' MIR MUHAMMAD NAWAZ MARRI, J.--This appeal is directed against the judgment dated 15th June 1995. Passed by learned Sessions Judge Sibi, whereby appellant has been convicted and sentenced to life imprisonment. Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. Facts of the prosecution case in brief are that on 15-3-1994, Fard-eBayan of deceased Abdul Zahir was recorded at Civil Hospital, Harnai by P.W. Muhammad Aslam, A.S.I, Police Station Hamai, wherein it was alleged that he was Afghan Refugee. Since his childhood he left Afghanistan and stayed at Harnai with one Abdul Sattar Mekrani. Presently he was staying alone at Gharib-Abad, Harnai. He was labourer by profession. On that day at about 6-45 p.m. While he was going to his house and reached near Nadi (stream) one Abdul Jabbar was standing already there. On seeing him he started abusing and beating him. He (appellant) told him that he had already asked him not to come to his street. He threw him on the ground. He stood on both arms and fired at his chest.
He further stated that Abdul Jabbar escaped from the place of occurrence and somehow he reached near the house of Abdul Sattar Mekrani and there he fell down.
' In pursuance of above Fard-e-Bayan F.I.R. No,12/94 was registered with the Police Station Harnai.
On receiving information P.W. Muhammad Aslam, A.S.I alongwith P.W. Mulazim Hussain (Naib- Tehsildar) and other police staff went to the Civil Hospital Harnai where abovementioned Fard- eBayan was recorded in presence of Naib-Tehsildar. Thereafter he went to the place of occurrence where he prepared sketch of place of Wardat vide Exh.P/F-2. The accused/appellant Abdul Jabbar was arrested from his house on the same day. Thereafter he recorded statements of witnesses under section 161, Cr.P.0 and took into possession the blood-stained Kamees (shirt) of deceased on 25-3-1994 vide recovery memo. Exh.P/G. During investigation on the pointation of accused a revolver containing 4 live cartridges and one empty were recovered from a ditch near Railway Godown. Recovery memo. Of the same was prepared vide Exh.P/E. The revolver alongwith cartridges and empty were sent to Forensic Science Laboratory for Chemical Test. After usual investigation challan was submitted before learned Sessions Judge, Sibi.
3. Charge was framed on 25-10-1994, against appellant to which he did not plead guilty and claimed trial. Prosecution to substantiate the accusation examined 8 witnesses. Thereafter appellant was examined under section 342, Cr.P.0 wherein he denied all the allegations levelled against him. However, neither he opted to record his statement on oath as envisaged under section 340(2), Cr.P.C, nor produced any witness in his defence.
' After assessing the evidence and hearing the parties learned Sessions Judge, Sibi found the appellant guilty, as such, convicted and sentenced him as described above.
' Being aggrieved and dissatisfied of his conviction and sentence appellat preferred present appeal challenging his conviction and sentence.
4. We have heard Mr. Tahir Muhammad Khan learned appellant's counsel and Mr. Yagoob Khan Yousafzai, A.-G. For State.
' Mr. Tahir Muhammad Khan learned appellant's counsel urged that there are material contradictions in the statements of Chemical Expert (P.W.5) Certificate and recovery witnesses. He next contended that the recovery should have not been relied upon as it was made 20/22 days after arrest of appellant. Even otherwise the place where the recovery was effected was an open place and not in exclusive possession of the appellant. He further stressed that the dying declaration has been made basis of conviction, was not admissible in evidence. He further contended that the statements of witnesses contradicts dying declaration and the medical evidence. In Medical Certificate no blackening has been mentioned though according to F.I.R. The fire was made from a distance not more than one foot. On this score alone the conviction recorded by the learned Trial Court is not sustainable. He relied on the judgments reported in 1986 PCr.LJ pages 815 and 632. His next contention was that according to F.I.R. After having been injured blood was oozing from his wound and from river bed. He craved up to the house of Abdul Sattar Mekrani.
According to Mr.Tahir Muhammad Khan, no blood-stained earth was recovered, therefore, he place of incident is not known. He further argued that the dying declaration is statement of an interested person, therefore, the same should have not been relied upon. He placed reliance on PLD 1968 Quetta page 7 and 1992 PCr.LJ 384.
' Whereas on the other hand Mr. Yaqoob Khan Yousafzai, Advocate-General Balochistan, submitted that the incident and the death of the deceased by violence have not been disputed. In dying declaration, F.I.R. And the medical evidence there is no contradiction as according to medical evidence the injuries were inflicted with fire-arm. The recovery of crime weapon and empty and thereafter report of expert corroborates each other. He next contended that the dying declaration of a person before his death cannot be said as an interested witness. He further contended that no motive for falsely implicating the Appellant in the commission of offence is alleged. He relied upon the Judgments reported in 1995 SCMR page 614, 1992 MLD page 107 and 1991 PCrLJ 443 and 1991 PCr.LJ 888.
5. We have considered the arguments put forth by the parties' counsel and perused record of the case minutely.
' In order to bring home the charge against appellant prosecution relied upon the following pieces of evidence:--
(i) dying declaration of deceased Abdul Zahir:
(ii) medical evidence:
(iii) Report of Fire-arm Expert.
' Before appreciating the arguments advanced by both the learned counsel we think it proper and expedient to depict summary of evidence produced by the parties.
6. P.W.1 Abdul Jabbar, deposed that on 15-3-1994, at 6-45 p.m. After hearing some noise he came out of his house where he found deceased Abdul Zahir lying in injured condition. He sent him to hospital through some of his relative and he himself went to police station for report. He alongwith police party went to Harnai where the Medical Officer was also called. He himself twice or thrice asked from deceased that who has injured him but he did not give in reply. When the police enquired from deceased Abdul Zahir, he told them that he was injured by Jabbar. Deceased got his statement recorded. Medical Officer and Naib Tehsildar were also present at the time of recording statement. Thereafter he was referred to Civil Hospital. Quetta but on his way to hospital he succumbed to injuries.
' In cross-examination he admitted that deceased had not given detail of incident to police nor police asked the same from him.
7. P.W.2 Dr. Abdul Samad Panezai, stated that on the fateful day he was posted as Incharge of Civil Hospital, Harnai in absence of Dr. Jamal Khan Zarkoon. At about 7-30 p.m. Abdul Zahir was brought to hospital in injured condition. Deceased was examined by him and he found the following injuries on his person. He referred him to Quetta but on his way injured succumbed to injuries and the dead body was brought back at 10-30 p.m. Medical Certificate was issued by Dr. Jamal Khan Zarkoon. He confirmed that deceased recorded his statement before police.
' In cross-examination he stated that he did not know what statement was given by the deceased to police, nor permission was obtained by police to record his statement.
8. P.W.3 Mulazim Hussain Naib-Tehsildar Harnai, stated that on the fateful day at about 7-30 p.m.
He was informed that a person has been taken to hospital in injured condition. He reached the hospital. Abdul Zahir (deceased) had already admitted. Muhammad Aslam, A.S.I recorded his statement in his and presence of Medical Officer and the thumb-impression of deceased was also affixed thereon. The statement of deceased was attested by him which he produced as Exh.P/A.
The house of deceased was searched and the household articles were recovered which were taken into possession vide Exh.P/B.
9. P.W.4 Jamal Khan Zarkoon, Medical Officer, Harnai stated that on 15-3-1994, as he was absent, therefore, deceased was examined by Dr.Abdul Samad. On 9-4-1994, he issued MLC of deceased which he produced as Exh.P/C.
' In cross-examinations he deposed that the certificate was issued on the basis of notes entered in the register.
10. P.W.5 Muhammad Iqbal Inspector, Fire-arm Expert, Crime Branch, Quetta, deposed that on 13-6- 1994, he received one sealed parcel from S.H.O., Police Station, Harnai for examination and report.
The parcel contained one revolver .22 bore, one empty shell .22 bore and four live cartridges of .22 bore. He made three test fires from the suspected revolver. The tested three empties and crime empty shell were compared, he found that both the tested rounds and crime empty shell are identical marks i.e striker Pin marks breach face marks etc. Were similar. He produced certificate issued by him as Exh.P.D.
11. P.W.6 Muhammad Yaqoob, Police Constable stated that during interrogation of case accused disclosed to S.H.O. That he had concealed the weapon of crime near Railway Godown and he could get recover the same. He went alongwith S.H.O., Ghulam Sarwar and appellant where the appellant took out pistol from a ditch situated near Railway Godown and produced the same to S.H.O. The revolver containing four live cartridges and one empty which were taken into possession vide recovery memo. Exh.P/E.
In cross-examination he deposed that the place of recovery was an open place and the people were passing through that place. About 8/9 houses were situated near the place of recovery. The recovery was effected 20/25 days after his (appellant's) arrest.
12. P.W.7 Aftab Iqbal, S.I. Police deposed that on 25-3-1994, in his absence the initial investigation was conducted by P.W. Muhammad Aslam. On 25-3-1994, during interrogation accused/appellant pointed out that he could recover the crime weapon which he hid near Railway Godown, Harnai. He alongwith accused and Police Officials went near Railway Godown and recovered the revolver from a ditch which was taken into possession, alongwith four live cartridges and one empty. Vide memo.
Exh.P/E.
' In cross-examination he deposed that the place from where the revolver was recovered is not thoroughfare but still one can pass through that place. He further deposed that he had not called anybody to stand as witness of recovery, from the locality.
13. P.W.8 Muhammad Aslam, A.S.I deposed that on the day on incident he was Incharge of Police Station, due to absence of S.H.O. He was informed by one Abdul Sattar Mekrani that Abdul Zahir had been injured by fire-arm and he had been admitted in Civil Hospital, Harnai. On receiving this information he alongwith Naib-Tehsildar and other Police Officials went to hospital where Abdul Zahir was in senses. He recorded his statement Exh.P/A which was signed by deceased Abdul Zahir and P.W. Mulazim Hussain and attested by Naib-Tehsildar. Thereafter he went to place of incident and prepared sketch vide memo. Exh.PF. Accused/appellant was arrested from his house and he recorded the statements of P.Ws. Under section 161, Cr.P.C. He took into possession blood-stained Kamees (shirt) of deceased vide Exh.P/G and the investigation was handed over to S.H.O. On 18-3- 1994.
' In cross-examination he deposed that the statement of deceased was recorded in presence of Naib-Tehsildar and Medical Officer. While he was recording statement P.W. Abdul Sattar was out of room and standing in varandah. He admitted that deceased did not mention the name of appellant's father in his statement. He admitted that he could not recover the blood-stained earth as it was washed away due to rain. He denied the suggestion that deceased had committed suicide.
14. As it has already been mentioned above, appellant got his statement recorded under section 342, Cr.P.0 wherein all the allegations levelled against him were denied but he admitted in his Urdu version that the revolver was recovered at his instance. However, he did not opt to record his statement on oath nor he produced any witness in his defence. Admittedly the incident was unwitnessed which had taken place at about quarter past seven or 6-45 p.m. Near a river bed where the deceased met Abdul Jabbar who after abusing him started beating him. After he fell down in the ground he put his both feet on his arm and fired a pistol shot which hit him on his chest. The Medical Certificate indicates that a fire-arm injury was received by deceased which was secular in nature and 3 c.m. Diameter. The contention raised by learned counsel for the appellant that it has come on record that the fire shot was made by appellant while he was standing on the arms of 'deceased. No burned mark or exit wound has been mentioned in the Medical Certificate. It may be pointed out that according to Moodi's Jurisprudence: No blackening or scorching is found, if the fire-arm is discharged from a distance of more than four feet. Moreover, these signs may be absent even when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the track of the bullet in the body. "Blackening with a high power rifle can occur up to about 9 inches and with a revolver or pistol up to about 6 inches".
' It is further mentioned that fire-arm wounds generally produce two wounds or apertures, viz., one of entrance and the other of exit of the projectile. When the wound of entrance is present, but not the wound of exit, it means that a bullet is lodged in the body, except in those cases where a bullet has been coughed up after entering the respiratory massages or lost in the stool after entering the intestinal tract and also where a hard bullet by coming in contact with a bone is so deflected as to pass out by the same orifice as it entered.
' The above-quoted observation clearly indicates that it is not necessary that when a revolver or pistol is shot from a distance of more than 6 inches there should be no blackening or an exit wound, therefore, there is no force in this contention raised by appellant's counsel. Apart from this P.Ws. Dr. Abdul Samad and Jamal Khan Zarkoon were not cross-examined on this point.
15. Now adverting to the point of dying declaration being not admissible under Article 46 of Qanun- e-Shahadat, cannot be based for conviction. It may be observed that Article 46, Qanun-e- Shahadat lays down certain test: for example truthfulness of the person making dying declaration, where he was capable of making such statement, free from outside influence, consistency with other evidence and facts and any doubt in identifying the assailant. In the present case deceased had clearly stated that he was injured by the appellant by firing bullet shot while he stood on his arms. The Medical Certificate also showed that the injury was caused by fire-arm, as such, there was sufficient corroboration of the dying declaration with medical evidence. Though no ocular testimony was available in this case but the dying declaration rings true and has been corroborated by circumstantial evidence. For example recovery of pistol with four live cartridges and one empty which was confirmed by the Forensic Science Laboratory as the empty was shot by same revolver. It is further supported by the Medical Certificate and the dying declaration as there was only one fire-arm shot the same has been recovered. The deceased also in his dying declaration stated that only one shot was fired at him coupled with the fact that appellant himself in his statement (Urdu version) under Section 342 Cr.P.0 admitted recovery of pistol alongwith four cartridges and one empty, at his pointation. Therefore, we are of the opinion that conviction can be recorded on the basis of a dying declaration if it rings true and its execution is proved. Furthermore, dying declaration was recorded by a Police Officer and attested by NaibTehsildar (Magistrate 3rd Class). No previous enmity has been alleged against them. Both the witnesses being independent and uninterested. Will not substitute the appellant in place of real culprit. In our this view we are fortified by the judgment of Hon'ble1Federal Shariat Court reported in 1994 MLD page 1046.
' As far as identification of appellant is concerned. The incident took place at 6-45 p.m. Still there was sufficient light to identify the appellant. Furthermore deceased in his dying declaration mentioned that after abusing him accused/appellant caught hold of him and threw him on the ground after becoming so close/contact his identification was not impossible.
16. Next contention raised by learned appellant's counsel regarding recovery of crime weapon and non-associating an independent person of the local as 'witness. In this regard it may be pointed out that a case where the accused himself leads police to a particular place to get the article recovered, two independent and respectable inhabitants of the local is not required. In this behalf judgment of Hon'ble Supreme Court reported in 1995 SCMR page 614 may be referred.
' The next objections of learned counsel for the appellant regarding delay of recovery and the place which was not in exclusive possession of the appellant are of no avail because even the appellant in his statement (Urdu version) under section 342, Cr.P.0 has admitted that the crime weapon was recovered at his instance. The case-laws cited on this point by learned appellant's counsel are distinguishable and not applicable in the present case.
' The next point raised by learned counsel for appellant that the place of incident is not known as no blood-stained earth was taken into possession. In this regard the Investigating Officer has clearly stated that due to rain the blood was washed away, as such, the same could not be taken into possession. Needless to mention here that it has come on record that deceased was an Afghan Refugee and he had no relative at Harnai. He stayed for some time with Abdul Sattar Mekrani. Appellant is also Mekrani, he belongs to the same tribe to which the witness belongs, therefore there was no reason for P.W. Abdul Sattar to give a statement against his caste-fellow. As it has already been observed that while recording statement of deceased only two persons were present namely Medical Officer and Naib-Tehsildar. None of them has any relation with the deceased neither they had any motive to falsely implicate the appellant. As it has been held by the Hon'ble Supreme Court in case Bahi Farwan v. Ghulam Fareed reported in 1994 SCMR page 1852 that to import veracity of a dying declaration it is necessary that the declarant should be free from external influence and not crowded around by unauthorized persons while making the statement.
In the present case when the statement of deceased was being recorded only Doctor and Naib- Tehsildar were present in the room, therefore, question of external influence does not arise at all.
' For the foregoing reasons appeal has no force which is accordingly dismissed.