' ABDUR REHMAN KHAN, J.--- This judgment will also dispose of Criminal Revision No,82 of 1992 as both the matters arise from the common judgment of the learned Additional Sessions Judge, Peshawar, dated 24-5-1992.
' The appellant was found guilty under section 302, P.P.C. Through the impugned judgment and was sentenced to suffer life imprisonment and a fine of Rs,10,000 or in default to suffer further two years'
R.I. He was also directed to pay Rs,50,000 as compensation in terms of section 544-A, Cr.P.C. To the legal heirs of the deceased or to undergo further six months' S.I. The period spent in jail as under- trial prisoner was ordered to be appropriated towards substantive sentence under the provisions of section 382-B, Cr.P.C. The appellant has, therefore, impugned the legality of this decision in the appeal (Criminal Appeal No,85 of 1992) while the complainant has approached this Court in revision (Criminal Revision No,82 of 1992) with a request "to enhance the amounts of fine, compensation and the sentence of imprisonment for life to death as provided by law."
2. The report in this case was made by the deceased when alive in the casualty ward of Lady Reading Hospital, Peshawar and which was recorded by Zarman Shah, A.S.I. (P.W.6). It was stated in the report that he was making film of the function held in connection with betrothal ceremony of Shakeel in his house. In the meantime Asim Kiyani (appellant) resident of Chak Kala fired one shot at him which hit him on his back. Zafar Arbab his brother and Javed Hussain were named as eye- witnesses while altercation between him and the appellant was stated to be the reason for firing.
The injured complainant succumbed to his injuries on 23-2-1984 at 7-15 a.m.
3. It is pertinent to mention at this stage that the appellant was convicted by the learned trial Judge on 17-10-1989 and was awarded sentence as given above but the High Court by order dated 26-6-1990 remanded the case to the trial Court to examine the appellant under section 342, Cr.P.C.
Regarding the nature of the dying statement and the charge against him therein.
4. The evidence which was examined at the trial consists of P.W.1 Waris Khan Afridi, Inspector, C.I.A.
Who had submitted complete challan against the appellant. P.W.2 is a D.F.C. Who was entrusted with execution of search warrant and proclamation and who deposed that he conducted the proceedings in accordance with law. P.W.3 is Shah Wali, Inspector, F.IA., Abbottabad who had arrested the accused on 22-12-1985 in a theft case regarding Motor-cycle and on that count F.I.R.
No,1021, dated 22-9-1985 under section 379/411 etc. Was registered against him P.W.5 stated that the accused was arrested in some case in Pindi and he was in jail there. The witness was informed of the arrest and so he went to Pindi and formally arrested the accused on 21-4-1985 in this case.
P.W.6 incorporated the contents of Murasila into F.I.R. Exh.P.A. P.W.7 Haji Gulfam is a witness to recovery memo. Exh.P.C. Where a cassette pertaining to the betrothal function was taken into possession. It is to be noted that this cassette was played in Court. P.W.8 is a witness to memo.
Exh.P.C./1, whereby the Investigating Officer took into possession one Video Camera and one cassette produced by P.W. Zafar All Arbab. P.W.9 is Zar Man Shah, A.S.I., who had scribed the dying declaration. He stated that on 21-2-1985 he was performing duties in the Casualty Ward of Lady Reading -Hospital, Peshawar when Liaqat Arbab (deceased) was brought there by P.W. Zafar Arbab and Javed Hussain in injured condition. He recorded the report Exh.PA./1 at 23-30 hours at the behest of Liaqat Arbab. He also stated "the injured was in senses and could talk coherently. I had also obtained the signature of the doctor about the condition of the patient on Exh.PA./1". He also prepared injury sheet of the injured and then his inquest report after his death. He also witnessed recovery memo. Exh.P.C./2 whereby spent bullet was taken into possession, Muhammad Arshad, A.S.I. (P.W.11) Police Station, Tariq Abad, Rawalpindi had arrested the accused near Liaqat Bagh Bus Stop on 11-1-1987 at 7-30 p.m. Alongwith a stengun. During the investigation of that case the accused informed him that he was absconder in a murder case registered against him at Peshawar. P.W.12 is Zafar Ali, a brother of the deceased, who stated that on the night of occurrence there was a betrothal ceremony of Shakeel and as the deceased was photographer, therefore, he had been invited to make a video film of the ceremony. The function was in full swing and there was dancing girls. The accused was also one of the participants in the function. The accused fired at the deceased with which he was hit but the accused made his escape good alongwith pistol in his hand. The witness and Javed Hussain took the injured in a rickshaw to Lady Reading Hospital, Peshawar where he lodged the report and charged the accused for the offence. He described the motive as the information of the deceased to the police about the theft of motor-cycle committed by the accused. The site plan was prepared at his instance and he is also witness to the recovery memo. Exh.P.W.9 pertaining to two bulbs of 200 watt on the spot. He also produced to the Investigating Officer Video Camera in memo. Exh.P.C./1 alongwith cassettes which were taken into possession through memo. Exh.P.C./1. He also identified the dead body of the deceased at the time of post-mortem examination. P.W.13 Arbab Jehanzeb Khan, A.S.I. Who had conducted the investigation in this case and who explained the various steps taken and recoveries made during the investigation.
5. The accused when examined under section 342, Cr.P.C. Pleaded innocence and involvement on account of malicious charge. He, however, admitted his arrest in Rawalpindi but denied the recovery of the Stengun from his possession at that time. He also described the dying declaration as conceded and collusive.
6. We heard both the sides and studied the record.
7. The learned counsel appearing for the appellant doubted the genuineness of the dying declaration on the ground that it contained fake signature of the deceased as according to him this signature was different from the signature of the deceased obtained by a Magistrate in connection with a criminal case registered against the deceased. This argument has no substance as the signature of the deceased over the dying declaration has been proved by the testimony of the scribe (P.W.9) of this statement and also by the endorsement of the doctor on this dying declaration as according to the doctor's note the deceased was in senses and capable to speak.
Moreover, P.W.12 the brother of the deceased has also verified the signature on the dying declaration. Thus disputed signature and his questioned signature were sent to the Expert for comparison but he expressed his inability to take up the comparison on account of insufficiency of the required data. It was next contended that the deceased could not make a statement on account of the injuries suffered by him. This argument has no basis firstly, because the injuries were not on that vital part which would have incapacitated the injured or would have rendered him unable to speak; Secondly the doctor who was present in the casualty ward had endorsed on the report that the reporter (deceased) was capable to give statement which fact he also supported in his Court statement. This doctor while appearing as P.W.10 stated "The patient was fully conscious at that time". He also in the last line of his examination stated". In the present case the injured was in full conscious at that time". Thirdly, P.W.9 Zar Man Shah, A.S.I. Who wrote the dying declaration also stated in Court" the injured was in senses and could talk coherently". This statement has in no way been discredited so as to come to the conclusion that the deceased could not make a statement. In any case there is no circumstance to doubt the veracity of the statement of the scribe and the doctor in respect of the dying declaration nor there is any ground to disbelieve the genuineness of the dying declaration. It was also argued that the deceased had received injuries in the back and, therefore, he was not in a position to notice the person who fired at him. This argument rather proceeds on the premises that as if the deceased was statue and is oblivious of the fact that the deceased could at that time move to any direction and deflect in any manner.
The learned counsel also doubted the presence of P.W. Zafar Ali but we feel that there is no reason to doubt the presence of the said witness at the spot but in any case his presence at the time of recording of the dying declaration could not at all be doubted as he was the person who took the reporter to the hospital. It was also pointed out that the place of occurrence was not a fit one for commission of such a heinous offence and the accused could not be expected to select such a place. This is imaginary as well as academic type of argument without taking into consideration that the incident did take place at the place as alleged by the prosecution. No one can read the mind of the culprit at the time he perpetrates the offence as the steps he takes are always in his own contemplation. The non-establishment of motive was highlighted but that could in no way help the appellant as he could not show as to why after all he was picked up from the lot for the charge. It was also feebly argued that the shot may have been fired accidently which was changed into that of deliberate murder. We, However, do not find any basis for this argument.
8. We have also gone through the case file and find that the dying declaration is based on true facts and which finds support from unimpeachable testimony of P.W.9 and P.W.10. The defence apparently failed to advance a single ground to disbelieve this dying declaration. Although dying declaration A by itself if proved to be true was sufficient for conviction but in this case this dying declaration is supported by the medical evidence, site plan, recoveries, abscondence besides the testimony of the two witnesses referred to above. We are, therefore, of the view that the conclusion regarding guilt is based on cogent and solid reasons which cannot be interfered with. Moreover, the B record does not suggest that the accused had either pre-planned the commission of the offence or he acted in gruesome or brutal manner as he has not fired the second shot. Therefore, the imposition of the sentence of life imprisonment would meet the ends of justice which needs no interference. Both the appeal and the revision are, therefore, dismissed.