SAHIBZADA ASADULLAH, J. Appellant, Wan Ullah, was tried by the learned Sessions Judge, Bannu for the offences under sections 302/353, P.P.C. read with 15-AA, in case FIR No.11 dated 21.08.2018 registered with Police Station CTD, Bannu and vide judgment dated 30.07.2021, the appellant was convicted under section 302(a), P.P.C. and sentenced him to death as Qisas along with payment of Rs.5,00,000/- (Rupees Five Lacs) as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased or in default thereof, to undergo six months S.I. The appellant was also convicted under section 15-AA and sentenced for 01 year S.I with fine of Rs.10,000/- or in default thereof, to suffer 01 month S.I. The sentences were ordered to run concurrently and benefit under 'section 382-B, Cr.P.C. was also extended to the appellant.
2. Through the instant appeal, the appellant has questioned the legality of the impugned judgment and the awarded sentence, whereas, the learned trial Court has sent the connected Murder Reference No.02-B/2021 under section 374, Cr.P.C. for confirmation of the death sentence or otherwise; while respondent has preferred Criminal Revision Petition No.34- B/2021 for enhancement of the compensation amount. Since all these matters have arisen out of same judgment, therefore, we intend to decide the same through this single judgment.
3. Succinctly, facts of the present case are that on 21.08.2018 at 14:45 hours, complainant Khalid Khan LHC / DFC No.1554, aged about 33/34 years, in injured condition, at the Emergency Ward of Civil Hospital, Bannu lodged a report to the effect that he is posted as DFC at Police Station Basia Khel. On the day of occurrence, he was present in the area while discharging his duties, when accused Irfan Ullah, appellant herein, called him to meet him for some information, so he, on his motorcycle, came to his village Kachkot Asad Khan, where he found accused armed with pistol, who, on seeing him, started firing at him with the intention to commit his qatl-e-amd, resultantly, he got injured and fell on the ground, while accused decamped from the 'spot after the commission of offence. The complainant was shifted to Civil Hospital, Bannu by the people of the locality. No enmity was disclosed. Hence, the FIR.
4. After completion of investigation and arrest of the accused/appellant, prosecution submitted complete challan, where at the commencement of trial, the prosecution produced and examined as 'many as 12 witnesses. On close of prosecution evidence, statement of appellant / accused was recorded under section 342, Cr.P.C, wherein he professed innocence and false implication, however, neither he opted to be examined on oath as provided under section 340(2), Cr.P.C, nor wished to produce defence evidence. After hearing arguments, the learned trial Court vide the impugned judgment dated 30.07.2021, convicted and sentenced the accused / appellant Irfan Ullah as mentioned above. Feeling aggrieved the appellant approached this court through the instant criminal appeal, whereas the learned trial Judge requested this Court through the connected Murder reference for confirmation or otherwise of the awarded sentence.
5. The learned counsel for the parties along with learned Asstt: A.G. representing the State were heard at length and with their valuable assistance, the record was gone through.
6. In the unfortunate incident the complainant after receiving firearm injuries was shifted to the hospital, where he reported the matter to one Zahir Shah Khan ASI, who after drafting the murasila, prepared his injury sheet and the injured was referred to the doctor for his medical examination.
The Investigating Officer after receiving copy of the FIR, visited the spot and on his personal observation, prepared the site plan. During spot inspection, the Investigating Officer collected two empties of .30 bore from the place of the accused and blood stained earth from the place of the deceased. Initially, the matter was investigated through a joint investigation team duly constituted under section 19(1) of the Anti-Terrorism Act, 1997. It is pertinent to mention that at the time of report, a mobile phone was handed over by the deceased then injured, which was taken into possession and thereafter, the deceased then injured was referred to the doctor for his medical examination. The injured was examined and his medico legal certificate was prepared. The unfortunate injured could not survive and succumbed to the injuries on 24.08.2018, on his death the section of law was altered from sections 324, P.P.C. to 302, P.P.C. The accused was arrested on 26.08.2018 and at the time of his arrest, a mobile phone along with a .30 bore pistol were recovered from his personal possession. The Investigating Officer after collecting the mobile phones both, from the deceased and the convict appellant, applied for the call data record, which was collected, the same transpires that both the deceased and the convict / appellant were in active communication with each other on the day of incident and even, a little before the incident. During investigation, section 7 of the Anti-Terrorism Act, 1997 was deleted and as such, the matter was remitted to the Court having jurisdiction in the matter. The convict / appellant faced trial and on conclusion of the trial, the learned trial Court was pleased to convict the appellant vide the impugned judgment.
7. The learned trial Court assessed the evidence thoroughly and after application of its judicial mind to the collected material and recorded statements, convicted the appellant as stated above.
The impugned judgment was read with the help of learned counsel for the parties, which tells that the matter was dealt with thoroughly and that the learned trial judge fully appreciated the material aspects of the case. As the appellant has questioned his conviction before this Court through the instant criminal appeal, so this Court feels it essential to reassess and re-appreciate the already assessed and appreciated evidence. True that in the incident, a police official lost his life and it was he who reported the matter while injured, but equally true that the accused deserves to be treated in accordance with law and has the right to fair trial. Yes, the deceased met a tragic death, but we will not allow the gravity of the matter to govern us, by doing so, we will lose the confidence of all involved, and there is every likelihood of miscarriage of justice. We are to tread with care to discover the involvement of the appellant in the death of the deceased. The sole determining factor in the instant case is the declaration of a dying man with no eye-witness account and as such, we are burdened with additional care, so to rescue the innocent and punish the guilty. True that dying declaration has received several interpretations regarding its evidentiary value, but we cannot ignore the judicial consensus in holding it a weak kind of evidence, it has never been thrown away, rather emphasis is provided for its corroboration from independent sources. History tells that once sanctity was attached to the declaration made by a dying person, but with passage of time, this approach went through a drastic change with the drastic change in moral values and behavior of the society. The consensus once built up was revisited and the courts of law were burdened with the additional liability of the due diligence and extra care, while convicting the accused. In the recent past, keeping before the moral degeneration of society, the sole declaration of a dying man was hardly considered a ground to convict unless corroborated. In this particular case, we are to see the worth of the report made by the complainant then injured. This is for us to examine that the prosecution followed the law on the subject and the guidelines provided. As we have no other eye-witness who saw the tragedy and the complainant did not face the taxing cross-examination, so we are bound to scan through the record before we conclude. We accept that the claim of prosecution is based on circumstantial evidence and we are firm in our belief that in cases, which hinge on circumstantial evidence, heavy duty is cost upon the prosecution to build up an unbroken and well connected chain, with the collected evidence, where its one end touches the neck of the accused charged and the other the body of the deceased. Prudence accepts no missing link and in case of a missing link, the prosecution would be the worst sufferer and the accused a beneficiary. To proceed with the matter in hand, we are eager to know that what evidence is collected, apart from the report made. This is for us to assess the collected. evidence, to gauge its worth and competence, more particularly its inherent worth that could lend support to the statement of a dying person.
8. The moot questions which this Court is to determine are; as to whether the deceased then injured was capable to talk; and as to whether the matter was promptly reported, that too, by the deceased then injured; and as to whether the statement of the doctor inspires confidence regarding the alertness and consciousness of the deceased then injured; and as to whether the Call Data Record collected by the Investigating Officer connects the appellant with the death of the deceased; and as to whether the deceased and the appellant went on talking through their respective mobile phones with each other a little before the incident and as to whether it was the appellant who killed the deceased.
9. As the entire case of the prosecution revolves around the dying declaration of the deceased then injured, so we deem it essential to determine its evidentiary value. This court is to see as to whether the deceased then injured was shifted to the hospital soon after the incident and as to whether he was examined by the doctor, the Moment he was brought before. In order to ascertain this particular aspect of the case, the statements of two witnesses i.e. the doctor who examined the deceased in injured condition and the scribe who reported the matter are of much importance.
The doctor was examined as PW-04 who stated that on the day of incident, he was present in the hospital when the deceased was brought by the people of locality in injured condition. After receiving the injured, he started his medical examination and prepared his medico legal certificate; that while providing treatment to the injured, in the meanwhile, the local police attracted to the hospital who started drafting the murasila and prepared the injury sheet. The scribe was examined as PW-11, who stated that when he reached to the hospital, the injured was under treatment of the doctor and by the same time, he reported the matter which was taken in the shape of murasila and his injury sheet was prepared; that after preparation of the injury sheet, the deceased was referred to the doctor for further treatment. It is pertinent to mention that the matter was reported to the local police at 15:30 hours and it was agitated by the learned counsel for the appellant that when the report was made after the medical examination then an inference could be drawn that the matter was investigated and later on, after consultation and deliberation, the appellant was charged for the death of the deceased. We are not persuaded with what the learned counsel for the appellant submitted, as both the witnesses i.e. the doctor and the scribe categorically admitted that at the same time, the treatment of the injured was ,in progress and the police official was busy in drafting the murasila. We are conscious of the fact that the scribe when appeared before the trial Court, during his cross-examination, stated that after drafting the murasila and preparation of the injury sheet, the injured was referred to the doctor for his medical examination, but the same alone is not sufficient to discard the report of the deceased then injured, as the injured had no mala fide to falsely implicate the appellant for the injuries caused to him. True that the scribe has shown an abnormal alertness and wanted to toe the lines, as in criminal cases, first the report is made, then the injury sheet is prepared and thereafter, the injured is referred to the doctor for his examination, but this explanation of the scribe can only and only be considered a procedural lapse, which cannot overweigh the confidence inspiring report of the complainant. Both the witnesses walked with bona fide, had they any mala fide then they would have told the story in the manner that would suit the prosecution. The prime question for us to determine is; as to whether at the time of making the report, the deceased was capable to talk; and as to whether a certificate was obtained from the concerned doctor regarding his alertness and orientation and as to whether the seat of injuries on person of the complainant was so severe to confirm that at the time of his examination, he was not in senses. In order to appreciate this particular aspect of the case, we deem it essential to go through the statements of the doctor i.e. the doctor who examined the injured when he was brought to the hospital and the doctor who conducted the autopsy on the dead body of the deceased. The doctor, who provided first aid to the injured at the time of his arrival to the hospital, confirmed that while examining the injured he was capable to talk and the same has been mentioned in the medico legal certificate. The doctor was asked as to whether any certificate was provided by him to the local police and as to whether any request was made by the local police in that respect, the doctor replied in affirmative and stated that a written request was made which was duly endorsed by him. He further stated that it was he who opined to the local police regarding the orientation and capability of the deceased then injured, to talk. The doctor who conducted autopsy on the dead body of the deceased was examined as PW-02 who stated that it was he who conducted postmortem of the dead body of the deceased and that he found two firearm injuries on his abdomen. He further stated that at the time of postmortem examination, he observed that the major organs, inside the body, were injured. An attempt was made to extract from the mouth of this witness that due to excessive bleeding, the deceased then injured was not in a position to report the matter, but this witness did not reply to appease the appetite of the learned counsel representing the complainant. There is no denial to the fact that the deceased received firearm injuries on the vital parts of his body and that the major organs of his body were injured, but we cannot ignore that the deceased then injured survived for three long days and thereafter breathed his last in the Khyber Teaching Hospital, Peshawar. The attending circumstances of the present case leave no ambiguity in mind that the complainant was in senses and was fully oriented in time and space. The certificate asked by the police and report tendered by the doctor leaves no ambiguity that the deceased was capable to talk. When this Court reaches to a conclusion that it was the complainant who reported the matter then in that eventuality, this Court is under the obligation to search for independent corroboration, as the sole statement of the complainant is not sufficient for convicting the appellant. We feel it essential to scan through the record once again in order to find out as to whether the collected evidence supports the stance of the complainant and as to whether the prosecution succeeded in creating a chain. Whether the dying declaration alone can form the basis for conviction or not has been questioned by the apex Court in its reported judgment "Farmanullah v. Qadeem Khan and another" (2001 SCMR 1474), wherein it is held that: "It has to be remembered that the Legislature has advisedly, as a matter of sheer necessity, incorporated in section 32 an exception to the general rule that hearsay is no evidence. In the very nature of things the sanctity of oath and the test of cross-examination are not available to ascertain the veracity of a dying statement, but the nature of the statement itself and the circumstances under which it is made make probable the truth of the statement and thus, take the place of oath and cross-examination. On first principles, the sanctity attached to such statements by the statute should be respected unless there are clear circumstances brought out in the evidence to show that a dying declaration is not reliable for any reason."
10. Initially, for investigation of the case, a joint investigation team was constituted under section 19(1) of the Anti-Terrorism Act, 1997. The matter was investigated from different angles and the Investigating Officer made efforts to collect independent evidence in support of his case. The record tells that the Investigating Officer took into possession a mobile phone from the deceased at the time of his examination by the doctor, and from the appellant soon after his arrest. It is pertinent to mention that the respective cell numbers of the deceased and accused were thoroughly investigated and in that respect, the Call Data Record was collected. The Call Data Record which comprises of several sheets, was duly exhibited and we, with the help of learned counsel for the parties, went through the same. It is interesting to note that on the day of incident, there was an active communication between the deceased and appellant, more particularly, a little earlier to the time of occurrence. We noted that on the day of incident, the deceased received a call from the cell number shown in possession of the appellant when he was present at Bus stand in Bannu City. It is pertinent to mention that soon thereafter, a second call was received by the deceased when he was proceeding towards the village of the appellant, whereas we found that the last call was received by the deceased when he had already reached near the village of the appellant. This was questioned time and again by the learned counsel for the appellant that the prosecution could not succeed in linking the appellant with the collected cell number and that even the prosecution failed to bring on record the ownership of the cell number in possession of the deceased. We understand the anxiety of the learned counsel representing the appellant, on this particular aspect of the case, and it was his anxiety which forced us to revisit the collected material and recorded statements. True that the respective cellular companies were not visited by the Investigating Officer, and equally true that the forms, initially filled by the deceased and appellant for acquiring their respective cell numbers, have not been taken into possession, but the record tells that the Investigating Officer did visit the franchise wherefrom both, the deceased and the appellant purchased the SIMs in their possession and to substantiate its claim the prosecution collected the relevant documents. It is pertinent to mention that on the day of incident, the deceased while leaving the police station recorded his departure in Daily Diary No.12 of the even date, where he expressed his onward engagement in the area and the said document was never questioned and which lends support to the prosecution story.
11. The prosecution took the pain to produce and examine all the relevant witnesses, including the marginal witness in whose presence, the spot was inspected, the empties were recovered and blood was collected. One of the marginal witness who accompanied the Investigating Officer was examined during trial, who was questioned time and again regarding his departure with the Investigating Officer, the time spent on the spot and the completion of spot proceedings, but nothing detrimental could be extracted from the mouth of this witness to favour the appellant. This witness remained consistent throughout and his consistency further added to the credibility of the investigation conducted. There is no denial to the fact that the accused was arrested on 26.08.2018 and from his personal possession, a .30 bore pistol was recovered and section 15AA was inserted in the FIR. It was on pointation of the appellant that addition in the site plan was made, where the accused / appellant pointed out the place wherefrom he fired at the deceased. It was vehemently argued that the appellant was charged on the basis of mala fide and that he had no hand in the affair, but the record tells that the appellant was actively involved in the business of narcotic and in that respect several FIRS were registered against him in the concerned police station. The Investigating Officer collected the details of all the cases, where the appellant was charged and a list was produced before the Court which was duly exhibited. We went through the collected FIRS and found" that in all the cases registered against the appellant, the appellant was convicted. The defence took the plea that no major punishment was awarded to the appellant in the referred cases and the quantum of awarded sentence does not hold him responsible for the death of the deceased, as the prosecution is to prove its own case on the strength of the collected evidence. We are not impressed with the submissions made at the bar, as this is not the quantum of sentence, rather the involvement of the appellant in the like activities which confirms the stance of the complainant that the appellant was nourishing a grudge against the deceased, the reasons disclosed by the deceased for his injuries, while reporting the matter, fully persuades us that the appellant had an axe to grind.
12. The Investigating Officer dispatched, the crime empties collected from the spot along with .30 bore pistol recovered from the possession of the appellant, to the firearms expert to ascertain as to whether the collected empties were fired from the recovered pistol. The firearms expert after chemical analysis held that the same were fired from the recovered pistol and in that respect a positive report was submitted. The number of empties collected from the spot confirms the stance of the complainant as the deceased was having two entry wounds on his abdomen. The safe custody right from collecting the empties from the spot and its dispatch with the recovered weapon, to the firearms expert has been proved on record. The Investigating Officer recorded the statement of all the concerned police officials including, Muharrir of the concerned police station in whose custody -the articles were lying and the police official who took the same to the laboratory, they were produced before the Court and their statements were recorded. Both the witnesses were thoroughly examined on material aspects of the case, but they remained consistent throughout.
The positive laboratory report is a circumstance that supports the statement of the complainant to a greater extent. True that the laboratory report; in itself, is not sufficient for convicting an accused charged, but equally true that it can be considered a circumstance in aid to the collected evidence. In the present case, we lurk no doubt in mind that the report of the complainant is fully supported by the positive laboratory report.
13. Next important piece of evidence is the medical report, which fully supports the prosecution case. The number of injuries on person of the deceased and the empties collected from the spot support the stance of the complainant. We are fully convinced that the appellant made two fire shots and the deceased received the two, so the medical evidence fully supports the stance of the complainant. True that medical evidence is confirmatory in nature which alone is not sufficient for the conviction of an accused charged, but equally true that when the prosecution otherwise succeeds in bringing on record strong evidence in its favour then medical evidence has the key role to play and the present case is no exception. It was vehemently argued that dying declaration is a weak kind of evidence and is hardly sufficient for the conviction of an accused charged. We are afraid that the defence went wrong while asking our indulgence in its favour. It has never been held that the declaration of a dying man worth no consideration, but instead much care is advised and for that purpose, precautionary measures were asked. If we hold that dying declaration is a weak type of evidence we never intend that it has no sanctity, if such would be the intention then the Courts of law would commit an error which is hard to be rectified. The legislature was fully conscious of its importance that is why its glimpses can be seen in the Evidence Act, with its later implantation in the shape of Article 46 of the Qanun-e-Shahadat Order, 1984. While dealing with the matter, one must be aware of the guidelines given and parameters provided by the superior courts from time to time. As discussed earlier that the deceased then injured was capable to talk, the next test is to see the worth of the collected evidence and the extent of support it provides. The continuous struggle of the Investigating Officer to collect the most reliable evidence has blessed the report with sanctity. As discussed, earlier, a well knit chain of events is available that touches the two ends and we find it hard to discard. The continuity of events offers no space for indulgence and we, with no hesitation, hold that the prosecution succeeded in labelling the convict / appellant as the actual killer. In case titled "Naveed Asghar and 2 others v. The State (PLD 2021 SC 600), it is held that: "The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such conclusion; however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. 13 Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceasd, and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge.14 Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon, such evidence will a better and a safer course.15"
14. It was argued that the prosecution could not succeed in proving the alleged motive as no independent witness was examined by the Investigating Officer in that respect. True that no witness came forward to tell that there was a previous ill-will between the two and that it was because of the active connivance of the deceased that the appellant was booked in several criminal cases, but we cannot forget that the Investigating Officer placed on file copies of different FIRs, where the appellant was charged in narcotic cases. As the appellant was convicted in all the cases he was charged in, so we are confirmed in our belief that there was bitterness between the two which led to the death of the deceased. There is no cavil to the proposition that absence or weakness of motive, by itself, is not sufficient to dislodge the case of the prosecution, rather the same can play a role in persuading the mind of the Court for awarding lesser sentence.
15. The matter does not end here; we are still to walk an extra mile with the only zest to discover the real mode of the incident. We want to unearth the way the incident occurred and the place where the deceased was done to death, as the very report of the complainant has created confusion on this particular aspect of the case especially, when it is considered in light of the prepared site plan, the collected empties and the recovered blood. The report of the complainant has twisted the incident. The conflict between the site plan and the report has created the atmosphere of uncertainty. Mystery prevails throughout that has created an atmosphere of confusion regarding the exact place and the exact mode of the incident. The report tells that soon after reaching to the village on his motorbike, the appellant on seeing the deceased fired at him. It is further mentioned that after receiving firearm injuries, the injured was shifted to the hospital by people of the locality.
If we accept to what the complainant stated then the blood and empties should have been recovered from the thoroughfare, but these were not. The site plan depicts that the incident occurred inside the maize crop which was of man's height. This is surprising that the spot field was surrounded by many more fields all having maize crops. It is astonishing to note that while preparing the site plan, the Investigating Officer noted that an area of 6x6 feet in the maize crop was trampled as the two had struggled before the deceased was fired at. This is for the prosecution to tell that what brought the two inside the maize crop and that for what purpose. We struggled hard to find an answer, but despite efforts we could not. The complainant while reporting the matter suppressed the real facts. Had the Investigating Officer recorded statements of the people who shifted the deceased then injured to the hospital, the mystery would have been resolved, but his lack of interest has added much in creating a state of uncertainty which despite efforts we failed to resolve. The recoveries effected from inside the field confirm that the deceased received firearm injuries in the field. It is a begging question that what led the two inside the field and that why they engaged in physical struggle which trampled the crop. This particular aspect of the case leads us to hold that both the deceased and the appellant came forward with twisted facts and as such if on one side the appellant is responsible for the death of the deceased then on the other the conduct of the deceased is not above board. The learned trial judge failed to appreciate this aspect of the case and went in haste while convicting the appellant. We are still to know the reasons prevailed with the learned trial judge which held the appellant responsible under section 302(a) P. P .C. We cannot ignore that the requirements for conviction under section 302(a), P.P.C. are altogether different and the learned trial Court failed to justify, so we lurk no hesitation in mind that the learned trial Court fell in error while convicting the appellant under section 302(a)
P.P.C, as such the awarded /sentence is legally incorrect and the learned trial Judge while awarding the sentence misdirected himself both in law and on facts of the case. We are to answer that what should have been the appropriate sentence, more particularly when both the sides suppressed the real facts and consciously attempted to create an atmosphere of uncertainty as has been H held in case titled "Abdur Rahim v. The State" (2021 YLR Note 139): "The factum of suppression of real facts of the appellant by both the sides, are the circumstances suggesting the act of firing by the appellant to have been committed in exercise of his defence, the benefit of which can be extended to him irrespective of the fact that he did not specifically take that plea during trial. Reliance is placed on case titled "Ghulam Fareed v. The State" (2009 SCMR 929), wherein it has been held that: "The appellant did not raise this plea during trial either in his statement under section 342, Cr.P.C. or at the time when the prosecution witnesses were subjected to cross-examination.
There is no bar to raise such plea despite having not taken the said plea specifically during trial, and the court can infer the same from the evidence led during trial, if the same is tenable.
However, to justify such an inference, in favour of the accused who stands convicted on a murder charge and sentenced to death, his conduct during the occurrence should fall within the parameters of private defence, as codified in the Pakistan Penal Code."
16. We without hesitation hold that the appellant deserves to be punished under section 302(c), P.P.C. and not under section 302(a), P. P.C. We, therefore, partially allow the appeal by setting aside the conviction and sentence awarded under section 302(a), P.P.C. and convict the appellant under section 302(c), P.P.C. to 15 years rigorous imprisonment. The compensation of Rs.5,00,000/- (Rupees Five Lacs) imposed upon the appellant under section 544-A, Cr.P.C. as well as his conviction and sentence of imprisonment and fine under section 15-AA by the trial Court shall remain intact. Both the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. is extended in favour of the appellant. The Murder Reference No.02-B/2021 is answered in negative. As after appreciating the evidence available on file the awarded sentence has been reduced to 15- years RI, so the Criminal Revision No. 34-B of 2021 has lost its utility and the same is dismissed as such.