SHAH ZAMAN BABAR, J.--This judgment will dispose of Criminal Appeal No, 237 of 1969 and Criminal Revision No, 266 of 1969 (for enhancement of sentence) which was to be placed in motion along with the appeal vide order dated 10-12-1969.
2. Nekam Gul (55), his son Hafiz Khan (27) and his other son Abdur Rehman (28/29) residents of village Passani, Police Station Tajori, were charged under section 302/34 (two counts) for the murder of Mir Alam Jan alias Mirwanjan and Mst. Sibi Sahira, wife of Nekam Gul appellant, and under section 307/34, P. P. C. for the attempted murder of Talib Jan (P. W. 3). The occurrence took place on 16-4-1967, a little after sunrise time in the area of village Passani. The trial was held by Sessions Judge, Derajat, who by his judgment dated 15-9-1969, acquitted the three appellants of the charge of murder of Mst. Bibi Sahira, but convicted them under section 302/34, P. P. C. on the charge of murder of Mirwanjan and sentenced each of the appellants to transportation for life. The three appellants were also convicted under section 307/34, P. P. C. for the attempted murder of Talib Jan P. W. They were sentenced to seven years' R. I. each. The sentences were ordered to run concurrently.
3. The convicts have come up on appeal challenging their convictions and sentences on both the counts.
4. By private petition Haji Muhammad Jan has come up on revision praying for the enhancement of the sentences of the appellants on both the counts.
5. The parties belong to village Passani. Nekam Gul is the father of Hafiz Khan and Abdur Rehman appellants. Nekam Gul has a third son by the name of Darab Khan. A daughter of Nekam Gul is the wife of Mir Badshah (P. W. 7). The Abadi of village Passani is situated in Khasra No, 1198 with a total area of 129 kanals 6 marlas. Out of this area 99 kanals 6 marlas is under Abadi of the village, while the remaining area of 30 kanals has been re-claimed by various residents of the village. Mir Badshah P. W. was previously living with his father-in-law. Out of the cultured area of the Abadi 9 kanals area was jointly cultivated by Mir Badshah P. W. and Darab Khan. Grievances arose between Mir Badshah and Darab Khan because Darab Khan wanted an area of about 3i kanals to be separated out of the 9 kanals for him. Mir Badshah did not agree to the proposal. For these reasons Mir Badshah built a house in a corner of the 9 kanals area at the outskirts of the village, and occupied the same. The dispute between Mir Badshah and Darab Khan led to an attempt of murder of Mir Badshah by Darab Khan in the year 1966 (12-8-1966). The trial of Darab Khan resulted in conviction and he was sentenced to one year's R. I. Darab Khan was undergoing the sentence during the days of the occurrence of the instant case. The field in dispute is at a distance of about a furlong from the house of Nekam Gul appellant. It is at a distance of about 150 paces from the shop of P. W. Hakim Khan and at a distance of about 140 paces from the house of Mirwanjan deceased. Mirwanjan, it is alleged, had cordial relations with Mir Badshah P. W.
On 16-4-1967, little after sunrise, Mir Badshah was ploughing the field in dispute with a plough and a pair of bullocks. Out of the pair, it is alleged that one bullock belonged to Mirwanjan. It appears that the appellants came to know of the ploughing of the disputed field by Mir Badshah. They came to the spot and their objection to the ploughing resulted in a scuffle between them and Mir Badshah.
It is further alleged that the appellants went home after the grappling. Hakim Khan (P. W. 4) was allegedly present at his shop. Hakim Khan heard Abdur Rehman appellant shouting as to why Mir Badshah had gone to their land. Nekam Gul appellant also came from the opposite direction and went towards his house. Hakim Khan P. W., one Amir Shah and Mirwanjan deceased went together to the field to patch up the matter. They went there where Mir Badshah was present along with Mir Akbar (P. W. 5) and Talib Jan (P. W. 3), all were unarmed. Mst. Bibi Sahira, mother-in-law of Mir Badshah, also came there. In the meantime Hafiz Khan appellant came over there armed with an axe and assaulted Mir Badshah but Mst. Bibi Sahira intervened and saved Mir Badshah. At that time Nekam Gul armed with a sinde-shot rifle and Abdur Rehman armed with a .303 bore 11-shot rifle also came there. On seeing them Mir Badshah went to his house nearby. It appears that the appellants suspected Hakim Khan, Mirwanjan and Talib Jan for assisting Mir Badshah in taking the possession of the field iu dispute. Abdur Rehman fired a shot at Hakim Khan. Hakim Khan was missed but instead Mst. Bibi Sahira was hit and she dropped dead on the ground. Nekam Gul fired a shot at Mirwanjan deceased. He also fell injured on the ground. Hafiz Khan approached Mirwanjan and gave him one or two blows with the axe. Abdur Rehman then fired a shot at Talib Jan. Talib Jan was also hit and injured. The three appellants then fled away towards the Gambila river bed.
Additional Police Post at village Passani was at a distance of about 200 paces from the spot.
Habibullah (P. W. 8) F. C. was posted at the Police Post. Habibullah heard three shots at the Police Post. A girl also went to the Police Post to inform the Police there. Habibullah along with 5/6 constables rushed to the spot. Habibullah saw a woman lying dead and two men lying injured.
Habibullah left a foot constable with the dead body of the woman. Habibullah and the other police party took the two injured to Police Post Passani. Habibullah is illiterate. He got recorded the statement (Exh. P. 1) of Talib Jan through Maulvi Maslihuddin (not examined) at about 8 a.m. The dying declaration of Mirwanjan deceased was also recorded through Shahbaz Khan (P. W. 9), at about 8-30 a.m. Mirwanjan injured and Talib Jan injured were sent to Police Post Gambila. At about 10 a.m. Faiz Muhammad, A. S. I. incharge Police Post Gambila (P. W. 14) recorded the report (Exh. P.
A/I) of Talib Jan vide daily diary No, 3 dated 16-4-67. This report was conveyed on phone to Police Station Tajori. Latifullah L. H. C. (P. W. 13) incorporated this report in the F. I. R. Exh. P. A. and registered a case at about 11 a.m. The A. S. I. prepared the injury sheet Exh. P. F. of Talib Jan and sent him to Civil Hospital Bannu for medical examination and treatment. The A. S. I. then left for the spot. After covering a distance of about 2 or 3 furlongs from the Police Post, he came across Mirwanjan injured who was being taken to Police Post on a cot.
The A. S. I. recorded another dying declaration (Exh. P. G.) of Mirwanjan in between 10 and 11 a.m. in the presence of Hakim Khan (P. W. 4) and Abdullah Jan alias Khan (P. W. 10) who were accompanying the injured. The A. S. I. prepared the injury sheet Exh. P. G/5 of Mirwanjan and sent him to the Civil Hospital Bannu. F. C. Habibullah was also accompanying Mirwanjan and the party.
After recording the dying declaration Exh. P. G. Habibullah informed Faiz Muhammad A. S. I. that the former had already recorded statements of Talib Jan (Exh. P. 1) and Mirwanjan (Exh. P. 2). The. A. S. I. took the two statements in his possession vide memo. Exh. P. F/3 in the presence of Hakim Khan P.
W. The A. S. I. proceeded further when at a place near Kotka Sher Khan, at about 12 noon, he saw Mst. Bibi Sahira deceased being brought on a cot by her son Hafiz Khan appellant and others. The A. S. I. took down the report of P. W. Latifullah F. C. registered a cross-case at 2-30 p.m. under section 302, P. P. C. against Mir Badshah. Copy of this F. I. R. is Exh. P. A/2. The A. S. I. prepared the injury statement and inquest report of Mst. Bibi Sahira and sent her to the Civil Hospital, Bannu for post-mortem examination. The A. S. I. reached the site of occurrence at about 14-30 hours. He inspected the spot and prepared the site plan Exh. P. C. Point 1 in the site plan is the place where Talib Jan was allegedly injured. Mst. Sahira dropped dead at point No, 2 at a distance of 9 paces from point No,
1. Hakim Khan P. W. was stated to be present at point 3. Mirwanjan deceased was shot at point 4, but he dropped at point 5. Blood was recovered from this point vide memo. Exh. P. G.
1. Mir Badshah P. W. was allegedly present at point 6. The presence of Haflz Khan was shown at point 7, from where he allegedly went to point 5 to inflict axe blows on Mirwanjan deceased. Point 8 represents the house of Mir Badshah P. W. Mir Akbar P. W. was shown present at point 9. An empty shell of '303 bore (Exh. P. 3) was recovered from point 10 vide memo. P. G/2. The presence of Nekam Gul in the first instance was shown at point A while that of Abdur Rehman was shown at point B.
Nekam Gul allegedly came from point A to point D from where he fired at Mirwanjan. The distance between points A and D is 4 paces, and between points D and 4 is 10 paces. Point C is the place where a pair of bullocks and a plough was shown. Point E represents the house of the appellants which is at a distance of about a furlong from the spot and is not visible from there. Ghulam Samdani S. H. 0. (P. W. 15) of Police Station Tajori reached the spot at 17 hours on the same day viz. 16-4-67 and took over investigation from A. S. I. Faiz Muhammad. Ghulam Shah (not examined) produced a plough Exh. P. 8 and a pair of bullocks to the A. S. I. which he took into possession vide memo. Exh. P. G/3. The pair of bullocks was later on entrusted to Hakim Khan P. W. vide memo. Exh.
P. G./4. Nekam Gul and Haflz Khan were arrested on 16-4-67 Abdur Rehman was not found in the village. A warrant under section 204, Cr. P. C. was issued against him. Abdur Rehman was later on arrested by A. S. I. Faiz Muhammad on 31-7-67.
6. Dr. Aman Khan Khattak (P. W. 1) held autopsy on the dead body of Mirwanjan, aged about 40 years, on 16-4-67, at 3 p.m. and found the following injuries :-- (1)An incised wound 2" x 1/2" x 1/2" on the skull, behind the left ear. The underlying bone was fractured.
(2)A fire-arm wound of exit on the 10th left rib, near its angle.
(3)A fire-arm wound of exit in the left hypochondrium.
(4)A fire-arm wound of entry in the deeper part of left hip.
(5)An incised wound, II" x 2"x 2" on the right shoulder.
The doctor opined that the bullet after entering the body appears to have split into pieces, two having gone out through the exits, No, 2 and No, 3 respectively, and the third piece (Exh. P. 6) was recovered. Injuries 1 and 5 were opined to be caused with sharp-edged weapon while rest of the injuries were caused with fire-arm. The doctor further held the view that the injuries were sufficient to cause death in the ordinary course of nature, and that injury No, 1 was individually also sufficient to cause death in the ordinary course of nature.
On internal examination left temporal bone and hip bone were found fractured. The right shoulder- joint was opened by the incised wound, the skin, over lying muscles and ligaments having all been cut. The abdomen was full of blood. Intestines were injured. One tooth from the lower jaw freshly disappeared. The peritoneum was injured. Left lobe of liver was also injured. The doctor further opined that the time between injuries and death was one hour. He also opined that the deceased could not talk after the receipt of injury No,
1. Modifying this opinion he further stated that since the liver was injured and the skull was fractured, the patient even if he could talk after the receipt of the injuries, could not be expected to do so 10 or 15 minutes after the receipt of these injuries.
7. Lady Dr. Miss Mehrun Nisa (P. W. 16) performed the post-mortem examination on the dead body of Mst. Bibi Sahira aged about 60 years, on 16-4-1967 at 5 p.m. and found :- (1)A fire-arm wound of entry, 1/2" x 1/2" over the middle of the front of neck communicating with wound of exit.
(2)An exit wound, 3/4" x 1/2" over the upper part of the back of the right shoulder-joint.
Direction of the wound was left to right and slightly backward.
On internal examination the trachea, oesophagus, neck vessels, collar bone, 1st rib, scapula and the shoulder-joint were found broken. Upper part of the right lung was injured. Stomach was empty and blood-stained. Death was due to shock and haemorrhage. Time between injuries and death was 10 to 15 hours and between death and post-mortem examination 6 to 12 hours.
8. Dr. Ali Qadir Khan (P. W. 2) examined Talib Jan P. W. on 16-4-67 at 2 p.m. and found the following injuries on his person :- (1)A round entry, 1" x 1" x 2" on the front of the left shoulder. Charring was present at the margin.
(2)An exit wound, 14" x trx 2' on the back over the left shoulder blade directed from backwards.
The injuries were caused by fire-arm within 6 to 7 hours duration. and were opined to be grievous in nature. The patient was discharged from the hospital on 29-5-67.
9. The three appellants at the trial denied the charges with which they were charged. They unanimously answered the question "why did Mirwanjan deceased charge you in his dying declarations Exh. P. 2 and Exh. P. G.", as under :- "He did so, if at all, because he was also present on the spot with Mr. Badshah, Hakim Khan and Talib Jan."
Hafiz Khan appellant admitted to have lodged a report recorded at serial No, 6 of the daily diary in Police Post Gambila (copy Exh. P. A/2). When the report Exh. P. A/2 was read over to him, in Pushto, in Court. he denied to have made such report.
Explaining his absence Abdur Rehman appellant stated that he had gone out of his village for search of employment.
The three appellants did not produce any evidence in defence.
10.The prosecution case is supported by the two dying declarations of Mirwanjan deceased. The first dying declaration Exh. P. 2 is recorded by Shahbaz (P. W. 9) at about 8-3) a.m. in Police Post Passani. The same purports to have been signed by Mirwanjan in Urdu. The second dying declaration (Exh. P. G.) purports to have been recorded by Faiz Muhammad (P. W. 3) at about 10/11 a.m. on the same day viz. 16-4-67. This dying declaration is thumb-impressed by the deceased and signed by P. W. 4 Hakim Khan and P. W. Abdullah Jan alias Khan. The prosecution case is further supported by the ocular testimony of Talib Jan (P. W. 3), Hakim Khan (P. W. 4) and Mir Akbar (P. W. 5). Mir Badshah (P. W. 6) is a supporting witness.
11.Let us first assess the evidentiary value of the two dying declarations and particularly whether the deceased Mirwanjan was capable of making the two dying declarations. The learned trial Court has observed that it could not be said with certainty that these dying declarations were genuine. The first dying statement (Exh. P. 2) was recorded at Police Post Passani at the instance of Habibullah F. C. (P. W. 8) by Shahbaz Khan (P. W. 9) when Mirwanjan was allegedly in perfect senses. P. W. Shahbaz stated that Mirwanjan was actually giving his statement to Habibullah F. C. who passed it on to him to write the same. He did not personally hear the statement of Mirwanjan because it was inaudible to him. Habibullah was sitting two paces away from Mirwanjan while he (Shahbaz) was sitting 3 or 4 paces away from Mirwanjan. Habibullah would ask question from Mirwanjan, who would give reply which Habibullah passed on to him (Shahbaz) but Shahbaz personally did not hear anything from the mouth of Mirwanjan, although he is not hard of hearing.
The dying declaration Exh. P. G. is signed by P. Ws. Hakim Khan and Abduilah Jan alias Khan. P. W.
Habibullah F. C., states that Talib Jan and Mirwanjan were taken in tonga to Police Post Gambila, were again their dying declarations were recorded by Faiz Muhammad A. S. I. when Mirwanjan was in perfect senses. P. W. Hakim Khan also states that the second dying statement of Mirwanjan was recorded at Police Post Gambila when Mirwanjan was in perfect senses. Abiullah Jan P. W. also stated that Mirwanjan was talking coherently and was in perfect senses when A. S. I. incharge Police Post Gambila was recording his dying statement. P. W. Faiz Muhammad A. S. I., however, stated that he was on the way to the spot, when he came across Mirwanjan being brought on a cot towards Police Post and at that place finding Mirwanjan in proper senses and talking coherently he recorded the dying declaration Exh. P. G. in the presence of Hakim Khan and Khan P. Ws. The occurrence took place on 16-4-67 a little after sunrise time. Sunrise on this day may be at about 5- 40 a.m. according to the diaries and the occurrence can be presumed to have taken place at about 6 a.m. The firt dying declaration Exh. P. 2 has been allegedly recorded at 8-30 a.m. while the second dying declaration Exh. P. G. has been recorded in between 10 and 11 a.m. According to the evidence of Dr. Aman Khan the time between the injuries and death was one hour ; while in view of the injuries to the liver and fracture of the skull, Mirwanjan could not, even if he talked, be expected to talk 10 or 15 minutes after the receipt of the injuries. We, therefore, feel it difficult to believe that Mirwanjan, in view of the medical evidence of the fracture of left temporal bone and hip bone, injuries to intestines, peritoneum and left lobe of liver, was capable of making the dying declarations Exh. P. 2 and Exh. P. G. after about 22 hours and 41 hours of the receipt of the fatal injuries. In all probabilities Mirwanjan had become unconscious within a few minutes of the receipt of the injuries, and as such was incapable of making any dying declaration.
'In Dharam Singh v. Emperor , it is reported :- "Where in a case the deceased had received a spear wound which according to the medical evidence penetrated the chest wall on the right side, went through the ribs, through the diaphragm, penetrated the right lobe of the liver, completely penetrated the whole liver and came out of the left lobe of the liver and it then went through the stomach and finally through the ribs on the left side of the chest and through the chest wall and the Court was invited to believe that the victim some two hours after receiving such a wound made a dying declaration relied on by the prosecution : Held, that there was great difficulty in believing that the deceased could possibly have lived for two hours after receiving an injury of this description, much less could he have been conscious. The probability of his ever living to make a dying declaration two hours later was too remote to be considered."
In Anant Ram Maya Ram v. Emperor , it is laid :- "The receipt of forty-two gunshot wounds in the liver, heart, stomach and lungs and profuse haemorrhage occasioned thereby, would cause a great deal of shock and the probability is that the victim becomes unconscious within a few minutes incapable of making any dying declaration."
Thus we are in full agreement with the observation of the learned trial Judge that the two dying declarations appear to be not genuine, and as such they cannot be relied upon.1 2
12. P. W. Talib Jan has furnished ocular evidence in the case. He is injured with a bullet injury having charring marks on the margin. The three appellants, in their statements at the trial have also admitted his presence on the spot. The first statement of Talib Jan Exh. P. 1 was recorded at 8 a.m. by Maulvi Maslihuddin (not examined) in Police Post Passani and his second statement was recorded at Police Post Gambila on the same day at 10 a.m. which forms the basis of F. I. R. Exh. P. A.
Talib Jan was examined by the Committing Magistrate on 9-8-6Q. In his statement at the trial on 8-9-69, Talib Jan materially differed from his statement which he gave before the committing Magistrate. At the request of the Public Prosecutor, the learned trial Judge by his order dated 8-9- 69 transferred the statement of Talib Jan before the committing Magistrate to the Sessions file and ordered it to be treated as evidence in the case, under section 288, Cr. P. C. The learned trial Court has also cross-examined Talib Jan with respect to his deviations from the statement before the committing Magistrate and the pieces of evidence which the witness testified at the trial, but omitted to state in his statement before the committing Magistrate. The testimony of this witness before the committing Magistrate appears to be natural and consistant with the merits of the prosecution case. Upon consideration of the facts and circumstances of this case, we are prone to rely upon the statement of Talib Jan recorded by the committing Magistrate in preference to his testimony he gave at the trial. In his statement before the committing Magistrate Talib Jan has deposed that Abdur Rehman appellant had .303 bore 11-short rifle, Mst. Bibi Sahira asked him not to harm anybody, he fired at Hakim Khan P. W. but missed Hakim Khan and hit his own mother from close quarter. Hakim Khan fired at Mirwanjan and hit him. Mirwanjan fell down. Hafiz Khan attacked Mirwanjan with axe. Thereupon Abdur Rehman aimed his rifle and fired at Talib Jan and hit him. He did not mention in the F. I. R. about the presence of Hafiz Khan appellant armed with axe. He also did not mention in the F.
1. R. that Nekam Gul fired at Mirwanjan. These omissions, in our view, will not affect the evidentiary value of the statement of Talib Jan before the committing Magistrate ; bearing in mind his condition and frame of mind at the time of making the report. He had sustained a bullet wound of grievous nature on the left shoulder. Reliance is placed on Ghulam Hussain v. Zainullah and 2 others .
The ocular evidence of Hakim Khan P. W. has fully supported the prosecution case. This witness had come to the place of occurrence from his shop nearby. He has deposed that Hafiz Khan appellant came to the spot with an axe and assaulted Mir Badshah P. W. but Mst. Bibi Sahira saved Mir Badshah. He also testified that Nekam Gul armed with a single shot rifle and Abdur Rehman armed with a .303 bore 11-shot rifle also came to the spot. Mir Badshah on seeing them went home. The appellants suspected the witness and Mirwanjan for assisting Mir Badshah in ploughing of the disputed field. Abdur Rehman fired a shot at Hakim Khan, but instead hit his mother Mst. Bibi Sahira.
She dropped dead. Nekam Gul appellant then fired a shot at Mirwanjan who was hit and injured.
Hafiz Khan then gave one or two axe blows to Mirwanjan. Abdur Rehman then fired a shot at Talib Jan P. W., resulting in injuries to the latter. The evidence of the witness is supported by the medical evidence. He accompanied Mirwanjan from the spot to the Additional Police Post Passani and then to the police Post Gambila. He is a witness to dying statement Exh. P. G. The witness's presence has also been admitted by the three appellants in their statements at the trial. The evidence of this witness appears to be natural and consistent with the circumstances of the case. It is thus worthy of credence. About a year prior to the occurrence Hakim Khan had charged Darab, son of Nekam Gul appellant, and Ayaz for firing at him Durab was acquitted by the trial Court. Ayaz after his conviction was acquitted in appeal. The enmity of the witness with Darab son of Nekam Gul appellant, does not appear to us to be a strong reason for false implication of the appellants for the murder and attempted murder.
Mir Akbar P. W. is the sister's son of Mir Badshah P. W. Mir Akbar P. W. belongs to Kotka Tarkha Bazi Khel, which is at a distance of about two miles from village Passani where the occurrence took3 place. The appellants have also not admitted the presence of this witness at the time of occurrence. Mir Akbar appears to be a chance witness. He did not accompany Mirwanjan while he was taken to Police Posts for report. Under these circumstances, it will not be safe to rely upon his evidence.
13. The report of Hafiz Khan appellant was recorded at 12 noon on 16-4-67 after two hours of the report of Talib Jan P. W. which was recorded at 10 a.m. By the time the investigation of the case on the report of Talib Jan had not been commenced. This report was put to Hafiz Khan appellant at the trial which he admitted to have made. Under these circumstances, the report made by Hafiz Khan appellant can justifiably be treated as evidence of admission that he was present at the occurrence. Reliance is placed on Shahamad v. The State Abdur Rehman appellant was fugitive from justice from 16-4-67 up to 31-7-67, say for about 3(1/2) months. This abscondence of Abdur Rehman is a corroborative circumstance of the charges against him, as held in Gul Hassan and another v. The State .
14.From the facts and circumstances of the case, we gather that early in the morning on 16-4-67 Mir Badshah was ploughing the disputed field, the appellants came and objected to the ploughing, which resulted in a scuffle between them. The appellants then went home which is at a distance of about a furlong from the field. Nekam Gul armed with a single shot rifle, Abdur Rehman armed with .303 bore 11-shot rifle, and Hafiz Khan appellant armed with an axe returned to the spot with a contemplated design and in furtherance of their common intention to punish Mir Badshah for the ploughing of the disputed field. In carrying out their concert they committed the criminal acts of murder of Mirwanjan and attempted murder of Talib Jan for which they are vicariously liable.
15.In the result, we find that the conviction and sentence of the appellants under section 302/34, P. P. C. and their conviction and sentence under section 307/34, P. P. C. are well merited. The appeal of the appellants is, therefore, dismissed.
The revision petition is also dismissed. 174 I C 973 AIR 1938 Lah. 262 PLD 1961 SC 230 PLD 1956 SC (Pak.) 238 PLD 1969 SC 89