Sardar Muhammad Raza, J.--Shaukat Hussain son of Raja Nazim Din, as complainant of FIR No, 131 dated 15.5.1996 of PS Sadiqabad, Rawalpindi, charged Abdur Rahim alias Rahima and Shiraz Hussain under Section 302/34 PPC for the murder of his brother Zafar Iqbal. Learned Additional Sessions Judge, Rawalpindi vide his judgment dated 11.5.1998 held both of the accused guilty under Section 302/34 PPC. Abdur Rahim alias Rahima was sentenced to death while Shiraz Hussain to imprisonment for life etc.
2. Both the convicts filed an appeal before the High Court while complainant filed a revision for enhancement of sentence. The death sentence of Abdur Rahim was upheld while Shiraz Hussain was acquitted by a learned Division Bench of Lahore High Court, Rawalpindi Circuit, vide judgment dated 18.11.2002. Abdur Rahim has filed Cr. PLA No, 416/2002 seeking leave to appeal while Shaukat Hussain complainant has filed Cr. PLA No, 447/2002 praying for the enhancement of compensation so far as Abdur Rahim convict was concerned and for the conviction of Shiraz Hussain. Both these petitions arising out of one and same judgment of the High Court are heard and disposed of together.
3. The details of occurrence are to the effect that on 15.5.1996 at 0715 hours complainant Shaukat Hussain along with his two brothers Raja Zafar Iqbal and Muhammad Asghar started from Mauza Sohan, Islamabad for Dhoke Kala Khan on their Yamaha motorcycle No, RIH-5120 to meet their common friend Zahid Mahmood son of Gul Zaman is connection with some personal matter. Zafar Iqbal deceased was driving the motorcycle while Shaukat Hussain and Muhammad Asghar were seated in the rear. They met Zahid Mahmood near Ali Clinic in Dhoke Kala Khan Bazar. Shaukat Hussain complainant and his brother Asghar had hardly alighted from the motorcycle when Abdur Rahim alias Rahima and Shiraz Hussain of Khhanna Kak, Iqbal Town appeared on the scene on a motorcycle driven by Shiraz Hussain.
4. Shiraz Hussain raised a lalkara asking his uncle Abdur Rahim to avenge his insult at the hands of Zafar Iqbal and to kill the latter. Abdur Rahim who was seated on the rear of the motorcycle drew out a pistol from the right fold of his shalwar and fired two shots from close range at the back- waist of Zafar Iqbal. All the three raised hue and cry, whereupon both the accused insanely sped away. Motive of the occurrence is narrated to be a fight between Shiraz Hussain and Zafar Iqbal, about 14/15 days prior to the occurrence in which Zafar Iqbal deceased had given a few slaps to Shiraz Hussain. This quarrel was compromised for the time being but Shiraz 4 Hussain etc. had nursed the grudge.
5. The prosecution has relied upon the ocular testimony of Shaukat Hussain complainant (PW-10) and Zahid Mahmood (PW-11). In support of such ocular testimony the prosecution relies upon the medico-legal and postmortem reports of the deceased, the discovery of crime pistol at the instance of Abdur Rahim petitioner, the recovery of two empties from the spot that matched with the pistol and the motive. It may be stated at this juncture that three witnesses, namely, Raja Tajammal Hussain, Raja Javed Iqbal and Pir Ashraf Hussain, though not the witnesses for the prosecution were yet examined by the trial Court as Court witnesses and that too, at the instance of the accused who had applied therefor.
6. The ocular testimony of complainant Shaukat Hussain and Zahid Mahmood has remained sufficiently consistent. No material discrepancy could be brought on record during fairly lengthy cross-examinations. The testimony is fully supported by the medico-legal and postmortem reports in addition to the recovery of two empties and the motive involved. It may be remarked at the very outset that the motive is admitted by both the accused in their statements under Section 342 Cr.P.C. Viewed from such angle, one has to appreciate as to whether the testimony of the eye- witnesses in the instant case required corroboration. No doubt, PW Shaukat Hussain is the real brother of the deceased and PW Zahid Mahmood is a close friend whom all the three had gone to meet with, yet it is pertinent to note that both of them had no enmity whatsoever with the accused.
No doubt, there is an admitted motive in the instant case but such enmity, if at all, remained restricted to accused Shiraz Hussain and the deceased. In that quarrel, it was the deceased who had rather beaten Shiraz Hussain and hence the complainant party had no grudge to be nursed against the accused because their deceased brother Zafar Iqbal had already settled the account with Shiraz Hussain by maintaining his upper hand in such quarrel. In the circumstances of the present case, it could not be brought on record that Shaukat Hussain complainant and Zahid Mahmood had any enmity of their own with the assailants. Their testimony can be accepted as such.
7. When we observe that their testimony can be accepted without corroboration, we do not in any manner draw an inference that such testimony was without corroboration. As said earlier, the ocular testimony in the instant case is fully corroborated by the recovery of two empties from the spot, motorcycle of the complainant party, the medico-legal as well as the postmortem reports of the deceased, the motive and also the abscondence of the two accused.
8. The parties are known to each other. It is a broad daylight occurrence where the identity could not be mistaken. There is blackening around one wound of the deceased which is in support of the fact that petitioner Abdur Rahim had fired from close distance. This fact is mentioned in the FIR itself which is promptly lodged and is supported by deponent when he appeared in the witness box. Zahid Mahmood is a natural witness because all the three brothers had specifically chalked a programme to meet him and they had already fixed a rendezvous.
9. After making an overall assessm ent of the occurrence, we have come to the conclusion that the charge brought about by the eye-witnesses had been extremely natural. The real motive had existed between Zafar Iqbal and Shiraz Hussain. Had this charge been brought with reference to the motive alone, the complainant party would have attributed major role to Shiraz Hussain who had been locked in direct enmity with the deceased. This was not done and instead the major role was attributed to Abdur Rahim. This was exactly in accord with what practically happened on the spot and so is indicative of the natural and true version of the prosecution.
10.Learned defence counsel while arguing before us mainly relied upon the statement of Court witnesses, particularly of Pir Ashraf Hussain, and argued that from their statements it has become, in his view, abundantly clear that none of the eye-witnesses was present on the spot at the time of occurrence. Before dilating upon this assertion of the learned counsel, we observe with concern as to how these three witnesses were examined by the trial Court as Court witnesses. Primarily these were not the witnesses of the prosecution who happened to be abandoned by it and Court thought it just or wise to call them as Court witnesses. Secondly, nothing had emerged in the cross- examination wherefrom presence of these three witnesses could have been strongly inferred. The trial Court also was not constrained in the given circumstances to suo motu summon them as Court witnesses. It was done but at the instance of the accused and was not without a strong risk because the accused, at times, give numerous suggestions regarding the non-presence of prosecution witnesses and presence of some other people that might be belonging to their own faction. The very calling of the three persons as Court witnesses was not imminent requirement of the case.
11.Be that as it may, we have examined the statements of Raja Tajammal Hussain (CW-1) and Raja Javed Iqbal (CW-2). They have not been able to shatter the case of the prosecution and to support the case of the accused. They had almost denied every material thing. Pir Ashraf Hussain (0W-3) is said to be the person who happened to take the deceased to the hospital. According to him, he had been given numerous personal belonging of the deceased which, in turn, were handed by him over to the other Could witnesses. Such other Court witness has denied this fact altogether and hence one cannot presume and infer that his statement is suggestive of the absence of Shaukat Hussain and Zahid Mahmood.
12.If we concede to the assertion of the learned counsel for the convict-petitioner that Pir Ashraf Hussain was an independent and hence reliable witness, we believe that it would bring about a serious setback to the stance of the convict-petitioner. This witness has categorically stated that at the hospital and before having been examined by the doctor, the Police Officer had asked injured Zafar Iqbal as to who was responsible for such assault on his person. In reply thereto the deceased had clearly mentioned within the hearing of the witness that it was Rahima (Abdur Rahim alias Rahima) who had done it. This specific narration by Pir Ashraf Hussain is tantamount to the proof of a clear oral dying declaration which supports and is supported by the prosecution evidence. The law so far developed qua an oral dying declaration is that it is a weak piece of evidence which must be corroborated by independent circumstances. We are convinced that this oral dying declaration is brought on record by a witness who is summoned as Court witness at the instance of the accused and hence should not be taken with a pinch of salt. Whatever is the oral dying declaration is also the case of the prosecution and hence is fully supported.
13.At this juncture one might refer to the statement of the doctor who said that the injured was not fully capable of making a statement. One can develop suspicion as to how such statement could have been made but, on the other hand, it is also clear from the medico-legal report that the death had resulted due to hemorrhage and the injuries by themselves were not of such a nature that it could hamper the speech of the declarant instantly. With the passage of time and due to processes of hemorrhage, the injured slowly and gradually goes into shock and his speech is hampered at a later stage. In the instant case, the doctor was busy attending to other patients and thus, there was an obvious time gap between his deposition before the police officer and the subsequent examination by the doctor. By the time the doctor attended the injured, the latter was likely to have gone into shock due to fatal weakness caused by the hemorrhage. We also remark that if the statement of Pir Ashraf Hussain qua the oral dying declaration is true, and there is no reason to call it untrue because it is fully corroborated, the police officer had shown extreme negligence and incompetence in not reducing the same into writing immediately when such words were uttered before him in the presence of Pir Ashraf Hussain CW. We, therefore, conclude that the statement of Pir Ashraf Hussain has rather proved the fact that Zafar Iqbal deceased was done to death by Abdur Rahim petitioner.
14.The next argument of the learned counsel for the convict-, petitioner was that under similar circumstances and based on the same evidence of the prosecution, when the Court have acquitted Shiraz Hussain, petitioner Abdur Rahim also deserved acquittal. After having given our considered thought to the matter, we believe that the argument was not well-founded. In the impugned judgment, learned High Court has not disbelieved the witnesses qua the presence of Shiraz Hussain but he was given the benefit of doubt on account of numerous factors which are to be appreciated in connection with Petition for Leave to Appeal against acquittal f Shiraz Hussain.
15.It is apparent on the face of record that Shiraz Hussain was ever attributed any overt act leading to the act of killing. It is also on record hat Shiraz Hussain was not armed. Mere lalkara is attributed to him but his in view of the High Court, and rightly so, was not a commanding one because the one to whom it was addressed was uncle of Shiraz Hussain. In he circumstances, Shiraz Hussain was rightly given the benefit of doubt qua he act of murder.
16. Consequent upon what has been discussed above, we are of the view that the case of commission of murder of Zafar Iqbal in the first degree y Abdur Rahim alias Rahima has fully been proved by the prosecution. He committed the murder in cold blood and repeated the shots from a close Lange sparing no chances for Zafar Iqbal's survival. He was rightly given Beath sentence while his co-accused Shiraz Hussain was rightly acquitted Being given the benefit of doubt qua the actual act of killing. Finding no substance in the petitions, both are hereby dismissed and leave to appeal is Refused.