ORDER MUHAMMAD JAVAID BUTTER, J.- The petitioner Zahid Mansoor is seeking post-arrest bail in case FIR No. 47, dated 20-5-1994 registered at Police Station Head Marala, Sialkot for the offence u/s. 392 PPC at the instance of Irshad Ahmad, for an occurrence of the previous night wherein it was alleged that the petitioner alongwith his co-accused who were later on identified as Zulfiqar Ahmad and Shahid Mahfooz while being armed with Kalashinkov, rifle and pistol, forcibly Stached away cash from the complainant and his companions.
2. The petitioner was declared as a proclaimed offencder, his co-accused were tried and acquitted u/s. 249-A Cr J*.C. By the Magistrate 1st Class, Sialkot on 10.55 a.m. At Hospital Road opposite Police Station Kehuta and sent the report to the Police Station Kehuta and sent the report to the Police Station for formal registration of the FIR which was recorded by Muhammad Zamir ASI/PW. 8, Ex. PC/1. In the FIR. The occurrence to have been taken place allegedly as follows: Prosecution story' according to the statement Ex. PC made to the Investigating Officer by Muhammad Taj, the complainant (PW. 3) is that on 21.10.1990. His brother Muhammad Nawaz (deceased) alongwith his brother's wife (Bhabhi) Mst. Razia Sultana wife of .Muhammad Riaz w;ent to the house of Muhammad Maroof resident of Dhoke Kehna Dakhli Maira to inquire about the health of his ailing son. On seeing them there Akhtar son of Jilal (accused) shouted a lalkara that Muhammad Nawaz has come and he be done to death in the meantime, Khalid. Riaz and Muhammad Sharif (accused) came there armed with 12 bore guns. Soon after coming there Muhammad Sharif accused fired a shot hitting Muhammad Nawaz in front of the abdomen. Then Muhammad Riaz fired w ith his gun and the pellets hit Muhammad Nawaz on the left arm and the left thing. Mst. Razia Sultana stepped forward for weaning Muhammad Nawaz while making entreaties, when Khalid accused fired at her hitting on her left had and the left thigh. The cure and cry attached Ghanzanfar Khan (PW.* 5) and Muhammad Riaz son of Bagh Ali (given up PW), who witnessed the occurrence.
4. Dr. Ehtashma-ul-Qamar PW. 11 examined Muhammad*Navvaz, injured aged 55 years on 21.10.1990 and found the following injuries;
(1) Lacerated wound over left index finger, h2 x 1 inch.
(2) Lacerated wound over left fore-arm anteriorly near elbow; 0.2 x 0.5 inches.
(3) Lacerated round wound, 1 inch below umbilicus, 0.3.x 0.5 inches.
(4) Lacerated round wound, 3 inches below umbilicus, left laterally, 0.3 x 0.4 inches.
(5) Lacerated round wound left laterally on the head of penus
0. 2 x 0.5 inches.
() Lacerated round wound on the left scrotum.
(7) Lacerated wound 0.2 x 0.4 inches over right thigh near scrotum.
(8) Lacerated wound over left thigh interiorly, 2 inches above the knee joint, 0.2 z 0.5 inches.
(9) Cloatted blood around the left ear.
4 ' \ The injured Muhammad Nawaz subsequently died on 7.11.1990 at 1. Pun., PW. 7 conducted the post- mortem examination of the dead body of deceased and found the following injuries:-
(1) A fire arm lacerated wound half and one inch on^eft index! Finger.
(2) A lacerated wound 2 z 5 inch on loft fore-arm anteriorly ' dose to the left elbow joint
(3) A lacerated'Wound 5 z 4 inches, about one inch below the umbilicus about to inches from mid line plane on right side.
(4) A lacerated fire arm wound about 4 x 5 inches, about three inches below the umbilicus on left side of abdomen.
(5) A kid line incision operation from epigastarum upto hypogastrium, about six inches long. The wound of lapratomy is gaping with dehiscence
(6) There are tow oVal opening in right and left elliace fossa.
(7) A fire arm wound 2 z 5 inches on head of penis on left side.
(8) A fire arm lacerated wound 2 z 1 inches on left scrotum.
(9) A fire arm wound 3 z 5 inches on right thigh.
(10) A lacerated fire arm wound about 3 z 5 Laches on left thigh about to inches above the knee joint.
OPINION.
In his opinion cause of death is iqjuries No. 3 & 4. By these iqjuries there were multiple perforations in the jejunum and ileum and sighmoid colon with perforations causing permit on it is and cardiorespiratory arrest and death. Time between iqjuries and death first MLR on 211st of October, 1990 and post-mortem on 7th of Ncvembei, 1 90. Time between death and post-mortem is 3 to 4 hours. Injuries No. 3 and 4 are fire arms iqjuries.
[Vol. XYII #tbs Cr.C. 379 #to Dr. Ehtasham-ul-Qamar PW. 11 also medically examined Mst. Razia Sultana aged 30 years on 21.10.1990 at 10 a.m. And found the following injuries:
(1) Lacerated round wound on the middle of left had both anteriorly and posteriorly.
(2) Lacerated round wound over left thigh laterally and 4 inches from anterior-superior eliac spine.
(3) Lacerated round wound over left thigh anteriorly to inches from anterior-superior eliac spine.
5. The prosecution's alleged motive of occurrence behind the incident is that on the same morning the complainant and Muhammad Arif etc. Had a quarrel over the grazing of cattle in the crop but the people intervened and set them apart The complainant was returning home from the fields and was near Dhoke Kehna and was attracted to the place of occurrence by the noise and witnessed the occurrence. That the accused persons has launched a murderous assault on his brother Muhammad" Nawaz and brother's wife (Bhahhi+Bhaijai) for the said grievance.
6. The blood stained earth was taken into possession from the spot Exh. PD which was attested by Ghazanfar Khan PW. 5, Muhammad Razzaq Si./PW, 10 and Muhammad Raza was given up. It is pertinent to mention here that the report of the Chemical Examiner and Srologist were found positive. All the four appellants/convids werd'arrested'by R&ja.Muhammad /Banaris, Inspector/PW.
15. Gun P.I was taken into possession on the pointation of Muhammad Sharif/eonvict from his residential house opt 14.11.1990 which was attested by Muhammad Iftikiiar/PW. 1, itsjg Muhammad Bariaris, Inspector/PW. 15 and Muhammafd Ayubqyas given up as unnecessary.
Brother of the deceased, Razia Sultana/PW, .4 (Bhabhi) brother's wife; Ghazanfar Khan/PW. 5 brother-in-law 1st cousin and Muhammad Riaz brother of the deceased was given up. While the appellants under Section 342 Cr.P.C, controverted the allegations and pleaded themselves absolutely innocent in the matter and also produced to witnesses, Ghufran Ahmed/DW. 1 and Ikram Ullah Niazi/BW. 2 to prove that Khalid Mahmcted-convicfc was admitted in the Hospital w.e.f. 1.1.1988 upto 28.6.1993.
8. The senior learned counsel appearing on behalf of appellants argued as follows: w
(i) The prosecution only produced four eye-witnesses who were interested and inimical witnesses and their statement need independent corroboration. There is no independent corroboratiqn in the present case, therefore, sentence awarded to the appellants is not sustainable in the eyes of law.
(ii) The presence of the eye-witnesses at the spot is not natural as all the eye-witnesses belong to Dhoke Khawia whereas the incident took place in Dhoke Iya.
(iii) The F.I.R, was recorded after preliminary investigation and this fact is fully established vide Memo. Exh. PC, statement of PW 3, which was recorded on Hospital Road opposite to the P ace Station Kehuta.
(iv) Mdical evidence r m the eye-witnesses contradicts each othf iherefore sentence awarded to the appellants is not.Sustain hie in the eyes of law.
Re1' aig the story of prosecution in totality for sake of * arguments then incident took place on account of grave and ttudden provocation.
Fvi) The iGuv'f as alleged by the prosecution was not proved on the record.
(vii) Khalid Mahmood convict/appellant had taken the plea of alibi that on the day and at the time of occurrence, he was remitted in Civil Hospital, Taxila, and it was duly proved by the findings of Sub Inspector Muhammad Razzaq PW-10 and Raja Muhammad Banaras Inspector PW-15 who declared him as innocent. As no injury sustained by the deceased during the occurrence had been attributed to Khalid Mahmood appellant.
(viii) Dr. Sajid Hassan Raja PW-7 admitted in his cross- examination that the injuries on the person of the deceased was possible by a single 12-bore shot containing several pellets.
(ix) The place of Muhammad Akhtar appellant was not shown in the site-plan which created a doubt on the story of the prosecution. .(x) The motive alleged against Muhammad Taj PW who insulted the wife of Muhammad Sharif convict/appellant and admittedly there was no enmity existed between the deceased Muhammad Nawaz and the * convicts/ appellants. Therefore, they could have inflicted injuries or murdered Muhammad Taj. This fact alone is sufficient to creat a doubt in the story of the prosecution.
(xi) The cou,."''Wappellants were granted bail by the learned Sessions Judge, but the learned trial Court considered their absconcion as a corroborative piece of evidence which could not be considered as absconcion as there was no proceedings initiated against them, under sections' 87 and 88 Cr.P.C.
(xii) The deceased as well as Mst. Razia Sultana PW-4 were examined first in the Hospital and after obtaining the medico-legal reports, Muhammad Taj PW-3 gave ids statement to Muhammad Razzaq S.I. PW-10, therein e, the medical evidence could not provide corroboration in these circumstances.
(xiii) That the dying declaration of the deceased was not recorded in accordance with law laid down by the superior Courts and it was not properly proved on the record and "the photostat copy was provided to the convicts/appellants at the time of recording the evidence of Muhammad Razzaq, S.I. PW-10, therefore, no reliance can be placed on dying declaration.
(xiv) The dying declaration was recorded without obtaining a certificate from the Doctor, as to whether the deceased was fit to make a statement or not and even otherwise the dying declaration was recorded in presence of other interested witnesses.
(xv) The recovery of guns from the convicts/appellants have no relevancy as the empty cartridges were not recovered from the spot. The convicts/appellants set up a defence version which was plausible keeping in view all the circumstances in juxta-position i.e. The prosecution version and the defence version then it is crystal clear that the defence version is valid and based on commonsense.
9. Kh. Muhammad Fayyaz Ahmad, learned counsel for the cdmplainant supported the judgment of the learned trial Court on each and every point and argued as follows:-
(i) The presence of eye-witnesses at the spot is natural and their statements are consistent and corroborated with each other.
(ii) The F.I.R, was promptly lodged with specific roles of the convicts/appellants. f
(iii) The defence version is not believable as Mst. Razia Sultana PW-4 and the deceased have ho enmity against the appellants.
(iv) The presence of Mst. Razia Sultana PW-4 and the deceased being injured in the occurrence provided sufficient cause . Regarding their presence at the spot
(v) The dying declaration was recorded in accordance with law which is corroborated on each and every material point with the first information report and the statement of Mst. Razia Sultana PW 4.
(vi) Four eye-witnesses were produced. Mst. Shakira was the nearest relation of the deceased, therefore, it was not necessary for the prosecution to produce all the witnesses, as such no adverse presumption could be taken against the prosecution. ' st
(vii) The occurrence took place in a braod day light, therefore, the prosecution sufficiently est."\~hed the guilt of the appellants, as such, capital punishment should be awarded to them.
10. Learned counsel for the State also adopted the arguments of the learned counsel for the complainant and supported the impugned judgment of the learned trial Court * ?
11. I have'given my anxious consideration to-the contentions raised by the learned counsel for the parties and perused the record with their assistance. It I an admitted fact that Mst. Sultana PW-4 was injured during the occurrence, therefore, his presence at the spot was natural and satisfactorily accounted for. She was cross-examined by the learned defence counsel at length, but he failed to bring out any contradictions in her statement She also narrated the motive. No doubt, that Muhammad Nawaz , deceased was her maternal-uncle and also the real brother of her husband. But she categorically stated in her cross-examination that it is correct that none of the accused had any enmity with her. Therefore, mere relationship with the deceased is not sufficient to disbelieve the statement of Mst. Razia Sultana PW-4. She narrated the incident in a very straight forward manner and inspires full confidence, therefore, it is sufficient to believe her statement and to connect or prove the guflt of the present appellants. The principle of corroboration qua such type of witness is not required because she has no enmity against the convict/appellants. The statement of PW-4 was duly corroborated by other to witnesses namely Muhammad Tqj PW-3 and Ghazanffar Khan PW-5 on each and every point in spite of lengthy cross-examination by the learned defence counsel, but their statements are consistent There was no contradictions qua their statements. Muhammad Taj PW-3 admitted in his cross-examination that he had enmity with the accused even prior to the day of occurrence, therefore, his statement needs independent corroboration. Even if for the sake of argument, his statement is not considered even then the statements of PW-4 and PW-5 are sufficient to establish the case of the prosecution beyond any shadow of doubt Learned defence counsel emphasized much that the dying declaration was not recorded properly and in fact It is verbatim copy of statement of Muhammad Taj PW-3 before Muhammad Razzaq PW-10. It was not properly brought on record during the re-examination of PW-10, therefore, it could not be considered as corroborative piece of evidence. On the basis of law, Quetta High Court laid down the principle , regarding recording of dying declaration in a case reported as Kashif-ur- Rehman and others versus The State (1996 P.Cr.L.J. 1689). The relevant observation from the judgment is re-produced hereunder:- The above-mentioned ingredients were discusSbd by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned hereinbelow:-
(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 mailer.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should he 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."
12. Keeping in view the abbve principle, it is established on the record that the dying declaration was recorded and even if it was not considered as dying declaration then it is a statement under section 161 Cr.P.C, which corroborates the statement of PW~-4.As mentioned above, the statement of PW-4 independently sufficient to establish the guilt against the appellants. Learned defence counsel has laboured much that the motive set up by the prosecution was not established oh the record and in fact introduced an additional motive to involve the present appellants. There is consistent and persistent evidence available on record that it was the appellants who launched an attack and inflicted successive injuries to the deceased. The evidence qua their part in the occurrence in flawless and 'believable, as such, it was not essential in this case that a direct motive should have been available to them also. It is true that there is dear evidence as to what was the immediate cause for the appellants for firing upon the deceased, but the law is that if ocular evidence of such quality existed which was sufficient by itself to establish the guilt of the offender, the liability to punishment for the offence committed by him is not effected by uncertainty with regard to the motive. I am fortified by the principle laid down by the Hon'be Supreme Court in a case reported as Safdar Abbas and 2 others vs. The State (PLD 1987 Supreme Court 467). The eye- witnesses have given a clear and fair account of the occurrence. The mere fact that all of them had not suffered injuries does not show that they were not present at the spot. The objection has no force and is hereby rejected.
13. According to ITr. Sajid Hussain Raja PW-7, the death was caused dre to injuries No. 3 and 4 which were caused by fire-arm. It, therefore, follows that the medical evidence was consistent with the statements of the eye-witnesses that the deceased was done to death by the fie-arm injuries. The appellants had used the fire-arms to cause those injuries, therefore, tbeir intention to killed the deceased was very dear. Though the death had occurred after some days, but it was the direct result of those injuries. It was a broad day light occurrence and committed in a manner with the clear-cut intention to kill the deceased. The appellants had achieved the object of killing the deceased by firing at him at the vial parts of his body with fire-arms. Learned counsel for the appellants in the first instance argued that the eye-witnesses in this case cannot be relied upon as they are not only chance witnesses but were also interested ones. It was also contended that since Mst. Razia Sultana PW-4 was related to the deceased, therefore, her testimony should not be relied upon. After careful consideration of the facts available on the record and having perused her statement, I am of the opinion that the contentions raised by the learned counsel for the appellants have no force, hence the same are repelled. No doubt, Muhammad Nawaz was her maternal uncle and also the real brother of her husband, but mere re'ationship is no- ground to discard the prosecution evidence. The FIR in this case was lodged with promptitude and the length cross- examination clearly shows that she withstood the test and her credibility could not be shaken by the defence. In view of these circumstances, I am of the view that her statement cannot easily be brushed aside and I have further noticed that she has no enmity against the appellants. According to the principle laid down by the Hon'be Supreme Court in Niaz's case reported in PLD 1960 Supreme Court 387 is the one who has a motive to falsely implicate the accused. In this case, nothing has been brought on record to suggest that Mst. Razia Sultana had been motivated so as to falsely involve the appellants in the present case. I have further noted that even an interested witness can also be relied upon provided the same gets corroboration from an independent evidence. As far as the testimony of Ghazanfar Khan PW-5 and other eye-witnesses is concerned, I may state here that he has also no direct enmity with the appellants, therefore, he has also withstood the test of cross-examination and further more like PW-4, he has no enmity with the appellants. Assuming for the sake of argument and without conceding that the eye-witnesses are interested and chance witnesses, but still their testimony stands corroborated through the medical evidence. These to witnesses have successfully explained their presence at the relevant time at the place of occurrence. It was not uncommon that when some nearest .Relation was admitted in the Hospital, the near relatives must have to come early in the morning to find out the.Health of the ailing member of the family Therefore, I am of the view' that the contention raised bv the learned counsel for the appellants has no force in it. I am fortified by the observations made by the Hon'be Supreme Court in Riasat Ali's case reported in PLD 1991 Supreme Court 397. Their Lordships observed as follows:- "It would suffice to say that even if a chance witness, his explanation regarding what he wanted to do at Railway Office being acceptable the so called stigma of being a chance witness loses significance. The argument of the learned' counsel that the Railway Office was closed, therefore, the witness should have been declared as having perjured himself is also without much force. The witness had gone to the Railway Station to get a seat reserved for Karachi. There is nothing to show that this was impossible to achieve."
14. The evidence of eye-witnesses in such circumstances could not be brushed aside merely for the reasons that they were closely related to the deceased particularly when Mst. Razia Sultana PW-4 had no personal enmity against the appellants. The Hon'be Supreme Court has laid down a principle in Abdul Rashid's case (PLD 1975 Supreme Court 227). It observed that "the next important point which realy form the crux of the matter is the question regarding character of three eye- witnesses namely Abdul Rashid (PW-8), Aurangzeb (PW-9) and Muhammad Nazar (PW-10). PW-8 and PW10 were the brothers of Babu Faqir Muhammad while PW-9 was the Kamdar of Doctor Tahir Hussain Siddiqi and as such they certainly had close interest in the deceased. In view of the established rivalry between the parties and clash of interest over land, the witnesses were not wholly disinterested. It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inf txible rule to be rigidly and unexceptionally applied". ~ Learned counsel for the .Appellants was at pain to point out that the possibility that the injuries on the deceased could be the result of one shot could not be ruled out. In this regard, suggestion owned by Dr. Sajid Hussain Raja PW-7 in his cross-examination to the effect that the injuries on the person of the deceased were possible by a single 12 bore shot containing several pellets was pointedly referred to. The concession of Dr. Sajid Hussain . PW-7 qua the possibility of one shot is not much consequence because possibility cannot take place the firm opinion. Assuming for the sake of argument that it was possible as per medical evidence, it is in dear contradiction to the eye-witnesses account which has been found truthful. In such an eventuality, medical opinion resting on the brink of possibility shall give away to the eye-witness account It is pertinent to mention here that after perusing the record, there is no reason at all for bringing a false charge by the prosecution against the appellants'Ss PW-4 Mst Razia Sultana has no enmily against them. It is further substantiated by the fact that in a broad daylight occurrence, the .One brought about was a single charge with no possible attempt at substitution. It is against the common-sense that the prosecution failed to bring the real culprits and falsely involve the appellants. This fact suffidendy established that the appellants were the real culprits and the question regarding substitution does not arise at all in the present case.
15. The appellants as well as the eye-witnesses belong to the same vicinity, therefore, they were well known to each other, hence obviously there is no possibility of any kind of doubt about the identity of the appellants by the prosecution witnesses during the occurrence. Learned counsel for the appellants argued that the learned trial Court wrongly rejected the plea of alibi taken by Khalid Mahmood appellant especially in the drcumstances when he took the came at the initial stages of the proceedings and the Investigating officer gave findings in his favour duly supported by the statements of DW-1 and DW-2. It is admitted on the record that the distance between Kahuta and Taxila is not far of. Khalid Mahmood appellant was admitted in the Hospital on 20.10.1990 whereas the occurrence took place on 21.10.1990. This makes the plea of alibi highly doubtful and appears to be an arranged affair with Dr. Ikram Ullah Khan Niazi DW-2. It is of no avail to the appellants nor it is likely to affect the evidentiary value of any of the eye-witnesses because they would not tell lie to scree the original offenders qua the present appellants particularly when the eye-witnesses are the -dose relatives of the deceased. Conversely, it becomes evident that the prosecution version was supported by the eyewitnesses in a natural manner. Similarly, it was hardly realized that the site- plan itself is not a substantive piece of evidence which could be used to contradict or discredit the unchallenged evidence of the eye-witnesses.
It is well known prindple of criminal Jurisprudence that the trial Court had the opportunity to watch the demeanour of witnesses and form first had impression about their deposition and due importance should be attached to its conclusion drawn from their evidence. ..
16. Defence version is as fallows:
17. Let me see, whether the defence version fits in the circumstances and negates the prosecution version. Muhammad Nawaz deceased armed with a hatchet and many others armed with Sotis came at the spot, but strangely enough that none of the persons received any injury from their hands. The appellants stated that it was a natural occurrence and some one inflicted injuries through the window and killed the deceased. Since they were already inimical towards Muhammad T^j PW-3, so the complainant falsely roped them in this case. The occurrence as alleged and proved by the prosecution had taken place during the sun-light, therefore, there was no question of mistaken identity. This defence plea appears to be merely hallo. The prosecution has proved its case beyond any reasonable doubt
18. According to the prosecution the roles attributed to the appellants are as follows