Manzoor Ahmad Malik, J.--This judgment shall answer Murder Reference No, 650/03 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Abdul Majeed convict vide judgment dated 29.7.2003 passed by the learned Additional Sessions Judge-I, Bhakkar, whereby, convict Abdul Majeed was convicted for the murder of Muhammad Jamil under Section 302(b) PPC and sentenced to death with a further direction to pay a compensation of Rs, 50,000/- as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased. He was also convicted under Section 397 PPC and sentenced to ten years RI with a fine of Rs, 10,000/- in default whereof to further undergo two years SI. Abdul Majeed was also convicted under Section 411 PPC and sentenced to one year RI. Benefit of Section 382-B Cr.P.C. was extended to him.
2. Brief facts of the case; as given by PW-11 Abdul Razzaq (complainant) in the FIR(Exh.PE) are that on 31.7.2001 at about 8.15 p.m. he, alongwith his deceased brother Muhammad Jamil, was returning home after closing their shop on a motorcycle which was being driven by the said Muhammad Jamil. According to the complainant when they reached at the "paid Puli" at about 8.45 p.m., all of a sudden, the convict (Abdul Majeed) armed with a 'clanda' alongwith Nawaz armed with pistol and Zakaria armed with Chhuri, blocked the passage. It was alleged by the complainant in the FIR, that deceased Jamil stopped the motorcycle, upon which, Nawaz pointed a pistol at him while Zakaria raised a Lalkara by taking handle of the motorcycle in his hands and demanded motorcycle but Jamil refused. It was further alleged in the FIR that then convict Abdul Majeed gave Wanda' blows on the head of Jamil who fell down from the motorcycle while Zakaria took the motorcycle into his possession. The complainant further stated in the FIR that thereafter convict Abdul Majeed snatched a Seiko-5 wrist watch from the complainant upon which his name was engraved. As per FIR, the complainant also alleged that thereafter all the three accused decamped from the spot and the injured Jamil was shifted to the hospital where he died later on.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused, charge was framed to which the accused/convict pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 13 witnesses during the trial. The convict/accused was examined under Section 342 Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under Section 340(2) Cr.P.C. However, the learned trial Court convicted and sentenced the convict as detailed above.
5. As there was no appeal, on behalf of convict Abdul Majeed, who was sentenced to death, therefore, in the paramount interest of justice, Mr. Ijaz Ahmad Bajwa, Advocate, was appointed at State expense to assist this Court on behalf of the convict so that no injustice is done to the said convict.
6. Learned counsel for the convict (appointed at State expense) contends that, as per FIR, the occurrence in this case took place at 8.45 p.m. on 31.7.2001 whereas the formal FIR was lodged at about 9.20 p.m. on the statement of PW-11 Abdul Razzaq (complainant) on the same night whereas distance between the place of occurrence and the police station was 15 kilometers and in the circumstances it was not possible for the complainant to get registered the FIR within a short span of 35 minutes when his real brother was seriously injured; that the FIR in question was in fact registered later on after due deliberations and consultations; that even the conduct of PW-11 Abdul Razzaq (complainant) was highly improbable and un-natural as his real brother was seriously injured but, in such a situation, he did not accompany the injured to the hospital and instead preferred to go to the police station and that even otherwise, as per record, Jamil was taken to the hospital by the police which is evident from the MLR (Exh.PA).
7. Learned counsel further contends that recovery of wrist watch and 'clanda' (not stained with blood) from Jangal on the pointation of the convict and that too after a period of about one and a half year of the occurrence is highly improbable and against the common sense. According to the learned counsel, evidence of PW-12 Muhammad Aslam is not acceptable because he is not, named in the FIR though he claims to have seen the occurrence and the contradictions in the statements of the PWs are beneficial to the convict.
8. Learned counsel has vehemently argued, that in the FIR the complainant has not only given Registration number of the Motorcycle but also Chassis Number which does not appeal to reason especially when he ,himself admits that the documents of the motorcycle were in the motorcycle which was taken away by the accused.
9. While concluding his submissions learned counsel submits that as the prosecution has failed to prove its case against the convict beyond any shadow of doubt, therefore, benefit of doubt be extended to the convict and that, in the afore-referred circumstances, convict is entitled to acquittal.
10. The learned Additional Prosecutor General for the State, contends that the convict was named in the FIR but no source of information was mentioned in the FIR as, admittedly, both the parties hail from different places and were not known to each other; that the complainant and other eye- witness were not present at the spot because - had they been present there they must have taken the deceased to the hospital but as per statement of PW-5 Majeebullah SI he was taken there by Amin and Younis; that there was no source of light at the place of occurrence, therefore, no question of identification of the convict/accused arises; that the statement of the deceased, which was recorded in the injured condition, cannot be relied upon as there is nothing on the record whether he was fit to make a statement; that even the recovery of wrist watch and 'clanda'
(Exh.PO) are of no avail to the prosecution because it does not appeal to reason that those articles would be kept by the convict safely for a considerable period of one and a half year and that too in a Jangal; that even otherwise, the 'clanda' which- was of an ordinary make and was not blood stained, can easily be planted as the same is easily available in the market and that in the afore- referred circumstances the convict is entitled to acquittal.
11.We have heard learned counsel for the convict (appointed at State Expense) and the learned Additional Prosecutor General at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned counsel.
12.We have noted that the FIR in this case was promptly lodged wherein the convict is named as an accused with a specific role and it goes in favour of the prosecution case because it rules out the deliberations and concoctions on the part of the complainant.
13.The ocular account in this case was furnished by PW-11 Abdul Razzaq (complainant) and PW- 12 Muhammad Aslam who, admittedly, had no enmity or motive against the convict, to falsely depose against him. Their statements, on material points, are identical to each other and despite cross-examination, the defence could not shake their testimony. Even, otherwise, substitution in such like cases is a rare phenomenon as it cannot be expected from the real brother of the deceased that he would let off the real killer and involve an innocent person with whom he had no enmity.
14.Apart from above, we have noted that the ocular account furnished by the above eye- witnesses finds support from the medical evidence. The deceased was firstly examined by PW-1 Dr.Abdul Razzaq Ghouri on 31.7.2001 i,e, on the day of occurrence who found four lacerated wounds on his person which fits in with the role attributed to the convict in the FIR and the statements of the eye-witnesses who appeared during the trial. Postmortem examination on the dead body of the deceased was conducted by PW-2 Dr.Naeem Raza whose statement is almost similar to the statement of PW-1. The time given by the doctors qua infliction of injuries and of the occurrence coincide with each other.
15.Apart from above, there is a statement of Jamil deceased recorded under Section 161 Cr.P.C. on the day of the occurrence by PW5 Majeebullah SI which was placed on record as Exh.PF while the deceased Jamil died on 2.8.2001 i,e, after three days of the occurrence. The said statement of the deceased became dying declaration, after his death, wherein the story given by him supports the story given in the FIR. PW-5 Majeebullah SI appeared before the learned trial Court and proved the same, therefore, such a statement cannot be lightly ignored because it also helps this Court to reach at a just conclusion. Even otherwise, it is settled law that the statement of a dying man is considered to be a substantive piece of evidence. In this regard reliance is placed on Majeed Vs. The State (2010 SCM R 55), wherein, at page 59. the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- ....It is a well-settled principle of law that if dying declaration is made even before a private person, is free from influence and the persons before whom such dying declaration was made was examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction. This Court gave following guiding principles for relying upon the dying declaration in the case of Farmanullah v. Qadeem Khan (2001 SCM R 1474):--
(i) There is no specified forum before whom such declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii)There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be examined.
Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii) Such declaration when proved by cogent evidence can be made a base for conviction".
To fortify our view further reference is made to the cases of Muhammad Ahsan @ Aksan Vs. The State (PLD 2006 Supreme Court 163) and Muhammad Rafiq Vs. The State (PLD 2006 Supreme Court 186).
16. There is another circumstance against the convict i,e, his abscondence. It has come on record through the statement of PW-6 Makhdoom Altaf Hussain, Inspector that he arrested convict Abdul Majeed on 6.2.2003 whit the occurrence took place on 31.7.2001. Proceedings under Sections 87/88 Cr.P.C. were conducted and in this respect, the prosecution has examined. PW-4 Najeeb Ahmad (HC-391). His report on warrant of arrest is Mark-A/1, whereas, the report of the proclamation as Mark-B/ which means that the convict remained absconder for a period of more than one and a half years without any reasonable and plausible explanation. The Hon'ble Supreme Court of Pakistan, considered the abscondence of the accused as a corroborative piece of evidence in the cases of Mirza Khan and another vs. The State (2005 SCM R 1110), Mst. Dur Naz and another vs. Yousuf and another (2005 SCM R 1906), Muhammad Riaz vs. The State (2004 SCM R 897) and Mst.
Rasheeda vs. Khan Bahadur and another (1992 SCM R 1036).
17.Now we would like to take up the recovery aspect of the case. The recovery of 'clanda' and wrist watch, taken into possession through memo. Exh.PO, is of no avail to the prosecution for the reason that no body, in the ordinary circumstances; would keep a wrist watch in the `Jangal" for such an along period of about one and a half years after the occurrence, while, the `danda' was not blood stained coupled with the fact that it was an ordinary `danda' which is easily available in the market. But if this piece of evidence is excluded from the prosecution case even, then there is sufficient material in the form of ocular account, medical evidence, dying declaration and abscondence to prove case against the convict coupled with the fact that it is the quality which weighs with the Court and not the quantity.
18.In the afore-referred circumstances, this Court is of the considered view that the prosecution has proved its case against the convict beyond any shadow of doubt to sustain conviction of the convict, therefore, his sentences under Sections 302(b), 397 and 411 PPC are hereby maintained.
19.But simultaneously, after having considered' the case from all angles, we are of the view that it is not a case of capital punishment as there are mitigating circumstances, firstly, the main object of the convict and his co-accused was to rob the deceased and the complainant having no intention to kill the deceased as the deceased was given `danda' blows only when he showed resistance to the snatching of motorcycle by the convict and his co-accused and after snatching it, no injury was caused to any-body, secondly, prosecution case is that Nawaz co-accused of the convict was carrying a pistol at that time but no shot was fired from the said pistol either at the deceased or the complainant. Therefore, sentence of death of the convict is converted into imprisonment for life. However, the convictions and sentences awarded to the convict under Sections 397 & 411 PPC by the learned trial Court are hereby maintained alongwith compensation, fine and imprisonments in default thereof. All the sentences are directed to run concurrently and the convict shall be given benefit 'of the provisions of Section 382-B C r. P. C.
Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.