IJAZ AHMAD CHAUDHRY, J. --- Through this single order we intend to dispose of the instant Criminal Appeal (No. 333/2004), filed by Farhad son of Said Ahmad, challenging his conviction and sentence of death on two counts awarded to him by the learned Additional Sessions Judge-II, Peshawar on 07.10.2003 under Section 302(b), PPC; Criminal Appeal No. 331/2004 and Criminal Appeal No. 332/2004, filed by Sikandar Shah, complainant, against the acquittal of Raza Shah, as common question of law and facts are involved in all the three appeals, arising out of the same judgment.
2. Briefly the facts, relevant for the disposal of the afore-mentioned appeals are that one Sikandar Shah son of Noor Muhammad Shah, complainant, reported to the police at the spot that on 11.07.1998 he alongwith his uncle Roohullah Shah son of Abdul Hanan and one Jan Muhammad had come to the Court of Senior Civil Judge, Peshawar for peshi. When they were called by the Court, at about 11.00 a.m., the accused Zahir Shah and Majeed entered the Court room from one gate and Raza Shah and Farhad entered the Court room from another gate. All the four accused armed with pistol at once started firing at his uncle which hit him, he fell down and died at the spot while Jan Muhammad received serious injuries and was taken to the hospital. Accused Farhad was arrested by the police red-handed at the spot alongwith pistol while the other three accused made good their escape. The motive for the occurrence was old enmity and occurrence was witnessed by the complainant, injured Jan Muhammad and other persons present at the spot.
3. After completion of the investigation and submission of challan under Section 173, Cr.P.C. Both, Farhad and Raza Shah, were charge-sheeted to which they did not plead guilty where upon the prosecution in order to prove their guilt examined as many as 17 witnesses in all whereafter the accused were examined under Section 342, Cr.P.C. In which they pleaded their innocence, false implication and denied the allegations as well as the evidence recorded by the learned Trial Court.
They neither opted to appear as their own witnesses under Section 340(2), Cr.P.C. Nor produced any evidence in their defence.
The learned Trial Court after conclusion of trial vide judgment dated 07.10.2003 convicted both the accused, namely, Farhad and Raza Shah under Section 302(b), PPC and sentenced them to death with direction to pay Rs. 100,000/- each as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. In default whereof, they were to suffer one year's S.I. Each. Feeling aggrieved by the aforesaid judgment and conviction both the convicts challenged the same before the learned Peshawar High Court by filing Criminal Appeal No. 638/2003 (Raza Shah v. State) and Criminal Appeal No. 661/2003 (Farhad v. State) whereas the learned Trial Court sent Murder Reference No. 39/2003 for confirmation of death sentences. All the aforementioned cases were heard together and learned High Court through impugned judgment dated 12.05.2004, while maintaining the conviction of Farhad, appellant, dismissed his Criminal Appeal (No. 661/2003), whereas Criminal Revision No. 170/2003 filed by Sikandar Shah, was allowed to the extent that the sentence of death of Farhad was recorded on two counts, murder reference was answered in the affirmative and Criminal Appeal No. 638/2003 filed by Raza Shah was allowed, resultantly, his conviction and sentence was set aside and he was acquitted of the charge. Farhad, appellant, sought leave to appeal against the aforesaid impugned judgment by filing CrI.PLA No. 288/2004 whereas Sikandar Shah filed CrI.PLA No. 227/2004 seeking leave to appeal against the same impugned judgment regarding challenging of acquittal of Raza Shah and CrI.PLA No. 278/2004, filed by Sikandar Shah, seeking leave to appeal against the same impugned judgment challenging the acquittal of Raza Shah. After the grant of leave to appeal by this Court, the aforesaid petitions for leave to appeal were converted into Criminal Appeals No. 333/2004, No. 331/2004 and Criminal Appeal No. 332/2004. All the aforesaid matters are being disposed of through this single judgment.
4. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellant, Farhad, contends that the impugned judgments are against the law and facts of the case; that confirming of death sentence of the appellant on two counts is also against the law and facts of the case; that there is no motive against the appellant to commit the alleged offence as he is neither related to the accused nor had any intention to join hands with the accused; that the motive of blood feud, if any, is against Zahir Shah, an absconding accused and not against the appellant; that the prosecution, has not attributed any specific injury to the deceased by the appellant either in the F.I.R. Or in the statement recorded by the learned Trial Court; that it was the case of the prosecution throughout that four persons opened firing on the deceased collectively which fact shows that the complainant was not present at the place of occurrence; that PW-9 while appearing before the learned Trial Court simply stated, without naming or pointing the appellant, that he over-powered the appellant and arrested him with weapon of offence, as such, the statement of PW-9 is not worthy of reliance for the simple reason that two accused were facing trial before the learned Trial Court and it was incumbent upon PW-9 to point out the accused who was arrested by him, which caused serious doubts on the veracity of his statement; that the statement of Jan Muhammad, allegedly recorded by PW-4 in the hospital cannot be treated as dying declaration as it was neither dated nor signed by the doctor, nor PW-4 Tajpur Khan and such a statement, even if recorded, has no evidentiary value and cannot be given weight while considering the case in hand; that the confessional statement of the appellant is not worthy of reliance for the reasons that it was recorded after delay of five days and the same was the result of torture and coercion; that the recovery of pistol from the appellant was foisted upon him as the manners in which it was recovered are doubtful. He further alleged that the appellant was arrested in the instant case on 11.07.1998 and is still behind the bars in death cell, as such, he has served out incarceration for more than 16 years and if remissions are granted he would definitely have under-gone imprisonment equal to life imprisonment and in the light of the law laid down by this Court in the case of Dilawar Hussain v. The State (2013 SCM R 1582) he deserves leniency in the matter of sentence. In support of his other contentions, learned counsel has made reference to the cases of Tooh v. The State (1975 P.Cr.L.J. 440), Muhammad Zubair and another v. The State and another (1985 P.S.C. 609), Karam Din and another v. The State (1989 P.Cr.L.J. 8), that the recovery of alleged weapon of offence has not been established by the prosecution to lend support to the ocular account. Reference is made to the case of Rashid Ahmad and 10 others v. The State (1984 P.Cr.L.J. 1949), Liaquat Bahadur and others v. The State (PLD 1987 F.S.C. 43) and that there exists extenuating circumstances for alteration of death sentence into imprisonment for life. Reliance is placed on the case of Hafiz Muhammad A/am v. The State (1984 SCM R 276), Dilawar Hussain v. The State (2013 SCM R 1582), Anwar and another v. The State (2001 SCM R 1518), Shahid alias Babu v. The State (1985 SCM R 180), Wads Ali and 5 others v. The State (PLJ 2000 SC 1765), Allah Bakhsh and another v. The State (2000 SCM R 1482), Hassan and others v. The State and others (PLD 2013 SC 793).
5. Sardar Muhammad Ishaq Khan, learned counsel for the appellant/complainant in Criminal Appeal Nos. 331 and 332 of 2004 contends that the prosecution has successfully proved its case beyond any reasonable shadow of doubt against the respondents and brought home guilt of both the accused but the learned Courts below failed to consider the same in its true prospective; that the statement of Jan Muhammad treated as dying declaration ought not to have been disbelieved against respondent No. 1 as the superior Courts have never ignored dying declaration merely on the ground that it was a statement under Section 161, Cr.P.C. Or for that matter the same was not signed; that nonappearance of the doctor before the learned Trial Court in support of dying declaration would be nothing but to minimize the value of dying declaration; that the ocular account furnished by the PWs was corroborated by the fact of absconding of respondent No. 1 for a long duration which has not been satisfactorily explained by him and the learned Appellate Court did not at all advert to the same; that the learned Appellate Court has failed to appreciate that none of the witnesses who appeared in the alleged inquiries did not appear before the learned Trial Court in support of innocence of respondent No. 1, as such, the reliance placed on the conclusions of the inquiries has prejudiced the case of the complainant; that the statement of the petitioner/complainant and the dying declaration were consistent with each other and defence has failed to pin point any material contradiction therein. In support of his contentions he has relied upon Karam Din v. The State (1969 P.Cr.L.J. 482), Muhammad Rafiq v. The State (1977 SCM R 457), Farmanullah v. Qadeem Khan and another (2001 SCM R 1474) and Majeed v. The State (2010 SCM R 55).
6. Mr. S.M. Zafar, Senior Advocate Supreme Court, learned counsel for respondent No. 1 in Criminal Appeals No. 331 and 332/2004 contends that there is no cogent and confidence inspiring evidence available on record to prove the guilt of Raza Shah, respondent; that complainant is nephew of Roohullah Shah deceased, as such, his statement is not worthy of reliance (being interested witness; that the statement of Jan Muhammad recorded under Section 161, Cr.P.C., has no evidentiary value as the same cannot be termed as dying declaration without corroboration by the statement of doctor who was not produced by the prosecution; that even the statement of the complainant has not been corroborated by the medical and other circumstantial evidence; that it is very strange that when the respondent had hired the services of a hired assassin then why he should participate in the occurrence and that the confessional statement is totally silent with regard to other accused; that innocence of the respondent was duly proved by Baigham Shah, PW and that the respondent was declared innocent during two successive inquiries, as such, the learned High Court has rightly acquitted the respondent for valid reasons which also appeal to a prudent mind and the prosecution could not bring home guilt of the respondent beyond any reasonable shadow of doubt by producing independent, cogent and inspiring confidence evidence. He has placed reliance on Satyanarayana and another v. P.T. Reddy and others (AIR 1974 Supreme Court 2164), Aslam Pervaiz etc., v. The State (NLR 1982 Criminal 323), Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), State (Delhi Administration) v. Laxman Kumar and others (AIR 1986 Supreme Court 250), Rasool Muhammad v. Asal Muhammad and another (PLJ 1995 S.C. 477), State through Advocate General Sindh v. Bashir and others (PLD 1997 Supreme Court 408), Muhammad Khan and another v. The State (1999 SCM R 1220), Qamar Zaman v. Waseem Iqbal and 5 others (2004 SCM R 1209), Shahid Abbas v. Shahbaz and others (2009 SCM R 237).
7. We have heard the argument of the learned counsel for the parties and also perused the evidence available on record with their assistance.
8. Sikandar Shah son of Noor Shah while appearing in the witness-box, as PW-4 stated that on 11.07.1998 he alongwith Roohullah Shah, his uncle, Jan Muhammad went for peshi to the Court of Senior Civil Judge, Peshawar. Upon call at 11.00 a.m., they went inside the Court room. In the meanwhile, Zahir Shah and Majeed, absconding accused, entered the Court room from one side situated towards the jail whereas from the second gate of the Court room Raza Shah son of Zahir Shah accused and Farhad accused entered the Court room. All the four accused dig out pistols and started firing at his uncle Roohullah Shah, which hit his uncle Roohullah Shah who died at the spot whereas Jan Muhammad sustained injuries due to fire shots who was shifted to the hospital.
Farhad, accused, was apprehended by the police alongwith pistol at the spot. The motive behind the occurrence was previous enmity with Zahir Shah. The statement of aforesaid witness is corroborated by the statement of Jan Muhammad recorded in the shape of dying declaration under Section 161, Cr.P.C. As he died before his appearance in the Trial Court. The said statement was recorded by Tajpur Khan, Sub-Inspector, who appeared before the learned Trial Court as PW-4 and categorically stated that he had recorded the statement of Jan Muhammad, deceased on the day of occurrence. Although such type of statement could not be relied upon but in the presence of other strong evidence it could be considered a supportive piece of evidence. In the instant case there is nothing on record to suggest that Jan Muhammad was related to the deceased or any of the prosecution witnesses. He was an independent person and such a person on the dying bed cannot be expected to tell a lie. The other pieces of evidence supporting the statement of complainant are the dying declaration of Jan Muhammad, who received injuries during the occurrence, before the police official who apprehended Farhad, convict at the spot alongwith pistol and live bullets. The empties collected from the spot wedded with the pistol recovered from the accused/convict at the spot, medical evidence and judicial confession of Farhad, convict which was voluntarily made by him before a Judicial Officer who recorded the same after observing all codal formalities attached thereto by the law of land. Tajpur Khan, Sub-Inspector while appearing in the witness-box as PW-4 stated that he recorded the statement of Jan Muhammad injured of the occurrence the same day i.e. On the day of occurrence which is available on record as Ex. PW- 4/10.
9. While considering the arguments of the learned counsel for the appellant/convict Farhad that the dying declaration made by Jan Muhammad, PW is not worthy of reliance for the simple reason that it was not signed by the doctor, we have gone through his statement made under Section 161, Cr.P.C. Which was proved/corroborated by Tajpur Khan, Sub-Inspector who appeared before the learned Trial Court as PW-4 and stated that he recorded the statement/dying declaration of Jan Muhammad, deceased. This witness is an independent witness and had nothing to do with any of the parties, as such, the same was rightly relied upon by the learned Courts below. This Court in the case of Farmanullah v. Qadeem Khan and another (2001 SCM R 1474) held that a dying declaration made soon after the incident or at a time when the deceased expected death or at a time by which the deceased could not have consulted others or received hints from others will, ordinarily, be deserving of great weight. The aforesaid view was confirmed by this Court in the case of Majeed v. The State (2010 SCM R 55). In such circumstances, we, after having glance on the dying declaration, are of the view that the said statement has duly corroborated the statement of the complainant as far as Farhad, appellant is concerned.
10. The next argument of the learned counsel for the appellant/convict is for reduction of sentence as the appellant/convict had no motive to commit the murder of deceased and also in the light of the observation made by this Court in the case of Hasan and others v. The State and others (PLD 2013 SC 793) the appellant/convict has almost undergone imprisonment for life if counted from the date of arrest of the appellant, as such, the appellant deserves leniency in the matter of sentence, we, after keeping in view the facts of the instant case and the plea raised by the learned counsel for the appellant, are of the view that the appellant does not deserve any leniency in sentence as he was a hired assassin, and had fired four shots at the deceased and had chosen the most vulnerable parts of the deceased to ensure his death. In such circumstances, we are of the considered view that the facts of referred case are different from the facts of case in hand. In the referred case there were other circumstances as well which weighed with this Court to alter death sentence into imprisonment for life and the arguments raised in this case were not simplicitor relied upon for reduction in conviction and sentence. Such an argument would have weight for consideration of the Court if the delay is solely attributable to the Court and not the accused. The instant case was fixed in the year 2009 and remained on the cause list thereof but it remained adjourned on one pretext or the other on the request made on behalf of learned counsel for the convict. Thus, the delay in decision of the present Criminal Appeals is not at all attributable on the part of the Court. In the cases referred in support of the contention of the learned counsel for the appellant-convict that since the appellant has almost undergone imprisonment for life, therefore, in the light of the judgment referred supra, it will be against the principle of natural justice if he is hanged after the accomplishment of his imprisonment for life, suffice it to observe, in that case the delay in conclusion of the case was not at all attributable to the convict because his appeal could not have been fixed at the earliest but here in this case the appeal of the appellant continued to be fixed before the Bench of this Court and it was got adjourned by the learned counsel for the appellant-convict on one pretext or the other. Thus, the argument of the learned counsel for the appellant/convict is hereby repelled.
11. So far as the argument of the learned counsel for the appellant Farhad that the judicial confession was not voluntarily made by him and it was under coercion and duress is concerned, we have thoroughly gone through the statement of Mr. Babar Ali Khan, learned Additional Sessions Judge, Haripur who entered appearance in the witness-box as PW 15 and also produced certificate Ex.PW 15/3 regarding judicial confession. The said witness stated that on 07.07.1998, Farhad accused was produced before him by the local police for recording his statement in case F.I.R. No. 378, dated 11.07.1998 registered at Police Station Sharqi, Peshawar under Sections 302/324, 188, PPC read with Section 13 of the Arms Ordinance, 1965. The said accused was produced before him for the purpose of recording of his statement at 08.00 am. And he gave him ample time to ponder over the matter and when he showed his willingness to get his confessional statement recorded he after being satisfied and fulfilment of all legal requirements started recording confessional statement at 09.00 a.m. Which stood completed by him at 09.30 a.m. The witness also stated that he put certain questions to the accused to the effect that such statement got recorded by him can be read against him for his conviction but he remained steadfast to the same. From the statement of the said witness, it is fully established that the confessional statement made by accused Farhad was without any coercion and duress. Confessional statement of Farhad, accused has been produced by the prosecution as Ex.PW 15/1 and Ex.PW 15/2. He stated in Ex.PW 15/2 that one week prior to the murder, of Peer Roohullah Shah son of Abdul Hannan, he was hired by one Zahir Shah son of Khan for murder of said Peer Roohullah Shah. In return said Zahir Shah promised that he would fulfill his requirements and demands. One day before the incident, a servant, namely, Raheeb of said Zahir Shah informed him that Peer Roohullah Shah was going to attend the case proceedings in the Court of Sessions and accordingly directed him to murder him. On the following day he went to the said Court where he find out said Peer Roohullah Shah, deceased sitting in a Court room adjacent to the gate. He while armed went inside the Court room and fired at him four shots due to which he died and one other person received fire-arm injuries. From the aforesaid .
Confessional statement of the accused, it is apparently clear that the said statement was voluntary and not under coercion and duress, as such, the learned Courts below have rightly relied upon the same for convicting the accused in a capital charge.
12. So far as the arguments advanced by the learned counsel for Raza Shah, appellant as to his innocence are concerned, we are much impressed upon by the findings/observations recorded by the learned High Court while acquitting the said accused for multiple reasons which are borne out from the record of the case, as such, we feel no hesitation in our mind to hold that the learned High Court has, for valid reasons acquitted him.
13. Viewed from any angle, after examination of all the aforesaid pieces of evidence which are supported by each other, we are of the considered view that the prosecution has successfully proved its case beyond any reasonable shadow of doubt through confidence inspiring, cogent and reliable evidence and despite lengthy cross-examination on the prosecution witnesses, the defence could not shatter their credibility against Farhad, appellant/convict, so was held by both the learned Courts below concurrently. The findings recorded by both the Courts below are supported by record and do not suffer from any illegality, material irregularity or jurisdictional defect warranting interference by this Court in its Constitutional jurisdiction. The learned High Court has also for valid reasons acquitted Raza Shah, respondent. Thus, we, while upholding the sentence of death awarded to Farhad by the learned Trial Court and maintained by the learned High Court dismiss the appeal filed by the convict Farhad.
14. As far as the arguments of learned counsel for the complainant that Raza Shah, respondent remained absconder for a quite long time which fact speaks of his involvement in the case is concerned, suffice it to observe that absconsion of Raza Shah cannot be used for his conviction for the reason that when Farhad, his co-accused had said through his confessional statement that he had committed murder of the deceased as he was hired for the purpose by Raza Shah, then his participation in the occurrence does not appeal to a prudent mind and is against the nature that a person hiring services of a hired assassin would not himself participate in the occurrence. Even otherwise in two successive inquiries, by the CIA Raza Shah was found innocent on the basis of evidence having come on record that he was not present at the spot at the time of occurrence. In such circumstances the statement of complainant cannot be relied upon for conviction of Raza Shah and the learned High Court had rightly acquitted him of the charge.
15. For what has been discussed above, the appeal filed by Farhad, appellant/convict, bearing CrI.
A. No. 333/2004 and Crl. Appeals Nos. 331 and 332 of 2004, filed by Sikandar Shah, complainant, against the acquittal of Raza Shah, respondent, are dismissed.