YAHYA AFRIDI,J.- Through this single judgment this Court proposes to dispose of two Criminal Appeals and a Criminal Revision, as they arise from the single tragic incident. The particulars of the same are as follows:-
(i) Cr.A.No.132/2009.
Ghulam Mustafa, appellant charged in case FIR No.121 dated 19.2.2008, registered at Police Station, Timergara (Lower Dir), under sections 302/324/34 of Pakistan Penal Code, 1860 ("PPC"). He was tried by learned Additional Sessions Judge/Izafi Zilla Qazi, Chakdara Dir Payan, Camp Court at Timergara. At the close of trial, he was found guilty, convicted under section 302(B) PPC and sentenced to rigorous imprisonment for life with a fine of Rs.200,000/- (two lac), to be paid to the legal heirs of deceased Sanaullah as compensation under section 544 A of Criminal Procedure Code, 1898 ("Cr.P.C."),vide judgment dated 27-03-2009. Benefit of section 382-B of Cr.P.C. was extended to the convict-appellant.
(ii) Cr.A.No.131/2009.
This Criminal Appeal is directed against the judgment and order dated 27.3.2009, passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Chakdarra, Dir Payan, wherein Ghulam Mustafa appellant has been convicted under section 13 of Pakistan Arms Ordinance, 1965 ("A.O.") and sentenced to three years R.I., in case FIR No.121 dated 19.02.2008, registered at Police Station, Timergara.
(iii) Cr.R.No.49/2009.
Ghulam Rasool, father of the deceased/complainant Sanaullah has filed the present revision petition for enhancement of the sentence awarded to the convict-appellant to that of death and also to pass appropriate order under section 544-A of Cr.P.C.
2. Brief and essential facts of the case, according to the FIR, lodged by complainant Sanaullah, then in an injured condition, are that on 19.02.2008, he was present in the gas cylinder shop of his uncle Abdul Kamal, when at about 11.40 hours, accused Ghulam Mustafa, armed with 'klashinkov', came and said that where was his 'shamless' uncle and simultaneously started indiscriminate firing at him, which did not hit the complainant Sanaullah but resulted in a blast and fire engulfing to the area including the shops and homes in the close vicinity, with which the complainant Sanaullah and one Ghulam Shaaer, then present in the nearby shop, were badly burnt; that the surrounding four shops and house of the accused were also burnt; that the occurrence was witnessed by Ghulam Ishaq, Abdul Kamal and others. Initially, the report was lodged under sections 324/436 of PPC read with 13 A.O., but after the complainant Sanaullah succumbed to the burn injuries, the charged was altered to section 302 of PPC.
3. After completing the investigation, the challan was put in Court against the appellant. The accused was formally charged, but on denying the same, pleaded his innocence and demanded a trial, which thus followed.
4. To prove its case, the prosecution produced as many as nine witnesses; Aziz Ahmad SI (PW.1), Taj Muhammad Khan S.I. (PW.2), Ajab Khan (PW.3), Naeem Khan SHO (PW.4), Ghulam Ishaq (PW.5), Abdul Kamal (PW.6), Muhammad Wahid SI (PW.7), Bawar Khan SI (PW.8), and Dr.Fida Khan (PW.9).
5. As no post mortem was conducted on the dead body of Sanaullah deceased, Dr.Fida Khan (PW.9), who examined him after the tragic incident was produced and he deposed that on 19.2.2008, the complainant Sanaullah son of Ghulam Rasool was brought to the hospital in an injured condition, whose body was burnt, who was referred to DHQ Hospital, Timergara; that on 25.2.2008, Saifoor Khan ASI produced Death Certificate of Sanaullah deceased, issued by CMH Karian Cantt: Punjab, (Ex.PW.8/10), on the basis of which he prepared the report (Ex.PW.9/1), wherein cause of death was stated to be ARDS and 70% burns on his body. The witness further deposed that Ghulam Shaaer injured was also brought to him on 19.2.2008, whose face, legs, arms and other parts of the body were found burnt, who was also referred to DHQ Hospital, Timergara for treatment; that on 28.2.2008, Saifoor Khan ASI produced Death Certificate of Ghulam Shaaer, confirming 35% burns on his body.
6. The prosecution to further prove its case, also produced 'Murasila' as Ex.PA/1, FIR as Ex.PA, Site Plan as Ex.PB, Card of arrest of accused Ghulam Mustafa as Ex.PW.8/1, Application for obtaining FSL opinion as Ex.PW.8/4, Application for police custody as Ex.PW.8/5, Application for recording confessional statement as Ex.PW.8/6, Death Certificate of Sanaullah deceased as Ex.PW.8/10, Death certificate of Ghulam Shaaer deceased as Ex.PW.8/15, Application for altering the charge from section 324 to section 302 PPC, as Ex.PW.8/12, handing over of dead body of Ghulam Shaaer, as Ex.PW.8/13, Report of Fire Arms Experts, as Ex.PW.1/2, recovery memos, as Ex.PW.5/1 to Ex.PW.5/4.
7. After the close of prosecution evidence, the appellant rendered his statement under section 342 of Cr.P.C., denying his involvement in the commission of the offence, for which he was charged.
However, he wished not to be examined as a witness on oath in rebuttal of charges against him within the contemplation of section 340 (2) Cr.P.C., nor produced any defence evidence.
8. Learned counsel for the appellant contended that the prosecution has miserably failed to prove its case beyond any shadow of doubts; that the learned trial Court, while not extending the benefit of doubts has acted against the law and all canon of justice; that statement of Sanaullah has been wrongly considered as a 'dying-declaration'; that the grudge of the present appellant, according to the prosecution was aimed against Abdul Kamal (PW.6), who despite his presence on the spot, scared un-hurt is not possible; that there is no evidence produced by the prosecution to prove that the deceased Sanaullah was capable of rendering a statement with 70% burns; that the statements of PWs are not consistent and full of material contradictions; that the order of the learned trial Court is the result of 'non-reading' and 'mis-reading' of evidence available on record; that the medical evidence is also not supporting the prosecution version; that finally at best, the case of the prosecution was not of 'Qatl-e-Amd' but of 'Qatl-bis-Sabab'; as provided under section 322 of PPC.
9. The learned Additional Advocate General, ably assisted by the learned counsel for the complainant controverted the submissions of learned counsel for the appellant and they asserted vehemently that the trial Court with dynamic approach appreciated the entire evidence produced by the prosecution and has rightly convicted the appellant; that the trial Court has 'sifted the grain from chaff' and relied upon the testimony of the prosecution; that the medical evidence fully supported the prosecution case; that no defence evidence is available on the record to believe that the appellant is innocent and is not involved in the present case.
10. Learned counsel for the complainant in the Criminal Revision No.49/2009, contended that the judgment of the learned trial Court to the extent of not awarding death sentence to the accused- respondent No.1 Ghulam Mustafa was against law; that the learned trial Court after believing the prosecution evidence found the accused respondent No.1 guilty of committing 'Qatl-eAmd' awarded lesser sentence i.e. life imprisonment without any cogent reason; and thus, there is nothing on the record to suggest neither any mitigating circumstances nor the defence plea having been taken and accepted, while justifying lesser sentence.
11. Valuable arguments of the learned counsel for the parties have been heard and noted, while the record of the case thoroughly perused.
12. Before this Court proceeds to examine the contested pleas of the parties, it would be important to note that the legal heirs of Ghulam Shaaer deceased have compromised the matter with the present appellant and thus, this Court would not discuss his injury and death attributed to the present appellant in the instant appeal.
13. Now, coming to the case of the appellant against the conviction awarded for the death of Sanaullah, this Court on reviewing the record in the present case, notes that the 'anchor sheet' of the prosecution stance is the statement of the deceased Sanaullah, which was incorporated by Taj Muhammad (PW.2), as the 'Murasila', Ex.PA/1. This statement of Sanaullah after his death has been accepted by the trial Court as a 'dying declaration'.
14. What is important to note is, that this statement of the deceased Sanaullah was made to Taj Muhammad (PW.2) at the place of occurrence, a 'bazar' and not in a hospital. Hence, the strong objection raised by the learned counsel for the appellant regarding the non-certification of a doctor on the 'Murasila' regarding Sanaullah's mental and physical state to speak was not relevant. However, it is noted that the prosecution has been able to prove that Sanaullah could speak in the said state of his physical and mental condition, as after recording the said statement to Taj Muhammad (PW.2), he was examined by Dr.Fida Khan (PW.9), who confirmed during his cross-examination that he could speak.
15. Once it is proved that Sanaullah could speak at the time of his statement, this Court has to see, whether the same to a police officer, could be admissible or otherwise. By now, it is settled that even a statement rendered by an injured person under section 161 of Cr.P.C. to a police officer, can be considered as a 'dying declaration', in case the 'maker' thereof later dies and the said statement has a ring of truth emanating therefrom and further that the same is corroborated with other material evidence. The apex Court in Mst.5hamim Akhtar's case (PLD 1992 5C 211), clearly provided for guidance the general principles relating to appreciation of any statement as a 'dying declaration', where it was held that:- "The law does not prescribe any special mode of recording the dying declaration. The statement of an injured recorded by the police under section 161 Cr.P.C. during the course of investigation is not hit by section 162 Cr.P.C. As such the dying declaration is a good piece of evidence and it can be relied by the prosecution. It is not necessary for the admissibility of dying declaration that the deceased at the time of making it, would have been under expectancy of death."
Moreover, there is no legal prescribed form, mode and manner of recording a 'dying declaration'.
The important point to consider is that when a person renders any statement regarding the injuries caused to him, which later results in his death, is not only relevant but surely admissible and crucial piece of evidence. In this regard, the apex Court in Farmanullah's case (PLJ 2001 5C 722) has, while dilating upon Article 46 of the Qanoon-e-Shahadat Order, 1984 ("Order"), commented thereon in a very illustrative manner that: "A bare perusal of the said Article would indicate that there is no ambiguity in it and it is a combination of the following ingredients and the language as employed does not permit to add, delete or insert anything new:-
(a) It relates to the cause of death.
(b) It includes the circumstances which resulted into death.
(c) It is relevant when the cause of declarant's death comes into question whatever may be the nature of proceedings irrespective of the fact whether such statement was made under the expectation of death or otherwise?
The above mentioned ingredients were discussed by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned hereinbelow:-
(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 persons by whom it was recorded should be examined.
(vi) 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."
16. Thus, it can safely be stated that the statement of deceased Sanaullah made before Taj Muhammad (PW.2), duly recorded in the 'Murasila', when confirmed by Taj Muhammad, during his testimony, is not only relevant and admissible but a substantive piece of evidence. When we canvass the other prosecution's evidence, it is clearly seen that the statement of then injured Sanaullah, as recorded in the 'Murasila' has been corroborated by the two eye witnesses, namely, Ghulam Ishaq (PW.5) and Abdul Kamal (PW.6), on every material particulars. Their presence at the spot is natural, their narration of events are consistent 'inter se' and that too on material particulars.
17. For corroboration to the oral testimony of the eye witnesses, the positive matching of the empties recovered from the spot with the 'Klashinkov', recovered from the present appellant at the time of his arrest on the day of occurrence, while he was in his house situated in close proximity to the place of occurrence; the recovery of empty gas cylinder with a bullet mark, burnt pieces of wood and the doctor's testimony, prove the prosecution's case against the present appellant beyond any shadow of doubt.
18. As far as the contention of the learned counsel for the appellant that the present case was not 'Qatl-e-Amd' but 'Qatlbis--Sabab', as provided under section 322 of PPC, is concerned, this Court is not in consonance with the said line of argument, keeping in view the circumstances of the present case. For convenience and clarity, let us examine the offence of 'Qatl-bis sabab', which reads that: "321. Qatl-bis-Sabab. Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab."
Illustration A unlawfully digs a pit in the thoroughfare, but without any intention to cause the death of, or harm to, any person. B while passing from there falls in it and is killed. A has committed qatl- bis-sabab."
The bare reading of the defining section and the illustration stated therewith, reveals that one of the conditions precedent for an offence to fall within the purview of 'Qatlbis-Sabab' are that the accused should not have the intention to cause any death or harm to any other person. However, the proved facts of the present case are that the appellant used an assault automatic rifle and fired repeatedly at the deceased, which caused the explosion resulting in the death of young Sanaullah. This brasin act on the part of the appellant, surely reflects the intention of the appellant to commit 'Qatl-e-Amd' as defined under section 300 of PPC.
19. Reverting to the Criminal Revision, it is noted that the trial Court was correct in its appreciation of evidence for not passing the sentence of death and instead condemning the present appellant to life imprisonment. The reason rendered by the trial Court for passing the said sentence is also correct, especially when as the prosecution has been unable to prove the motive, for which the appellant had allegedly committed the crime carried out the offence. In view of the above, this Court finds that the facts of the present case and the reasons rendered by the trial Court for awarding the sentence of imprisonment for life to the appellant does not warrant any interference.
20. Moving on to the second appeal, filed by the present appellant regarding the possession of an unlicensed weapon of prohibited bore, the prosecution has been able to prove the recovery of the same in a meaningful manner and that too in accordance with law.
Accordingly, for what has been discussed above, all the three cases, Cr.A.131/2009, Cr.A.No.132/2009 and Cr.R.No.49-P/2009, being devoid of any merits are hereby dismissed.