Sayed Zahid Hussain, J.--These are appeals through leave of the Court against the judgment dated 12.6.2003 of the learned Division Bench of the Peshawar High Court Peshawar rendered in Murder Reference No, 43 of 2002, Criminal Appeal No, 497 of 2002 and Criminal Appeal No, 506 of 2002. The appeal filed by the complainant (Crl. A. No, 506/2002) was dismissed being incompetent while the appeal of the convicts (Crl. A. No, 497/2002) was partially accepted acquitting Subhan- ud-Din accused. The death sentence of the appellant Niaz-ud-Din was confirmed. Niaz-ud-Din had filed Crl. PLA No, 101-P/2003 and Saeed Ullah Shah complainant filed Crl. P.L.A. No, 12-P/2003.
Leave to appeal was granted on 19.05.2005 as follows:-- "Listed petitions have been filed for leave to appeal against impugned judgment by convict- Niazuddin and the complainant respectively challenging conviction and acquittal recorded vide impugned judgment whereby Niazuddin has been awarded sentence of death while respondent- Subhanuddin has been acquitted of the charge. Unfortunate incident of murder of 12 persons was reported to the police vide FIR Ex.PA registered at Police Station Sirdheri, District Charsada on 14.08.1996. Convicted and acquitted accused were arrested on 15.12.1997 and no incriminating recoveries from their possession were made. On trial, vide judgment dated 21.12.2002, petitioners-Niazuddin and respondent-Subhanuddin were convicted as follows:-- "For Murders of Wajid Ali Shah, Mst. Fatiho, Mst Wahaba, Mst.Begum, Anwar Ali Shah, Usman Ali Shah, Gul Ali Shah, Zulfat Ali Shah and Rehman Ali Shah under Section 302 PPC (9 counts) sentenced to death under each count and fine of Rs, 1,00,000/- each under each count (to be given to the heirs of the deceased as compensation under Section 544 Cr.P.C) or in default of payment of fine to suffer two years RI under each count".
Learned High Court vide impugned judgment dated 12.06.2003 accepted the appeal of Subhanuddin respondent in Criminal Petition No, 112-P of 2003) and acquitted him of the charge whereas conviction and sentence of Niazuddin (petitioner in Criminal Petition No, 101-P of 2003) was maintained and murder reference to his extent was answered in affirmative. It is important to note that some of the other accused persons were acquitted by the trial Court. Their acquittal was challenged by the complainant by filing appeal which was not found maintainable, as such, the same was dismissed.
Learned counsel for the convict and complainant addressed arguments in support of their respective contentions.
After hearing both the sides, we are inclined to grant leave to appeal in both the petitions, inter alia, to examine as to whether petitioner-Niazuddin has been-convicted and sentenced following the principles laid down by this Court for appreciation of evidence in criminal cases and also to examine as to whether evidence against respondent-Subhanuddin furnished by IsrailPW-9, coupled with dying declaration of Rehman Shah and medical evidence, was not sufficient to maintain his conviction and learned High Court has not made a departure from the law enunciated by this Court relating to acceptance of solitary statement of an eye-witness for recording conviction, if the same is found trustworthy and confidence inspiring, as held in Allah Bakksh v. Shammi (PLD 1980 SC 225). In order to secure the attendance of respondent Subhanuddin, bailable warrants, in the sum of Rs, 1,00,000/- returnable to the Registrar of this Court be issued against him".
2. The pathetic incident that took place on 14.8.1996, at about 2:00 a.m. (night) in which twelve unfortunate persons belonging to the same family lost lives is paraphrased by the High Court as follows :-- "Ghaffar Ali Shah, the son of Wajid Ali Shah, alongwith his wife Mst. Kharo and Mst Irshad Begum, the niece of Mst. Kharo, were done to death in the house of Ghaffar Ali Shah, while rest of the nine deceased which includes Wajid Ali Shah, his widow, his two daughters and five sons were done to death in a separate house but in the same village. Saeedullah, the son of Wajid Ali Shah, who was residing in a separate house, was informed by Niqab Shah (P.W.10) regarding the occurrence committed in the house of Ghaffar Ali Shah at about 0230 hours who made the report Ex.P.A/1 on the spot and twenty persons with full descriptions were charged for the twelve murders. The occurrence was the outcome of a blood-fued enmity between the parties. The occurrence was allegedly witnessed by the then-injured but died subsequently due to the injuries sustained by them, namely, Zulfat Ali Shah, Rehman Ali Shah, Mst. Irshad Begum and one Israeel who escaped unhurt. After recording murasila Ex.PA/1, it was sent to the Police Station through Naeem Jan LHC for registration of the case. Injury sheets of the injured victims and the deceased along with inquest reports were prepared, two site-plans Ex.PW.9/1 and Ex.PW.10/1 were prepared at the pointation of Israeel, PW-9 an eye-witness of the occurrence and Niqab Shah, who has informed the complainant of the two separate venues of occurrence respectively. During the spot inspection of Ghaffar Ali Shah deceased's house, nine empties of 7.62 bore (Ex.P.4) were recovered from point-A, while the same number of empties of the same bore were, recovered from point-B. During the preparation of site-plan (Ex'.PW-9/1), from the house of Wajid Ali Shah deceased six spent bullets from points-H, five spent bullets from point-K, 23 empty shells of 7.62 bore from point-M and an electric bulb of 100 volts installed on the external side of the wall noted as point-N were recovered and taken into possession. On points A, B, C, D, E, F and G, signs of bullet marks were noted on the inside wall of the room in the house. No blood was recovered from the place allocated to Ghaffar Ali Shah, Mst. Kharo deceased and Mst. Irshad Begum-then-injured while preparing the site-plan Ex.PW-10/1. All the deceased and injured in the house of Wajid Ali Shah, site-plan Ex.PW-9/1 were lying adjacent to one another and the blood of all the victims were mixed together wherefrom mixed blood-stained earth was taken into custody".
3. Subhan-ud-Din and Niaz-ud-Din faced trial and they pleaded' not guilty. On conclusion of the trial the learned Judge, Special Court-II, Charsadda convicted and sentenced them as under: "In the result, I give benefit of doubt and' acquit the accused facing trial for the murders of Ghaffar Ali Shah, Mst. Kharo and Irshad Begum while convict the accused facing trial for the murders of Wajid Ali Shah, Mst. Fatiha, Mst. Wahaba and Mst. Begum, Anwar Ali Shah, Usman Ali Shah, Gul Ali Shah, Zulfat Ali Shah and Rehman Ali Shah u/S. 302 (9 counts) and sentence them to death under each count and order that they be hanged by the neck till they are dead. They are also fined to the tune of Rs, One lac each under each count, or in default of payment of fine, the accused should suffer two years R.I. under each count. The fine if received from the accused, shall be given to the legal heirs of the deceased as compensation u/S. 544-A Cr.P.C. the execution of this sentence shall be subject to the confirmation by the Honourable High Court under Section 374 Cr.P.C. The execution of this sentence shall be subject to the confirmation by the Honourable High Court under Section 374 Cr.P.C. It has been explained to the accused that they may file appeal against the sentence within 7 days and that the copy of this judgment will be supplied to them free of cost for that purpose. The accused are further convicted u/S. 449 PPC and sentenced for two years and u/S. 171 PPC and sentenced for two years and u/S. 148/149 for two years. They are also fined to the tune of Rs, 5000/- under each count. The sentence u/S. 148/149/171 and 449 is to take effect if the death sentence of the accused is not confirmed by the . High Court."
4. The learned Judges in the High Court, however, on appraisal of the evidence confirmed the death sentence of Niaz-ud-Din whereas the conviction and sentence of Subhan-ud-Din was set aside and was acquitted.
5. The learned counsel for the appellants have been heard in both the appeals. The learned counsel for Niaz-ud-Din has assailed the conviction and sentence of Niaz-ud-Din whereas he has supported the acquittal of Subhan-ud-Din. It is contended that it was most unnatural for the only eye-witness Israeel (PW-9) to be present in the house of the deceased and his testimony was neither trustworthy nor reliable as he did not volunteer to lodge the report himself. Disputing the genuineness of the dying declaration, it is contended that the same was not in conformity with the established norms and that in any case it is a week type of evidence, which cannot be relied upon for conviction. According to him, Israeel (PW-9) had, not shown the presence of Subhan-ud-Din, who has rightly been acquitted by the High Court. It is thus contended that there, was no sufficient, clear and confidence inspiring evidence against Niaz-ud-Din, whose conviction and sentence also deserve to be set aside.
6. The learned counsel for the complainant has contested the appeal of Niaz-ud-Din and supports his conviction and sentence. He seeks setting aside of the acquittal of Subhan-ud-Din. According to him, the dying declaration of Rehman Ali Shah (Ex.PL/1) was made when he was conscious and capable of making statement which was certified by the Doctor; and that it was a planned attack by one family against the other due to long drawn enmity. It is contended that the matter required to be looked into by keeping in view the fact of .cruel killing of twelve persons of a family. The learned Additional Advocate General, N.W.F.P. has supported the judgment of the Peshawar High Court, Peshawar. While placing reliance upon Mst Shamim Akhtar v. Fiaz Akhtar and two others (PLD 1.992 SC 211) he contends that under Article 46 of Qanoon-e-Shahadat Order, 1984, there was no special mode for recording of dying declaration and that there was sufficient material on record particularly the depositions of Saeed Ullah Shah PW-8 and Israeel PW-9 for convicting Niaz-ud-Din appellant.
7. Restating briefly, the occurrence took place at night time of 14.8.1996 about which Saeed Ullah Shah complainant, who was not with his family members then, came to know through Naqab Shah about the mass killing, reached the village where Israeel, PW-9 (his brother in law), was in the house. He came to know about the details that the door of the house was knocked at about 2:00 a.m. (night) on quest of Wajid Ali Shah (who was awake for Tahajad prayer) as to who was there, the response was Police and on opening the door people in Police uniform entered the house and killed the inmates. They were identified and their names were given in the FIR including Niaz-ud-Din the convict and Subhan-ud-Din acquitted accused. Rehman Ali Shah and Zulfat Shah injured told him the names of the assailants including Niaz-ud-Din and Subhan-ud-Din. In view of the Murasalla (Ex.PA/1) recorded by Zarafat Khan, SHO (PW-18), formal FIR was registered. The injured were taken to the Hospital where the statements of Rehman Ali Shah and Mst. Irshad Begum were recorded on 16.8.1996, duly certificated by the Doctor that they were conscious and were capable of making statement (Ex.PL/1) and (Ex.P/L) respectively. It is to be noted that Rehman Shah, Zulfat Ali Shah and Mst. Irshad Begum, who had sustained injuries succumbed to the same and died in the Hospital.
8. We have re-appraised the evidence produced by the prosecution, the statements of large number of witnesses were recorded by the trial Court, out of whom the deposition of Saeed Ullah Shah (PW-8) and Israeel (PW-9) has been subjected to criticism by the learned counsel for the convict/accused, which need thorough perusal and consideration as also the worth of dying declaration mentioned above. The essence of statement of Saeed Ullah Shah (PW-8) was that, when he reached the house of his father, he found his father, mother, sisters and brothers dead whereas his two brothers Zulfat Shah and Rehman Ali Shah were injured, who informed him that a large number of persons (named in his statement) had come in Police uniform who killed the deceased and caused injuries to Rehman Ali Shah and Zulfat Shah, who also succumbed to the same in the Hospital. Motive of this occurrence was stated as the previous blood feud enmity. In his statement Israeel (PW-9) (son-in-law of deceased Wajid Ali Shah) who was staying in the house that night gave more detail and specific version that he had seen Niaz-ud-Din appellant dressed in Police uniform and armed with Kalashnikov, who alongwith others surrounded the carts, took Wajid Ali Shah (father), Wahaba and Begum inside a room and he (Israeel) was taken aside whereafter firing took place and he found Rehman Ali Shah and Zulfat Ali Shah in injured condition while the other inmates of the house had been done to death and that the site-plan was prepared on his pointation. Affirming about the identification of the accused, it was stated by him in cross- examination that he knew them previously as they were co-villagers. It was stated by him that the accused had told him to get away and he was then hiding out of fear. Niqab Shah (PW-10) aged 70-72 years a neighbor of Ghaffar Ali Shah affirmed in his statement that he had informed Saeed Ullah Shah (PW-8) about the incident and that site-plan (Ex. 10/1) was prepared on his assistance.
9. The contention of the learned counsel for Niaz-ud-Din that the presence of Israeel (PW-9) in the house was unusual and unnatural is without substance inasmuch as he was son-in-law of deceased Wajid Ali Shah and explained that he had gone to house of his father in law at "Deegar vela" (Afternoon). He was close relation and member of the family, who used to cultivate the land of Wajid Ali Shah. His presence in the said house can neither be considered as unnatural nor unusual. It is quite common for a son-in-law to stay with the family of his in-laws. His presence in the house also finds mention in the Ex.P-L/1, the dying declaration of Rehman Ali Shah. He is an eye- witness of the occurrence, who knew the accused being co-villagers and had the opportunity of recognizing them. His testimony could not be shaken in the cross-examination and has rightly been believed by the trial Court and the High Court.
10.The other contention of the learned counsel that had he been present in the house, he himself should have lodged the report with the Police about the occurrence is aimed at to cast doubt about his presence in the House that night, is also tenable, as when the son of deceased Wajid Ali Shah (deceased) had reached the spot, and had lodged the report, it was not necessary for Israeel, to have lodged the report. As to the contention about the worth or genuineness of dying declaration of Rehman Ali Shah, it is worth noting that the same was made by him in the Hospital, which was certified by the Doctor that he was conscious and was capable of making the statement. As held in Mst. Shamim Akhtar u. Fiaz Akhtar aria two others (PLD 1992 SC 211), there is no special mode .of recording such a declaration under Article 46 of Qanoon-e-Shahadat Order, 1984. It was further held in the said case that the same could be used against the accused when there was nothing to suggest that the deceased had substituted any innocent person in place of the real culprit. In Zarif Khan u. The State (PLD 1977 SC 612), the worth and sanctity attached to a dying declaration was considered. Though it was observed that the same was a weaker type of evidence than the evidence subjected to cross-examination, it was held that conviction could be based m a dying declaration, quoting observations from R. u. Woodcock (1 Leach CC 500) that "such declarations (are) made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth." It is presumed to be true. In Farmanullah v.
Qadeem Khan and another (2001 SCM R 1474) it was observed that conviction can be based on a dying declaration and there was no particular form or forum for making such declaration under Article 46 of Qanoon-e-Shahadat Order, 1984 and that its sanctity cannot be doubted. Here in this case the deposition of Israeel (PW-9) and dying declaration of Rehman Ali Shah do not contradict each other, rather there is a consistency as to the naming and involvement of Niaz-ud-Din in this tragic incident.
11.The statement of Israeel (PW-9) the eye-witness of the occurrence is confidence inspiring, which stand substantiated from the circumstances and other evidence. There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that "even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. " The reason being that it is the quality of evidence and not the quantity which matters.
Therefore, we are left with no doubt whatsoever that conviction of Niazud-Din was fully justified and has rightly been maintained by the High Court.
12.So for as the acquittal of Subhan-ud-Din is concerned though the trial Court had convicted him yet the High Court acquitted him. It was noted by the High Court that Israeel (PW-9) "has not mentioned the name of Subhan-ud-Din in the panel of accused, who entered the house of Wajid Ali Shah and committed the murder of nine persons". We have gone through the statement of Israeel, who appeared as PW-9, and find that no-where in his statement the name of Subhanud- Din appears. It may be observed that it is the evidence in a case which can be made basis for conviction of an accused person and not any assumption. Since the only eye-witness of the occurrence namely Israeel did not name him in his deposition, he was rightly acquitted by the High Court.
13.The learned counsel for Niaz-ud-Din ultimately craved for lesser punishment for Niaz-ud-Din.
The mode, manner and the circumstances in which twelve persons of a family were killed and the perusal of the site-plan (Ex PW-9/1) & (Ex.PW-10/1) gives a gruesome picture showing a large number of dead bodies of the head of a family, his wife, sons and daughters lying scattered in the house, who became victim of brutal act of assassination by the accused, who attacked the family in the middle hours of the night in Police uniform. It is such an inhuman act on the part of a so called human being that he does not deserve any leniency. On no recognized principle of law he can be shown clemency, who made sure to eliminate the entire family from this earth.
14. As a sequel to the above, both the appeals are dismissed.