Iftikhar Hussain son of the deceased, has contended that the appeal has been filed with inordinate delay of more than seven years and that a lame excuse has been concocted for this delay so the same merits straightaway rejection.
8. Admittedly, the appellant had been in the Jail for a period of more than nine years before filing of the appeal. The appeal filed by his co-convict abated due to his demise. The Superintendent Jail should have obtained and forwarded the appeal of the appellant along with his co-convict as he was under an obligation to facilitate him in filing the appeal within limitation as required under Rule 90 of the Pakistan Prisons Rules, 1894. The appellant's contention that he remained under bona fide mistake that it was forwarded and his relatives had also preferred appeal constitutes a valid ground for condonation of delay in the appeal against conviction. The technicalities should not hamper the course of justice and the powers regarding condonation under Section 5 of the Limitation Act, 1908 should be liberally exercised to ensure administration of juitice in its true spirit: In this respect reliance is placed on the case-law A reported as Mian Muhammad Nawaz Sharif v.
The State (PLD 2009 SC 814).
9. The learned counsel for the appellant has contended that presence of both Nasreen Bibi (P.W.8) and Ayesha Bibi (P.W.9), who have furnished ocular account, is highly doubtful and it is proved on, the record that it was unseen occurrence. It is urged that the medical evidence does not support the ocular account as no injury with hatchet was caused on the parietal region and this contrast with the ocular account coupled with doubtful recovery was sufficient to disbelieve the prosecution version. The learned counsel for the appellant relied upon the judgments reported as Akhtar Hussain alias Kaka v. The State (2009 PCr.LJ 444), Ghulam Qasim v. The State (2008 PCr.LJ 230), Abdul Sattar v. The State and another (2008 AC 862)_and Mst. Zahida Bibi v. The State (PLD 2006 SC 255).
10. Controverting these arguments the learned counsel for the petitioner in Criminal Revision No,221 of 2002 and the learned Deputy Prosecutor-General have contended that the occurrence took place at about 10-00 a.m. And the matter was reported to the police by Karamat Hussain, deceased (then injured) at 11-00 a.m. On the same day and the F.I.R. Was recorded at 11-15 a.m. So the elements of deliberation and concoction stand ruled out. It is urged that the deceased was taken to. RHC, Mandra at about 11-30 a.m. By Muhammad Abbas HC/1955 and was referred to DHQ Hospital but he unfortunately died at 12-55 p.m. And, as such, his statement duly recorded and proved by P.W.12 Akhtar Ali, S.-I., Nasreen Bibi P.W.8 and Ayesha Bibi P.W.9, proves the cause of his death and this dying declaration coupled with the statements of the above mentioned P.Ws. Is sufficient to prove the guilt of the appellant. It is urged that the murder was committed in a gruesome manner in broad daylight so the appellant deserves capital punishment as no mitigating circumstance was available.
11. The deceased just after one hour of the occurrence and before one hour and five minutes of his demise got his statement (Exh.PA) recorded. Akhtar Ali, S.-I. (P.W.12) has categorically stated that the deceased made the statement, which was read over to him and thereafter he put his thumb impression in presence of Nasreen Bibi and Ayesha Bibi. Nasreen Bibi (P.W.8) and Ayesha Bibi (P.W.9) have stated similar facts and fully corroborated the statement of Akhtar Ali, S.-I. (P.W.12).
There was no reason for Akhtar Ali, S.-I. To concoct a false statement because at that time no one knew that the deceased would not survive. This statement is relevant under section 46(1) of the Qanun-e-Shahadat Order, 1984, as it discloses the circumstances under which he had sustained injuries, which ultimately resulted in his death. The appellant is sister's son of the deceased and is also nephew of Ayesha Bibi. There was no reason for the deceased, who died just after about one hour of making the statement, to implicate him falsely. The dying declaration has great evidentiary value and cannot be ignored unless it is established that it was made with malice or the facts mentioned therein were not probable. Just after about one hour of the occurrence the deceased categorically stated that the injuries were caused by the appellant and Talib Hussain (since dead).
The making of this statement by the deceased is proved by Akhtar Ali (P.W.12), Nasreen Bibi (P.W.8) and Ayesha Bibi (P.W.9). Nasreen Bibi and Ayesha Bibi are closely related to the appellant also. Like the deceased they had also no reason to implicate him falsely. The duly proved dying declaration does not need further corroboration although the same is available in this case in form of statements of P.W.8 and P.W.9. In this respect reliance is placed on the judgment reported as Majeed v. The State (2010 SCM R 55).
12. The learned counsel for the appellant has vehemently urged that Mst. Ayesha Bibi in the cross- examination had admitted that Beero son of Sharif had come to the village while raising alarm that Karamat was lying injured on the spot and they rushed to the place so they had not seen the occurrence. The witness had then and there stated that she did not remember so and also denied this suggestion in the later part of her statement. Both P.W.8 and P.W.9 remained firm about witnessing the occurrence so whether they were attracted on alarm of Beero or abuses hurled by the appellant and others is immaterial. They have given a C reasonable explanation regarding their presence near the place of occurrence. The learned counsel for the appellant has then contended that the injury on the head of the deceased was a lacerated wound which cannot be caused with the hatchet and, as such, the whole prosecutioR version becomes doubtful. Neither the deceased nor the witnesses have stated that the hatchet had hit from blade side so sustaining of injury by handle or wrong side of the hatchet cannot be ruled out. This minor discrepancy is negligible in view of categorical dying declaration of the deceased which is duly proved by P.W.8, P.W.9 and P.W.12.
13. The motive as alleged in the F.I.R. Was not proved. The deceased was neither complainant nor a witness of the case F.I.R. No,203 registered at Police Station Mandra, which was recorded on the statement of Tariq Abbas. It is true that weakness or absence of the motive is not a mitigating circumstance in itself but once it is alleged, the same must be positively 'established and if the prosecution fails to establish the same it must suffer. In this respect reliance is placed on the case reported as Noor Muhammad v. The State and another (2010 SCM R 97). The learned trial Court rightly considered the failure of the prosecution in this regard as a mitigating circumstance. The imprisonment for life awarded to the appellant, therefore, meets the ends of justice and no ground for enhancement of the same is available. However, the punishment of fine is not prescribed under section 302(b), P.P.C. And the learned trial court erred in this regard. The amount of fine of Rs,100,000 is converted into compensation for heirs of the deceased. It would be recoverable as arrears of land revenue and in case of default or non- recovery of the same as afore-mentioned, the appellant would undergo' S.I. For six months as ordered by the learned trial court. The modification is accordingly made in this respect.
14. For the reasons supra Criminal Appeal No,28-J of 2010 and Criminal Revision No,221 of 2002 are without merits and the same are hereby DISMISSED with slight modification as mentioned in para No,13.