' SHAH JEHAN KHAN, J.---The appellant was tried by Additional Sessions Judge/Izafi Zilla Qazi, Dir in Session Case No,87 of 1994 for committing an offence punishable under section 302, P.P.C. Vide F.I.R.
No,14 registered on 23-4-1989 at the Police Station, Barawal, District Dir. At the conclusion of the trial he was convicted and sentenced to life imprisonment with a fine of Rs,10,000 or in default thereof to undergo further one year R.I. The appellant was also held liable to pay compensation of Rs,15,000 to the legal heirs of deceased under section 544-A of the Cr.P.C. The appellant was granted the benefit of section 382-B of the Cr.P.C.
2. The prosecution case in brief is that on 23-4-1989 at about 11-30 hours Mst. Sabir Jana then injured lodged a report to Lal Muhammad M.H.C. In the Medical Ward of Rural Health Centre Barawal, whereby she reported that the same day at 11.00 hours she was present in her house, her son Mir Ali Khan accused/respondent called her outside the house. As the complainant came out of the house the accused/appellant asked about the presence of her husband and his (appellant) brothers. The complainant replied in negative. The accused/appellant inquired from her that why she has arranged for his (appellant) marriage and simultaneously he fired at her mother/complainant with a pistol, resultantly she was hit on her right shoulder. The occurrence was reported to be witnessed by Musharraf Din and Noor Muhammad P.Ws. Who were working in the nearby field. The motive for the offence was disclosed to be the said marriage of the accused/appellant.
3. The complainant then injured was examined by the medical officer present there and was referred to District Headquarter Hospital, Dir where she succumbed to the injuries. Initially the case was registered under section 307 unamended, P.P.C. But, on her death the section of law was changed as 302, P.P.C. The accused/appellant absconded after the occurrence and was subsequently arrested by the police of Police Station, A-Division, Mardan and was handed over to the local police where he was formally arrested in the instant case.
4. On completion of investigation the case was put in Court for trial under PATA Regulation-I of 1975 as amended by Regulation IV of 1976 on 13-2-1990. The case was referred to Jirga in accordance with the Regulation (ibid). During the process of the case before Jirga, the aforesaid Regulation was repealed by PATA (Nifaz-e-Nizam-e-Shariah) Regulation, 1994 (N.-W.F.P. Regulation-II of 1994) where the case was sent to Sessions Judge/Zilla Qazi Dir who entrusted the same for trial to Additional Sessions Judge/Izafi Zilla Qazi Dir.
5. In accordance with the provision of Regulation II of 1994 the Court tried for conciliation but failed and consequently the appellant was supplied the required documents under section 265-C of the Cr.P.C. Charge was framed against the appellant on 26-3-1995 to which the appellant did not plead guilty and the trial was commenced. The prosecution produced 7 witnesses to prove the guilt of accused.
6. P. W.1 Dr. Sami-ur-Rehman was examined on oath who deposed that he had examined Mst. Sabir Jana then injured on 23-4-1989 at 1-00 p.m. And found the following injuries. On her person:---
(1) An entrance wound about 1/4" x 1/6" on the right side Chest Enfrealavicular.
(2) An exit wound about 1/2" x 1/6" on the dorsum of the right side Chest Midzone.
(3) X-Ray Report shows fracture of Rib right side perforabion of right lung.
' The nature of injury was described dangerous to her life. The injury was opined to be caused by means of fire-arm. The duration between injury and examination was recorded, within 24 hours.
The witness affirmed the contents of his report Exh.P.W.1/1 and his signature on it.
7. P.W.2 Fazal Rehman, S.I. Was examined on oath who had conducted partial investigation in the case as S.H.O. Of Police Station Barawala. He stated before the Court that he prepared the inquest report of deceased Mst. Sabir Jana which is Exh.P.W.2/1 in his own handwriting and signed by him.
During spot inspection he took into possession some blood-stained stones which were sealed into Parcel No,3 and affixed his stamp namely H.G. The same were sent to F.S.L. For test vide application Exh.PW2/2. Since the accused/appellant was absconding in the case the witness applied to the Court for issuance of warrant under section 204, Cr.P.C. Vide his application Exh.P.W.2/3. After getting the warrant from the Court concerned it was entrusted to D.F.C. For execution. The witness also applied for proclamation under section 87, Cr.P.C. Vide his application Exh.P.W.2/4. The proclamations were also entrusted to D.F.C. For compliance. Since the heirs of deceased were not willing for post-mortem of the deceased the witness obtained the undertaking to that effect which is Exh.P.W.2/5. On completion of the investigation the witness submitted complete challan against the appellant/accused under section 512, Cr.P.C. On 28-5-1989 under his signature. On the arrest of accused/appellant on 3-9-1989 he submitted a supplementary challan against him.
8. P.W.3 Said Rehman, L.H.C. Of the Police Station, Barawal after taking oath deposed, that during the day of occurrence he was serving as D.F.C. Police Station, Barawal. He was entrusted the execution of warrant under section 204 Cr.P.C. Against the appellant but since the appellant was absconding, the warrants were returned unserved. He recorded some statements of the elders of locality to that effect. The warrant was exhibited as Exh.P.W.3/1 and his report on it as Exh.P.W.3/2.
The witness also deposed that he was interested with the execution of proclamation against the accused/appellant, he affixed one copy of proclamation at the house door of accused/appellant and affixed another copy on the notice board of the Court and recorded the statements of elders on the third copy of proclamation which was returned after endorsing his report on it. Copy of the said proclamation is Exh.P.W.3/3 and his report with his signature is Exh . P. W .3/4 .
9. P.W.4 Musharraf Din an eye-witness of the occurrence stated on oath that on the day of occurrence at about 1100 hours he was irrigating his field meanwhile, he saw that deceased and accused were sitting in their field. The accused fired one shot at his mother (deceased) with his pistol she was hit and the accused decamped from the spot. He came near the deceased then injured and she also disclosed that she was fired at and injured by the accused. The witness took the deceased in injured condition through a cot to her house wherefrom she was taken to Barawal Hospital for treatment. The site plan was prepared at his instance. He is also marginal witness to the recovery memo. Exh.P.W.4/1 whereby the police took into possession some blood-stained pieces of the stones. He alleged to have witnessed the occurrence with his own eyes.
10. P.W. Noor Muhammad after taking Oath stated that deceased was known to her who was the wife of Spin Malik. On the day of occurrence he had gone to Forest to bring the fuel wood and after collecting the fuel wood was coming back, at about 1100 hours on reaching the house of Spin Malik P.W., stayed there to relax, in the meanwhile he heard the report of fire shot following by hue and cry. He noticed that Mir Ali accused/appellant armed with a pistol was running from the venue of occurrence. The witness attracted to the spot and found the deceased then injured. The witness inquired from her and was told that she has been fired by her son Mir Ali accused/appellant. He arranged for a cot and took the deceased then injured to her house. The witness also informed Spin Malik P.W. The husband of deceased about the occurrence. The witness has deposed to be an eye-witness of the occurrence.
11. P.W.6 Spin Malik the husband of deceased was examined on oath. Stated that deceased was his wife and has got no relationship with the P.W. Accused/appellant is the son of deceased and the witness had married the deceased after the death of her husband. The witness deposed that on the day of occurrence he had gone to the scurt (Banda) where somebody had set on fire a house owned by him. He was informed by the nephew of one Asar Khan his neighbour that the deceased then injured has been fired at by accused/appellant and is lying in the house. On receiving the information he arrived at his house and found his wife lying on a cot in injured condition who was brought by Yousaf Khan and Noor Muhammad etc. From the spot and were present there.
' On enquiry he was told by the deceased then injured that she has been injured by firing by Mir All accused/appellant. He took her through a Datsun to the hospital for treatment where she lodged her report. Thereafter, she was taken to District Hospital, Dir and then to Timergara Hospital. The deceased succumbed to the injury at 2-00 hours the following night. The witness charged accused/appellant for the commission of offence.
12. P.W.7 Lal Muhammad, M.H.C. Police Station, Barawal who had recorded the Murasila Exh.P.A./1 and conducted preliminary investigation in the case, was examined on oath. The witness stated that on receiving the information about the occurrence from R.H.C. Barawal, he went to Medical Ward, R.H.C. Where he recorded the report of deceased Mst. Sabir Jana then injured in presence of her husband P.W. Spin Malik, which was recorded in shape of Murasila as Exh.P.A./1 and the complainant thumb-impressed the same in his presence. The witness affirmed his signature on Exh.P.A./1 as correct. He prepared the injury sheet and handed over to Compounder on duty but the same could not be exhibited. He sent the Murasila Exh.P.A./1 to the police station for registration of the case through Khasta Muhammad F.C. The witness also visited the spot and prepared the site plan Exh.P/3 on pointation of the eye-witnesses. During spot inspection he took into possession some pieces of blood-stained stones through recovery Memo. Exh.P.W.4/1 and sealed the same into a parcel. The witness admitted correct all the foot notes and his signature on Exh.PB. As the complainant died due to the injuries sustained by her, the section of law was changed from 307 (unamended, P.P.C.) to 302 and further investigation was handed over to S.H.O. The witness deposed to be familiar with the writing and signature of Taj Muhammad, M.H.C., he identified the writing and signature on Exh.P.A. As that of said Taj Muhammad whereby he has correctly incorporated the report Exh.P.A./1 in it. After the arrest of accused/appellant by local police of Police Station "A", Division Mardan, the witness shifted and brought him to Police Station Barawal.
13. On the close of prosecution case the accused/appellant was examined under section 342, Cr.P.C. Wherein he denied the allegations against him and did not wish to be examined on Oath or to produce evidence in defence.
14. After considering the prosecution case, while relying upon the dying declaration of the deceased in shape of Murasila Exh.PA/1, the ocular evidence of P.Ws.4 and 5, the circumstantial/corroboratory evidence in shape of recovery of blood-stained pieces of stones and medical report of the deceased and abscondence of the accused/appellant for sufficient long time without any reasonable explanation, convicted and sentenced accused/appellant vide impugned order and judgment.
15. Mr. Mazullah Khan Barkandi, Advocate appearing on behalf of the appellant while criticising upon the impugned conclusion of the learned trial Judge, vehemently argued that the motive advanced by the complainant/deceased is improbable; that the site plan prepared in the case contradicts the eye-witness account furnished by the complainant in her dying declaration; that the injury sheet of the deceased was handed over to a Compounder and not to an authorized Medical Officer which is against the prescribed procedure. He argued that except the bare statement of the deceased, there is no other reliable evidence brought on record to sustain conviction thereon; that the statements of alleged eye-witnesses of the occurrence, namely, Sharafdin and Noor Muhammad who are Afghan Refugees by caste are inconsistent and contradicted with the story putforth by the deceased/complainant and, therefore, placing reliance on their statements is against the principle of safe administration of justice in criminal matters. He was of the view that without any support through reliable evidence, the learned trial Judge has illegally convicted and sentenced the accused/appellant by placing implicit reliance on the solitary statement of the deceased before the police. He lastly argued that the prosecution's case is discrepant and unbelievable and, as such, had miserably failed to prove the same against the accused/appellant beyond any shadow of doubt. In support of the aforesaid contentions, reliance was placed on the cases reported as Waheeduddin v. Allah Ditta and 5 others 1977 SCMR 72, Ali Akhtar Hussain v. State 1972 SCMR 40, Abdul Majid v. The State 1989 PCr.LJ 2205, Mashal Khan and another v. The State 1997 PCr.LJ 478 and Doda v. The State: PLD 1995 Quetta 56.
16. While opposing the aforesaid submissions of the learned counsel for the appellant and supporting the impugned conclusion of the learned trial Judge wholeheartedly Mr. Muhammad Khalid Khan, learned counsel representing the State contended that the convict/appellant has been rightly awarded the impugned conviction and sentence; that the dying declaration made by the deceased/complainant was sufficient to be made basis of the sentences and it was immaterial whether she was in a position to identify the appellant being his real mother who has given all necessary details of the occurrence; that the dying declaration was recorded within thirty minutes of the incident; that there was no enmity between the deceased and accused to falsely charge him and that the dying declaration of the deceased was not attacked during trial. He urged that there is no difference in between the site plan and the eye-witness version of the deceased/complainant and the defence had also not put any question to the witnesses on this score at trial. He argued that the witnesses of the occurrence are natural and truthful and were rightly believed by the learned trial Judge, because Spin Malik, husband of the deceased lady, could be procured as an eyewitness of the occurrence, but it was not done so. He, therefore, urged that the prosecution had fully established its case against the convict/appellant beyond any reasonable doubt and the impugned conviction and sentence awarded to him is the result of proper appreciation of evidence brought on record which needs no interference.
17. We have anxiously considered the arguments advanced at the Bar and gone through the entire evidence available on record with the valuable assistance of the learned counsel for the parties.
18. The main stress laid by the learned counsel for the convict/appellant was over the veracity of the dying declaration of the deceased/complainant, which according to him, lacks the required standard. In order to place implicit reliance on a dying declaration, one must be fully satisfied that it is a statement which has been made by the deceased voluntarily without any possibility of prompting, as to the cause of his death and has been correctly recorded by a responsible person.
According to the first information report lodged by the deceased, the occurrence had taken place at 1100 hours and there is no documentary proof brought on record that she was not able to talk coherently. The witnesses mentioned in the report have unanimously affirmed her report that she was fired at by the appellant and that she was in full senses at the time of making the report.
Besides, Doctor Sami-ur--Rehman who had examined her had categorically stated that the deceased was in full senses at the time of her examination. Thereafter, she was taken from Dir hospital to Timargarah hospital where she took her last breath during night. Therefore, no exception could be taken about the veracity of the dying declaration made by the deceased at her first report.
19. Reverting to the other facts of the case, the learned trial Judge had correctly appreciated the evidence brought on record and its assessment is neither unreasonable nor perverse or in disregard of the accepted principles governing appraisement of evidence. The first information report was promptly lodged by the deceased mentioning names of the witnesses of the incident and motive advanced for the crime which was also admitted by the accused while recording his statement under section 342, Cr.P.C. The medical evidence is in line with the ocular testimony of the deceased-complainant and her eyewitnesses. The convict/appellant had absconded after the occurrence and had even not participated in the funeral ceremony of her mother which is a sufficient corroborative evidence towards his guilt in the offence.
20. Viewed from whatever angle, we are of the considered view that the learned trial Judge had correctly appraised the evidence brought on record and needs no re-appraisal. The appellant has committed the murder of his mother and deserves no leniency. The points agitated by his learned Advocate are ill- founded and merits no consideration. The motive advanced for committing the crime; also supports the prosecution case.
21. For what has been discussed above, we find no merit in this appeal which is hereby dismissed.