QAZI MUHAMMAD FAROOQ, J.--- Khalid Zaman, aged about 23/24 years, resident of Musafar Khel Prang, Charsadda, was tried by the learned Sessions Judge, Charsadda under section 302, P.P.C.
For committing the murder of one Matiur Rehman. By judgment, dated 11-6-1991, he was found guilty and resultantly convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs.15,000 or in default to suffer two years' R.I. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation within the contemplation of section 544-A, Cr.P.C. Feeling aggrieved the convict has preferred an appeal while the State through Advocate-General, N.-W.F.P. And one Said Akram through Mr. Subhan Sher, Advocate have filed Cr.
Revisions Nos.68 of 1991, and 43 of 1991 respectively for enhancement of sentence of the convict to the normal penalty of death. We propose to dispose of the appeal and the criminal revisions by this single judgment.
2. The occurrence took place on 11-10-1988 at about 7-45 a.m. In the mosque of Kandi Musafar Khel Prang, situate at a distance of about two furlongs from Police Station Prang, and the F.I.R. Was lodged by the deceased himself in an injured condition at about 8-00 a.m. On the same day which was recorded by Nabiullah Khan, S.H.O. Police Station Prang (P.W.8).
3. The prosecution version of the occurrence as given in the F.I.R. Cum---dying declaration is that on the fateful day at about 7-45 a.m. While the deceased was present in the mosque the appellant came there and asked him to switch on the water pump. The deceased informed him that he was going to `Darul Uloom' on which the appellant altercated with him and fired at him hitting him on the left side of his chest. There was no precise motive for the occurrence.
4. After recording the F.I.R.-cum-dying declaration Nabiullah Khan, S.H.O. (P.W.8) prepared the injury sheet, Exh.P.M., of the deceased and despatched him to the hospital where Dr. Shehr Yar (P.W.1) examined him and found a fire-arm entry wound 1/2" in diameter on the left upper quadrant as also signs of peritoneal injury.
5. The appellant had also lodged a report at Police Station Prang at 7-55 a.m. To the effect that at about 7-30 a.m. He had gone to the mosque of Kandi Musafar Khel and asked a student present there to switch on the water pump as there was no water in the mosque but he flatly refused on which an altercation took place between them as a result of which the said student dealt a stick blow on his head and injured him. After recording his report in the daily diary Nabiullah Khan, S.H.O.
Had prepared his injury sheet, Exh.P.M./2, and sent him to the hospital where Dr. Shehr Yar (P.W.1) had examined him and found a lacerated wound 2" x 1/4" on the left parietal region scalp with no bony lesion. The injury was simple in. Nature and had been caused by blunt means within an hour.
6. The deceased had expired in the Lady Reading Hospital, Peshawar on 13-10-1988 at about 10-00 a.m. And autopsy on his dead body was performed by Dr. Muhammad Aslam Khan (P.W.2) who found a small wound on left lower chest on external examination.
On internal examination the doctor found 7th rib fractured, pleurae injured, left lung injured and collapsed and pleural cavity on the left side filled with blood. In his opinion the deceased died of trauma to vital organs as a result of fire-arm injury. The bullet was not recovered from the body of the deceased.
7. The prosecution examined as many as nine witnesses including Dr. Shehr Yar (P.W.1) and Dr. Muhammad Aslam Khan (P.W.2). Of the remaining witnesses Naseeb Khan D.F.C. (P.W.3) and Haji Abdul Ali Khan (P.W.7) gave evidence of formal nature, Fazal Wadood (P.W.5) and Munawar--ul- Islam (P.W.6) furnished ocular evidence, Nabiullah Khan S.H.O. (P.W.8) and Muhammad Idris Khan S.H.O. (P.W.9) deposed about the manner in which they had conducted investigation in the case and Haji Fazli Raziq (P.W.4) stated that on the, day of occurrence at about 8-00/9-00 a.m. While making ablution he was attracted to the scene of occurrence on hearing the report of afire-arm and seen the appellant standing and the deceased lying on the ground injured.
8. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances, professed innocence and in reply to a question regarding altercation preceding the occurrence he stated: "There was an altercation of mine with a Talib Elum of the mosque, however, I have not committed any occurrence. In the altercation I was given severe beating and was injured. To that effect I lodged a report in the shape of DD No.16x dated11-10-1990 of Police Station Prang and is Exh.P.A./1."
He, however, did not examine himself on oath under section 340(2), Cr.P.C. But produced one Sajid Ali (D.W.1) in defence who stated that he had seen a dead student being taken to the police station on a cot and the I.O. By putting questions to him had satisfied himself that he was dead.
9. Relying on the ocular evidence furnished by Fazle Wadood and Munawar-ul-Islam (P.Ws.) and the dying declaration of the deceased the learned trial Judge came to the conclusion that the prosecution had proved its case against the appellant beyond any reasonable doubt. He, however, took a lenient view in the matter of sentence on the ground that the occurrence had taken place at the spur of moment and the appellant had also sustained an injury by blunt means.
10. The learned counsel for the appellant contended that the so-called eye-witnesses had not seen the occurrence and were not worthy of credence as their statements had been recorded eight days after the occurrence; that the dying declaration was not only the outcome of prompting but had also not 'been corroborated by independent evidence and that in any event the appellant was entitled to acquittal as he had fired a single shot at the deceased in exercise of the right of self- defence which was deducible from the prosecution evidence.
11. The ocular evidence is not reliable as the names of, the eye-witnesses Fazale Wadood (P.W.5) and Munawar-ul-Islam (P.W.6) do not find mention in the F.I.R.-cum-dying declaration and their statements were admittedly recorded by the police on 19-10-1988 namely eight days after the occurrence despite the fact that being the students of the same `Darul Uloom' where the deceased was studying they were all along available. Both the eye-witnesses being school mates of the deceased were known to him, therefore, he would have definitely mentioned their names in the F.I.R.-cum-dying declaration had they been present, on the spot, and, as, such, there is no escape from the conclusion that they ace trumped up witnesses. There is no dearth of case-law on the point that delay in the examination of an eye-witness by the police renders the reliability of such a witness doubtful. Two well-known authorities are PLD 1960 SC 223 and PLD 1965 Kar. 1976. In the former case the evidence furnished by a friend of the deceased was not relied on for the reason that he had not disclosed to anyone for twenty-four hours that he had seen the murder and in the latter the statement of an eye-witness recorded by the police four days after the occurrence was ruled out of consideration.
12. The dying declaration of the deceased, however, not only rings true intrinsically but also does not suffer from any infirmity. The deceased was capable of making a dying declaration in view of the explicit opinion of Dr. Shehr Yar (P.W.1) that he was talking when brought to the hospital for medical examination. The F.I.R. Cum-dying declaration having been made by the deceased within fifteen minutes-of the occurrence goes a long way to suggest that he had no time to fabricate a story. The occurrence took place in broad daylight, therefore, there was absolutely no possibility of mistake by the deceased in identifying and naming the assailant. The possibility of false charge is also excluded as there was no previous enmity between the deceased and the appellant. There is also nothing on the record to suggest that anyone had tutored or prompted the deceased to charge the appellant for his plight. The dying declaration is amply corroborated by the medical evidence and the F.I.R. Made by the appellant also establishes his presence on the scene of occurrence at the crucial time. However, there is no need to discuss the dying declaration any further in view of the plea of self-defence advanced by the learned counsel for the appellant at the bar.
13. It is a case of two versions without a specific plea of self-defence having been taken at the trial, therefore, the points for determination are as to whether the appellant is entitled to claim the right of self-defence as pleaded by the learned counsel for the appellant and whether there is any substance in the plea. The answer to the first question is in the affirmative as the plea can be gleaned from the prosecution evidence and the circumstances of the case. In this context it will be advantageous to reproduce the following excerpt from a judgment of the Lahore High Court reported as 1979 P Cr. L J 505:-- "It is, true that the two appellants have not pleaded self-defence. It is, however, well-settled rule that if such plea can be spelt out from the evidence and the circumstances of the case, the accused should not be denied the benefit of the same only because he has not expressly pleaded it."
14. In-order to find out answer to the second question we have placed the rival versions in juxtaposition and examined the same carefully. The ocular evidence which gives the impression of a premeditated attack being not confidence inspiring has-been excluded from consideration.
Same is the fate of the statement of Haji Fazle Raziq (P.W.4) which was recorded eight days after the occurrence. The appellant is not only carrying the stamp of an injury on his person but had also lodged a report in respect thereof, prior to the report made by the deceased, regarding which proof is available on the record. The altercation preceding the unfortunate occurrence is mentioned in the dying declaration but the dying declaration is altogether silent about the injury sustained by the appellant. It also does not, disclose the presence of any other person at the scene of occurrence, therefore, the deceased was the only person who could have inflicted the injury on the appellant with whom he had altercated and in all probability he had given a blow to the appellant by blunt means before receiving the fire-arm injury because after receiving the fire-arm injury he was not in a position to hit the appellant with a stick. In this background there is a reasonable possibility that the plea of self-defence raised by the appellant might be true. However, we are, convinced that the appellant had exceeded the right of self-defence as he could have successfully warded off the attack and kept the deceased at bay by firing in the air or at the lower part p of his body. In these circumstances the conviction of the appellant under section 302, P.P.C.
Is set aside and he is convicted under section 304, Part I, P.P.C. And sentenced to ten years' R.I. And a fine of Rs.15,000 or in default of payment of fine to undergo two years' further R.I. He .Is also directed to pay a sum of Rs.15,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or to suffer six months' R.I. In default. The revision petitions fail automatically and are hereby dismissed.
N.H.Q./1394/P