' ABDUR RAHMAN KHAN, J.-- This appeal under section 417, Cr.P.C. Has been filed by State through Advocate-General, N.-W.F.P. To challenge the validity of the order of the learned Additional Sessions Judge, Haripur, dated .301-1983 whereby Safdar and Muhammad Yousaf the accused respondents involved in case F.I.R. No, 57 dated 9-2-1981 under section 302/34, P.P.C. Of Police Station Haripur, District Abbottabad were acquitted. It may be mentioned at the very outset that although this appeal was filed against both the said accused-respondents but as Safdar respondent was avoiding arrest, therefore, it was considered proper to dispose of the appeal against Muhammad Yousaf respondent and accordingly by order dated 18-3-1983, a learned Bench of this Court rejected the appeal against him. Therefore, this order will be confined to the merits of appeal as against Safdar only. In spite of repeated non-boilable warrants and notices to the sureties, Safdar respondent intentionally avoided appearance in Court and, therefore, this appeal was heard in his absence but in presence of his counsel Mr. Fazal Haq Abbasi, whom he had earlier engaged to represent him in hearing of this appeal.
2. The first information report is based on the dying declaration of Shahzada deceased himself. This F.I.R.-cum-dying declaration when translated into English would read as under:-- "Today at evening time after making purchases from a shop and on way back to my house when I reached a thoroughfare near the Hujra of the village, then from front side Safdar son of Mian caste Pathan of my village armed with pistol and knife came there. Muhammad Yousaf of my village armed with pistol and knife came there. Muhammad Yousaf of my village called him to shoot and on this Safdar fired at me with the intention to murder, which hit me on the abdomen and 1 fell down. Thereafter, he gave a knife blow on my head which injured me. The occurrence was witnessed by my brother Muhammad Riaz, Ali Aksar and Niamat Shah besides other people of the village."
' Motive of the offence was mentioned to be a criminal appeal filed by the complainant against Safdar in respect of a theft case in High Court at Abbottabad. It is to be noted at this stage that the deceased expired at 6-45 a.m. On 11-2-1981 in the hospital. This FIR. Was recorded by Muhammad Aftab Khan I.H.C. P.W.11 while on patrol duty near Government High School No,2, Haripur.
3. At the trial Dr. Abdul Latif was examined as P.W.11 who stated that he had conducted post- mortem examination on the dead body of Shahzada deceased on 11-2-1981 and on external examination had found the following injuries:--
(1) A stitched wound 6 c.m. In length in median line of abdomen above the umbilicus.
(2) A stitched wound about 6 to 7 c.m. In length oblique in direction on right lumber region of back.
(3) A bruise on occiput.
' On internal examination the doctor also found walls of abdomen injured, peritoneum inflamed, stomach healthy and contained semi-digested food. A perforation was found in ascending colon.
Bladder was also found healthy and empty.
4. P.W.2 is Dr. Noor Wahab Shah, who had medically examined Shahzada Khan on 9-2-1981 at 8-30 a.m. Noticed the following injuries:- (1)Fire-arm entrance wound 1/3" x 1/3" x entering the peritonium cavity on epigastrium.
(2) Lacerated wound 1-1/2" x 1/4" x scalp deep in the posterior part of the head left side.
(3)The injury No,1 was caused by fire-arm with 3 to 4 hours duration and was grievous in nature.
The injury No, 2 was caused by blunt means within 3 to 4 hours duration.
5. P.W.3 Muhammad Ilyas S.I. Abbottabad stated that on receipt of Murasila Exh.P.A./1 in the police station he incorporated it into F.I.R. Exh.P.A. And registered the case. He also witnessed the recovery memo. Exh.P.W.3/3 whereby the inquest report and injury statement of Shahzada was taken into possession. Muhammad Akram P.W.4 deposed that he arrived at the spot after 5 to 10 minutes of the occurrence and saw Shahzada in injured condition. When he asked him about his injury, he was told that at the instance of Yousaf the present accused-respondent Safdar fired a shot at him.
Thereafter the injured was taken to the police station where he lodged the report. This witness admits that the deceased was his paternal-aunt's son. Mohazam Shah S.H.O. While appearing as P.W.5 stated that he had partially investigated the case and recorded supplementary statements of P.Ws. Najib Khan and Muhammad Akram. P.W.6 Muhammad Akram is a witness to various recovery memos. Whereby the clothes of the deceased, bottle containing lead bullet recovered from the body of the injured, some turmeric and chillies from the scene of occurrence were taken into possession by the Investigating Officer. The next witness Sardar Muhammad Yaqoob Khan S.H.O. Had arrested the accused on 6-3-1981 and prepared supplementary challan against him.
A.S.I. Khan Afsar P.W.8 said that on receipt of the information of the death of the deceased he went to the hospital and prepared his injury-sheet and inquest report. P.W.9 is Ali Aksar, who gave ocular account of the incident. He said that Yousaf respondent is maternal-uncle of Safdar respondent and that his house and that of Yousaf are situated near the place of occurrence. At evening time he heard the voice of Yousaf 'directing someone to kill' and when he came from Hujra he saw Safdar firing at the deceased with a pistol, which hit him in his abdomen and fell down on the ground and 'therefore Safdar took out a knife and without opening the same he hit the deceased with the said closed knife in his head'. Muhammad Riaz and Niamat Shah were shown as other witnesses. The deceased was then taken on cot to Haripur. 'Near the Government High School No,2 Haripur he met an A.S.I. Whom Shahzada requested that his statement be recorded'. Shahzada was then in senses and his statement was recorded by the Police Officer and after this he was taken to the hospital where he also 'stated the facts to the medical officer'. Motive for the crime was shown as `Safdar was earlier charged by Shahzada for theft and criminal litigation. On the day of occurrence the said case was fixed for hearing in the High Court. Safdar did not attend the High Court'.
6. P.W.10 Muhammad Riaz, a brother of the deceased, is next eye-witness. He deposed that on return from his field towards his house, when he reached near the house of Yousaf near Hujra he 'heard Yousaf saying that he be killed'. At the same time he noticed his brother Shahzada holding some articles in his hand. Safdar fired at him a shot with a pistol which hit him in his abdomen and he fell down and then Safdar gave a blow to him with a closed kife. Niamat Shah and Ali Aksar were stated to have witnessed the occurrence. The injured was then placed on a cot and near Government High School No,2, Haripur, Raja Aftab Ahmad H.C. Met them who recorded the report of Shahzada. After that he was taken to the hospital. Motive was described that Shahzada had made a report of theft against the accused but he failed in the original Court and he, therefore, approached High Court in appeal which was fixed for hearing on the day of occurrence.
Muhammad Aftab A.S.I. P.W.11 is the scribe of F.I.R. At the instance of Shahzada, then in injured condition. According to his statement the injured was being carried on a cot by Muhammad Riaz, All Asghar, Muhammad Akram and Muhammad Ilyas. He was in full senses and narrated the incident which resulted in his injuries and his report was written according to his dictation. This report was explained to the injured and after admitting it correct he thumb-impressed it. This witness then prepared the injury-sheet and sent the injured to the hospital and despatched the report to the police station for registration of the case. On inspection of spot he took up turmeric and powdered chillies vide recovery memo. Exh.P.W.6/2 and also prepared the site plan at the instance of the P.Ws. He also recorded the statements of the P.Ws. The same day and took into possession various articles sent by the doctor.
7. The accused was then examined under section 342, Cr.P.C. Wherein he admitted the motive to the extent that he was charged for theft in a complaint case by the deceased but expressed ignorance of the matter being pending in the High Court in connection with an application for leave to appeal. He pleaded innocence and submitted that the deceased having remained unconscious all along could not make a statement and that the witnesses are close relations of the deceased and have involved him falsely on account of old enmity.
8. We have heard the learned Assistant Advocate-General and the learned counsel for the accused-respondent and were taken through the entire case file.
9. From the perusal of the judgment of the trial Court it is manifest that the following facts have been admitted therein as proved:-
(i) There is no delay in making the F.I.R.
(ii) There is no doubt that the deceased had received pistol injury;
(iii) Motive for crime has been established.
'But it discarded the dying declaration and the ocular account on the following grounds:-
(a) It is in dying declaration-cum-F.I.R. That when Safdar fired and the injured fell down then Safdar came near him and gave him a blow with the knife. But no knife injury has been found as the one detected is lacerated wound which cannot be caused with a knife.
(b) The, eye-witnesses Ali Aksar and Muhammad Riaz have also stated so before the police but they improved their statements in Court by saying that Safdar gave blow to the injured with closed knife.
(c) As injury with closed knife has not been mentioned in F.I.R., therefore, it will be presumed to have been caused with open knife.
(d) The injury having been caused with close knife as deposed to by the witnesses does not appeal to common sense.
(e) Statement of Dr. Noor Wahab Shah (P.W.2), probably referring to 'I do not remember as whether I had seen the patient in conscious condition has created doubt in genuineness of the dying declaration'.
(g)
(f) Although in the F.I.R. As well as in the statements of the eye-witnesses the venue of the report has been shown near Government High School No,2 but Muhammad Akram P.W.4 a close relation of the deceased has shown it to be the police station. Recovery memo. Exh.P.W.6/2 whereby turmeric and chillies were taken into possession was prepared the same day but Muhammad Akram said that these articles were recovered the next day.
(h) Dr. Abdul Latif P.W.1 in his statement as well as in P.M. Report has also mentioned about an injury i,e, 'A stitched wound about 6 x 7 c.m. In length oblique in direction on the right lumber region of back.'
(i)Dr. Noor Wahab Shah has not stated that the injured Shahzada could speak.
(j)Independent witnesses were available but have not been produced and the eye-witnesses examined being close relations of the deceased cannot be relied.
10. We have paid much attention to these grounds but are unable to find any one of them to be rational, sound and sufficient to discredit the prosecution case. Rather they are so artificial and perverse which has caused miscarriage of justice.
11. It is nowhere in the F.I.R. Or in the statement of the eye-witnesses recorded under section 161, Cr.P.C. That the accused used the sharp side of the knife or caused the injury with the pointed portion which penetrated in the body. If either in the F.I.R. Or in the statements of the eye-witnesses such allegation had been there then the learned trial Judge would have been justified in considering it as improvement. There was therefore, no justification for adverse inference and presumption that as a blow with closed knife has not been alleged, therefore, it must invariably and as a rule follow that the sharp or pointed portion has been used. Similarly, the finding of the trial Judge that the statement of Dr. Noor Wahab Shah P.W.2 to the effect, 'I do not remember as to whether I had seen the patient in conscious condition' has made the dying declaration doubtful is also not based on sound reasons. The prosecution had never relied on the testimony of this Medical Officer for proof of the dying declaration nor the doctor's evidence is the only mode to prove a dying declaration. Moreover, how can it be expected of a doctor to remember a fact which he was never required by the prosecution to perform in his official capacity and that too after lapse of such a sufficient time. The dying declaration has also been discredited on the ground that the F.I.R. And eye-witnesses had shown Government High School No,2, Haripur as the vicinity where it was recorded but Muhammad Akram P.W. a close relation of the deceased deposed that it was scribed in the police station. In this context Muhammad Aftab Khan A.S.I. P.W.11 who drafted the F.I.R.
Is the most important witness who has stated that the report was written by him near Government High School No,2, Haripur and his deposition in this respect has not been tarnished in any manner by the defence. Similarly, the eye-witnesses are also consentient on this point that the F.I.R. Was recorded near Government High School No, 2, Haripur and their testimony on this point has not been shattered. Moreover, this objection is inexplicable and could not be taken to its logical conclusion to show as to what would turn on it and how would it belittle the value of the F.I.R.
Another defect noted by the learned trial Court in the prosecution case is the difference between the recovery memo. Exh.P.W.6/2 whereby some turmeric and chillies were taken into possession, the ocular testimony and the statement of the Investigating Officer on the one hand as according to all these the said articles were picked up from the spot the same day but as against this on the other hand P.W. Muhammad Akram the marginal witness described its recovery on the next day.
P.W. Muhammad Aftab A.S.I. Who prepared the memo. Stated that the recovery was made the same day and this finds support from the recovery memo. Itself. This portion of his statement has not been challenged in cross-examination which in a way stands admitted. Therefore, the obliging concession of P.W. Muhammad Akram would not assume that much significance to discredit all the above items of evidence. The learned trial Judge also held the medical evidence as dubious on the ground that P.W.1 Dr. Abdul Latif who conducted the post-mortem examination found a 3rd injury 7 to 8 c.m. In length on right liber region on back which was not noted by Dr. Noor Wahab Shah P.W.1 who first examined the injured. The learned A.A.-G. While explaining this position submitted that the bullet was recovered through this place which was then stitched by the doctor who examined the patient then injured, therefore, the second doctor wrongly described it as independent injury. This explanation appears to be reasonable and in accord with the other evidence on record. The objection that no independent witness has supported the prosecution is also not tenable as every person would be charry of involving himself in the quarrels of others. It is very unfortunate that people do not fulfill their religious obligation nor care for their moral and social value to be bold enough to be a witness of truth irrespective of adverse consequences which they may face because of it. Superior Courts in the country have noted this fact with dismay and have repeatedly condemned indifferent attitude of the people in this respect. In this background we will not discredit the dying declaration in this case on this score alone because we think that otherwise it appears to be true and finds support from other circumstances on record.
12. We find that the dying declaration in this case is straightforward, genuine A and truthful. We have no reason to discard the testimony of P.W. Muhammad Aftab Khan A.S.I. Who scribed it. This witness in a very clear cut and articulate way stated: 'He was in enjoyment of full senses. After recording the statement I read over and explained the contents thereof to him and he thumb- impressed the same after admitting the correctness of the contents thereof. The testimony of this witness leaving aside being shattered has not even been seriously challenged in the cross- examination. It appears that he was asked this much to which his reply was, 'it is also incorrect to suggest that the place of report was mentioned to be outside the premises of police station because the said Shahzada Khan was unconscious'. Beside this vague and hay suggestion no basis appears to have been laid for the argument that the injured could not speak at the relevant time. Moreover, the testimony of this witness was criticized that being a Police Officer his statement should not be given any weight. We regret that we cannot subscribe to such a general sweeping statement. A Police Officer is as effective and reliable a witness as any other person from the public and his statement only on this ground cannot be rejected if it appears that he is a truthful witness and has not conducted himself in a partial or dishonest manner. Similarly Dr. Noor Wahab Shah, who examined Shahzada then injured has not been asked anything in cross-examination which would have shown as to whether the injured could or could not make a statement. The accused- respondent haealso not been able to give convincing reasons which prompted the injured to substitute him for the real assailants. The two eye-witnesses have also deposed that the injured himself reported the incident to the Police Officer. Their testimony at least to this extent is confidence inspiring and believable as they had nothing of their own to involve the accused if he had not been named as culprit himself. The dying declaration further finds support from the recovery of turmeric and chillies from the spot, the abseondence of the accused from 9-2-1981 till his arrest on 6-3-1981, the testimony of the eye-witnesses, the promptitude in which it was made, the recovery of spent bullet indicating the use of pistol for the commission of the offence, location of the injury coupled with the other circumstances referred to earlier. It is also to be noted that a.
Dying declaration can form safe basis for conviction if it appears to be true and is not negative by the other relevant and attending circumstances brought on record. The learned trial Judge was, therefore, not justified in rejecting it and giving benefit of doubt to the accused-respondent.
13. This appeal is, therefore, accepted only against Safdar accused-respondent and the order and judgment of the learned trial Court in his respect are set aside. We hold Safdar accused- respondent guilty of the murder of Shahzada and accordingly convict him under section 302, P.P.C.
And sentence him to imprisonment for life and a fine of Rs,10,000 or in default to undergo two years'
R.I. We also order him in terms of section 544-A, Cr.P.C. To pay Rs,20,000 as compensation to the legal heirs of the deceased or failing which to suffer six months' rigorous imprisonment. We avoid to award normal penalty of death as the accused had fired only one shot and keeping in view the circumstances it appears that he has not acted in an inexorable and relentless manner and we think that the sentence of life imprisonment will adequately meet the ends of justice. Non-bailable warrant of arrest should be issued against the convict and Ilaqa Magistrar as well as the S.H.O.
Ilaqa be directed to ensure that the convict is arrested to undergo the penalty imposed on him.
Moreover, the Ilaqa Magistrate should also be asked to proceed against his sureties in accordance with law. The execution of non-bailable warrant and the action taken against the sureties should be reported to the Registrar of this Court. .