' SHAH JEHAN KHAN AKHUNDZADA, J.---Ali Gohar alias Gohar Zaman charged under section 302, P.P.C. Vide F.I.R. No,368 dated 22-9-2005 registered at Police Station Zaida District Swabi was sent up in the Court of Additional Sessions Judge-III, Swabi to face trial in the above mentioned charge levelled against him and the said learned Court after conclusion of trial vide its judgment dated 2- 12-2011 convicted and sentenced him to death penalty as Tazir, to be hanged by his neck till he is declared dead under section 302, P.P.C. Subject to its confirmation by this Court. He was also ordered to pay Rs,3,00,000 as compensation to the legal heirs of the deceased under section 544- A, Cr.P.C. Which shall be recoverable as arrears of land revenue. Feeling aggrieved from the above order and judgment, the appellant has filed the instant Criminal Appeal No,698 of 2011 against his conviction and sentence while the learned trial Judge has also sent Murder Reference (No,18 of 2011) in respect of the appellant for confirmation of his death sentence. Both the matters are being disposed of by this single judgment.
2. Facts of the prosecution case in brief are that on 22-9-2005 at 9.00 hours Haji Muhammad Zamin Khan deceased then injured made a report of the occurrence before the local police at Police Station Zaida to the effect that on the same day at 8.30 hours he along with Muhammad Janab son of Kamal Khan his co-villager went to Masjid Malayran situated at village Thand Koi for offering Fatiha Khawani and on return when reached the place of occurrence, Ali Gohar convict- appellant duly armed with deadly weapon came out from the shop of Tailor Master, namely, Azhar and with pre-meditated intention to kill him, started firing at him (deceased) as a result of which he sustained injuries. Motive behind the occurrence was shown as previous blood fued enmity. The occurrence was stated to be witnessed by Muhammad Janab accompanying with the deceased then injured. The above report of the deceased then injured was also endorsed by the verifiers namely, Muhammad Ashraf and Roidad.
3. Initially, the case under section 324, P.P.C. Was registered against the convict-appellant but subsequently on the same day at 2000 hours when the complainant then injured succumbed to his injuries in the hospital, the section of law was changed from 324 to 302, P.P.C.
4. Munawar Khan, SHO after recording the report of the deceased then injured, also prepared his injury sheet Exh.P.W.6/1 has sent him under escort of Naseer Bahadur to Civil Hospital, Swabi for medical treatment. After the death of the deceased in the hospital, Nasrullah Khan, Inspector P.W.14 prepared the inquest report of the deceased Exh.P.W.2 and sent him to the Khyber Medical College under the escort of Dil Nawaz FC. Khan Ghalib SI P.W.13 took investigation in hand and proceeded to the spot and prepared a site plan Exh.PB at the instance of the eye-witness Muhammad Janab. He recovered blood-stained earth from the place of the deceased then injured vide recovery memo.
Exh.P.W.1. He also took into possession blood-stained garments of the deceased vide memo Exh.P.W.1/2. Through memo Exh.P.W.1/3 he took into possession the garments of the convict- appellant which were handed over to him by one Azhar Ahmad, Tailor Master. He also raided the house of the convict-appellant but neither he was found there nor any incriminating article was recovered and in this respect he prepared search memo Exh.P.W.13/1. Since the appellant was evading his arrest therefore, he vide applications Exh.P.W.13/2 and Exh.P.W.13/3 he applied for obtaining warrant of 'arrest under section 204, Cr.P.C. And Proclamation No,87, Cr.P.C. Against the appellant and after obtaining it entrusted it to a DFC for its execution in accordance with law. He also sent blood stained earth and garments of the deceased to the FSL vide application Exh.P.W.13/4 and the result whereof is Exh.PK. This witness also placed on record the copies of F.I.Rs, registered against the convict-appellant previously which are Exh.P.W.13/5 and Exh.P.W.13/6. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. And after completion of investigation handed over the case to the SHO for submission of challan under section 512, Cr.P.C.
5. Initially, challan under section 512, Cr.P.C. Was submitted against the appellant in the trial Court .On 3-7-2006 and after recording the statements of nine prosecution witnesses vide order dated 11- 5-2007, the learned Sessions Judge, Swabi declared him Proclaimed Offender. After his arrest on 7- 10-2010 supplementary challan was submitted against the appellant to the trial Court where on 13- 11-2010 he was formally charged to which he pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined as many as fourteen witnesses, resume of their evidence is available on the record of the trial Court. After the close of the prosecution evidence, the convict-appellant was examined under section 342, Cr.P.C. Who pleaded innocence and denied the allegations of the prosecution brought against him. However, he neither wished to produce any evidence in his defence nor himself appeared as his own witness in disproof of the allegation of prosecution as provided under section 340(2), Cr.P.C. On conclusion of the trial after hearing of the learned counsel for the parties and apprising the evidence, the learned trial Judge has convicted and sentenced the appellant as mentioned in the introductory part of this judgment.
7. We have heard the learned counsel for the parties and have also gone through the record with their valuable assistance.
8. In the instant case report of the occurrence was made by Haji Muhammad Zamin Khan deceased then injured wherein he incoherent and straight forward manner narrated the actual episode of the occurrence by stating that he along with Muhammad Janab his co-villager when returning after offering Fateha Khawani at village Thand Koi, when reached the place of occurrence, Ali Gohar convict-appellant duly armed with deadly weapon came out from the shop of one Azhar and with pre-mediated intention to kill him started firing at him as a result of which he sustained injuries. Besides the deceased then injured w the occurrence was stated to be witnessed by Muhammad Janab who was accompanying him at the time of occurrence. The said report of the deceased then injured was also signed by two other persons namely Muhammad Ashraf and Roidad. Since the lodger of the F.I.R. Succumbed to his injuries in the hospital later on, therefore, the said report i.e, F.I.R. Is treated as dying declaration. To prove the authenticity of the dying declaration, Munawar Khan SHO appeared as P.W.5 and deposed that on 22-9-2005 at 9.00 hours Haji Muhammad Zamin son of Mohabat Khan resident of Thandkoi was brought to the Police Station in injured condition where he made report to him which he recorded in the shape of F.I.R.
Exh.PA and the same was read over to the injured and after admitting its contents to be correct, he signed it in Urdu which report was also endorsed by Roidad and Muhammad Ashraf who also signed it in English and Urdu respectively. Though the eyewitness of the occurrence namely Muhammad Janab and the identifiers of the F.I.R.-cum dying declaration have not been examined by the prosecution being won over but perusal of their statements recorded during the proceedings under section 512, Cr.P.C. Would show that Muhammad Janab has clearly stated that on the day of occurrence he along with deceased then injured had gone to the mosque of Malyaran in village Thand Koi and on returning back when reached near the shop of Tailor Master Izhar Ahmed, Ali Gohar son of Sarfaraz duly armed with firearms came out and started firing at Muhammad Zamin as a result of which he got hit and fell down while the accused decamped from the spot. He with the help of other villagers i.e, Roidad Khan and Muhammad Ashraf picked the injured in a datsun and came to the Police Station where the injured reported the matter to the police himself and at that time he was fully conscious. Muhammad Ashraf while appearing in the said proceedings has deposed that the deceased was his co-villager who made the report to the I.O. In his presence as well as in presence of Roidad Khan and he (deceased) was conscious while making report. After recording the report the deceased signed the report in his presence and the same was also signed by him as verifier. The above dying declaration has also been confirmed by Dr. Muhammad Jaseem while appearing as P. W.12 where his cross-examination he has deposed that he recorded the injured to be conscious and oriented.
9. Besides the above evidence, while in police custody the appellant led them to his house and at this disclosure and pointation the crime Pistol .30 bore was recovered and taken into possession vide memo. Exh.P.W.4/3 by Namir Khan (P.W.4) whose marginal witness Muhammad Sareer ASI appeared as P.W.8 and supported the aforesaid recovery of the crime weapon.
10. It is well-settled principle of law that if a dying declaration is found to be genuine and true, it can by itself alone form a satisfactory basis for conviction. Some of the main tests for determining the genuineness of a dying declaration are: whether intrinsically it rings true, whether there is any chance of mistake on the part of the dying man in identifying or naming his assailants and whether it is free from prompting from any outside quarter and is not inconsistent with the other evidence and circumstances of the case. A dying declaration is a valuable piece of evidence and if it is free from suspicion and believed to be true it may be sufficient for conviction. In the instant case the prosecution has fully proved the fact that Muhammad Zamin deceased then injured soon after the occurrence had narrated the same to Munawar Khan SHO (P.W.6). In the Police Station in injured condition in presence of Muhammad Janab eye-witness and Muhammad Ashraf and Roidad verifiers and this fact has fully been corroborated through the statement of Munawar Khan (P.W.6) the deceased in his dying declaration has directly charged the appellant by attributing specific role of firing wherein motive for the commission of the offence was also disclosed by him.
Therefore, the trial Court has rightly placed reliance on the dying declartion of the deceased while convicting the appellant which find support from medical evidence, other reliable circumstantial evidence and long standing abscondence of the appellant.
11. The occurrence took place on 20-9-2005 whereas, the appellant was arrested on 7-10-2010 and he remained fugitive from law for more than five years and for his long abscondance no plausible G explanation and cogent reasons have been advanced by him. Warrant under section 204, Cr.P.C.
And Proclamation under section 87, Cr.P.C. Were issued against him which have been fully established through the statement of Wasil Khan DFC (P.W.3). Such a prolonged abscondance of the appellant would furnish additional corroboration to the dying declaration of the deceased then injured where he is singly charged for firing at him.
12. The prosecution has led consistent, cogent and trustworthy evidence against the appellant which is free from reasonable doubt and fully connect the neck of the appellant with the commission of the crime moreso, when the defence has failed to suggest that the deceased was having any other enmity in the area. Therefore, in our view the prosecution has proved its case against the appellant beyond any shadow of doubt and he was rightly convicted and sentenced by the trial Court. However, the sentence of death awarded to the appellant calls for our attention.
Since the appellant has been shown aged about fifty years of age and his case in the light of facts and circumstances, o the case and evidence led by prosecution falls within the ambit of section 302(b), P.P.C. Therefore, awarding him life imprisonment instead of death would justifiably meet the ends of justice. However, keeping in view of the tragedy suffered by the family of the deceased, the amount of compensation for his legal heirs also requires to be enhanced.
13. In view of what has been discussed above, this appeal is partly allowed, conviction of the appellant Ali Gohar is maintained under, section 302(b), P.P.C., however, his sentence of death awarded by the trial Court is altered to life imprisonment. He has also to pay Rs,6,00,000 (rupees six Lacs) as compensation to the legal heirs of the J deceased or in default thereof to suffer six months' SI. The same shall be recoverable from his immovable property and other assets under section 544-A, Cr.P.C. He is also denied the benefit of section 382-B, Cr.P.C. Because of his long noticeable abscondance. The Murder Reference sent by the trial Court is answered in the negative.