1. ' MUKHTAR AHMED JUNEJO, J.---Appellant Muhammad Ashraf Khan Tareen has filed Criminal Appeal No,43 of 1995 with leave of this Court against the judgment dated 26-9-1994 by which his conviction for the offences punishable under sections 302 and 449 of P.P.C. Was maintained with modification in the sentence; while the State has filed Criminal Appeal No,44 of 1995 with leave of this Court against the same judgment challenging modification of the sentence and for conversion of the sentence of imprisonment to death penalty. Both the appeals will be disposed of by this judgment.
2. ' Appellant Muhammad Ashraf Khan Tareen was tried in the Court of Additional Sessions Judge, Haripur Camp at Abbottabad for having committed murder of Mazhar Sher Khan, the then D.I.-G.
3. Abbottabad and Raja Amanullah Khan on 16-2-1989 at 9-10 p.m. At official bungalow of the D.I.-G.
4. Abbottabad. Case against him was registered on report lodged on 16-2-1989 at 9-30 p.m. By complainant Taus Khan, Orderly to the D.1.-G. Abbottabad. According to the report, on 16-2-1989 at 9-10 p.m. Deceased Mazhar Sher Khan, the then D.I.-G. Abbottabad, was watching television in his bungalow, when Muhammad Ilyas, Telephone Moharar, informed him that appellant Muhammad Ashraf Khan and deceased Raja Amanulah Khan had come to meet him. The visitors, under the instructions of deceased Mazhar Sher Khan, were made to sit in a small room adjacent to the drawing room, where he went to meet them. He had not yet taken his seat, when he was abused by the two visitors out of whom Muhammad Ashraf Khan fired at him with a "Tamacha" at the behest of Raja Amanullah Khan. H.C. Taus Khan claimed 'o have made efforts to catch hold of Muhammad Ashraf Khan but Raja Amanullah Khan moved towards him.
5. ' Muhammad Ashraf Khan fired another shot, which hit his associate Raja Amanullah Khan. In the meanwhile P.W. Muhammad Saleem, another Orderly of D.I.-G., came there but the two intruders viz. Muhammad Ashraf Khan and Raja Amanullah Khan made good their escape and left by a waiting car. Injured Mazhar Sher Khan, D.I.-G. Was taken in his car by his wife Mst. Yasmin and his Orderly Taus Khan to the District Headquarters Hospital, Abbottabad (hereinafter mentioned as the hospital). En route to the hospital, injured Mazhar Sher Khan named appellant Muhammad Ashraf Khan to be his assailant. He repeated this in the hospital before S.S.P. Faiz Khan.
6. ' S.H.O.Sadiq Hussain of Cantonment Police Station, Abbottabad on knowing about the incident at 9-20 p.m. From "Moharar" telephone, rushed to the D.I.-G.'s bungalow and recorded Murasla (report) of Taus Khan. On the basis of such report, the case was registered and the investigation was commenced. Part of the investigation was done by the S.H.O. Who saw injuries on person of Mazhar Sher Khan and Raja Amanullah Khan and arrested appellant Muhammad Ashraf Khan produced before him by H.C. Younas Khan and recovered a revolver of .38 bore marked P-12 having emitting smell and loaded with five empties marked P-13 and one live bullet/cartridge marked P-14, produced by the same H.C. Such memo Exh. P.W.12/1 was prepared. H.C. Younas Khan was earlier handed over custody of the appellant and said articles by S.S.P. Faiz Khan. The S.H.O. Also secured and sealed blood-stained clothes with cut marks, of deceased Mazhar Sher Khan under memo.
7. P.W.9/1. During spot inspection the SHO secured and sealed a spent bullet marked P-12/A under memo. Exh.P.W.14/2. With death of Mazhar Sher Khan having taken place on 17-2-1989 at 3-30 a.m., autopsy of his dead body was conducted on same date at 9-30 a.m. By Dr. Shahr Yar, who extracted from the body contents of a live bullet. He also examined injuries on person of Raja Amanullah, who died in P.I.M.S. Islamabad on 24-4-1989. Dr. Azmat Humayoon who performed autopsy on dead body of Raja Amanullah Khan extracted from it a spent bullet marked Exh.P-4, scaured from him by Inspector Abdul Mannan P.W.8 vide memo. P.W.8/1. In the hospital on 16-2- 1989 the appellant allegedly shouted that firstly the bullet be removed from the body of Raja Amanullah Khan. The appellant allegedly swore that he had shot at the D.I.-G. During a Nakabandi held on 16-2-1989 Police ASI Ghulam Hussain detained a motor-car No,ADA-.106 registered in name of appellant Muhammad Ashraf Khan and secured from the car inter alia a licence marked Exh. P- 21 of a pistol in name of the appellant. The revolver P-12 recovered from the appellant with its empties P-13 and live round P-14 and a spent bullet Exh. P-12/A secured from the spot and a spent bullet recovered from dead body of deceased Mazhar Sher Khan and another spent bullet marked P-4 extracted from dead body of Amanullah, were sent to the fire-arms expert. The expert gave opinion that the five crime empties P-13 were fired from the revolver P-12 vide report Exh.14/6, and so also the crime bullet B-3 (viz P-4) vide report Exh.14/9. The blood-stained clothes and articles contained human blood vide reports Exh.P.W.14/7 and Exh.P.W.14/8 of Forensic Science Laboratory, Peshawar. On completion of investigation appellant Muhammad Ashraf Khan was sent up in Court for trial.
8. ' At his trial the appellant pleaded not guilty to the charge. The prosecution examined a good number of witnesses, including witnesses Taus Khan P.W.13 and Mst. Yasmin P.W.3. In his statement recorded under section 342 of Cr.P.C., appellant Muhammad Ashraf Khan denied the prosecution allegations but admitted that Raja Amanullah Khan was his brother-in-law and close friend. He alleged that the evidence about firing at Raja Amanullah Khan by Mazhar Sher Khan was suppressed. In respect of the dying declaration, appellant Muhammad Ashraf Khan said that deceased Mazhar Sher Khan was educated and had he been alive he would have written a statement under his signature. Rest of the allegations were denied. Appellant Muhammad Ashraf Khan added that the main witnesses were police officers and that one of the witnesses was wife of the deceased and another was servant of the deceased. The appellant complained that the witness who conducted bulk of the investigation and submitted the chaffan, had been withheld by the prosecution to damage his case. Appellant Muhammad Ashraf Khan added that he had been falsely charged on account of his close relationship with Raja Amanullah Khan. He alleged that deceased Mazhar- Sher Khan was temperamentally arrogant and ill-reputed person and that his death occurredtue to negligence of the doctors who attended to him According to appellant Muhammad Ashraf Khan, as a senior police officer was involved in this case, hence the entire police force reacted over-zealously and changed the time, manner and venue of the occurrence.
9. The appellant did not wish to be examined under section 340(2) of Cr.P.C. And did not lead any defence.
10. ' Under a judgment dated 6-10-1991, the learned Trial Court convicted appellant Muhammad Ashraf Khan for the offence punishable under section 302 of P.P.C. In respect of murder of Mazhar Sher Khan and sentenced him to death and to pay fine of Rs,50,000 or in default to suffer two years' R.I.
11. The appellant was also found guilty of having murdered Raja Amanullah Khan and on that score too, he was convicted under section 301 read with section 320 of P.P.C. And was sentenced to suffer imprisonment for life and to pay fine of Rs,25,000 or to suffer further sentence of one year. The appellant was also convicted for the offence punishable under section 449 of P.P.C. And was sentenced to suffer R.I. For five years and to pay fine of Rs,5,000 or to suffer further R.I. For six months. The fine was ordered to be paid to the L.Rs, of the deceased. Appellant Muhammad Ashraf Khan filed Criminal Appeal No,39 of 1991 in the High Court at Peshawar challenging his conviction and sentence. Under the impugned judgment, the High Court maintained the conviction of appellant Muhammad Ashraf Khan but altered his sentence. Sentence of death was converted to sentence of life imprisonment but the amount of fine was enhanced from Rs,50,000 to Rs,1,00,000 for murder of Mazhar Sher Khan and in default of payment of fine the appellant was to suffer further R.I. For four years. He was also ordered to pay compensation of Rs,1,00,000 for murder of Mazhar Sher Khan or to, suffer imprisonment for six months. The substantive sentences on all the three counts were to run concurrently. The amount of fine and the amount of compensation were ordered to be paid to the legal heirs of deceased Mazhar Sher Khan. Appellant Muhammad Ashraf Khan challenged his conviction and sentence in his Appeal No,43 of 1995 while in Appeal No,44 of 1995 the State has sought restoration of the sentence awarded by the Trial Court.
12. ' Mr. Raja Muhammad Anwar, learned counsel for the appellant argued, that the incident had not taken place at the place, where it is said to have taken place, because no blood was found at that place and no blood was detected in the car, which carried deceased Mazhar Sher Khan from his residence to the hospital. In reply Mr. Kowhai Iqbal, learned counsel for the other side rightly argued that the incident occurred during the winter season at night at a hill station, namely, Abbottabad, where mercury drops and consequently deceased Mazhar Sher Khan like other persons must be wearing woolen clothes and his warm sweater was specially seen and such clothes absorb the blood that comes out of the body. In such circumstances the blood would not fall on the ground or inside the car, as further argued. The explanation for absence of the blood appears plausible. Mr. Raja further argued that according to deposition of Mst. Yasmin, she had accompanied her husband to the hospital, where her husband was taken to the emergency room, but S.H.O. Sadiq Hussain did not state if he saw Mst. Yasmin in the hospital. Omission by the S.H.O. To see Mst.
13. Yasmin in the hospital is not so material as the lady may be running after the doctors. It was next argued that D.S.P. Gulzar recorded statement of Mst. Yasmin on 17-24989 although he was given investigation on 19-2-1989. Mr. Kowhai Iqbal replied that there appeared to be mistake of the date on which said lady was examined. In her deposition Mst. Yasmin did not state, as to, on what date police examined her. In her cross-examination it was not suggested to her if she was examined on a particular date. The point raised therefore has not been substantiated. In respect of dying declaration said to have been made by deceased Mazhar Sher Khan in presenge of his wife Mst.
14. Yasmin and in presence of S.S.P. Faiz Khan P.W.4, it was argued by learned counsel for the appellant that in view of the nature of injuries sustained by Mazhar Sher Khan he could not be in a position to speak, much less to make dying declaration. Mst. Yasmin P.W.3 deposed that en route to the hospital she asked Mazhar Sher Khan as to who had shot at him and he named twice Ashraf and he replied in the negative when questioned if Raja Amanullah Khan had fired at him. S.S.P. Faiz Khan P.W.4 stated .That on learning about the incident from the telephone operator he was going to D.I.G.
15. House, when on the way he met S.H.O. Cant who told him that the D.I.-G. Had been taken to the hospital., S.S.P. Faiz Khan added that he went to the hospital where the D.I.-G. Was lying injured in the casualty, with his wife standing near his bed. That Muhammad Ashraf Khan appellant was also in room of the casualty. Faiz Khan further stated that the D.I.-G. On seeing him, pointed out at Muhammad Ashraf Khan and said that he was the person who shot at him. S.S.P Faiz Khan claimed to have caught Ashraf Khan then and there. SSP Faiz Khan was subjected to a lengthy cross- examination but he has not said anything which can affect veracity of his evidence. Mst. Yasmin P.W.3 was also subjected to cross-examination. It was not suggested to the lady that her husband was not in a position to speak. The defence put suggestion to Mst. Yasmin, that appellant Muhammad Ashraf Khan while in the hospital told Dr. Khurshid, to treat Raja Amanullah Khan first.
16. Deceased Mazhar Sher Khan was examined by Dr. Shahr Yar P.W.1, who was on duty in Casualty Department of District Headquarters Hospital, Abbottabad on 16-2-1989 at 9-30 p.m. This witness found one entry wound and one exit wound, which appeared to him to have been caused by a fire- arm. He produced Medico-Legal Report Exh.P.W.1/1. It was at 3-30 a.m. On 17-2-1989 that Mazhar Sher Khan succumbed to his injuries, as per Dr. Shahr Yar. One bullet was recovered from the dead body of Mazhar Sher Khan and it was handed over to the SHO, as per Dr. Shahr Yar. In his cross- examination Dr. Shahr Yar stated that spinal cord of Mazhar Sher Khan was not injured and if the same had been injured he would have gone into coma. He added that even the larynx and trachea of Mazhar Sher Khan were intact. In his lengthy cross-examination, Dr. Shahr Yar was made by the defence to say that Mazhar Sher Khan could speak at the time of the examination despite the volume of shock he received. He also stated that the level of consciousness will fall with the passage of time. In this situation, one cannot agree with the contention that Mazhar Sher Khan could not have spoken on his way to the hospital and soon after reaching the hospital.
17. ' Learned counsel for the appellant further argued that D.S.P. Gulzar examined Raja Amanullah Khan on 5-3-1989 but copy of such statement was not supplied to the appellant and hence the trial was vitiated. This argument is not valid, as Raja Amanullah Khan was not cited as a prosecution witness against the appellant and consequently the case of Ghulam Muhammad v. State (1985 SCM R 1442) cited on behalf of the appellant has no application.
18. ' It was further argued that house of the D.1.-G. Was escorted by armed guard and that even surrounding bungalows of various officers had police escort and in such situation the assailants could not have escaped. It is to be borne in mind that the appellant and deceased Raja Amanullah Khan were regular visitors of Mazhar Sher Khan. P.W.13 Taus Khan, Orderly of Mazhar Sher Khan, stated in cross-examination that during the preceding five years Raja Amanullah Khan had been visiting Mazhar Sher Khan after intervals. S.S.P. Faiz Khan P.W.4 said in. Cross-examination that he knew Raja Amanullah Khan and the appellant personally before the incident. That Raja Amanullah Khan had remained Speaker and Provincial Minister while the appellant belongs to family of Field Martial Muhammad Ayub Khan and was a politician. He admitted that he had the occasion to visit house of the appellant in company of one Ex-Chief Minister of N.-W.F.P. Fact that Mazhar Sher Khan, in spite of not liking visit of the appellant and Raja Amanullah Khan at an odd time, directed both of them to be seated in a room adjacent to the drawing room, shows that he was considering both of them to be close to him. In this situation the police escort at the outer gate of D.I.-G. Bungalow could not have stopped the appellant and Raja Amanullah Khan from leaving the premises, before being informed that the appellant had fired at the D.I.-G. The police escort at the gate of DIG's bungalow could not have even suspected firing at the D.I.-G., if they had, heard noise of two shots.
19. Mst. Yasmin, who was inside the bungalow and at a shorter distance from the place of incident, on hearing of the firing shot, thought that probably it was because of short-circuit. If Mst. Yasmin could not suspect foul-play, how the policemen escorting the bungalow could have even a notion about the D.I.G. Being targeted. The police escort at other bungalows in the vicinity had no business to stop anybody leaving bungalow of the D.I.-G.
20. ' It was also argued that hands of the appellant were not stained with blood and hence it was falsely stated by Mst. Yasmin that the appellant tried to stangulate her husband in the hospital. It has not come in evidence that neck of deceased Mazhar Sher Khan was stained with blood and hence the argument fails. It was further argued that although the Deputy Commissioner and the Commissioner of the area were present in the hospital, but dying declaration of deceased Mazhar Sher Khan was not recorded by anybody. Dr. Shahr Yar had already said that consciousness of a person in such a situation gets reduced with the passage of time. The dying declaration was said to have been made by Mazhar Sher Khan immediately after the incident when he was being taken to the hospital in a car. Second time he made the dying declaration on seeing S.S.P. Faiz Khan. At that time consciousness of Mazhar Sher Khan may be better than at the time when he was visited by the Deputy Commissioner and the Commissioner. In any case, non-recording of the dying declaration does not give fatal blow to the prosecution case. A dying declaration can be oral.
21. Learned counsel for the appellant next argued that complainant Taos Khan had not seen the incident because he could not give seat of the injuries. Taos Khan had been subjected to a very lengthy cross-examination, but his evidence has not been shaken and there is no reason to brush aside his evidence. He is the sole eyewitness who saw the appellant firing at Mazhar Sher Khan.
22. Taus Khan deposed that Raja Amanullah Khan came forward to stop him from catching hold of appellant and in the meantime the appellant fired another shot, which hit Raja Amanullah Khan. In his cross-examination the defence put a suggestion to Taus Khan that the occurrence took place in his presence alone and he replied in the affirmative. After having made such suggestion to Taus Khan, the defense cannot turn around and say that he was not present at the scene of incident.
23. ' Learned counsel for the appellant argued that there was no blood in the TV lounge where deceased Mazhar Sher Khan was taken after the incident by Taus Khan and that even clothes of Mst. Yasmin were not smeared with blood. Explanation for this has already been given in the impugned judgment as mentioned above and we have no reason to take a view different from the one taken by the High Court. It was further argued on behalf of the appellant, that S.S.P. Faiz Khan came to the hospital, yet he did not follow Police Rule 25.21 by recording statement of the injured. In this respect learned counsel cited the case of Tawaib Khan and another v. The State (PLD 1970 Supreme Court 13), where it was held that dying declarations have a degree of sanctity under the law, being the statement of a dying man on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charge. In the same case it was further observed that in the matter of administration of criminal justice, taking in view the present state of our society, the assessm ent of evidence is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In cited case it was not held that there cannot be oral dying declaration. Non-recording of dying declaration of Mazhar Sher Khan has already been explained. It was further argued that the revolver recovered from the appellant was loaded with five empties and one live cartridge and since two shots were fired, hence the evidence of recovery is inconsistent with the ocular evidence. There is nothing in evidence that the revolver in question contained all the five bullets live, At the time of recovery it contained five empties and there is a possibility of 2/3 bullets/cartridges having been used elsewhere, before the appellant carried said revolver to D.I.-G. House. There is no inconsistency as suggested.
24. ' Learned counsel for the appellant further argued that as per first report No,147 of Cant. Police Station, the appellant fired with a weapon mentioned as "Attache" while the weapon recovered from the appellant was .38 bore revolver as per S.S.P. Faiz Khan P.W.4, Driver Muhammad Younas P.W.12, S.H.O. Sadiq Hussain P.W.14 and recovery memo. Exh. P.W.12/1. In reply learned counsel for the complainant/ State argued that miss-description of a weapon of offence is not material. He cited the case of Muhammad Gull v. The State (1970 SCM R 797) where the weapon allegedly used in commission of the offence was described in the F.I.R. As "Bandon" while during the trial it was shown as gun and it was held that word "Bandon" can be used both for gun and a rifle. Similarly in this case the work "Hamachi" can be used for "revolver".
25. Learned counsel for the appellant wanted this Court to consider certain newspaper cuttings about the incident. The newspaper cuttings have not been properly proved in the way required by law of evidence. Particularly in a criminal case such cuttings cannot be used either in favor of the prosecution or in favor of the defense, unless author of the same is examined in Court as a witness.
26. The case of Ghulam Muhammad v. The State (1985 SCM R 1442) cited on behalf of the appellant has no relevance.
27. ' Summing up, it may be mentioned that besides ocular evidence of Taus Khan, there is evidence of dying declaration brought on record through Mst. Yastnin and S.S.P. Faiz Khan and there is evidence of recovery. In his statement Exh. No,47, the appellant denied the incident but did not give his explanation rise about the circumstances appearing against him. In his statement the appellant did not even refer to the newspaper reports. Overwhelming prosecution evidence cannot be brushed aside simply on the basis of denial of the allegations by the appellant. In our view the appellant was rightly found guilty of the offences alleged against him and he was rightly convicted.
28. ' In respect of sentence, learned counsel for to complainant/State wanted conversion of the life imprisonment into death sentence. Learned counsel cited case of Iftikhar Ahmad v. The State. (PLD 1990 Supreme Court 820) where criminal petition by the complainant challenging reduction of sentence by the High Court, was dismissed by this Court on the ground that the principle of origin of offence remained shrouded in mystery. This authority does not further prayer of the complainant for awarding death penalty to the appellant. In the present case prosecution did not allege any specific motive for commission of the offence. In the circumstances, the appellant could not have been awarded the death penalty.
29. ' For the foregoing reasons, we dismiss both the appeals.