MRS. KHALIDA RASHID, J.---This is a reference for confirmation of conviction and sentence of death by hanging awarded to Ajab Khan son of Noor Gul by learned Sessions Judge, Charsadda, vide judgment dated 12-6-1993, for having caused the death of Dilbar Khan. His step-brother, Mst.
Grana wife of Dilbar Khan, deceased and Amanul Mulk son of Dilbar Khan, on 6-5-1986 at 15-00 hours in the limits of Village Spalmay, District Charsadda. He was sentenced to death on three counts and to pay fine of Rs. 90,000, Rs. 30,000 under each count, or in default to undergo further R.I. For two years. The fine, on realisation, was directed to be paid to the legal heirs of the deceasedAppellant/convict has also filed an Appeal No. 78 of 1993 challenging the propriety of impugned judgment, therefore, we propose to decide reference and appeal by this common judgment.
2. The prosecution version as contained in the F.I.R. Is that on 6-5-1986 at about 18-15 hours deceased Amanul Mulk and his mother Mst. Grana were brought to the Rural Health Centre, Jamalabad, in injured conditions where Amanul Mulk lodged the report of the occurrence with Ghulam Mustafa Khan, S.H.O. (P. W.10), which was converted into dying declaration (Exh. PA/1) after his death which is to the effect that he alongwith his mother Mst. Grana were present in their fields at 15-00 hours when Ajab Khan (appellant) his step---uncle, duly armed with `Topak' started firing at them. In the meantime his father Dilbar Khan, deceased, also arrived at the spot. He was also fired at by the appellant who was hit and died on the spot. Similar statement was made by deceased Mst. Grana, then injured, in the hospital which on her death was also converted into dying declaration as Exh. PA/2. The said two statements/dying declarations of the deceased were recorded in the presence of Dr. Zia-ur---Rahman, Incharge Civil Hospital, Jamalabad. The appellant absconded after the occurrence. The appellant was arrested by the Punjab Police at Rawalpindi on 10-7-1990 and was shifted to Central Jail, Peshawar. On 15-11-1990 he was formally arrested in this case.
Motive was not disclosed by the deceased at the time of recording of their dying declarations till the appellant was arrested on 10-7-1990 who, in his confessional statement Exh. PK recorded on 18- 11-1990 by Muhammad Adil, MIC (P. W.12), introduced the motive to be a dispute over ownership of landed property. Eventually after preparation of final challan, appellant-convict was sent up for trial before the learned Sessions Judge, Charsadda. On the commencement of the trial, charge was framed and read out to him to which he pleaded not guilty and claimed trial.
3. The prosecution in order to substantiate its case against the appellant, examined as many as 14 witnesses.
Ghulam Mustafa Khan; S.H.O. (P. W.10) recorded the statements of Amanul Mulk and Mst. Grana in the shapes of `Murasila' Exh. PA/1 and Exh. PA/2 (dying declarations) and sent the same to the Police Station Mandani for registration of the case. He then prepared the injury sheets of the said two deceased as Exh. PM/1 and Exh. PM/2 and referred them, then injured, for medical aid. On his way to the spot he came across the dead body of deceased, Dilbar Khan, near village Mandani. He prepared his injury sheet (Exh. PM/3) and inquest report (Exh. PM/4) and referred the dead body of Dilbar Khan, deceased, for post-mortem examination under the escort of Salahuddin, FC (P. W.6).
He then conducted the usual investigation and prepared site plans (Exh. PBs), took into possession blood-stained earths vide memo. Exh. PR. He also recorded the statements of some of the P. Ws.
And received blood-stained clothes of deceased Amanul Mulk and Mst. Grana vide parcels Exh.
PR/1 and Exh. PR/2. Vide application Exh. PL he sent the clothes of the two deceased to F.S.L. For examination and received the report in positive as Exh. PL/l. He had also obtained the warrants against the appellant---accused under section 204/87, Cr.P.C. Vide his applications Exh. PE and Exh. PR and thereafter submitted complete challan against the accused under section 512, Cr.P.C.
Lady Dr. Yasmeen Aslam Sethi (P. W.1) conducted the post-mortem examination on the dead body of Mst. Grana, deceased, on 7-5-1986 at 5-15 p.m. And found the following:---
(1) Stitched wound right lumber region.
(2) Stitched wound right back.
(3) Stitched wound right paramedian (laparotomy wound).
(4) Two stitched wounds (for drainage) on the right side of the abdomen.
Internal Examination: Abdomen: Walls, peritoneum, large intestine and liver injured.
Dr. Nasrullah, M.O. Civil Hospital, Dogra (P. W.13) conducted the autopsy on the dead body of deceased Amanul Mulk and found the following:--- External Examination: Dead body of male aged about 20 years, well built, post-mortem staining at dependent part. Rigor mortis not present. All the injuries are given in the injury sheet Exh. PM/1.
Internal Examination: Thorax: Healthy.
Abdomen: Walls, peritoneum, small and large intestines, liver and organs of generation were injured, stomach healthy and contained semi-digested food. Kidney and bladder were injured. Left lower leg bones fractured. Dr. Ziaur Rahman has examined the deceased, Mst. Grana and Amanul Mulk, then injured, on 6-5-1986. He being out of the country could not be examined as a witness, therefore, Dr. Zakirullah (P. W.14) M.O. Incharge R.H.C., Jamalabad, who had worked with him for some time and was well-conversant with his handwriting and was well aware of his signatures was examined at the trial. He proved Dr. Ziaur Rahman's signatures on `Murasila' Exh. PA/1, Exh. PA/2 and injury sheets Exh. PM/1, Exh. PM/2 and Exh. PM/9 having been prepared in the handwriting and under the signatures of Dr. Zia-ur-Rahman Fazal Rabbani, H.C. (P. W.2) was entrusted with the warrants of arrest issued against the accused but since the whereabout of accused were not known he returned the warrants un-served with his reports as Exh.PE/1 and Exh. PE/2. Khan Muhammad, S.I. (P. W.3) arrested the accused and on 19-11- 1990 submitted supplementary challan against him. Muhammad Qais, H.C. (P. W.4) and A.I Asghar (P. W.5) are marginal witnesses to the recovery memos. Exh. PR/1 and Exh. PR/2. A.I Asghar (P. W.5) had also identified the dead body of Dilbar Khan, deceased, before the doctor at the time of post-- -mortem examination. Salahuddin, FC (P-.W.6) escorted the dead body of the deceased, Dilbar Khan, to the hospital. Jamshed, FC (P. W.7) escorted the injured Mst. Grana and Amanul Mulk from Civil Hospital, Jamalabad to L.R.H., Peshawar. Hayat Khan (P. W.8) obtained the police custody of the accused and on 18-11-1990 produced him before the MIC for recording his confessional statement vide Application Exh. PW/8-1. Malik Aman (P. W.9) is the son of deceased, Mst. Grana and Dilbar Khan, and brother of deceased Amanul Mulk. He was present inside his house when he was attracted to the spot by the sound of fire-shots. When he reached the scene of occurrence, he found his father Dilbar Khan, lying murdered while his mother, Mst. Grana and his brother, Amanul Mulk, lying in injured conditions. Gohar A.I, IHC (P. W.11) incorporated the contents of the `Murasila'
Exh. PA/1 into F.I.R. Exh. PA. Muhammad Adil Khan, MIC (P. W.12) on 18-11-1990 recorded the confessional statement of accused, Ajab Khan, in his Court.
5. When examined under section 342, Cr.P.C. The accused-appellant raised the plea of self- defence. In reply to the question, "Do you want to add something more to your above statement", he stated, Yes. I would like to submit that my father had two wives. My mother is still alive while my step--mother (mother of the deceased Dilbar) had died. I used to take part in politics and because of my political activities when I did not surrender to police, my deceased brother Dilbar was arrested and he underwent one year imprisonment. Whereafter, he occupied my share of landed property, of 8 Jaribs, I used to live separately alongwith my mother, my wife, my daughter Nasim Akhtar and my only son. I sent Jirgas to my deceased brother to let me have a small portion of the land so I could cultivate maize crop for my family but my brother refused. I, therefore, started cultivating tenanted land adjacent to my ancestral property. On the day of occurrence my tenanted property was to be irrigated, I, therefore, went to the channel and started irrigating the tenanted land all alone. In the meantime my deceased brother, his son Amanul Mulk, his wife Mst.
Grana, his other sons Gohar Zaman and Barani Mulk came. Barani Mulk and Gohar Zaman were armed with Klashnikov and other fire-arms with respectively. They stopped the water to my fields and at this altercation started. Whereafter, Gohar Zaman and Barani Mulk started firing at me. I threw myself in Lakhti and returned fire and in the meantime went down in the Lakhti towards my house".
6. After assessing the evidence on the record the learned trial Judge, while relying upon dying declarations, confessional statement, motive, medical evidence and abscondence, convicted the appellant under section 302, P.P.C. And sentenced him to death by hanging subject to confirmation by this Court under section 374, Cr.P.C.
7. The learned counsel for the appellant strenuously raised the following contentions:---
(i) Veracity of dying declarations not proved.
(ii) Appellant acted in exercise of self-defence.
(iii) Confession is neither voluntary nor legally correct.
8. The learned State Counsel on the other hand vehemently opposed the appeal and supported the reference. He submitted that dying declarations of two deceased, Mst. Grana and Amanul Mulk, recorded by competent police officer in the presence of medical officer of the Hospital, can form sole basis of conviction. He further maintained that confessional statement of the appellant is voluntary and true.
9. We have anxiously attended to the arguments advanced by the learned counsel for the parties and have very carefully reviewed the entire evidence produced by the prosecution, statement of the appellant recorded under section 342, Cr.P.C. And other circumstances appearing in the case.
10. There is no denial of the fact that conviction can validly be based solely on the. Basis of dying declaration but we, without any hesitation, would observe that great care has to be taken m assessing the value of dying declaration since its veracity is not tested by cross-examination and f r that matter we have to look for corroborative evidence.
11. The dying declarations of both the deceased, i.e., Amanul Mulk and Mst. Grana, have been seriously attacked by the learned counsel for the appellant. We were invited to believe that after receiving the injuries on the vital organs of the body, the deceased could not make any declaration. He urged that deceased, Amanul Mulk, who got his kidney and bladder injured could not talk coherently. He insisted that injury to the liver would result in sufferer losing consciousness instantly and that probability of her living to make dying declaration is not free from doubt. Strange enough, no such suggestion or question as to one could go unconscious instantaneously after sustaining injuries on the said organs was ever put to any of the Doctors, i.e., Dr. Yasmeen (P. W.1) and Dr. Nasrullah (P. W.13) who had conducted post---mortem examinations of the deceased, Both the deceased remained alive for considerably long time. Amanul Mulk died after four hours whereas Mst. Grana survived for more than 28 hours after sustaining injuries. The dying declarations were recorded by Ghulam Mustafa, S.H.O. (P. W.10) in the presence of Dc. Ziaur Rahman. No suggestion or plea was made of existence of any enmity against the accused or no reason was given that Ghulam Mustafa, S.H.O. (P. W.10), would fabricate false dying declarations implicating the appellant-accused. Similarly no reason was given to show that Dr. Ziaur Rahman had any ulterior motive to issue false certificate of dying declarations. It has also been proven that at the time of recording of dying declarations none of the relatives were present with the two deceased which render their statements free from prompting from outside quarter. The objection of the learned counsel for the appellant that Dr. Ziaur Rahman though present in Town was intentionally not produced and examined as prosecution witness has also no force. Sher Alam, D.F.C. (S.W.1) has verified that Dr. Ziaur Rahman had gone abroad for higher studies. It has further been confirmed by Dr. Zakirullah (P. W.14) that Dr. Ziaur Rahman was out of Pakistan and he being his colleague proved his signatures on dying declarations Exh. PA/1 and Exh. PA/2.
12. Referring to the confessional statement of the appellant-accused, which has been adopted at the trial too, the learned counsel argued that since the appellant was attacked by the complainant party, he also opened fire and thus acted in exercise of self-defence as he was under apprehension of being killed or severely injured. He maintained further that appellant was present in his fields for watering his tenanted land when deceased, Dilbar Khan alongwith his wife Mst.
Grana (deceased) and sons Amanul Mulk (deceased), Gohar Zaman and Barani Mulk duly armed with klashnikovs, appeared. They stopped the water to his fields which resulted into altercation whereafter Gohar Zaman and Barani Mulk opened fire at him. He took shelter in the `Lakhti' and also fired in his defence. By taking the plea of self-defence the appellant has established his presence at the spot at the relevant time. It is now to be observed whether it was complainant party who attacked the appellant or vice versa. It is unimaginable and inconceivable that two persons duly armed with sophisticated weapons like klashnikovs and other arms specifically aiming and firing at a single person, their fire shots would go stray and would not even scratch him a bit while on the other hand appellant-accused all alone by himself firing in his self-defence would slaughter three persons mercilessly giving them 10/12 wounds. This type of killing could hardly be the result of a person who is trying to escape in self-defence. It seems to be' the work of a person who was possessed with dreadful revenge and so he premeditatedly opened fire indiscriminately.
Furthermore, no empties were recovered from the `Lakhti' where the appellant was allegedly present. It is also not a plausible excuse advanced by the learned counsel for the appellant that empties would have drawn away by the water. It is further argued by the learned counsel for the appellant that if the confessional statement of the appellant should be relied upon, it should be relied upon in its entirety. In support of his arguments reliance was placed on PLD 1958 Lahore 559, PLD 1987 FSC 43. This legal proposition set forth by the learned counsel for the appellant is not quite correct. Ordinarily confessional statement should either be accepted or rejected as a whole where there is no other evidence, direct or circumstantial, C to connect the accused with the crime but if on the other hand there is reliable evidence direct or circumstantial the Court is not bound to accept those portions of the, statement made by the accused which on face of the evidence led by the prosecution appear to be improbable or palpably absurd. The learned counsel for the appellant next contended that there should have been a very strong motive for the commission of such like offence which in the present case is not set forth and proved by the prosecution. It is a fact that group killings like the one in hand are always committed with a strong motive behind it, but it is not always for the prosecution to set up a motive, for, the same is hidden in the mind of the offender who rarely discloses it. Both the deceased, i.e., Mst. Grana and Amanul Mulk, in their dying declarations did not give any motive. Motive behind the crime was disclosed by the appellant himself. Appellant stated before the trial Court as well as in his confessional statement that his deceased, brother, Dilbar, had forcibly occupied his land measuring 8-Jareebs and despite several `Jirgas' he (deceased) refused to return the property as he has claimed to have occupied the same as compensation of his one year confinement in Jail for the political activities of the appellant. This makes things clear that accused after having failed to get back the land from the deceased despite numerous `Jirgas' was hardly left with no other choice but to clear them out of his way. In our mind there is no doubt that this could be the strongest motive ever found.
13. Soon after the occurrence the appellant absconded and remained so, till he was arrested by the Punjab Police at Rawalpindi on 10-7-1990. He was shifted to Central Jail, Peshawar and was formally arrested in this case on 15-11-1990. According to his version he fired at the deceased in his self--- defence. It is beyond comprehension to understand that if he fired back in his defence why did he not lodge the report with the police. Instead he remained absconded for over four years knowing fully well that his fire shots had proven fatal causing death to three persons.
14. The learned counsel for the appellant lastly argue that according to the statement of Malik Aman (P. W.9), deceased Mst. Grana and Amanul Mulk were taken to their house after the occurrence but both the deceased, then injured, did not make any dying declaration to Malik Aman as he has not testified the same before the trial Court. Usually the witnesses in the trial Court are led by the counsel/PP. It may be that no such suggestion or question was put to him, therefore, no reply could be anticipated. Even otherwise in view of other corroborative evidence available on the record such as dying declarations, motive and confession whereby accusation has been established against the appellant, undoubtedly, this objection is not maintainable. Furthermore, affirmative evidence is to be considered than the evidence of a witness who was silent on any particular point. In support of this proposition reference can be made to 1992 P Cr. L J 756.
15. Certain minor contradictions were also pointed out by the learned counsel for the appellant in the evidence of the prosecution. He referred to the statement of Jamshed, FC (P. W.7) who deposed that injured Mst. Grana and Amanul Mulk were first brought to police station in a Pick-Up by their relatives and in the same Pick-Up they were taken from the Police Station to L.R.H., Peshawar, by him whereas according to Ghulam Mustafa Khan, S.H.O. (P. W.10) when he learned about the occurrence he straight went to the Hospital, Harichand, where he found deceased Amanul Mulk and Mst. Grana lying injured near the gate of the Hospital and. Doctor Ziaur Rahman was busy in dressing the wounds and in his presence he recorded their statements as Exh. PA/1 and Exh. PA/2.
The learned counsel further drew our attention to the statement of Ghulam Mustafa Khan (P. W.10) wherein he has stated that he was present in Police Station at 6-00 p.m. When he received information about the present occurrence and left for hospital where he reached at 18-15 hours whereas Gohar A.I, H.C. (P. W.11) deposed that Ghulam Mustafi, S.H.O., had left the Police Station at 3-00 p.m. He further alleged that according to Malik Aman (P. W.9) all the three deceased were taken to his house after the occurrence whereas Ghulam Mustafa, S.H.O., deposed that after recording the statements of Mst. Grana and Amanul Mulk in the hospital he was proceeding to the spot where he came across the dead body of the, deceased, Dilbar Khan, in village Mandani.
16. These are slight irregularities and omissions which cannot be termed as material. Usually a person is not expected to remember minor details of daily routine life/business. After passage of time, lapses of memory do occur and sometimes exact recall of events may get blurred.