' JAVED IQBAL, J.--- This .Is an appeal preferred under section 410, Cr.P.C., against the judgment, dated 21-6-1995 passed by learned Additional Sessions Judge-II, Quetta, whereby the accused was convicted under section 302, P.P.C. And was sentenced to undergo life imprisonment.
2. Briefly stated the facts of the case are that on 124-1993 on the basis of a Fard-e-Bian allegedly got recorded by deceased Rana Ejaz a case under section 324, P.P.C. Was registered at Gawalmandi Police Station, Quetta, vide F.I.R. No,43 of 1993 which was subsequently converted from section 324, P.P.C. To that of section 302, P.P.C., after death of Rana'Ejaz. The accused was arrested on the same day and recovery of alleged crime weapon was also effected. The challan was submitted on 15-5-1993 and charge framed on 15-11-1993 to which he pleaded not guilty and claimed trial.
3. The prosecution in support of accusation produced Abdul Jabbar (P.W.11), Dr. Muhammad Amin Mengal (P.W.2), Muhammad Shafique (P.W.3), Maqsood Ahmed, A.S.-I. (P.W.4), Abdul Rauf (P.W.5) , Rashid Ahmed (P.W.6), Taj Muhammad (P.W.7), Kashif Imran (P.W.8), Muhammad Qasim (P.W.9), Rub Nawaz (P.W.10). Muhammad Yousaf (P.W.11), Muhammad Amin (P.W.12), Zahid Hussain (P.W.13), Farooq Jamil (P.W.14), Muhammad Zikria Kasi (P.W.15) and Essar Asghar (P.W.16). On the conclusion of trial the learned Additional Sessions Judge-I, Quetta, convicted the accused under section 302, P.P.C. And sentenced him to undergo life imprisonment. The statement of accused was got recorded under section 342, Cr.P.C. Whereby he denied the allegations and stated that he was innocent and no offence whatsoever was committed by him. He further stated. That the witness being friends of deceased have deposed falsely against him. He also denied the . Recovery of crime weapon. He did not prefer to record his statement on oath under section 340(2), Cr.P.C. No defence whatsoever was led.
3. It is mainly contended by Mr., M. Zafar, Advocate on behalf of convict/appellant that the impugned judgment of conviction and sentence being contrary to facts and law, is liable to be set aside as the learned trial Court has failed to appreciate the facts of the case and relevant law which has resulted in grave miscarriage of justice. It is next contended that in fact the prosecution has failed to prove the charge beyond shadow of doubt as entire prosecution evidence is tainted, interested, contradictory and unreliable. It is urged vehemently that the trial Court has appreciated that the prosecution version is not free from doubt and in spite of it benefit whereof has not been given to the . Accused in violation of the settled norms of justice. It is agitated with vehemence that the Dying Declaration cannot be relied upon and learned trial Court has also expressed its doubt about the authenticity of the dying declaration as contained in Fard-e-Bian. Mr. M. Zafar, Advocate contended strenuously that prosecution has failed to establish that any dying declaration was ever got recorded by the injured, who was reportedly in a critical condition and was shifted immediately to Operation Theatre, hence no time was available for recording the dying declaration of injured and in fact, it is an afterthought and fabricated one, as such no reliance can be placed on it. It is further argued that the recovery of pistol allegedly used in the commission of alleged offences, is highly doubtful as no private witness was associated during search and its ultimate transmission to , Karachi and is only supported by police officials and resultantly the report of the Ballistic Expert cannot be made a sound base for the conviction of convict/appellant. The learned defence counsel remained critical regarding the statement of Zikria Kasi (P.W.15) and according to him he had attempted to ' prove the dying declaration of the deceased which was not taken into consideration by the learned trial Court as nothing was stated about this aspect of the matter in affidavit sworn by Zakria Kasi. It is further argued that learned trial Court has erred while relying upon the ocular testimony of Essar Asghar (P.W.16) being a highly partisan and interested witness whose testimony cannot be taken into consideration being a chance witness. It is also pointed out that keeping in view the statement of Dr. Muhammad Amin Mengal (P.W.2) the death of deceased was not direct result of the injuries allegedly inflicted upon him and moreso, the medical evidence pertaining to injuries by deceased on 12-4-1993 was not taken into consideration without any lawful justification. In support of his contention Mr. M. Zafar, Advocate has referred various authorities including the following:-- ' PLD 1960 SC, 223, PLD 1960 Kar. 697, 1968 PCr.LJ 176, 1969 ' PCr.LJ 274, 1974 PCr.LJ 391, 1976 PCr.LJ 249, 1971 PCr.LJ 229, 1993 PCr.LJ 90, AIR 1957 All. 53, PLD 1975 SC 607, 1977 SCMR 72, 1995 SCMR 664, 1975 PCr.LJ 787.
4. Cliaudhary Ejaz Yousaf, Additional Advocate-General appeared on behalf of State and strenuously controverted the position as explained by Mr. M. Zafar, Advocate by arguing that prosecution has proved its case beyond shadow of doubt by producing unimpeachable evidence which remained unshaken and has rightly been relied upon by the learned trial Court. It is further contended that incident occurred in a broad daylight and hence the question of mistaken identity does not arise and Rana Ejaz deceased, who was shifted immediately to hospital and got recorded his Fard-e-Bian also narrated the entire incident in an unambiguous manner. The said Fard-e-Bian can be treated as dying declaration which was got recorded by the deceased at his, own without any exaggeration or dishonest improvement and there is no reason for discarding it being corroborated by recovery and motive. It is also pointed out that the accused was apprehended and a pistol was got recovered which was subsequently sent to Ballistic Expert, who gave positive opinion. It is also argued that the provisions as contained in section ,103, Cr.P.C. Are mandatory in nature, but keeping in view the emergent situation no private witness could be associated and a plausible explanation has been given by the Investigating Officer, explaining that no private person was readily available to be associated as witness. Learned Additional Advocate-General has also mentioned the medical evidence and in his opinion the subsequent development resulting into death of Rana Ejaz were mainly related to the injuries as inflicted by the, accused and hence he cannot be absolved from the accusation as levelled against him. It is further argued that the prosecution witnesses remained firm to the test of cross-examination and in spite of various searching questions their version remained unshattered and mere on the ground of friendship and inter se relationship their evidence cannot be brushed aside. The learned Additional Advocate- General contended that prosecution on the basis of ocular version, dying declaration duly corroborated by recovery of pistol, motive, medical evidence and circumstantial evidence has proved its case beyond shadow of doubt and the impugned judgment being free from any grave illegality or infirmity does not call for any interference. In support of his contention, the following authorities were referred:-- AIR 1945 'Crl. 513-514, PLD 1985 SC 361, 1980 SCMR 649, PLD 1990 SC 1088, PLD 1987 SC 467, PLD 1975 SC 607, 1970 PCr.LJ 373, PLD 1983 Pesh. 148, PLD 1977 SC 612.
5. We have carefully examined the respective contentions as adduced on behalf of convict/appellant and for State in the light of relevant provisions of law and record of the case. We have minutely perused the impugned judgment passed by learned Additional Sessions Judge-I, Quetta. We have also examined the evidence as adduced by the prosecution in support of accusation. Abdul Jabbar (P. W.1) is Chemical Examiner, who conducted Chemical and. Serological analysis of the blood-stained articles and opined that the same were stained with human blood and submitted his report (Exh.P.A/A). He was subjected to cross-examination, but nothing beneficial could be extracted, but on the other hand he clarified that all the precautions were taken .And requisite formalities completed such as after due checking the parcel-1 (containing blood- stained earth) and parcel No,2 (containing blood-stained Shalwar and shirt) were received and after analysis the same were sealed with report and sent to concerned police station through a Police Officer after obtaining his signatures. Dr. Muhammad Amin Mengal (P.W.2) has deposed that on 13-6-1993 he was posted as Police Surgeon, Sandeman Provincial Hospital, Quetta, and examined the deceased at 9-00 a.m., who expired in hospital on 12-6-1993 at 5-00 p.m. With the following observations:-- "The deceased was seriously injured, on 12-4-1993 with the history of gunshot wounds and was admitted in the Surgical Unit Ward-II and then after surgical interventions and admissions he was then referred to Surgical Unit-III, for Orthoteatic intervention and treatment. From the record of the Medico-Legal Officer on the first day, he sustained 7 injuries under M.L.C. No,1308/AM and the injuries from serial No,8 to 12 noted on autopsy by me which were surgical scars and therapeutic procedure wounds. The details of the autopsy is as under:-- ' On external examination, the deceased was stout, rigor mortis present complete and fixed, post- mrotem staining like brown present on dependents parts and fixed, wearing cream colour Shalwar and Qamees.
Crainu Spinal Cord. Healthy and not opened. Thorax.
(1) Walls ribs and cartilages. Healthy.
(2) Pleurae. Healthy.
(3) Larynx and tracheae. Have regurivitated foecal material. The remaining viscrae were healthy.
Abdomen.
(1) Wall. One surgical scar starting from the upper abdomen and mid paramecia up to pubic region., distended profusely.
(2) Peritoneum. The peritoneum was adhered and subject to the abdominal scars.
(3) Mouth, pharynx and esophagus, mouth closed, pharynx and esophagus healthy.
(4) Diaphragm. Burst and thorax and abdominal cavity was continued to each other.
(5) Stomach and its contents. Congested and empty.
(6) Pancreas. Healthy.
(7) Small intestines and their contents. Congested empty and there was adhesions of jejunum and ileum observed. . (8) Large intestines and their contents. The large intestines (caecum) was ruptured and abdominal cavity was full of foecal mixed material of cottons swabs preserved for chemical analysis.
(9) Liver. Enlarged.
(10) Spleen. Healthy.
(11) Kidneys. Hypertrophied and congested (brown in color).
(12) Organs of generation external and internal. Healthy.
' Muscles bones joints. The left thigh was dissected medial parallel to the surgical scar and the fractured feamur exposed which was not united.
' Remarks. The deceased sustained bullet wounds on 12-4-1993 which were grievous in nature. But the deceased suddenly developed acute abdomen S/S on 11-6-1993 and died on 12-6-1993 although he was passing normally for the period 12-4-1993 to 11-6-1993 except the left fracture feature, from the Hospital Chart record.
' To exclude any poisoning the biological samples sent for . Chemical analyses which were:--
(1) Blood from cubital vein.
(2) Contents of the abdomen in a cotton swab. - Conclusion/opinion.
(1) The injuries were grievous caused by fire-arms which he sustained on the 12-4-1993.
(2) The cause of death was rupture of saecum and toxemia and bursting of the diaphragm embracing the vital organs (heart and lungs).
(3) The report of the Chemical Examiner which was received in the office on 19-871994 revealed "Nil" regarding any poisoning."
He issued post-mortem report on 13-6-1993 which is Exh.P.2/A duly signed by him. He was subjected to cross-examination, wherein he admitted that cause of death was not the direct result of injuries sustained by the deceased on 12-4-1993. He also admitted that deceased remained hospitalized and during that period he used to visit his house. We have carefully examined the cross-examination and if injury No,8 and conclusion No,2 are read together, the result would be obvious that the death resulted due to rupture of saecum and toxaemia which developed due to focal material, peritonitis and bursting of the diaphragm embrassing the vital organs (heart and lungs), the root cause of all these developments which resulted into death was caused by gunshot wounds. Had these wounds not been there, the question of rupture of sacrum does not arise. The inflicted injuries ultimate proved fatal which resulted into death. Any advantage of intervening period during which deceased survived cannot be given to accused who completed his task and made various fires and survival of deceased for a short period makes hardly any difference. The violence of attack by means of firing was sufficient to justify the inference that accused had full knowledge of the likely effect of his attack. There is no cavil to the proposition that if death ensues as a natural or likely consequences and result from an injury voluntarily caused the person responsible for causing that injury is deemed to have caused death. It is remarkable to note that ' when the disease which actually causes death is meeningitis, peritonitis, tetanus, phnumoniaetc and it is the natural and probable result of injury which the person inflicting the injury has caused, the person who inflicts the injury be held responsible for the disease arising from the injury. 1936-39 Cr.LJ 217 and AIR 1937 (R) 429. Similarly "where a person inflicted grievous injuries on an other, and as a result of these injuries pneumonia supervened and the latter died, it was held that the offence committed was that of murder" 1929-31 Cr.LJ 198. Similarly where an injury was inflicted on a person by a blow which in the judgment of competent medical men rendered an operation advisable, and, as a preliminarily to the operation, chloroform was administered to the patient, who died during its administration, and it was agreed that the patient would not have died but for its administration, it was held that the person causing injury was liable to be indicted for manslaughter (1883) 15 Cox 174 and (1911) 5 Cr. Law Report 35. The above verdicts are based on "causa, causant" which means the real cause. There is no doubt that rupture of saecum and toxeamia developed due to foecal material peritonitis which bursted the diaphragm and resultantly the heart and lungs were badly damaged which resulted into death acid the, said entire development was due AO fire-arm injuries inflicted by accused, and as such he cannot be exorv rated on the ground that death was not a direct result of gunshot wounds. Muhammad Shafique (P.W.3) has deposed that on'12-4-1993 about 12-00 noon when he was sitting in his shop he heard gunshot fires and saw an injured person lying on the road and one person was running towards Moti Ram Road, Quetta and meanwhile some people had put the injured person in a vehicle.
Muhammad Shafique (P.W.3) was got declared hostile by the learned District Attorney and resultantly he was not subjected to cross-examination by the learned defence counsel. It is, however, to be noted that the statement of a hostile witness cannot be discarded altogether and his deposition can be relied upon up to the extent of happening of occurrence, gun-shot reports and lying of one injured person on the road. He also saw one person running towards Moti Ram Road, Quetta. It is to be noted that said aspect was corroborated by Muhammad Yousaf (P. W.11) whose version has been examined at relevant place. It is well-settled by now that such statement can be relied subject to corroboration. Maqsood Ahmed (P.W.4) has deposed that on 12-4-1993 he alongwith Muhammad Qasim, S.-I./S.H.O. Alongwith other police officials reached the house of accused situated at Arif Road in order to arrest him as a case was got registered against him vide F.I.R. No,43 of 1993 under section 324, P.P.C. He further deposed that the house was encircled and they knocked at the door, in response whereof accused came out, who upon enquiry told S.H.O. His name as Kashif-ur-Rehman and also showed his willingness to effect the recovery of pistol which was used in firing made at his brother-in-law. The accused was arrested who took them to a room located towards western side and got recovered a pistol .30 bore kept in black leather cover lying on cupboard and informed that it was the same pistol with which he had fired at his brother-in- law. The pistol was checked and on unloading 4 live cartridges of .30 bore were found in a magazine. The pistol was without any number which was taken into possession by Muhammad Qasim, who after making Fard (Exh.P.4/A) sealed it into a parcel alongwith sample of seal and the parcel was affixed, four stamps of Police Station Gawalmandi duly signed by him and Tariq Mehmood. He also signed sketch of pistol (Exh.P.4/B) and made identification mark on leather cover. He identified pistol (A/1), Leather cover (A/2), separate magazine (A/3) and live cartridges (A/4 to A/7). He was subjected to an exhaustive cross-examination. It is, however, to be noted that no personal enmity whatsoever was alleged. The witness has deposed what he did in a straightforward manner and no dishonest improvement whatever was observed. No contradiction could be pointed out in the statements got recorded under section 161, Cr.P.C. And that before the trial Court. He deposed in a categorical manner while answering one of the questions during cross- examinations as under:-- "I had stated in my 161, Cr.P.C. Statement that accused Kashif-urRehman was arrested in this case and he upon investigation of S.-I./ S.H.O., had revealed that he had badly injured his brother-in-law by firing indiscriminately and had kept the pistol in a cupboard in a room of his house, which he can recover."
' He refuted the suggestion that doctor's clinic is situated just in front of accused's house. He admitted that in his presence no private person was associated as a witness. He also showed his ignorance that doctor's house is also situated nearby. He denied the suggestion that no recovery was made from drawing room. He also denied that the whole proceedings were completed at police station. He also denied that a false statement was given by him. No mala fides or ill-will was alleged. Abdul Rauf (P.W.5) has deposed that on 12-4-1993 he alongwith other police staff including Rubnawaz, A.S.-I. Under the supervision of Qasim, S.H.O. Were present at Quarry Road, opposite Taj Store, and Rub Nawaz, A.S.-L. Inspected the site and collected blood-stained earth and put the same in a white colour glass water and sealed into parcel along with sample of seal vide Fard Exh.P.5/A duly signed by him. He identified bloodstained earth as Art.P.8. He further deposed that Rub Nawaz, A.S.-I. Had also recovered six empty cartridges of .30 bore having Mark of 38/84 at the bottom from the front of Taj Store and sealed the same into parcel along with sample of seal vide recovery memo. Exh.P.5/B duly signed by him. He identified the empty recovered cartridges as Art.P.8 to Art.P.15, which were kept in parcel (Art.P.9). He was subjected to cross-examination and no question was asked regarding number of cartridge duly recovered from the spot. No enmity was alleged and Abdul Rauf H.C. (P.W.5) stood firm to the test of cross-examination and his testimony remained unsheltered. He denied the suggestion that entire proceedings were conducted at police station. Rashid Ahmed (P.W.6) has deposed that on 12-4-1993 he was performing his duties at National Saving Centre, Quarry Road, Quetta, and could not see the person who fired and he also did not see the victim. An attempt was made by the learned District Attorney to get him declared hostile, but it was not allowed by the learned trial Court. His statement however, can be relied up to the extent that shooting took place near Taj General Store (place of occurrence). Taj. Muhammad (P.W.7) deposed that on 12-4-1993 Ejaz had come to his shop at about 12-00 noon and he went towards godown when he heard gunshot firing and when he came out from godown Ejaz was lying on the road meanwhile one vehicle arrived there and Ejaz was taken to hospital in the same. He further deposed that he could not see any person while firing or running away. He was got declared hostile and resultantly was not cross-examined by the learned defence counsel. It is worth while to mention here that the statement of hostile witness cannot be ignored altogether and this aspect of the matter has been discussed earlier. It would not be out of place to mention here that he has admitted the occurrence and infliction of injuries by gunshots and removal of injured in car to hospital. Kashif Imran (P.W.8) has deposed that on 12-4-1993 the blood-stained clothes of deceased Rana Ejaz were taken in possession by A.S.-I. Rub Nawaz in his presence and sealed the same into parcel (vide recovery memo. Exh.P.8/A) duly signed by him and that of Muhammad Umer. He identified parcel A/16 and blood-stained Shalwar and shirt A/17 and A/18. He also identified his signatures and that of Muhammad Umer. He was subjected to cross-examination, but nothing advantageous could be extracted. No personal enmity whatsoever was alleged. Mere bald assertion of false statement cannot be considered. Being a natural witness his testimony can be relied upon as he stood firm to the test of cross-examination. He denied categorically that blood-stained clothes (A/17 and A/18) were not taken into possession. He also mentioned that Muhammad Umer had reached hospital prior to him. Muhammad Qasim (P.W.9) has deposed that on 12-4-1993 he was posted as S.H.O., Police Station Gawalmandi when about 12-30 noon he received a telephonic message from hospital that one injured person was brought and in response whereof he alongwith Rub Nawaz, A.S.-1. Tariq Manzoor, A.S.-I., Maqsood* Ahmed, A.S.-I. And other officials reached Casualty Department at Civil Hospital, Quetta where he found an injured person whose name was subsequently revealed as Rana Ejaz, whose memo. Of injuries were prepared and delivered to the doctor. He went on saying that statement of injured Rana Ejaz was recorded (Exh.P.9/A) and thereafter he deputed Rub Nawaz, A.S.-I. For further investigation, and after a while when he was yet in hospital, he received an information from Mukhbar-e-Khas that accused namely Kashif-ur-Rehman, who fired upon and injured Rana Ejaz, was present in his house located at Arif Road. He further deposed that he alongwith Rub Nawaz, A.S.-I., Tariq Manzoor, A.S.-I., Maqsood Ahmed, A.S.-I. And other armed officials immediately rushed to Arif Road, at the house of Kashif-ur-Rehman and arrested him in Case No,40 of 1993 registered under section 324, P.P.C. And conducted investigation at the spot, and during investigation accused stated that he injured Rana Ejaz at Quarry, Road by firing and further informed that the pistol was lying on iron cupboard which is in a room located at Western side and recovery can be effected and resultantly the outer door of said room which was at road side was opened and accused Kashif-ur-Rehman, who was ahead got recovered a pistol from cupboard which was in black colour leather cover. It was .30 bore pistol having handle of black colour with Barrel M.20, and on unloading the same 4 live cartridges were found in the Magazine while one live cartridge was found in the "Hamaial" and the same were taken into possession in presence of Tariq Manzoor, A.S.-I. And Maqsood Ahmed, A.S.-I. In Case No,43 of 1993 registered under section 324, P.P.C. And made it into sealed parcel. He further deposed that since no licence could be produced as such, a case under section 13-E of Arms Ordinance was also registered against Kashifur-Rehman. He prepared map of recovery of weapon duly signed by witnesses which is Exh.P.9/B bearing his signatures as well. On 26-4-1993 Investigating Officer handed over him the file for the purpose of preparation of incomplete challan and needful was done. Incomplete challan is Exh.P.9/C duly signed by ,him. He also identified pistol as Art.P.1, cover Art.P.2, Magazine Art.P.3 and cartridges Arts.P.4 to 7. He was subjected to a lengthy cross- examination, but his testimony remained unshattered apart from a few minor contradictions relating to times and departure and arrival on various places, such as from police station to hospital and then hospital to the house of accused Kashif-ur-Rehman and consumption of time spent during investigation and recovery of pistol. The learned defence counsel, Mr. M. Zafar raised an objection that how Muhammad Qasim (P.W.9) came to know about the fact that alleged firing was made by Kashif-ur-Rehman. It' may be mentioned that it has been explained by Muhammad Qasim (P.W.9) in an unambiguous manner that he received a source report by Mughbar-e-Khas and undoubtedly police can channelize its own resources and it is not necessary to disclose the source information. It is worthyto note that no personal enmity orwhatsoever was alleged. It is remarkable to note that a satisfactory explanation that as to why private persons could not be associated as witnesses has been furnished in the following words:-- "It is correct that the house of accused is situated in the area where the other houses are present.
We reached at the house of accused at 2-10 a.m., we tried to call the other residents of the said area but nobody came may be the men were not at said hours at home."
' He, however, admitted that neighbours adjacent to the house of accused were not called. He refuted the suggestion that memos. Were prepared at police station. He also denied the suggestion" that map of the house of accused (Exh.P.9/B) was not prepared in accordance with site. He also denied that the house of Khalil Ahmed, Tal Wala is not situated at Northern side, but it was at Southern side. He also denied the suggestion that pistol was neither recovered from accused Kashif-ur-Rehman, nor recovery was made on his pointation. He also denied the suggestion that\ pistol (Art.P.1) has been given by family members of Rana Ejaz. We have thrashed out the deposition and cross-examination and we are of the view that no dishonest exaggeration or omission has been made by Muhammad Qasim (P.W.9) who has explained the entire exercise done by him alongwith other police officials in a straightforward manner, and there is absolutely no reason to discard his testimony which' has rightly been relied upon by the learned Court. Rub Nawaz (P.W.10) has deposed that on 12-4-1993 he was posted at Police Station Gawalmandi when on 12-25 at noon got information about an injured person brought to Civil Hospital and in pursuant to that he alongwith S.H.O., and other officials went to hospital and found an injured person namely Rana Ejaz whose statement was recorded by S.H.O. And sent the same for registration of the case and assigned him the investigation. He further deposed that he alongwith Tariq Manzoor, A.S.-I., Abdul Rauf, H.C. And other officials reached at place of incident and prepared site plan (Exh.P.10/A) duly signed by him. Blood-stained earth was collected and sealed into parcel No,1 which is Art.P.8 vide recovery memo. Exh.P.5/A duly signed by him. He further deposed that six empty cartridges were taken from the place of occurrence vide recovery memo. Exh.P.5/B duly signed by him. He identified the empty cartridges Arts.P.8 to 15. He further deposed that statements of witnesses namely Muhammad Shafiq, Taj Muhammad, Muhammad Yousaf and Abdul Rauf were recorded and after some time he went back to Civil Hospital where the injured person was brought out of Operation Theatre and he took into possession his blood-stained clothes vide recovery memo.
Exh.P.8/A. He identified Shalwar and shirt as Arts.P.17 and ,18 and identified his signatures on recovery memo. Exh.P.8/A and also recorded the statement of recovery witnesses Kashif Imran and Muhammad Umer. He further stated that Mukhbar Khas informed. S.H.O. At Civil Hospital that accused named in F.I.R. Kashif-ur-Rehman was available in his house and in pursuant to the said information he alongwith other police officials under supervision of S.H.O. Muhammad Qasim (P.W.9) reached at the house of accused situated at Arif Road the door was knocked and Kashif- ur-Rehman came out and told his name as such. He arrested the accused and S.H.O. Took the charge of investigation for some time and investigated the accused, who told that pistol allegedly used in the commission of offence was lying on cupboard which can be got recovered and he willingly did the needful and got recovered pistol of .30 bore in leather cover from iron cupboard which was taken into possession through memo. And parcel No,4 was prepared. Since no licence could be produced, a case was also registered under relevant law. He further deposed that accused was sent to judicial custody on 26-4-1993 and on the same day incomplete challan was prepared. He also stated that the injured died on 12-6-1993 whose dead body was taken to Civil Hospital for post-mortem. The further investigation was assigned to Muhammad Amin, A.S.-I. He was subjected to exhaustive cross-examination, but nothing beneficial could be. Extracted rendering any, substantial assistance to defence. It would not be out of place to mention here that no personal enmity whatsoever was alleged and he stood firm to the test of cross-examination in spite of various searching questions. It is important to note that he clarified various points which are as follows:--
(a) The statement of injured was recorded by S.H.O. In hospital.
(b) The injured was conscious, who got recorded his statement and signed and went unconscious after operation.
(c) He furnished explanation that why private witnesses could not be associated with recovery was effected in the following words:-- ' It is correct that it is necessary that at the time of recovery private persons of locality are to be made witnesses, said voluntarily the people do not want to give statement due to enmity and secondly due to wastage of time in Court. It is correct that despite of the same Muhammad Shafique, Taj Muhammad and Muhammad Yousaf associated as eye-witnesses, but were not prepared to sign the memo of recovery'.
(d) He refuted the suggestion in categorical manner that Muhammad Qasim (P.W.9) remained at site with him till 4/5 p.m., and thus repelled the defence objection that how recovery was effected by Muhammad Qasim (P.W.9) who remained associated in the investigation till 4/5 O'clock.
' It is also to be noted that 'cross-examination mainly remained confined to the times of arrival and departure from various places. It is admitted during cross-examination that out of the two witnesses of recovery of blood-stained cloth one was brother of the injured and other was his cousin. He conceded that injured remained unconscious for 2/4 days after operation. He refuted the suggestion that injured after sustaining injuries went unconscious when he was brought to hospital. He also clarified that injured was fully conscious and signed his statement in his presence.
He also denied the suggestion that the signatures of injured were not available on the statement.
He also denied that statement of injured was forged one and got prepared on suggestions of relatives of the injured. He also conceded that injured remained alive for about 2 months after the occurrence. He was specifically asked the following questions:-- "Q. If you want, you can bring Magistrate to the hospital and record statement of the injured?
' Ans. I do not see any requirement of the same."
' He also admitted that identification parade of the accused was not got conducted because the witnesses knew the accused. He also clarified that the investigation was taken over temporarily by Muhammad Qasim, S.H.O. (P.W.9) which was mentioned in daily diary. He furnished a plausible justification for not associating the private witness in the following words:-- "It is correct that the house of accused is in Mohalla, where other shops and houses are situated. It is correct that we have not obtained any private witnesses for purpOse of recovery, said voluntarily at that time the men were not present in their houses rather ladies were there."
' He denied the suggestion that recovery was forged and thus only police personnel were cited as witnesses for it. He denied the suggestion of any tampering with record in the following words:-- "It is incorrect that the reason for which we make police personnels as witnesses is that whatever change do we like to do can be made by us, said voluntarily whatever record is prepared three copies of the same are prepared at the same time which are sent to the higher authorities immediately."
' He also refuted the suggestion that said pistol was given to him by the relatives of Rana Ejaz. He also denied that the house of accused was not visited for the purposes of recovery. He also denied the suggestion that the eyewitnesses were arranged one. Muhammad Yousaf (P.W.11) has deposed that he heard gunshot firing while sitting in his shop situated at Chowk of Quarry Road and he came out and saw that a person was lying down and they boarded the said person in a vehicle and few persons standing at the Chowk of Moti Ram Road told that person who caused injuries escaped. From the site. The learned District Attorney attempted to get him declared as hostile, but his request was turned own. As we have already mentioned that statement of a hostile witness cannot be brushed aside altogether. A close scrutiny of his brief statement would reveal about the occurrence of incident, infliction, of injuries, removal to hospital in a and d fleeing of offender towards Moti Ram Road. The above factual position as disclosed by Muhammad Yousaf (P.W.11) went unchallenged. The deposition of a hostile witness can be taken into consideration subject to corroboration and there is no rule of law that no importance should be attached to the statement of a hostile witness..It is, however, to be noted that he was not got declared hostile and as such, the importance can be given to his statement.
' Muhammad Amin (P.W.12) deposed that on 12-6-1993 he was present at Police Station Gawalmandi when he received information that Rana Ejaz has expired and his dead body was removed by his legal heirs. He alongwith Investigating Officer Rub Nawaz and S.H.O. Proceeded to the house of deceased situated at Shawak Shah Road, Quetta, where dead body was lying and since the nature of offence was changed, therefore, S.H.O. Deputed him for further investigation. He sent the dead body to Civil Hospital for purpose of post-mortem which was conducted on 13-6- 1993 and dead body was handed over to the legal heirs. The death certificate was obtained from Police Surgeon. He further deposed that parcel No,1 containing blood-stained earth and parcel No,3 containing clothes of deceaAed were sent for chemical examination. He further mentioned that T.T.
Pistol was taken into possession which was sealed in parcel by Investigating Officer, Rub Nawaz for examination purposes to be made from Karachi. He further deposed that relevant documents were handed over to S.H.O. For completion of challan (Exh.P.12/A) whereon he identified the signatures of S.H.O. He was subjected to cross-examination and he denied that parcels Nos.2 and 4 were not sent to Karachi for purposes of examination. Zahid Hussain (P.W.13) deposed that on 23-9-1993 Chemical 'Expert Report was received and incomplete challan.(Exh.P.13/A) was prepared on the same day duly signed by him. He further deposed that Chemical Expert Report is Exh.P.1/A annexed with the challan. He further deposed that on 20-10-1993 the Chemical Expert Report (Ballistic Expert Report) Exh.P.13/B (consisting of .2 pages) was also brought from Karachi regarding parcels Nos.2 and 4 and thereafter complete challan (Exh.P.13/C) duly signed by him was prepared. He was subjected to cross-examination wherein he clarified that report from Karachi (Exh.P.13/B) was brought by Farooq Jamil, A.S.-I. Farooq Jamil, A.S.-I. (P.W.14) has deposed that on 12-10-1993 he was sent to Karachi for bringing analysis report and case property (Parcels Nos.2 and 4) which was brought on 20-10-1993 and sealed Parcels Nos.2 and 4 alongwith sealed letter, were handed over to S.S.P., Quetta and entry was made in Roznamcha, copy whereof is produced as Exh.P.14/A, Exh.P.14/B and open letter was produced as Exh.P.14/C. He was subjected to cross-examination, but nothing beneficial could be extracted.
' He refuted the suggestion that Exh.P.12/B and Exh.P.14/C were forgedly prepared. It is worth while to mention here that prosecution was closed and statement of accused was recorded under section 342, Cr.P.C., and arguments were heard and the matter was fixed for judgment, when another application was moved by mother of deceased under section 540, Cr.P.C. For examining four witnesses namely Zikria Kasi, Aisar Asghar, Jamil Ahmed and Inayatullah. The said application was rejected by the learned trial Court, but subsequently it was accepted by this Court. Muhammad Zikria Kasi (P.W.15) has deposed that he found deceased lying injured at Quarry Road, Quetta, and shifted him to hospital in his, car and while they were on their way deceased informed him that he was injured by accused. Aisar Asghar (P.W.16) has deposed that he witnessed the incident and accused fired at deceased. Jamil Ahmed (P.W.17) and Innayatullah (P.W.18) had not supported the prosecution. The 4 affidavits sworn in and filed in the Court and in order to verify their authenticity, learned Court examined Mr. Zia-ud-Din Saggu, Advocate, and Notary Public, as Court-Witness who opined that the affidavit of Muhammad Zikria Kasi was genuine while the remaining affidavits were not genuine. We have very carefully examined the affidavits in the light of statement made by Mr. Zia-ud-Din Saggu, Advocate and we are, doubtful about the genuineness and authenticity of all the affidavits and as such, we have discarded the versions of Muhammad Zikria Kasi (P.W.15), Aisar Asghar (P.W.16), Jamil Ahmed (P.W.17) and Innayatullah (P.W.18). In such view of the matter their deposition hardly need any further examination or comments which were sworn after a lapse of considerable time.
6. We have carefully examined the respective contentions as adduced on behalf of convict/appellant and for State in the light of relevant provisions of law and record of the case. We have scrutinized the evidence as led by prosecution to substantiate the accusation and discussed at length with our comments in preceding paragraphs. We have also focussed our attention to the main defence plea that dying declaration being influenced .One as got recorded in presence of relatives cannot be relied upon and besides that the declarant died after about 2 months, and as such the dying declaration had absolutely lost its evidentiary value. The dying declaration was also attacked that it was not signed by declarent and the signatures were fake and forged. Before examining the said objection we have examined the relevant provisions of law in the light of principles already settled to see that up to how far it can be stretched in view of the language as implied in Article 46 of Qanun-e-Shahadat, 1984 which runs as follows:-- "46. Cases in which statement of relevant fact by person who is dead or cannot be found etc. Is relevant.--- Statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:--
(1) When it relates to cause of death.-- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether, the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
(2) A bare perusal of the said Article would indicate that there is no ambiguity in it and it is a combination of the following ingredients and the language as employed does not perthit to add, delete or insert anything new
(a) It relates to the cause of death.
(b) It includes the circumstances which resulted into death.
(c) It is relevant when the cause of declarant's death comes into question whatever may be the nature of proceedings irrespective of the fact whether such statement was made under the expectation of death or otherwise?
' The abovementioned ingredients were discussed by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned herein below:--
(i) There is no specified forum before whom such declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the Person by whom it was recorded should be examined.
(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence. .
(viii) Such declaration when proved by cogent evidence can be made a base for conviction.
8. Believing or disbelieving a witness is a question of merely 'ordinary human judgment'. Aids to formation of such judgment are not available in the case of a dying declaration. To accept such statement without considering '.Surrounding circumstances' is 'totally inconsistent with safe dispensation of justice' . Accepting such statements on considerations of opinion expressed in precedent cases regarding similar declaration, accompanied by words indicating reliance on ' some principle of law' held to be ' no less dangerous'; ' careful scrutiny, applied to all physical circumstances' appearing from evidence, only way of arriving at conclusion that the statement is ' worth of belief'. PLD 1965 SC 151. Examined the dying declaration keeping in view the abovementioned discussion and we are of the opinion that prosecution has proved it without any palpable doubt and as such, being a substantive piece of evidence it proves a sound base to award conviction. The deceased was attacked in broad daylight and as such the question of mistaken identity 'does not arise and besides that there is no plausible justification that why he should be falsely accusing the accused. The dying declaration may not require even independent corroboration when there is no reason for substitution of real culprit. 1981 SCMR 61. In this case we have no doubt in our minds that dying declaration was made by deceased which is also corroborated by surrounding circumstances coupled with recovery of pistol which was effected at the pointation of accused and it hardly makes any difference whether it was got recovered from which particular part of cupboard. Besides that medical report (Exh.P.1/A), Ballistic Expert Report (Exh.P.1/A), eye account circumstantial evidence, and motive also lend corroboration to it.
Occurrence of incident and removal of injured to hospital, has been corroborated by Muhammad Shafique (P.W.3) and Taj Muhammad (P.W.7) in an unambiguous manner. We may mention here that corroboration is required as a matter of caution and motive and medical evidence are held enough corroboration (D.B.) 1976 PCr.LJ 106. It is well-settled by now that sanctity is attached to dying declaration by the statute and it is to be respected unless clear circumstances are brought out showing it not to be reliable. There is no absolute rule that dying declaration cannot be made sole basis of conviction unless corroboration. (PLD 1977 SC 612) but on the contrary as mentioned above sufficient corroborative material is available to support the dying declaration. Admittedly dying declaration was signed by the deceased, but for the sake of arguments if it is admitted that the same was not got signed by the deceased no substantial change would be made. As signatures on dying declaration is not a legal requirement and its evidentiary value cannot be diminished on this account. Another important factor is that dying declaration was not recorded with promptitude and hence there is no possibility of any dishonest exaggeration or fabrication". A dying declaration made soon after the incident or. At a time when the deceased expected death or at a time by which the deceased could not have consulted others or received hints from others will, ordinarily, be deserving of great weight. Similarly, if the contents of the dying declaration indicate that what is alleged there is probably true, that no apparent attempt has been made to exaggerate the incident or to rope in false persons, it will ordinarily be considered to be a dying declaration worth reliance". (1970 PCr.LJ 373).
10. A thorough perusal of record would indicate that there is nothing to infer that the dying declaration was a result of consultation or tutoring. The details of alleged incident had been described in a simple and straightforward manner, which went to implicate the accused in the affairs being quite unambiguous and categorical in character and definitely indicating that firing was made by the accused and as such, no exception can be taken. What type of evidence is a dying declaration was discussed by Honorable Supreme Court and relevant portion whereof is reproduced herein below for ready reference:-- "Expressions like ' weaker type of evidence', as employed in some of the precedent cases to describe the evidentiary value of the dying declaration are likely to produce a misleading impression as to the quality of such evidence and the reliance which may be placed upon it in the particular circumstances of each case. It has to be remembered that the Legislature has advisedly, as a matter of sheer necessity, incorporated in section 32 an exception to the general rule that hearsay is no evidence. In the very nature of things the sanctity of oath and the test of cross- examination are not available to ascertain the veracity of a dying statement, but the nature of the statement itself and the circumstances under which It is made make probable the truth of the statement and thus take the place of oath and cross-examination. On first principles, the sanctity attached to such statements by the statute should be respected unless there are clear circumstances brought out in the evidence to show that a dying declaration is not reliable for any reason.
' It cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine. In order to test the reliability of a dying declaration, the Court has to keep in view the various circumstances like the opportunity of the dying man for observation, and whether the capacity of the deceased to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; whether the statement had been consistent throughout if he had made several dying declarations; and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. It also goes without saying that the exact contents of the dying statement should be proved by reliable evidence, and for this reason a dying statement recorded by a competent Magistrate in the proper manner in the words of the maker of the declaration would obviously carry greater weight than an oral statement which may suffer from all the infirmities of human memory and human character. If the Court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants, there is no need for further corroboration. But if it appears to be unreliable by itself, or suffers from some infirmity, then it cannot form the basis of a conviction without corroboration". PLD 1977 SC 612, Chanderasekar v. The King 1937 AC 220; re: Guruswamt v. Tevar AIR 1940 Mad. 196, Khushal Rao v. State of Bombay AIR 1958 SC 22, Taj Muhammad v. State PLD 1960 Lah.
723, Muhammad Khan v. State PLD 1961 Lah. 939, Abdul Raziq v. State PLD 1964 Pesh. 67, Tawaib Khan v. State PLD 1970 SC 13, Ekabbar Ali v. State 1971 PCr.LJ 275 ref. It
11. We are fully satisfied that dying declaration has been made by the deceased voluntarily without any probability of promptituting as to the cause of his death, and has been correctly reduced in writing by responsible Police Officer against whom no personal enmity has been alleged. We, therefore, see no reason to discard the dying declaration as made by Rana Ejaz, duly supported by corroboratory material as discussed above.
12. We have not been able to persuade ourselves to agree with the main contention as adduced on behalf of convict/appellant that the provisions as contained in section 103, Cr.P.C. Were not complied with strictly, and as such the alleged recovery of pistol hardly matters. Let we make it clear that in so far as section 103, Cr.P.C. Is concerned two respectable inhabitants of the locality are required to be joined when the search of a house and recovery is to be made. The rule is mandatory but not absolute and search can be conducted without taking such witnesses if there is no time available or the evidence is likely to be destroyed if search is delayed or suitable persons of the locality are not available. PLD 1987 SC 497 and 1987 SCMR 1177. The requirement as mentioned in section 103, Cr.P.C. Are mandatory but not absolute and its noncompliance in certain circumstances will not render search and recovery illegal. We want to make it clear here at this juncture that the provisions as contained in section 103, Cr.P.C. Are not applicable for production of property by an accused or other person where no search of a house was conducted. 1985 SCMR 854 and PLD 1976 Lah.
1444. We have to examine the peculiar circumstances at that G particular moment when after receiving a source report that accused was present in his house, police rushed immediately and arrested the accused. On whose pointation the pistol was got recovered and in that particular situation sufficient time was not available to call for or associate the private witnesses specially when the search of the house was dot intended. No motive whatsoever has been shown to falsely implicate the accused and there is nothing wrong to discredit the police officials by whom accused was arrested and recovery effected. No exception can be taken to evidence on record. It is worthwhile to mention here that the said pistol and alleged recovered cartridges were sent to Ballistic Expert, whose report is positive and no tampering whatsoever has been alleged and as .
Such minor delay for sending the case property to Karachi does not' render any assistance to defence. We have also focused our attention to the objection as raised by Mr. M. Zafar, Advocate that the version of police officials cannot be relied in absence of private witnesses and besides that a cousin and brother was also made recovery witness whose version should be discarded being relative of the deceased. In so far as the question as to whether the testimony of poker officials can be relied or not is well-settled by now and such testimony cannot be disbelieved merely because it was given by a police officials. (1986 SCMR 17, PLD 1984 SC 278 and 1986 SCMR 11). The relevant provisions as contained in Qanun-e-Shahadat, 1984 do not constitute a bar in this regard, and such evidence cannot be rejected for the reasons that he was in Police Department. It must be kept in view that disqualification of a Muslim as a witness is a punishment in itself and the same cannot be inflicted without proof of his incurring it (PLD 1987 FSC 22). In so far as the question of interested witnesses is concerned that is also well-settled and an interested witness is one who has a motive for falsely implicating an accused person (1992 MLD 407, PLD 1960 SC 387 and PLD 1962 SC 269). It is also to be noted that law does not require that the evidence of a witness who was related to deceased person should be corroborated by other independent evidence before the same can be accepted in all circumstances. No specific formula or generalization is possible in such like cases and each case has its own features and each witness has his own peculiarities, but the admitted reality is that close relative of deceased person would normally be most reluctant to spare the real culprit and involve an innocent person for no obvious reason. A careful scrutiny would indicate that no personal enmity was alleged against the police officials, hence their version can be relied upon and besides that inter se relationship is no ground to discard the statement of the prosecution witness. In the light of abovementioned discussion, we are, of the view that prosecution has established its case beyond shadow of doubt by producing unimpeachable evidence in shape of eye account, dying declaration, recovery of crime weapon, report of Ballistic Expert, circumstantial evidence, and motive, and as such there is no reason to interfere in the impugned judgment, dated 21-6-1995 whereby life imprisonment was awarded to accused which is called for on the basis of overwhelming incriminating material as discussed above and resultantly the same shall remain intact with benefit of section.382-B, Cr.P.C. We are, however, not inclined to enhance the conviction and sentence of life imprisonment to that of death as prayed for in Criminal Revision No,69 of 1995 keeping in view the mitigating circumstances such as matrimonial dispute existing in-between sister of convict/appellant and that of deceased which is sufficient to create mitigating circumstances benefit whereof has been given by the learned trial Court. The Criminal Appeal No,159 of 1995 whereby convict/appellant was convicted under section 13-E of Arms Ordinance, 1965 to undergo 7 years' R.I. Is accepted and the case is remanded back to appropriate forum for the reasons that section 29 of Criminal Procedure Code read with section 14-A of the West Pakistan Arms Ordinance, whereby specific, forum has been provided, the trial and conviction passed by the learned Additional Sessions Judge-I, Quetta, cannot be sustained being unlawful and illegal. The case registered under section 13-E of Arms Ordinance, 1965, be sent to learned Sessions Judge, Quetta, for onward transmission to a Magistrate of competent jurisdiction for trial.