Fazal-i-Haq Abbasi, J.--Nadir Shah s/o Said Ali Shah alias Said Mian was tried by Additional Sessions Judge/Izafi Zilla Qazi-I, Swat, for committing Qatl-e-Amd of Zor Muhammad Khan and found him guilty under Section 302(b) PPC and sentenced him to death, with a direction to pay Rs, 50,000/- as compensation u/S. 544-A Cr.P.C. to the legal heirs of deceased, recoverable as arrears of land revenue. In case of non-payment, he was directed to suffer six months S.I.
2. Aggrieved from the order of conviction and sentence Nadir Shah has impugned the judgment dated 13.01.2011 by way of Criminal Appeal No, 28/2011 while the learned trial. Court has sent Murder Reference No, 2/2011 under Section 374 Cr.P.C. for confirmation of death sentence of Nadir Shah. We intend to dispose of the criminal appeal as well as the Murder Reference, through this single judgment.
3. An occurrence took place on 12.12.2001 at 13.45 hours and the report was lodged on the same day at 14.30 hours in the casualty ward of Saidu Sharif Hospital.
4. Shah Bostan ASI (PW-7) recorded the report Ex.PW-7/2 by stating that on information, he reached casualty ward Saidu Sharif and found-Zor Muhammad Khan in injured condition and in complete senses alongwith Samar Gul his father. Injured stated that at about Dopehr Wela, he alongwith other inmates, was present in house when Nadir Shah s/o Said Mian, alongwith Qaisar, Usman Ali sons of Zamin, co-villager of complainant, knocked the door upon which his brother Atta-ur-Rehman went outside and saw all the three present, who summoned him. As soon as he came out, Nadir Shah, with the intention to kill made firing, with which he was hit and severely injured. The occurrence was witnessed by Attaullah, Samar Gul besides other persons. No motive was alleged. Report was thumb impressed by him. Report was sent to Police Station, where, on the basis of report Ex.PW7/2 case vide FIR No, 1024 dated 12.12.2001 under Section 324/34 PPC was registered at Police Station Mingora by Sartaj Khan (PW-2). F.I.R. is Ex.PW-2/1. Shah Sultan AS][ (PW- 7) prepared the injury sheet and handed over the same to Dr. Sultan Mahmood (PW-4) for medical examination, who examined the injured and furnished report Ex.PW4/1, which is reproduced below: Conscious. Entry wound on medial side of upper thigh, 2 cm rounded (bleeding. Exit wound on lateral side of upper thigh, bleeding stopped and shifted to Orthopedic O.T. as emergency for further management on 14.30. Advised X-ray (left Thigh with hip joint A-P and lateral. Opinion - Dangerous. Kind of weapon used F.A.I.
5. Later on the injured was referred to Central Hospital Saidu Shard. Shah Bostan ASI (PW-7) accompanied the injured, who succumbed to the injuries in Central Hospital. PW-7, prepared the inquest report Ex.PW-7/3 and handed the dead body to Dr. Muhammad Hanif (PW-11) for post- mortem examination, who vide report Ex.PW11/1 opined "injured femoral artery found" and that cause of death was "Hypovolaemia".
6. PW-7 issued letter for change of offence to S. 302 PPC, as such, the same was added in the FIR by deletion of Section 324 PPC. After post-mortem examination, he handed the dead body to the legal heirs against receipt Ex.PW-7/4. Thereafter he proceeded to the crime spot, prepared site-plan Ex.PW-7/5 at the pointation of eye-witnesses, during spot inspect ion picked up blood stained earth Ex. P1 from the place of deceased and sealed the same into parcel through memo. Ex.PW-6/1 in presence of witnesses. He also took into possession shirt P2 and Shalwar P3, both blood stained and sealed the same into parcel through memo. Ex.PW-6/2 in presence of marginal witnesses. On 13.12.2001, Samar Gul father of deceased produced .32 bore Pistol No, 355897 by stating that the same fell from Nadir Shah, while running away after the occurrence. Pistol Ex. P1 was taken into possession and sealed into a parcel by PW-7 through memo. Ex.PW-7/8 in presence of witnesses.
He recorded the statements of witnesses u/S. 161 Cr.P.C. on, 20.12.2001, he arrested Qaisar and Usman Ali accused. He sent the blood stained articles and the report of Serologist, in positive, is Ex.PW-7/10. As Nadir Shah accused was avoiding his lawful arrest, therefore, he applied and obtained waurant u/S. 204 Cr.P.C. (Ex.PW-7/13) against him and handed over the same to Muhammad Anwar DFC for execution which was returned un-served and is Ex.PW-7/15. He also got recorded statements of Samar Gul and Atta-ur-Rehman u/S. 164, Cr.P.C. On his transfer, investigation was handed over to Amir Zaman the then ASI (PW-5), who applied and obtained proclamation notices u/S. 87 Cr.P.C, Ex.PW-5/2, from the Court, against. Nadir Shah and marked to Muhammad Anwar DFC for execution, who after legal proceedings returned the original. After completion of the investigation, challan was submitted in the Court against Qaisar, Usman Ali for their trial and u/S. 512, Cr.P.C. against Nadir Shah.
7. Qaisar and Usman Ali were tried and acquitted by Sessions Judge/Zilla Qazi Swat vide judgment dated 02.06.2003, while perpetual warrant of arrest was issued against Nadir Shah.
8. Nadir Shah accused was arrested in case FIR No, 1035 dated 26.11.2009 u/S. 13 A.O. of Police Station Akora by the Police. Aziz Ahmed S.I. (PW-3) applied for transfer of the accused from Akora to Swat, on which District & Sessions Judge / Zila Qazi, Swat, wrote Letter No, 3351 dated 03.12.2009 to Sessions Judge, Nowshera, who ordered the transfer, as such. Nadir Shah accused was arrested vide card of arrest Ex.PW-3/4 dated 05.12.2009, by Aziz Ahmed, PW-3 and shifted to District Swat.
After completion of investigation case file was handed to Sanobar Khan SHO (PW-1), who submitted supplementary challan against the accused in the Court for trial.
9. Learned trial Court after compliance of Section 265-C Cr.P.C. framing the charge, recorded statements of eleven PW-s, recorded statements of accused, who pleaded innocence, however, did not produce defence evidence nor appeared as his own witness u/S. 340(2) Cr.P.C. The trial Court after hearing the arguments of the parties, convicted and sentenced the accused as stated above.
10.Learned counsel for the appellant argued that the report, which was treated as dying declaration was not recordeth in the presence of Doctor or any other staff member of the hospital, therefore, cannot be relied upon for conviction of the appellant. He submitted that father of deceased was present at the time of recording the report, therefore, tutoring cannot be ruled out.
He further contended that the witnesses mentioned in the FIR were not examined at the trial and one Ghulam Rahim, who was not mentioned as eye-witness in the FIR was examined, and that statement of Ghulam Rahim u/S. 161 Cr.P.C. was recorded on the following day of the occurrence, therefore, no reliance can be placed on his statement. Learned counsel argued that the pistol was planted against the accused on the following day of occurrence and that too was produced by the father of deceased. He further submitted that the statements of Atta-ur-Rehman and Samar Gul recorded u/S. 164 Cr.P.C., which are contradictory to prosecution version, should have been transferred by the trial Court on the file of present case as required under Section 265-J Cr.P.C. He averred that the whole investigation was conducted unfairly and mala fidely. He submitted that the dying declaration and statement of PW-8 are not of any evidentiary value, therefore, no reliance can be placed on the same. He further submitted that there was no motive for commission of offence and abscondence alone cannot be -made basis for conviction. He prayed for acquittal of the appellant. Reliance was placed on PLD 2006 SC 255, 1978 SCM R 303, NLR 2004 Cr.L 213 and PLD 1962 W.P. (Karachi) 800.
11.Learned AAG for the State and learned counsel for the complainant argued that there was no reason for false implication and substitution of the appellant by the deceased, nor there was any reason for the witnesses to falsely implicate the appellant. They contended that no reason for false implication of the appellant was suggested by the defence. They further argued that it is quality and not the quantity of evidence to be relied upon. They submitted that dying declaration is corroborated by PW-8 and long, unexplained abscondence of the accused. They prayed for dismissal of the appeal. Placed reliance on 2001 SCM R 1474, 2010 SCM R 55, PLD 2004 SC 367 and PLJ 2005 SC 500.
12.Arguments heard and record perused.
13.Prosecution case against the appellant is based on (i) dying declaration, (ii) medical evidence,
(iii) ocular account furnished by PW-8, (iv) recoveries and positive report of Serologist and abscondence.
14.Zor Muhammad Khan deceased then injured lodged the report within 45 fhinutes of the occurrence. He has not alleged any motive. PW-7 proved the report lodged by the deceased. Dr. Sultan Mahmood in his report mentioned that the injured was conscious, having "dangerous" injury.
Report Ex.PW-7/1 further reveals that the injured was able to talk. Dying declaration was made by the deceased properly without any delay in a critical condition. There is no question of false implication of the appellant because no motive was alleged by the deceased nor suggested by defence. There is no specific mode of making a dying declaration, even it can be oral. Dying declaration made soon after the occurrence at the time when the deceased was under apprehension of death. Doctor has stated that the injured was conscious and opined that he was able to talk, then the same cannot be discarded on the presumption of tutoring, especially when it was not suggested by the defence to the scriber. While determining, the evidentiary value of dying declaration, the same is doubted when there is any delay in recording the dying declaration or there are chances of tutoring or when there is no imminent apprehension of death, if these elements are not present then the same can safely be relied upon for basing conviction and it cannot be lightly ignored.
15.In the present case, dying declaration is also corroborated by the statement of PW-8 Ghulam Rahim, who is a cousin of deceased and also living in the neighbourhood. No enmity or reason for false implication of the appellant was suggested by the defence. Mere relationship with the deceased is no ground for discarding the statement of a witness, where evidence is otherwise reliable, confidence inspiring and trust worthy.
16. Dying declaration is further corroborated by the recovery of blood from the place of occurrence, matching with the blood stained garments of deceased, vide report Ex.PW-7/10.
17. Motive in the present case was not alleged, which is always hidden deep in the mind of the accused. It is well settled by now that weakness or absence of motive or failure to prove the same cannot in any way, adversely affect the prosecution case, when the same is proved by reliable and trust worthy evidence.
18. Unexplained abscondence of appellant for about eight years is another strong corroborative piece of evidence. He was arrested from a distant place is an important circumstance indicative of his guilt.
19. Under Section 265-J Cr.P.C., the statement of a witness duly recorded under Section 164 Cr.P.C., if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined be treated as evidence in the case for all purposes subject to the provisions of Evidence Act, 1872. In the present case statements of Samar Gul and Atta-ur-Rehman were neither recorded in the presence of the appellant nor he had any opportunity to cross- examine the said witnesses. Moreover, they were not produced and examined in the trial against appellant, because Samar Gul was already dead and Atta-ur-Rehnian was abandoned by the prosecution. It is not necessary for prosecution to examine each and every witness. It is the quality and not the quantity of evidence to be produced. If their statements were of any help to the defence, it was its duty to produce and exhibit certified copies of such statements in defence or the Investigating Officer should have been confronted with them by the defence.
20. Each and every criminal case is to be decided on its own peculiar circumstances and facts because facts of two criminal cases are never alike.
21. As discussed above, we are of the opinion that the prosecution proved its case against the appellant, by reliable, trust worthy and confidence inspiring evidence beyond any shadow of doubt and the impugned judgment dated 13.01.2001 passed by learned Additional Sessions Judge/Izafi Zilla Qazi-I, Swat is based on correct appraisal of evidence and sound reasoning. Death sentence awarded to Nadir Shah is, therefore, confirmed. Criminal Appeal filed by the appellant, having no merit is dismissed. Murder Reference is answered in positive.