ATTAULLAH KHAN, J.---This appeal is directed against the judgment dated 4-12-2008 passed by the learned Additional Sessions Judge-IV D.I. Khan in case F.I.R. No.74 dated 5-8-1999 registered under sections 302/324/34, P.P.C. Of Police Station Kulachi, vide which the appellant has been convicted under section 302(b); P.P.C. And sentenced to imprisonment for life with payment of fine amounting to rupees one lac to the legal heirs of the deceased as compensation in terms of section 544-A, Cr.P.C., in default to suffer one years' R.I. With benefit under section 382-B, Cr.P.C.
2. Likewise Muhammad Hanif Khan has also challenged the aforesaid verdict of the learned trial Judge through Criminal. Revision No.23 of 2008 for enhancement.
3. Since both the appeal and revision are the outcome of one and same judgment dated 4-12- 2008 of the learned trial Judge, therefore, disposed of by this single judgment.
4. According to the F.I.R. Lodged by Muhammad Salim Khan in injured condition, on the fateful day at morning Azan time, he along with first cousin Muhammad Ali were sitting on the vacant lot for irrigating their field and the light of moon was available, when in the meanwhile Samiullah, Amanullah, Sadullah sons of Rahmatullah, duly armed 'with Kalashnikovs came and simultaneously fired at them with which he (the complainant) was hit while Muhammad Ali escaped unhurt. Motive for the offence was given to be land dispute between the parties. Later, the complainant succumbed to the injuries.
5. After arrest of the accused and completion of investigation, the case was put in Court where the accused were summoned but he did not plead guilty and claimed trial.
6. In order to prove its case, the prosecution produced and examined eleven witnesses and closed its evidence.
7. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. But neither he produced any defence evidence nor opted to examine himself on oath under section 340(2), Cr.P.C.
8. The learned trial Judge after weighing the evidence brought on record and considering the arguments advanced at the bar found the accused guilty of the charge and thus on conviction sentenced him as mentioned above.
9. Hence this appeal by the convict/appellant and revision by the complainant party.
10. Learned counsel for the appellant argued that the case has not been proved beyond reasonable doubt for the reasons, Firstly that the report made by the complainant who lateron succumbed to the injuries was thumb-impressed in spite of the fact that he was graduate and could sign. He further contended that this report (F.I.R.) cannot be treated as dying declaration because its maker died on 16-8-1999 without having the immediate apprehension of death.
Keeping in view the time between the injury and death, it would not create apprehension of death in the mind of the deceased. He further contended that there is only solitary witness who is related to the deceased and his evidence has not been corroborated, therefore, cannot be based for capital punishment. Regarding abscondence, the learned counsel submitted that the accused absconded due to fear of police. It is also one of the arguments that other people were available, but none of them has been associated, with the investigation. Regarding identification of the accused, they learned counsel submitted that it was night occurrence and identification was not possible.
11. On the other hand, learned counsel for the complainant contended that the F.I.R. Was recorded in the shape of dying declaration because the complainant lateron died due to the same injuries and he was under apprehension of death. Regarding the fixing of thumb-impression, he submitted that though the complainant was graduate, but at the time of F.I.R./dying declaration, he was seriously injured and could not sign, therefore, his thumb-impression was obtained and this is but natural. Regarding dying declaration, he submitted that no special form is prescribed for recording the dying declaration. It was recorded by a competent police officer and the P.W. Signed as rider. It is also proved on record that after some days, the complainant succumbed to the injuries caused by the accused/appellant. So on all counts the report is to be considered as dying declaration. He further submitted that P.W.10, namely, Muhammad Ali deceased, yet can be believed because his evidence has been fully corroborated by independent source. Regarding identification, the learned counsel submitted that it was early morning time and the accused were already known to the complainant, therefore, the question of misidentification does not arise. He submitted that the accused/appellant remained absconder for about nine years and this abscondence is to be taken as a strong piece of corroborative evidence.
11-A. The learned Deputy Advocate-General representing the State also supported the arguments of the learned counsel for the complainant.
12. We have carefully gone through the record and considered the submissions of the learned counsel for the parties.
13. In view of arguments of the learned counsel for the parties, the following points are to be discussed:--
(a) F.I.R./dying declaration,
(b) Solitary witness.
(c) Identification
(d) Abscondence.
15.(sic.) We would first discuss the recording of F.I.R. And its effect. As per record, after receiving injuries, the complainant lodged report in the shape of murasila in injured condition in Kulachi Hospital on 5-81999 at about 0440 hours in the morning. The objection of the learned counsel for the appellant is that firstly it is lodged with delay and secondly it cannot be treated as dying declaration because the complainant died on 16-8-1988, i.e. Eleven days after his injuries.
According to him, there was no apprehension of death to the deceased.
16. We would first take the point of delay. In the report, the complainant stated that on the day of occurrence at `Subah Azan Vela' he was present at the place of occurrence when the accused appeared and attacked him. The time mentioned by the complainant is `Subah Vela'.
The report is made on the same day at 0440 hours. It was the month of August and time of report telly with the time of occurrence as both the times, i.e.' occurrence and report is Subah Azan Vela'.
We have found no difference and accordingly hold that the report was lodged with all A reasonable promptitude.
17. The next objection is that the F.I.R. Lodged by the complainant cannot be treated as dying declaration because he died eleven days after receiving injuries and he was not apprehending any death.
18. We have considered this point. We have to point out that the time elapsed between injury and death would not affect the validity of the F.I.R. As dying declaration. In our opinion, this gap in injuries and death cannot be termed as damaging because immediately after receiving injuries, the Complainant recorded statement in the shape of F.I.R. And during that time he was under the apprehension of death. It is further supported by the fact that the complainant died. Because of the said injuries. Moreover, the dying declaration/F.I.R. Was a very straight narration of events given by the complainant. We may refer to 2001 PCr.LJ 1014, wherein it has been held that:-- "We would first take up the dying declaration/report made by Ranju deceased then injured. It gives a very- straightforward version of the occurrence where a single accused, namely, the appellant is charged for causing tire-arm injuries to the maker of the report and to Umer Hayat. Previous motive is also given in such report including the immediate motive. Although such report has not been recorded in consonance with police rules No.25.21 but its evidentiary value has to be determined on the basis of all surrounding circumstances, i.e. To see if the deceased was capable of making any statement and was in his senses and if Imdad Hussain P.W.1 A.S.-I. Scribe of such report and any ill will against the sole appellant for fabricating a false statement attributing it to the injured. The procedure as laid down in police rules cannot be termed to be mandatory as no consequential penalty is prescribed for non-observance of such rules. These rules are for attaching additional authenticity to the statement of the deponent. Dying declaration is made admissible under Article 46 of Qanun-e-Shahadat which article does not provide any particular method and manner for recording such declaration. It can be either oral or written, signed or thumb impressed but it must be statement of person made by him with regard to circumstances which resulted into his death. The rules makers out of abundant caution rules that it should be recorded in the presence of a Magistrate and if a Magistrate is not available, then in presence of two gazetted police officers and if they are not available then in presence of two noteables who are unconcerned with the maker of the statement. If in a case such procedure is not adopted and if it is laid that in absence thereof the statement of an injured which later become dying declaration would be inadmissible would be in direct conflict with the statutory provision as embodied in Article 46 of Qanune-Shahadat. Rules cannot displace the effect which is provided by the Statute.
In view of the above proposition, the statement of Ranju recorded by A.S.-L Imdad Hussain when there is no challenge made to his statement that Ranju was incapable to make the statement, would be sufficient proof as to the capacity of deponent to have made the statement".
19. It has been further held in the said judgment that: -- "Umer Hayat, the second deceased, admittedly died on 8-10-1993 whose statement under section 161, Cr.P.C. Was recorded on 8-9-1993 while the injury was caused to him on 30-8-1993. The time- gap between the injury and recording of statement and the time-span between the recording of the statement and his, death is so wide that by no. Stretch of imagination one can even infer that he was not capable to make statement".
20. We may also refer to 2001 YLR 1470, wherein the statement of the complainant recorded under section 161, Cr.P.C. In injured condition was treated as dying declaration. The relevant observations are reproduced below:- "We are fortified in our view by the judgment of the apex Court in the case of Mst. Shamim Akhtar v.
Fiaz Akhtar and 2 others reported in PLD 1992 SC 211 and Naimat Ali v. The State (1981 SCM R 61), that even a statement made under section 161, Cr.P.C. Of an injured person or the F.I.R. Recorded by him is admissible in evidence as dying declaration if injured died later".
21. It has further been held in the said judgment that:- "In the first instance Article 46(1) of the Qanun-e-Shahadat Order 1984 specifically states that a statement can be used as dying declaration irrespective whether the person making it was or was not under expectation of death and secondly by accepting the argument of the learned counsel we would be importing extraneous consideration into the statutory provisions which we loathe to promote as law itself does not require that dying declaration should be made under immediate apprehension of death; any incriminatory statement made when a person is alive and subsequently dies can be legitimately treated as a dying declaration. Police rules cannot make in roads into the provisions of a Statute".
22. On this point, we may also rely on 1971 SCM R 516 wherein it has been held that:-- "It is true that the statement of the deceased was recorded on the 10th March, 1964 by the Head Constable, but the reason for this appears to be that in the ruqqa (Exh. PC) the doctor did not inform the police that the deceased's death was imminent. 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 a dying declaration. In this circumstance, the value of the dying declaration, though recorded by the Head Constable did not diminish".
23. Keeping in view the above discussion and the case-law by the Superior Courts, we are of the opinion that the F.I.R. Lodged by the IC complainant-then-injured is to be treated as dying declaration. Dying declaration normally is to considered to be "a strong piece of evidence D and at the same time it also requires corroboration. This statement of the complainant has been corroborated by ,the independent source which is IE being discussed in the subsequent paragraphs.
24. The next point is that only one witness has been produced by the prosecution who is solitary witness and according to the objection of the learned counsel for the appellant he cannot be believed, because he is related to the deceased and also the circumstances do not corroborate him.
25. In this case, Muhammad Ali was examined as P.W.10 and he the only eye-witness who has given ocular account of occurrence. The F.I.R. Reveals that the complainant-then-injured in the company of this P.W. Muhammad Ali were present on the place of occurrence where the occurrence took place. As per F.I.R. He was present. Moreover, after lodging report by the complainant, it was this witness who signed it as rider. So the presence of his signature on the report is sufficient to prove the prosecution case. Now we have to see its evidentiary value.
26. The statement of P.W.10 who is the sole eye-witness in this case was recorded in the trial Court.
Lie was crossed at length during which he stood firm to the stance as to the occurrence. His statement is unimpeachable. The accused has failed to prove any grudge on his part or any illwill to falsely implicate him. His statement is confidence inspiring and can be safely accepted as a solid piece of evidence which gets full support from the medical as well as other circumstantial evidence. The narration given by the eye-witness is straightforward and we have come across no contradiction or material discrepancy in his statement. In spite of lapse of about six years, the solitary witness has succeeded in giving a solid and unambiguous statement which fully connects the accused/appellant with the commission of the offence. We may rely upon. 1996 SCM R 3, wherein it has been held that mere relationship of the witness with the deceased is no ground for terming him as an interested witness. The relevant observations of the apex Court are reproduced as below:-- "Mere relationship of witnesses with complainant or deceased is not per se sufficient to term the witnesses as interested. There is no material available on the record to indicate that these witnesses held any grudge against, the petitioner or vice versa. No suggestion was even put to the witnesses in cross-examination. The witnesses as such are uninterested one".
27. Though the witness in this case is solitary but he can be believed because there is no rule or law for producing a number of witnesses. The rule of prudence is the quality and not the quantity. It has been held by the apex Court in the case reported in 2008 SCM R 917 that:-- "The credence of statement of solitary witness has already been examined by this Court in a number of cases. In Muhammad Ashraf v. The State (1971 SCM R 530), Muhammad Siddique alias Ashraf alias Achi and 3 others v. The State (1971 SCM R 659) and Muhammad Mansha v. The State (2001 SCM R 199). Moreover, conviction in a murder case can be based on the testimony of a single witness if the Court is satisfied that the witness is reliable. In other words, the 'emphasis' is on quality of evidence and not on its quantity. In this behalf, reliance can be placed on the case of Allah Baksh v. Shammi (PLD 1980 SC 225).
28. The honourable Lahore High Court in the case reported in 2009 YLR 234 has held that if a witness >is found to be of unimpeachable character who has no grudge against the accused nor has any special relationship with the complainant, he would be believed even in case of capital punishment. The relevant portion is reproduced below- "Therefore, we find from the above that the ocular account-furnished by Riaz Ahmad P.W.5 is of unimpeachable character coming from a man who had no grudge against the appellants nor he had any special relations with the complainant. He stood firm to his stance as to the occurrence perhaps finding it a duty on his part to furnish the first hand evidence regarding gruesome murders of two innocent brothers in their prime youth. Accordingly, he solitary statement being natural, direct and confidence-inspiring is accepted as a solid piece of evidence. Reliance is placed on Riaz Hussain v. The State (2001 SCM R 177)".
29. Keeping in view, the above discussion, we are of the view that P.W.10 though related to the deceased has given a true statement involving the accused/appellant in the occurrence. He has no ill will or motive to falsely implicate the accused in spite of lapse of about six years. He has given a consistent statement, of the occurrence against the accused. His statement is sufficient, in our Opinion, to connect the accused with the commission of the offence.
30. Coming to the identification, the objection of the learned counsel for the appellant is that it was a night time and not possible for the complainant party to identify the accused. As stated above, it was not pitch dark at the time of occurrence, because it had taken place at Tajjar Azan Vela'. The accused were already known td the complainant party. In a similar case the apex Court in the case of Allah Ranju v. The State reported in 1977 SCMR 377 has held that if the accused are known to a witness, even then could be identified by him even in moon-light. The relevant observations of the apex Court are reproduced below:-- "It is also not disputed that having regard to the time of the incident"there was bright light of the moon and the appellants were known to the witnesses and therefore, being fully aware of their features and familiar with their voices, there could not be any mistake in their identification from a close distance. The learned Judges also relied on the further fact that the eye-sight of the people giving in the villages not used to bright light is stronger than the people living in the city. This consideration can hardly be denied for it is common knowledge that this is so. In addition to others, this factor too must have facilitated the witnesses to determine the identity of the appellants".
31. If we examine the present case in the light of the above case-law, we would come to the conclusion that identification of the accused/appellant in the case in hand was easy then the reported case because it was Morning Azan Vela and the accused wee already known to the complainant. Moreover, the report was promptly lodged, therefore, na consultation was made. The prompt F.I.R. Also reflects that the accused were already known to the complainant and, therefore, there is no chance of misidentification.
32. Coming to another fact of the abscondence, the learned counsel for the complainant contended that the accused remained absconder for a long time which corroborates the evidence on file against him, while stand of defence is that the disappearance of accused was due to fear.
33. In this case, the Occurrence took place on 5-8-1999 -While the accused was arrested on 20-8- 2005 and thus he remained absconder for about six years The record shows that proceedings under section 512, Cr.P.C. Were initiated and completed against him and perpetual warrants of arrest were also issued. In spite of these proceedings, he did not surrender. In his -statement under section 342, Cr.P.C, the accused has also given no plausible reasons for his abscondence.
Generally abscondence cannot be based for conviction but it corroborates the other evidence and as such is a corroborative piece of evidence. We may rely on 2005 SCM R 1568) wherein it has been held that:-- "Reference may be made to Chakar and another v. The State (1971 PCr.LJ 1121 at .1124-A). Wherein learned Judge in Chambers had observed: "Accused absconding immediately after the occurrence, police making search but accused found not available in village and arrested 8 days afterwards, such absconding of accused held a strong piece of corroborative evidence".
(ii) Beeko alias Imam Bux and 2 others v. The State (1973 PCr.LJ 896) at 900(b) wherein learned Division Bench of the High Court observed:- "Accused remaining absconding for four days after occurrence-Abscondence not explained satisfactorily---conduct of accused held weight in favour of guilt in circumstances". Learned trial Court has also at page-41 of the impugned judgment has observed:- "About his abscondence, Muhammad accused simply stated that he had no knowledge about the warrant and the proclamation issued against him. 'Long abscondence of Muhammad Raees accused for more than eight months is a strong piece of corroborative evidence against him. The prosecution complied with all the legal formalities to declare him proclaimed offender".
Besides other evidence on record, the evidence of abcondence being strong corroborative evidence has supported the case of the prosecution about his implication in the commission of crime".
34. Similar principles have been given by the apex Court in the case reported in 2008 SCM R 1106 which are reproduced as below:-- "It is also an admitted fact that after the occurrence, the appellant remained at large for about 4- 1/2 years and his abscondance was taken as an incriminating piece of evidence".
35. In this case the abscondance of the accused is more than five years. No satisfactory explanation has been given by him. The trial Court also initiated and completed proceedings under section 512, Cr.P.C. And perpetual warrant under section 204, Cr.P.C. Were issued against him but he remained in abscondance which may be used as corroborative piece of evidence against him.
36. In short, the case against the accused/appellant has been proved on the strength of promptly lodged F.I.R./dying declaration. The eyewitness has given an unambiguous and true statement involving the accused in the crime, the medical evidence also supports the case against the accused/appellant, he has remained fugitive from law for a long period of about six years.
Therefore, the impugned conclusion of the learned trial Judge needs no interference which is accordingly maintained and the appeal in hand stands dismissed.
37. As far as revision for enhancement is concerned, suffice it to say that the trial Court is a proper forum to decide it. The reasons given in its impugned judgment for lesser punishment are sufficient and thus we find no substance in the revision petition which is also dismissed.