Syed Hussain Mazhar Kaleem, J.--Above titled appeals have been directed against the judgment of Additional District Court of Criminal Jurisdiction, Dudyal camp Mirpur dated 27.05.2010, whereby Rukhsar Ahmed was convicted and awarded the sentence of Qisas under Section 5 of Islamic Penal Laws Act, 1974 and Rs, 50,000/- Diyat under Section 15 of the said Act for causing injury to P.W.
Sajid Sultan. Maroof Hussain appellant was punished under Section 307, APC and was awarded seven years rigorous imprisonment with Rs,10,000/- fine, in addition to above mentioned he was also sentenced to Rs,25,000/- Diyat under Section 15 of the Islamic Penal Laws Act, 1974 for causing injury to Ziafat Husain. A reference has also been made by the said Court under Section 374, APC read with Section 31 of the Islamic Penal Laws Act, 1974 for confirmation of sentence of Qisas'.
2. Necessary facts for disposal of the appeals are that a case under Sections 337, 34, 109, APC and Section 15 of the Islamic Penal Laws Act, 1974 was registered at Police Station Afzal-pur on the verbal statement of Iftikhar Ahmed. It was reported that on 13.01.1992 at 1:40 p .m. The complainant's uncle Sultan Ahmed and cousin Sajid Sultan came back from Mirpur to their village Pindi Sabharwal. As they arrived in Bazar, a grey colour car came from the front. Rukhsar Ahmed, Maroof Hussain and Muhammad Ilyas were present in it. After seeing the complainant and others, they stopped it in front of the shop of Shah Muhammad and came out. Rukhsar Ahmed fired with Kalashnikov and caused injury at the chest of Sultan Ahmed, who fell down. The second fire made by him hit Sajid Sultan at his left leg. Muhammad Ilyas was armed with .7mm rifle. He was alleged for causing injury at the right leg of the complainant. Ziafat, Hussain who was attracted to the spot due to hue and cry also suffered injury at his leg at the hands of Maroof Hussain. All the offenders after making reckless firing fled away. The injured persons were taken to District Headquarter Hospital Mirpur. The motive was a dispute over election of the Chairmanship of Union Council Pindi-Sabharwal. The occurrence was stated to be witnessed by Mirza Muhammad Bashir. And Raja Gulzar Hussain. Later on Sultan Ahmed succumbed to the injuries whereupon Section 5 of the IPL was also added.
3. After completion of investigation the challan was submitted before the trial Court. During proceedings under Section, 242, Cr.P.0 the convict-appellant and others pleaded not guilty and claimed innocence, upon which, the prosecution was asked to produce evidence in support of its case. After conclusion of the trial, the Court decided the matter in the aforesaid maner. At the time of pronouncement of the impugned judgment Rukhsar Ahmed convict did not appear before the Court and became fugitive from. Law. However, the judgment was announced and consequently, the reference for confirmation of the sentence of Qisas awarded to him was made by the Court below. Maroof Hussain filed the appeal challenging his conviction whereas, the complainant filed the appeal to enhance the sentence and to also convict the appellant under Section 5 of the Islamic Penal Laws Act, 1974 read with Section 34, of the APC.
4. Learned counsel for the convict-appellant argued that the trial Court failed to appreciate the' evidence on record in a judicial manner. The motive- was not proved. Presence of the complainant at the spot at relevant time was not established. He was a school teacher by profession and undoubtedly was present in the institution at the relevant time All the prosecution witnesses mentioned in the F.I.R were closely related to the deceased. They were also inimical towards the convict and were interested in his conviction. Muhammad Bashir and Gulzar Hussain were shown to be the injured witnesses of the crime but there was nothing on record indicating that they suffered injuries during the occurrence. The ocular version given by the partisan, inimical and interested witnesses was not corroborated through any independent incriminating material. The recovery of weapon of offence was highly doubtful and it was not supported by medico legal reports pertaining to eye-witnesses. The manners of occurrence were not proved. During first investigation the witnesses in their statements recorded under Section 161, Cr.P.C. Did not allege the offender for directly targeting the deceased. During second investigation they changed their position and made the statement in the line of F.I.R. In fact the complainant connived with the police and concocted a false story to rope Maroof Hussain convict and others in the false case. It was not considered by the Court below that the deposition of partisan, inimical and interested witnesses was not supported by any independent evidence thus, the conviction was not warranted in the circumstances therefore, by accepting the appeal and setting-aside the impugned judgment he may be acquitted of the charge.
5. On the other side, it was argued that the occurrence took place during broad day light.
Identification of the convict-appellant and others was not in doubt. He was (sic) lodged F.I.R.
Names of the eye-witnesses were also mentioned therein. The manners of occurrence were described by the complainant at the time of making statement before the police. The F.I.R reveals that he was found injured at the time of lodging report. Detail of the injuries suffered by the prosecution witnesses were also given by him, thus, the presence of eye-witnesses and the complainant at the spot at the relevant time was not doubtful. Moreover, it was corroborated by the recovery of weapon of offence from convict-appellant and others. The prosecution version was also supported by post-mortem report and medico legal reports pertaining to the eye-witnesses: Initially the accused party succeeded in motivating the police for a favourable investigation but later on due to intervention of high-ups the Investigator was changed and true picture of crime was brought on record. During trial, the motive was established. It was proved that the offence was committed by the offenders at the place and time alleged by the prosecution. The allegation was supported by recovery of weapon of offence, the postmortem report and medico legal reports. The deposition of injured eyewitnesses was confidence inspiring. There was nothing on record showing that they were inimical towards the convict or had any reason to falsely implicate them-in the case. They narrated what they saw. Besides, Sultan Ahmed deceased while making the dying declaration clearly alleged Muhammad Rukhsar, Maroof and Ilyas for committing the offence. The trial Court considered all aspects of the case and rightly convicted the appellant and Muhammad Rukhsar but committed a serious illegality while awarding lesser punishment of seven years rigorous imprisonment to Maroof Hussain. It was evident from the record that the offence was committed in furtherance of common intention and he was equally responsible for committing the offence of murder thus, by amending the impugned judgment the normal punishment provided for the offence may be awarded to him.
6. We have heard the learned counsel for the parties and considered the record with care.
7.The prosecution version was that on January 13, 1992 at about 1:40 p.m. The complainant, his uncle Sultan Ahmed and cousin Sajid Sultan were coming back from Mirpur to their village. When they arrived in Pindi Sabharwal Bazar, a grey Colour car came there. Rukhsar Ahmed, Muhammad Ilyas and Maroof Hussain were present in it. After seeing the complainant and-others they stopped the vehicle in front of the shop of Shah Muhammad. Rukhsar Ahmed armed with Kalashnikov came out of it. He fired and caused injury at the chest of Sultan Ahmed who fell down. The second fire made by him hit Sajid Sultan at his left leg. In the meantime, Muhammad Ilyas also fired and targeted right leg of the complainant with .7mm rifle. Ziafat Hussain present in his hotel was attracted to the spot due to hue and cry, upon which, Maroof Hussain fired with .7mm rifle and caused injury at his legs. Thereafter the offenders made reckless firing and fled away after committing the offence. The motive was the dispute over election of chairmanship of union council Pindi Sabharwal. Ch. Muhammad Rasheed a close relative of the complainant was one of the candidates while Muhammad Akram, the real uncle of Rukhsar Ahmed was also contesting for the same seat. On 12.01.1992 Muhammad Akram came to the house of Sultan Ahmed, asked him to stop Muhammad Rasheed from participating in the election and also threatened him to face the consequences in presence of Sajid Sultan and Muhammad Munshi.
8. In support of the ocular version the prosecution examined five injured eye-witnesses. Blood stained clay, 12-crime empties of Kalashnikov, one crime empty of .7ram rifle seized from the spot, Kalashnikov recovered at instance of Rukhsar Ahmed, 7mm rifle taken into custody at instance of the convict-appellant, car used for commission of the offence and dying declaration were also produced in the evidence. The trial Court by putting reliance on the above listed facts convicted the appellant and another in the manner stated earlier.
9. The defense claimed that it was not an intentional murder. On the fateful day, when the parties came across in Pindi Sabharwal Bazar; an unpleasantness took place between them upon which, the convict-appellant and others fired to scare them. The aim was to keep them away. They were not intending to cause harm to the complainant party as the fires were made at the ground. The bullets hit the hard surface of the road, deflected, changed the directions and unfortunately hit the deceased at chest resulting into his death. The other injured persons also received injuries in the same manner. In support of the above mentioned the statements of the eye-witnesses recorded under Section 161, Cr.P.C. Dated 13.01.1992, Exh.DG, Exh.DL, Exh.DA, Exh.DZ were emphasized upon.
10. It is interesting to note that the occurrence took place on 13.1.1992. The deceased and five others received injuries during the incident. The statements Exh.DG, Exh.DL, Exh.DA, Exh.DZ, were show to have been recorded on the same day while the prosecution denied it and alleged that the said statements were fake and fabricated. It was also evident from the depositions that the complainant party due to apprehension of dishonest investigation approached the higher authority to change the Investigator. The eyewitnesses showed ignorance about the statements shown to have been recorded on 13.01.1992. According to them their statements under Section 161, Cr.P.C. Were recorded on 13.02.1992, wherein they alleged the convict-appellant and others for direct firing. The defence plea was not supported by the inquest report Exh.PA and post-mortem report. Exh.PM, which reveals that the deceased suffered fire-arm injuries at the right side of the chest and the exit wound was at its back. Keeping in view the seats of entry and exit wounds, it can safely be said that the victim was facing the assailant at the time of occurrence. The fire was made from the front which hit him at his chest and made its exit from the back. Besides the deposition of the injured eye-witnesses clearly show that they were directly targeted by the offenders. Despite lengthy cross-examination they remained unshaken and the defence failed to obtain anything favourable from them. Their deposition was confidence inspiring and it was clear that they narrated what they saw. In this view of the matter, it can safely be said that Exh.DG, Exh.DL, Exh.DA, Exh.DZ were fake and fabricated. In fact at the very initial stage due to some pressure the police connived with the offenders, conducted a dishonest investigation and recorded the abovementioned statements without asking the eye-witnesses therefore, the defence plea being without any substance was not worth consideration.
11. A perusal of the evidence reveals that the time and place of occurrence were not disputed.
Presence of eye-witnesses at the spot was established beyond doubt. It was also proved that they suffered injuries during incident. The manners of occurrence were also established. Though some of the witnesses were related with the deceased but there was nothing on record indicating that they had any direct enmity with the convict-appellant for were interested in his conviction. Besides, the prosecution version was supported by the independent injured witness namely Gulzar Hussain, neither he was related to the deceased nor had any enmity with the convict-appellant. It may also be added here that though P.W. Muhammad Bashir was declared hostile but his statement also lend support to the ocular version regarding time, place and manner of occurrence. Moreover, during trial the prosecution successfully established that the weapons of offence were recovered at instance of the convict-appellant and Rukhsar Ahmed. The post-mortem report shows that the deceased and eye-witnesses suffered bullet injuries thus, the ocular version was also corroborated by above-mentioned incriminating material.
12. Another circumstance requiring consideration was the dying declaration Exh.PAAA. According to the prosecution it was recorded by P.W. Khadim Hussain after obtaining certificate from P.W. Dr. Muhammad Bashir. Qbjection raised by the learned counsel for the defence that as per statement of P.W. Sajid Sultan, the victim died while on his way to hospital, the dying declaration was small and the manners of occurrence were not mentioned therein was not substantial. P.W. Sajid Sultan son of the deceased also suffered injuries during the occurrence, after seeing his father injured, lying unconscious, might have become emotional and wrongly thought that he passed away but it was not found correct. The dying declaration clearly shows that the victim was alive, he regained conscious, it was confirmed by P.W. Dr. Muhammad Bashir hence, there was no doubt that the victim made the statement and it was recorded in accordance with law. It is important to note that a dying declaration is an admissible piece of evidence. In a case titled Muhammad Kabir alias Kala Vs. The state (1992 P.Cr.L.J 2222), it was observed that: "A dying declaration is substantive piece of evidence. If the Court is satisfied about its genuineness it can be -acted upon without corroboration."
' In another case titled Raja Ali Shan Vs. Shakeel [PLJ 2013 Sh.C. (AJ&K) 22], it was observed: "Death is the most painful truth, it never allows the victim to tell a lie during his dying moments even those who commit sins and tell lies when face it speak nothing but the truth. They repent and beg forgiveness from Almighty. It is an accepted rule among all the Scholars and thinkers belonging to different religions and cultures that the last words of a dying person enjoins the presumption of truth."
' It was also observed that: "the statement made by a person who was dying at the time he made it is a dying declaration in the legal sense of the terms and is admissible piece of evidence. No specific mode for recording a dying declaration has been prescribed. Size of such declaration whether small or lengthy is of no importance as the only requirement is that it must indicate the cause and the circumstances which resulted in the death of the declarer."
' It follows that no specific mode for recording a dying declaration has been prescribed. The size of such declaration whether short or lengthy is of no importance as the only requirement is that it must indicate the cause and the circumstances which resulted into death of the declarer. The authenticity and credibility of a dying declaration has to be Judged in light of the overall circumstances of a case. In the case in hand, the declarer clearly alleged Rukhsar Ahmed for firing and causing injuries at his chest and also alleged Maroof Hussain and Muhammad Ilyas for firing.
Thus, the inference could be drawn that he narrated the circumstances only to the extent witnessed by him. It was sufficient to prove that despite small in size, all the necessary facts were mentioned therein and the statement was worth consideration.
13. The only question requiring consideration was the quantum of sentence. Muhammad Maroof appellant was alleged for firing and causing injuries to Ziafat Hussain. During trial, the allegation was proved beyond, doubt. Maroof Hussain was convicted and awarded seven years R.1 with fine of Rs, 10000/- under. Section 307, APC and 25000/- rupees Diyat under Section 15 of Islamic penal Laws Act, 1974 which was sufficient for committing the alleged offences.. However, Iftikhar Ahmed complainant filed the appeal for enhancement of the sentence and submitted that since the offence was committed in furtherance of common intention therefore, the may also be convicted for committing the offence of murder within the meaning of Section 34, APC. It will not be out of place to mention here that in the cases of Hadood and Qisas only the aggrieved person is competent to file an appeal. In a case titled Muhammad Malik Vs. Karam Ellahi [PLJ 2011 SC(AJ&K)
34], it was observed that:-- "Person aggrieved can file an appeal from acquittal or for enhancement of the sentence passed by the Tehsil Criminal Court in the District Criminal Court, Shariat Court and this Court. No general definition can be laid down for 'person aggrieved' broadly for the purpose of filing acquittal appeal or appeal for enhancement of punishment the person whose legal right is injured, may be treated as aggrieved, but for the purpose of Qisas and Hadood laws, following may be termed as `aggrieved persons' who have right to file of appeal:-- ' In case of qatl-i-amd:
(a) Wali/legal beir of the deceased;
(b) the Government/State.
In case of hurt:
(a) Victim, himself, and if he is minor, his 'wall' or upon death of the victim, his legal heirs.
(b) the government/state.
' The appellant neither was a legal heir of the deceased nor he is suffered injuries at the hands of Maroof Hussain thus, was not competent to file the appeal.
14. The Additional District Court of Criminal Jurisdiction Dudyal camp Mirpur while deciding the case also convicted Rukhsar Ahmed. He was awarded the sentence of Qisas and resultantly the Reference under Section 31 of the Islamic Penal Laws Act, 1974 was made by the said Court. It is important to note that Rukhsar Ahmed convict skipped at the time of pronouncement of the judgment. He did not file appeal and the order of conviction attained finality. However, the reference for confirmation of the sentence of Qisas was pending disposal before this Court thus, the question to be attended was Whether a reference against an absconding convict could be disposed of on merits in his absence? By now it is settled law that a reference made by the trial Court for confirmation of the sentence of Qisas/death can be disposed of keeping in view the circumstances of the case and law. In a case titled Hayat Bakhsh Vs. The State (1981 SCMR 01) the proposition was resolved in the following manner: "If the convict decamps, he thereby forfeits the right of audience and the High Court would, in such situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence, the confirmation of course will have been on merits of the case."
' In the present case, Rukhsar Ahmed was alleged for firing and causing injury to the deceased resulting into his death. The dying declaration and deposition of the eye-witnesses in this regard was confidence inspiring. Weapon of offence was also recovered at his instance. The ocular version was corroborated by post-mortem report and Confirmatory Forensic Science Expert's report,, thus, it was established beyond doubt that the fire made by him with the Kalashnikov was the cause of death of the deceased thus, he was rightly convicted and awarded the sentence of Qisas.
' Upshot of the above discussion is that the appeals filed by Maroof Hussain convict and the complainant having no substance are hereby dismissed, while the reference made by Additional District Court of Criminal Jurisdiction . Dudyal Camp Mirpur is accepted and the sentence of Qisas awarded to Rukhsar Ahmed is confirmed.