' MUHAMMAD ZUBAIR, J.--Javid son of Zafar Mahmood and Munawar-uz-Zaman son of Sadiq were tried under section 302/34, P.P.C. For the murder of Zulfiqar alias Qari on 11-3-1984 at 6-50 p.m. By Hafiz Khalil Ahmad, Additional Sessions Judge, Rawalpindi, who vide his judgment, dated 29-9-1985 sentenced them to death and a fine of Rs,10,000 each or in default six months' R.I. Each. Both of them have filed joint appeal viz. Criminal Appeal No, 90 of 1985 whereas Javid has filed a separate appeal bearing No, 94 of 1985 against their conviction and sentence. The learned trial Court has also referred the matter to us under section 374, Cr.P.C. For confirmation of death sentence awarded to the appellants. We propose to dispose of three matters by this judgment.
2. The occurrence in this case took place on 11-3-1984 at 6-50 p.m. In the house of Shiraz Khan (P.W.7) situated in village Dino Herdo District Rawalpindi. Statement Exh.P.E. Of Shiraz Khan (P.W.7) was recorded by Abdul Zaheer, A.S.I. (P.W.13) in Holy Family Hospital, Rawalpindi at 9-00 p.m. The same day. He sent the same to Police Station New Town, Rawalpindi where formal F.I.R. Exh.P.E./1 was recorded by Muhammad Razaq, A.S.I. At 9-10 p.m.
3. The facts as disclosed in the statement Exh.P.E. Of Shiraz Khan (P.W.7) are that on 11-3-1984 at about 6-30 p.m. He along with his brother Zulfiqar (deceased) was sitting in the Baithak of the latter. The appellants who were friends of Zulfiqar (deceased) arrived there. Javid asked the deceased for the return of his money who told them that he was not in a position to make the payment. There was exchange of hot words between the appellants and the deceased. Thereafter, Munawar-uz-Zaman appellant addressing Javid appellant said that whenever they had come to demand money, they were being insulted instead of the payment therefore, they were not going to spare the deceased on that day. Both the appellants pulled out their respective knives and launched an attack upon Zulfiqar (deceased). First knife blow was given by Javid which landed on the neck of the deceased on the left side. The second blow was inflicted by Munawar-uz-Zaman which landed on the forehead of the deceased. Thereafter, the appellants caused blows one after the other with knives which hit the deceased on his chest, arms and back. The complainant raised hue and cry whereupon Allah Dad, Tariq and Aftab attracted to the spot and saw the occurrence.
Munawar-uz-Zaman appellant was apprehended at the spot with knife whereas Javid appellant made good his escape. Zulfiqar who was then alive was shifted to Holy Family Hospital for his treatment by Shiraz Khan (P.W.7) where he succumbed to the injuries. Munawar-uz-Zaman was given in the custody of Allah Dad (P.W.11). Abdul Zaheer A.S.I. Arrived in the Holy Family Hospital, where Shiraz Khan (P.W.7) made statement Exh.P.E. Which he sent to the Police Station New Town, Rawalpindi where formal F.I.R. Exh.P.E/1 was recorded.
4. The investigation in this case was conducted by Abdul Zaheer (P.W.13) who was then posted as S.H.O. Police Station New Town, Rawalpindi. On receipt of telephonic message he reached I Iola Family Hospital at 8-20 p.m. Where he recorded the statement of Shiraz Khan Exh.P.E. As the injured had died before his arrival in the hospital, therefore, he prepared his inquest report Extl.P.M. And injury statement Exh.P.N. And handed over the dead body to Javid Hussain Shah (P.W.5) F.C. For post-mortem examination. Javid Hussain Shah (P.W.5) F.C. Produced before the Investigating Officer three sealed parcels and one Chadar P.1 which he took into possession vide Exh.P.B. He also produced one parcel P.2 and two envelopes P.3 and also a sealed parcel P.4. All these articles were taken into possession vide Memo. Exh.P.C. The A.S.I. Then proceeded to the spot where he reached at 2-00 a.m. On 12-3-1984. Allah Dad (P.W.11) produced before him Munawar-uz-Zaman appellant along with the blood-stained knife. He secured the blood-stained knife P.5 vide memo. Exh.P.F. In the presence of witnesses. He also arrested Munawar-uz-Zaman there and then. He got removed from the person of Munawar-uz-Zaman Shalwar P.6 and shirt P.7 (blood-stained) vide memo.
Exh.P.G. He also took into possession Chadar P.9 and cover of Sofa P.8 (blood-stained) vide memo., Exh.P.H. Thereafter he returned to the police station along with Munawar-uz-Zaman appellant and handed over the sealed parcels to the Muharrir. Again he went to the place of occurrence at 8-00 a.m. Secured blood vide memo. Exh.P.J. He also recorded the statements of the witnesses. On 13-3- 1984, he arrested Javid appellant who while in police custody led to the house of his sister in Committee Mohallah and produced Shalwar P.11, shirt P.12 and a knife P.10 which were taken into possession vide memo. Exh.P.K. He prepared the site plan Exh.P.O. Of the place of recovery and also got prepared site plan Exhs. P.D. And P.D./1 through Muhammad Akram, Draftsman (P.W.6). After completing all the formalities required under law he submitted challan in the Court.
5. On 11-3-1984 at 7-00 p.m. Dr. Bilal Amin, Medical Officer (P.W.4) examined Zulfiqar who was then alive and noticed nine stab wounds and an incised irregular edged wound. The doctor stated that injured succumbed to the injuries at 8-15 p.m. He opined that injuries Nos. 1 to 3 were dangerous and fatal and the remaining injuries were simple caused with sharp-edged weapon.
6. Dr. Mahmood Khan (P.W.9) conducted the post-mortem examination on the dead body of Zulficpa on 12-3-1984 at 10-00 a.m. And found the following injuries thereon:-
(1) Incised wound 5 c.m. (stitched) on left side front of neck, 3 c.m. Left to the trachea.
(2) Incised wound 4 c.m. (stitched) on left side of forehead upper part.
(3) Incised wound 2 c.m. Scalp deep, 4 c.m. Above and behind left ear. Clotted blood was present below the scalp.
(4) Incised wounds:
(a) 3 c.m. (stitched) on back of right chest near posterior aspect of axilla.
(b) 3 c.m. (stitched) on back of right chest 3 c.m. Below inferior edge of right scapula.
(c) 3 c.m. (stitched) on back of right chest 10 c.m. Right to the vertebral column.
(5) Incised wound 2 c.m. On front of right chest just at right border of lower 1/3rd of sternum.
(6) Incised wound 3 c.m. And 2 c.m. Muscle deep (stitched) on back of right upper arm.
(7) Incised wound 4 c.m. (stitched) muscle deep on front of left upper arm.
(8) Incised wound 2 c.m. Stitched on front of left elbow.
(9) Incised wound 3 c.m. Muscle deep on front of left chest outer-most part, 5 c.m. Below anterior angle of left axilla.
(10) Incised wound 1 c.m. Muscle deep on top of right shoulder.
(11) Incised wound 2 c.m. Muscle deep on back of thumb right hand.
(12) Incised wound back of left index finger.
(13) Incised wound 2 c.m. Crescent shape on right cheek.
' Death in the opinion of the doctor was due to shock and haemorrhage as a result of injuries Nos. 1, 4 and 5 which were sufficient to cause death in ordinary course of nature. All the injuries were anti- mortem and caused by sharp-edged weapon. Time between injuries and death was about 1 to 2 hours and between death and post-mortem was about 14 hours. The doctor also opined that keeping in view the nature of injuries, specially injuries Nos. 1, 4 and 5 the injured would have been in a state of shock in which it was difficult for him to make any statement.
7. The appellants when examined under section 342, Cr.P.C. Denied the prosecution allegations and stated that Councillor Faiz had set up false witnesses with the help of police to save himself. No evidence was produced in defence.
8. The trial Court placing explicit reliance on the ocular testimony furnished by Shiraz Khan (P.W.7), Tariq (P.W.8) and Allah Dad (P.W.11) coupled with the circumstantial evidence such as the apprehension of Munawaruz-Zaman appellant at the spot, recovery of blood-stained clothes and knife from his possession as well as recovery of blood-stained knife at the instance of Javid appellant which were later on found to be stained with human blood by the reports of Chemical Examiner Exhs.P.Q. And P.R. And Serologist Exh.P.S. And fortified by the evidence of motive concluded that the prosecution had proved its case against the appellants and sentenced them as indicated above.
9. We have heard the learned counsel for the appellants as well as the State assisted by the learned counsel for the complainant and have gone through the record of the case very carefully.
Learned counsel for the appellants submitted that the F.I.R. In the instant case has been recorded after preliminary investigation, hence it is not a sacred document and cannot be used as a corroborative piece of evidence to support the ocular account furnished by Sheraz Khan P.W.7, Tariq P.W.8 and Allah Dad P.W.11. We are afraid this argument is devoid of force. The learned counsel has failed to point out any piece of evidence from which it could be inferred that the F.I.R. Was recorded after preliminary investigation.
The learned counsel for the appellants next contended that in the presence of dying declaration of Zulfiqar deceased recorded by Dr. Bilal Amin (P.W.4), the prosecution case falls to the ground like a house of cards, as the doctor had no earthly reason to fabricate the dying declaration and being independent Government servant had no reason to promote the interest of the accused party.
Before embarking upon the intrinsic value of this dying declaration, it would be appropriate to examine the facts and circumstances which led to the recording of the dying declaration, which is anchor-sheet of the defence case. The procedure for recording the dying declaration by a doctor has been clearly laid down in Modi's Medical Jurisprudence and Toxicology. The law normally requires that a doctor should not venture to record the dying declaration of a dying man himself but should procure the services of a Magistrate through a Police Officer. A doctor could only record the dying declaration in exceptional cases, where he is of the firm opinion that the declarant is not likely to survive for sufficient time and valuable evidence is going to be lost in the process. The dying declaration thus recorded must be in the presence of respectable witnesses and he has to get the signatures or thumb-marks of the declarant and the witnesses.
A perusal of the record shows that in the present case, the doctor has not observed the above formalities. Zulfiqar was brought to the hospital in injured condition. The doctor after examining the deceased, who was then alive, on the medico-legal report Exh.PA. Recorded the alleged dying declaration in the form of a note, which does not even bear his signature and the thumb-mark or the signature of the deceased or of any respectable witnesses. Even this note does not bear the signature of Dr. Imtiaz whose name is mentioned therein and before whom this so-called dying declaration was made.
10. The learned counsel for the complainant has relied upon Budho v. The State PLD 1%5 (W.P.) Kar.
76 and Rehmat Bakhsh alias Daroga Ali v. The State 1970 P Cr. L J 1292 to support his contention that the dying declaration in the instant case is of no value to the defense and should be kept out of consideration. The learned counsel for the State as well as for the complainant have also taken serious objection with regard to the procedure followed by the doctor in recording the above- mentioned alleged dying declaration, as the doctor who recorded the dying declaration of the deceased has not appended with it a certificate to the effect that the deceased remained conscious throughout while making the statement. There are cuttings and overwriting's on this note which makes this statement, which is of dubious character, further doubtful and not worthy of any credence. Even Ghulam Mustafa, brother-in-law of the deceased, who brought the deceased to the hospital was not shown as the witness in whose presence this dying declaration was made.
When Dr. Bilal Amin (P.W.4) was cross-examined with respect to this dying declaration by the learned P.P. With the permission of the Court, he had to concede that Javed Dresser of the hospital was present there when this dying declaration was made by the deceased. The said Javed Dresser had got long-standing enmity against Faiz Councilor and Manna shown as the assailants of the deceased in the dying declaration, without furnishing their full particulars.
' A careful scrutiny of the dying declaration would demonstrate that it is a fabricated document. It was prepared with the connivance of Javed Dresser by Dr. Bilal Amin with the intention of demolishing a clear and straightforward case of the prosecution, especially when one of the murderers was apprehended, red-handed, at the spot along with the weapon of crime. This dying declaration is otherwise full of inherent infirmities as would be apparent from the following discussion. Dr. Bilal Amin P.W.4 has admitted that blood pressure of the deceased was not recordable, and he was bleeding profusely. This statement of Dr. Bilal Amin is against the finding of Dr., Mahmood Khan who conducted the post-mortem examination on the dead body of the deceased, be zause he categorically deposed that keeping in view the injuries suffered by the deceased, especially injuries Nos. 1, 4 and 5, the injured would have been in state of shock, in which it was difficult for him to make any statement. In addition to that, there is evidence of Sheraz Khan P.W.7 who stated that the deceased became unconscious at the spot after receiving the injuries at the hands of the assailants.
' A cursory look at the medico-legal report Exh.PA. Prepared by Dr. Bilal Amin and the post-mortem examination conducted by Dr. Mehmood Khan would reveal that the deceased after receiving these injuries was unable to make the dying declaration, hence it is a fabricated document. As mentioned earlier it was prepared by Dr. Bilal Amin P.W. At the instance of Javed Dresser completely in violation of the procedure for recording the dying declaration as laid down in the law referred to above. Confronted with this situation, the learned counsel for the appellants was unable to point out any weakness or infirmity in the er-witness account furnished by Sheraz Khan, Tariq and Allah Dad P.Ws., who are otherwise natural and independent witnesses of the occurrence and have no ill-will or motive to falsely involve the appellants in a false case.
' In the present case, Munawar-uz-Zaman appellant was apprehended at the spot and blood- stained knife was recovered from him along with the bloodstained clothes secured from his person which were later on found to be stained with human blood as per reports of the Chemical Examiner and the Serologist which amply support the ocular account furnished by the aforesaid eye- witnesses. There is also evidence of recovery of blood-stained knife as well as blood-stained clothes which were found to be stained with human blood against Javed appellant which further corroborates the ocular evidence brought on the record. The medical evidence also supports the prosecution case as from the medical evidence, it appears that the deceased suffered injuries on his person by sharp-edged weapon. Thus, the prosecution has fully proved its case against the appellants beyond reasonable doubt.
11. In the end the learned counsel for the appellants have feebly contended that in the present case the extreme penalty of death should not be imposed upon the appellants, submitted that Javid appellant was a young man of 16/17 years of age at the time of commission of offence. The occurrence took place at the spur of moment on account of altercation over the recovery of debt which the deceased owed to the appellants. We have given our anxious consideration to this submission of the learned counsel, but we find no substance in this submission. There is no mitigating circumstance in favor of the appellants which would compel us to refrain from imposing the extreme penalty of death upon the appellants. The appellants opened an attack on a person who was unarmed and inflicted in brutal manner numerous injuries with sharp-edged weapons which showed that they had the intention to kill the deceased. Even the appellants came to the house of the deceased fully armed with knives which were wielded against him. The learned counsel for the State has drawn our attention to Sattar Khan and another v. The State PLD 1970 Pesh. 185 and Iftikhar v. The State PLD 1972 Pesh. 27, wherein it has been held that mere extreme youth of an accused was no ground for not imposing extreme penalty of death. Respectfully following the above principle of law, we confirm the death sentence of the appellants and dismiss their appeal. The reference is answered in the affirmative.
' Before parting with this judgment, we think we would be failing in our duty, if we do not take notice of the misconduct of Dr. Bilal Amin P.W.4, and bring it to the notice of his appointing authority, as to how he tried to create false and fabricated dying declaration in favour of the accused party, which is a slur on the good and noble name of this holy profession.
' We, therefore, direct the Provincial Government to hold a departmental inquiry against Dr. Bilal Amin and Javed Dresser of the Holy Family Hospital, Rawalpindi, on whose instance, this statement was purported to be fabricated by the aforesaid doctor and take necessary disciplinary action against the delinquent(s). A copy of this judgment shall be sent to the Provincial Government Punjab, through the Health Secretary Punjab, for compliance and necessary action.