' TARIQ PARVEZ, J. --Appellants Noor Paio aged 67 years and Ali Yousaf aged 35/36 years are father and son respectively. They have been convicted by learned Sessions Judge' Karak vide his judgment, dated 16-8-1994 and under section 302/34, P.P.C. Have been sentenced to life imprisonment and to pay an amount of Rs,15,000 each as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C,, in default of payment of fine, to further suffer four months S.I. Each. They have been extended the benefit of section 382-B, Cr.P.C.
2. The prosecution's case, unfolded against the two appellants is, that on 16-5-1992 at 6-00 a.m.
Baitullah complainant; Saifullah (deceased) and Mir All P.W. Had reached, the spot while on way to Karak. On seeing the complainant party, the two appellants who were alleged to be armed with firearms got up and started firing at Saifullah (deceased) who, as a result of their fire shots: was hit and got wounded.
' The injured was shifted from the spot to Police Station Latamber where Baitullah complainant made the report to Muhammad All S.I. At the time of report Saifullah (deceased), then injured, was not coherent in making speech but, at the tail end of the report after the same was signed by the complainant; on inquiry by the S.I., the deceased, then injured, has told the S.I. That he has been wounded by Noor Paio and his son who is in police.
3. After the report of the complainant was recorded, the injured was sent to Civil Hospital Latamber for medical examination and treatment where at 7.10 a.m. The injured was examined by the doctor who has also prepared his medico-legal report Exh.P.W.12/1. The injured however, died at 7.30 a.m.
The same day are the post-mortem was conducted at 8.10 a.m.
4. The prosecution, in order to prove its case, has examined 17 witnesses while the defence examined only one witness, namely Dost Muhammad. Two Court witnesses were also examined who are both doctors.
5. The resume of the evidence is given as under:-- "Rehman Gul (P.W.1) is marginal witness to recovery memo. Exh.P.W.1/1 through which bloodstained earth was recovered.
' Eid Azad H.C. (P.W,2) had carried out the search of Noor Paio accused/entrusted with warrant under section 204, Cr.P.C., failing execution, obtained proclamation notices.
' Mohibullah (P.W.3) is witness to the Memo. Through which blood-stained garments of the deceased were taken into possession. He has also changed the section of law from 324/31, P.P.C. To 302/34, P.P.C.
' Amir Khan (P.W.1) has escorted the injured Saifullah from the Pollee Station to the Civil Hospital, Latamber.
' Amir Khatim Khan A.S.-I. (P.W.5) was deputed by the I.O. For the arrest of accused Ali Yousaf who was serving as Gumman (an employee of the Police) with D.I. Kohat and was residing in Police Line, Kohat.
' Post Muhammad Line Officer Kohat (P:W.6) has testified as to the absence of Ali Yousaf accused on the date of occurrence up to' 8-20 a.m.
' Said Rauf H.C. (P.W.7) has formally arrested All Yousaf accused and handed him over to the concerned police.
' Bostan Ghani. H.C. (P.W.8) has associated with the investigation in the process of taking into possession a Flying Coach, its permit and registration documents in the name of Iran Badshah acquitted accused.
' Nizam Khan S.-I. (P.W.9) has conducted partial investigation and has also arrested accused Noor Paio on 25-7-1992.
' Saifur Rehman Moharrir (P.W.10) has produced the record of Police Line Kohat in respect of absence/presence of Ali Yousaf accused from the duty.
' Muhammad Nawaz Madad Moharrir (P.W. 1 I) .Produced the original record of Daily Diary No,10, dated 16-5-1992 again relatable to the absence/presence of Ali Yousaf from Police Line Kohat.
' Baitullah (P.W.13) and Mir Ali (P.W.14) have furnished eye-witness account of the occurrence.
' Abdullah (P.W.15) has deposed about the boarding of All Yousaf accused in the Flying Coach of Iran Badshah after the commission of the crime.
' Amir Nawab, S.H.O. (P.W.16) has formally arrested accused Ali Yousaf and handed him over to the police of Police Station Latamber.
' Muhammad Ali, S.-I. (P.W.17) had conducted the investigation.
' Thereafter, the prosecution closed its evidence and the two appellants were examined under section 342; Cr.P.C. Both, in reply to the question, if they would like to produce defence?, have replied in positive. It was, therefore, that Dost Muhammad (D.W.1) was examined who has deposed about the taking of Saifullah deceased, while injured, in his Datsun to the Hospital.
6. Learned trial Court after hearing the arguments of the learned counsel for the parties, in order to satisfy itself as to certain points concerning the condition of the injured at the time of his examination by the doctor, has examined Dr. Muhammad Juni' M.O. As C.W.1 and Dr. Abdul Shakoor M.S. As C.W.2.
7. The conviction and sentence has been challenged by the appellants and it was argued that the crime was un witnessed, that, the second eye-witness namely, Mir Ali has been disbelieved by the trial Court, that, the sole testimony of Baitullah is not worthy of any credence being an ,interested witness, that, there is total lack of physical circumstance to corroborate the testimony of Baitullah P.W. As except blood-stained earth no spent bullet or empties have been recovered from the spot, that, the deceased after the receipt of injuries as detailed in the medico-legal report Exh.P.W.12/1 would have died instantaneous death or even if survived, could not make a statement. It was, therefore, submitted that in the 'Karawai Police' part of the F.1.R. The Dying Declaration from the mouth of deceased Saifullah has been introduced which is false, that, in the F.I.R. No specific fire arm weapons have been given which would reflect on the absence of the complainant at the relevant time, that, the injury sheet Exh.P.W.17/1 though prepared in the Police Station after the report was made, yet does not carry 'IIlat' number, that, the medical evidence is inconsistent with the ocular account as the deceased has received injuries on the left side of his body whereas according to the site plan his right side was exposed to the appellants, that, in the very first line of the report it is recorded that the injured was taken to the Police Station by people of the village, although both the eye-witnesses, namely, Baitullah and Mir Ali have categorically denied that none was attracted to the spot after the firing, that, the case against the appellants has been concocted by dishonest investigation - and lastly, that, the prosecution has failed to connect the appellants by highlighting the motive which could have prompted the appellants to have committed the crime. Learned counsel for the appellants in support of his submissions has relied on AIR 1938 Lab.
268, 1997 PCr.0 2075, 1975 PCLU 750, PLD 1990 Kar. 314, 1976 PCLU 243, 1995 SCM R 599 and 1971 SCM R 432.
8. Conversely, the learned counsel appearing for the complainant and the learned A. A.-G. Argued that the report has been made with utmost promptitude i,e, within 30 minutes and at a distance of 14/15 Kilometers which would rule out the possibility of fabrication and would confirm the presence of complainant who has taken the injured to the Police. Station, that, the straight-forward Dying Declaration has been introduced in the F.I.R. And- has been reiterated by the complainant in his Court statement and is very short narration of one sentence i,e, shows the honesty on the part of the deponent, the complainant as well as the Investigating Officer. It was argued that the occurrence took place in daylight and according to the site plan all the points are visible inter se and point No,4 where accused All Yousaf was shown is though in a depression of two feet but as it has come in the evidence of eye-witnesses, the appellant of this point stood up at the time of firing.
Hence, it Was argued that there is no question of mistaken identity both, on the part of the complainant and the deceased. It was also argued that undisputedly the deceased after the receipt of injuries did not die instantaneous death and remained alive till 7.30 a.m. And to this effect reference was made to the statements of doctor (P.W.12) who prepared the medico-legal report, Amir Khan F.C. Who escorted the injured from the Police Station to the Hospital, the complainant who 'has so stated in the report and the Investigating Officer who had recorded the report wherein consistently Saifullah was recorded to be injured.
' As to the capacity of deceased, while injured, to make a statement, it was argued that if the prosecution wanted to fabricate a false case, they could have planted empties, they could have recorded the report of the deceased in the shape of Dying Declaration but all this was not done because the investigation was straightforward and honest. It was added that Ali Yousaf appellant who is in the Police Department was a personal Gunner of D.I.-G., Kohat and in the ordinal), course the investigation should have favourd him.
' As to the quantum of sentence, the learned counsel for the complainant in support of his revision submitted that the learned trial Court having found the accused guilty of the offence has fallen in legal error by giving life imprisonment instead of death sentence. It was argued that the ground that effectiveness of the shots, hitting the. Deceased,' out of the two appellants arc not certain, is no ground for mitigation. Learned counsel in support of his contentions relied on 1996 SCM R 1747, PLD 1995 Quetta 469, 1993 F'Cr.LJ 1547, PLD 1951 FC 111. 1995 PCr.L1 1479, PLD 1991 SC 923, 1997 PCr.LJ 280, PLD ,1976 SC 452, 1991 SCM R 1622 and PLD 1996 SC 122.
9. After hearing the learned counsel for both sides and having carefully scrutinized the evidence of the prosecution, defence and. The court-witnesses, we are of the view that the submissions made by the learned counsel for the appellants are not weighty, based on conjectures and aurmises.
They are against the facts of the case. We would start from the F.I.R. Which is the first document of the prosecution case. The occurrence took place at 6.00 a.m. And report has been made in the Police Station at 6.30 a.m. Though the Police Station is situated at a distance of 14/15 A Kilometers.
Such a prompt report by itself can be taken as corroboration of the testimony of maker of the when he appeared in the witness-box at the trial. In the report, Saifullah has been recorded as injured and the first observation of the scribe of the reran is that the injured was not capable of making coherent speech and thereafter the report of complainant Baitullah has been recorded. After the signature of the complainant was obtained, as the injured was lying in the Police Station, Muhammad Ali, S.-I. (P.W.17) has asked the injured Saifullah as to who had injured him, he replied that:- {{URDU TEXT}}'
' This statement of the deceased made to the police officer, who has just recorded the report, is not only, very natural but is also straightforward. Keeping in view the medico-legal report where the heart of the deceased was not injured and as per statement of Dr. Muhammad Jamil (C.W.1) as well as Dr. Abdul Shakoor (C.W.2), the possibility of deceased dying instantaneous death has been excluded and that the deceased Saifullah being receive& in the Civil Hospital Latamber at 7.10 a.m.
Where his medico-legal was conducted, undisputedly proved that he was alive at 7.10 a.m. And has died in the hospital at 7.30 a.m. The learned trial Judge has taken pains in the interest of justice to examine the two court-witnesses in order to come to a positive finding as to the condition of the injured with regard to his capacity to make a statement of the type as recorded in the "Karawai Police" part of the F.1.R.
' We regret to note that at all stages the prosecution did not bother to look at the post-mortem report Exh.P.W.12/2 wherein the very column of "Symptoms observed before death", the doctor has recorded as under:-- "Injuries with -patient in distress and conscious and later on became unconscious. "
' The controversy at the trial and before us mainly remained revolving as to the condition of the injured, and it was argued by the learned counsel for the appellants that the deceased was either dead on the spot or even if injured and taken as such to the Police Station and Hospital but, was unconscious.
10. We take strong exception to the non-vigilance of the learned trial Judge. The Public Prosecutor at the trial and the counsel engaged for complainant including the doctor who conducted the post-mortem, appeared as P. W.12 and then as C.W.I, yet this very important feature of the case was not noticed which, in our opinion, has clinched the very objection of the defence as to the statement made by the deceased, while injured, to the Investigating Officer.
11. Coming to the statements of two eyes witnesses, namely, Baitullah is complainant of the case and Mir Ali (P.W. 14). We would accept the conclusion arrived at by the learned trial Judge that Mir All's presence on the spot is not beyond doubt. He belongs to village Ahmad Abad while the deceased hails from Mughal Banda and the, occurrence has taken place in the limits of Surathi Kallav and the fact that Mir Ali has accepted in his examination-in-chief that he met the deceased and the complainant per chance' and his subsequent conduct by not accompanying the injured along with the complainant to the Police Station would reflect on his absence. We for these simple reasons and out of abundant caution would take out of consideration his statement.
12. Baitullah is nephew of the deceased and according to the evidence he is a student of fourth year. According to the report, the deceased, while injured, examined by the .Doctor has been recorded as "Professor" against the column of occupation. From this a legitimate inference can be drawn and is drawn that the deceased and the complainant would he going together in the morning to attend to their respective professions/studies. Not only this, as earlier observed, the report has been recorded within 30 minutes of the occurrence while the Police Station was at a distance of 14/15 Kilometres, would be a positive conclusion as to the presence of complainant with the deceased at the relevant time. Otherwise in such span of time to procure the complainant for making the report was not possible.
13. Complainant has given straightforward evidence as to what has occurred in his presence. In his cross-examination certain ambiguities or points of doubt have been clarified by the defence. At page 52 of Printed Book it has been asked from the witness as to the position of the accused, and reply was given that both the accused were standing ,when they made fire shots. It has been brought in the cross-examination that the victim after being injured remained on the spot for 4/5 minutes and then in a vehicle was shifted to the Police Station. It is further in his cross-examination that the condition of the deceased, then injured, has been solicited in the following words:- "After being hit the victim was in senses, 1, therefore, caught hold of his hand and took him to the pick up."
' The objection that this witness remained in the Police Station, after he has made the report. For half an hour after the victim was sent from the Police Station to the Hospital would not, in any manner, reflects on his absence or belated procurement because seen in the light of the statement of the Investigating Officer where he has stated that he in the company of complainant left the Police Station for the spot but having received the information about the death of the injured went to the Hospital. The deceased was received, as injured, in the Hospital at 7-10 a.m. And he died at 7-30 a.m. All these timings would rather corroborate the testimony of Baitullah complainant.
' This witness has made reference to Dying Declaration made by the injured to the Police in his examination-in-chief and the same has "gone unchallenged as not a single question was put to this witness as to the condition of the deceased nor even a suggestion has been pin. It is worth mentioning that he has not even been suggested to be not present on the scene of crime with the injured. It is now well-settled law that once a witness makes certain utterances on oath and the other party fails to cross-examine him on such deposition and even does not put the suggestion as to such deposition being untrue, would tantamount to admission of such facts on the part of other party. We are conscious of the fact that Mir-Ali, a witness named in the report and also in the testimony of Baitullah as an eye-witness, has been disbelieved by the trial Court as well as by us.
This will not in any manner affect the testimony of Baitullah for more than one reason. We have disbelieved Mir All on the basis of his own statement and its appraisal in juxtaposition with the remaining evidence while at the same time we believed the statement of Baitullah as the same repose confidence.
14.. The non-recovery of empties or spent bullets of which strong exception has been taken will also be of no help to the defence because it is not every case in which the emetics were to be recovered. It depends as to the number of shots, the place of occurrence and the weapon used As in the instant case weapons have nowhere been specified,, therefore, the non-recovery of empties does not require any explanation.
15. The argument that medical evidence is inconsistent with the ocular account as the deceased has been hit on the left side of the chest, while the assailants, according to the site plan, were on his right front. The site plan is not a substantive evidence nor it is prepared on the basis of exact measurement. The perusal of the site-plan, in the instant case; shows that the deceased was hit at point No,1, got wounded and has fallen at point No,2. He was proceeding at the time of occurrence to the northern direction. So he was not a stationary object but was moving both, at the time of occurrence and during the occurrence, hence, receipt of injuries on the left front are explained.
16. There is another corroborative evidence against the appellants and that is in the shape of motive. It has been said in the F.I.R. And Court statement of P.W. Baitullah that there exists blood feud enmity between the parties and it was, therefore, that the deceased was fired at. While being examined under section 342, Cr.P.C. Both the appellants have accepted the enmity but have tried to reduce its gravity by stating that there is no direct enmity between them, however, some of their relatives were charged by the complainant party for, the murder of brother of the deceased in which case All Yousaf appellant (being in police) was' pursuing the case and hence, false charge.
From this stand, as has been taken by the accused, the motive stands admitted. It is, therefore, that the same can be taken as piece of corroboration of the ocular testimony for maintaining the conviction of the two appellants.
17. In the earlier part of this judgment we have extensively referred to a short and straightforward reply of Saifullah who later died wherein he has stated: {{URDU TEXT}} ' This statement of the deceased, while injured, was made to the police after recording of the F.I.R. It would be taken as 161, Cr.P.C. Statement which. Does not require to be thumb impressed or signed by the deponent but as the said statement is made by a person as to the cause of his death and as to the circumstances of the transaction which ultimately resulted in his death and as the cause of death of such person is now in 'question before us, it is, therefore, relevant and is to be taken as dying declaration.
18. Having discussed the evidence of the prosecution and that of the court-witnesses, the accused has examined Dost Muhammad as D.W. Who has stated nothing which can be taken as defence plea of which the appellants can take an advantage. To the contrary, number of witnesses from Police Line Kohat have been examined by the prosecution who are witnesses of record, according to which, the appellant All Yousaf was absent from the day of occurrence and appeared in the Police Line at 8-20 a.m. As plea of alibi has not been set up probably because the same could not be helpful to the defence, we need not further go into details of the statement of witnesses from Police Line Kohat.
19. The learned trial Court has found the accused-appellants guilty of the offence under section 302(b)134, P.P.C. But has refrained to award capital punishment, by stating that on the. Basis of available record it cannot be determined as to whose fire shots, out of the two appellants, have proved fatal. Such propositions have earlier too come up before the august Supreme Court of Pakistan and in a judgment reported in 1994 SCM R 37 where it was difficult to safely sift as to with whose shots the deceased was seriously wounded, the sentence of death hissed was reduced to life. Imprisonment. In this case, keeping in view the above dictum of the Supreme Court coupled with the fact that the prosecution has not explained the motive except saying that there was blood feud enmity, it will be rather safe not to interfere with the sentence of life imprisonment which, under the circumstances, is legal sentence.
' Consequently, the conviction and sentence of the appellants are maintained, appeal is dismissed and the revision for enhancement of the sentence fails.