ZAFAR PASHA CHAUDHRY, The appellant Muhammad Sher alias Malang was convicted by Mr. Nazeer Hussain Awan, learned Sessions Judge, Mianwali vide judgment dated 30.11.1993 for murder of Muhammad Altaf u/S. 302 PPC and sentenced to death with a fine, of Rs.5000/-, in default thereof, to undergo R.I. For two years. He was also directed to pay- Rs.10,000/- as compensation u/S. 544-A, Cr.P.C, to the legal heirs of deceased.
The appellant aggrieved by thau. Order find Criminal Appeal No. 122-J/1993. A Murder Reference No. 309/1993 was also submitted for confirmation of death sentence awarded by the learned Sessions Judge. Both of the matters have been taken up together and will be disposed of by this judgment.
2. The prosecution case in brief as disclosed by the prosecution through Ex.PF/1 formal FIR registered on the basis of statement Ex.PF at the instance of Allah Bakhsh PW-8 is that he alongwith Muhammad Altaf as well as Muhammad Saddique and Ghulam Sarwar were invited by Dost Muhammad to his house. After taking meals they were coming back alongwith Muhammad Altai' who was a few steps ahead of them. At about 7.00 p.m. .On 7.11.992 when Muhammad Altaf reached near the gate of Mosque Jamia Rizwia, Muhammad Slier alias Malang appellant was standing in front of gate of mosque armed with a 12-bore shot gun. He was identified in the light of electric bulb which was on. He raised Lalkara that Muhammad Altaf did not severe his connections with Muhammad Bashir Talokar who was his enemy, therefore, he Would be taught a lesson.
Simultaneously, he find a shot from his gun hitting in front of his groins who fell down on the ground. The complainant as welt as his companions i.e. Muhammad Saddique and Ghulam Sarwar raised alarm on which Muhammad Sher alias Malang fled away. The injured was removed to, Mjanwali Hospital who was admitted over there. His medico legal report was obtained. Tire complainant was on his way to police station, when he came across Muhammad Munn a/,. ASJ PW-10 who recorded his statement. -V The motive was alleged to be that the appellant had prevented the deceased Muhammad Altai' not to continue with his connections with Muhammad Bashir Talokar but his demand was not acceded to, therefore, on account of said grievance Muhammad Altaf was murdered.
4: The investigation was taken up by Muhammad A1 i, Inspector/SHO PW-12. He took into possession the last worn cloths of the deceased which were secured into a parcel Ex.PB. He searched lor the accused who -was not available. However, on 22.11.1992 on receipt of a secret information, he was apprehended near C.J. Link Canal. He was taken into custody alongwith gun P-5 as well as five cartridges Ex. P.6/1-5 which had been put in the bag Ex. P-7. All were secured vide memo. Ex PG.
5. PW-10 Muhammad Mumtaz, ASI who conducted the investigation at the first instance, visited the place of occurrence after recording the statement. He recorded the statements of other witnesses at the spot, secured blood-stained earth from the place of occurrence. He visited the hospital Mianwali where Muhammad Altai deceased had been admitted. He recorded his statement u/S. 161, Cr.P.C. He moved an application Ex.PK to A.D.C.
6. In order to prove its case, the prosecution examined 14 witnesses. Dr. Akhtar Pervaiz PW-1 certified that Muhammad Altai' was fit to make a statement vide his permission Ex.PA. Thereafter.
Muhammad Altaf was examined in his presence and at the close of his statement, the Magistrate again examined him to certify that through-out the statement the appellant remained in his senses. PW-13 Dr. Muhammad Khan conducted that post-mortem examination of the deceased Muhammad Altaf on 13.11.1992 at 7.45 a.m, who was a by of 20 years of age. He noted the following injuries on his person:-
(1) A stitched wound on the left side of abdomen, 2 cm front the mid line, which was 14 cm line.
(2) One entry wound, l cm x 1 cm on the left lower abdomen, 8 cm away from the mid line.
(3) Three entry wounds each measuring 1 cm x 1 cm in an area of 5 cm x 5 cm, 2 cm from anterior superior iliac spine and 2 cm. From injury No. 1.
(4) One entry wound 1 cm x I cm in the left public region, 4 cm from the mid line on the left side and 2 cm from injury No. 2.
The cause of death was septicemic which resulted in respiratory failure which had developed due to Injuries Nos. 2, 3 and 4. Injuries were sufficient to cause death collectively as well as individually in the ordinary course of nature. All the injuries were ante-mortem except Injury No. I which was due to operative procedure.
7. PW-2 Abdul Rasheed. Constable and PW-3 Fetch Slier, Constable are formal witnesses. PW-4 Muhammad Shafi prepared scaled site-plan of the place of occurrence Ex PC ,and Exi PC/1 in duplicate. ?PW-5 Muhammad Hayat identified the dead-body of the deceased at the time of his autopsy. PW-6 Kachahri Gul is a witness of securing of blood-stained earth from the place of occurrence. PW-7 Muhammad Hanif is cousin of Muhammad Altai deceased. He got Muhammad Alla1 medically examined and produced the last worn clothes before the police. PW-8 Allah Bakhsh is the complainant. He witnessed the occurrence and reiterated the facts what he had already stated before the police in his statement on which formal Fil? Was registered. His statement has already "been noted supra in brief. PW-9 Muhammad Siddique is another eye-witness. He made statement in line with the statement of Allah Bakhsh PW-8 arid as such lend corroboration to his statement. PW-10 Muhammad Mumtaz. ASI conducted the investigation initially and various steps taken by him during the investigation have been noted above. PW-11 is a formal witness who recorded formal FIR Ex.PF/1 on the statement Ex PF made by W-8 before PW-10 Muhammad Mumtaz, ASI. PW-12 Muhammad Ali is the Investigating Officer His statement has also been noted earlier. PW-14 Mr. Mehmood Akhtar is the Magistrate lst Class who recorded the dying declaration of Muhammad Altai;deceased. He had been deputed by A.D.O. (G) to record the same. He visited the hospital Mianwali and at 2.25 p.m. He recorded the statement in presence of!Dr. Akhtar Pervade, M.O Civil Hospital. He also recorded the statement of Doctor certifying that Muhammad Altaf was fit to make a statement. After the recording of dying declaration of Muhammad Altaf which is Ex.PA/3 the same was read over to him and he thumb marked the same in token of its correctness. The dying ^declaration was recorded without any addition or omission. The statement of Doctor was again recorded to certify that through out the recording of the statement Muhammad Altai' deceased remained in senses.
Although he was cross-examined Inn nothing damaging the prosecution could be elicited .From him.
8. On close of the. Prosecution evidence the statement of the appellant u/S. 342. Cr.P.C, was recorded, lie denied the allegations levelled against him. He stated that he voluntarily appeared before the police but the same was not shown as stich out of ulterior motive. He also denied the recovery of gun alongwith its cartridges. In answer to Question No. 6 with regard to dying declaration Ex.PA and Hapax/3, he stated that the statement is fabricated piece of evidence. The injured was not in a position to make any statement, It was the Medical Officer who managed to.
Eel the statement recorded. On a question as to why the case was against him. He stated that both the eye-wirinesses were inimical to him and while 'controverting the alleged motive, he staled that Muhammad Bashir Tolakar is son of his consanguine brother. He denied to have any enmity or strained relations with Muhammad Bashir Talokar. He further narrated that there w
9. The learned trial Judge on conclusion of the trial convicted and sentenced the appellant to death as detailed above.
10. The learned counsel on behalf of the appellant argued that the witnesses were inimical and as such they have falsely implicated the appellant but did not lay much emphasis on this argument, however, he argued with some emphasis that the th ing declaration which was recorded by the Magistrate was not in conformity with the statements made by the PWs. And also.The prosecution version contained in the FIR. He further argued that in case it is found that the appellant has been rightly convicted, imposition of death- penalty is not called for. For the reason that the motive set up by the prosecution is neither acceptable nor trustworthy. According to him no independent evidence has been brought on record to establish the motive. Therefore in absence of motive, the extreme penalty of death cannot be imposed. I he contentions raised by the appellant have been controverted by the learned counsel on behalf of the prosecution, It was thus argued that the impugned judgment is unexceptionable and there was no mitigating or extenuating circumstance in favour of-the appellant calling for lesser penalty.
11. We have heard the arguments and gone through the record. The main evidence comprises of the dying declaration which has been recorded by the Magistrate in presence of the Doctor. Mr. Mehmood Akhtar Magistrate PW-14 has proved the dying declaration who had been deputed to record the same by A.D.C. (G). The learned Magistrate has taken all the precautions required tor recording of a dying declaration e.g. He obtained certificate from the Doctor that the injured was in ;i fit condition to make the statement and further that throughout his statement he remained in senses. Dr. Akhtar Pervaiz PW-13 has fully supported him. He was posted as Medical Officer in the hospital. The injured was admitted in the hospital. He attended him and thereafter on query he certified that the injured was in a fit condition to make a statement. He further certified that throughout his statement the injured remained conscious and in his senses and he made the statement in his presence. He also proved the certificates and endorsements made by him on the application and on dying declaration. Taking up the evidence of Magistrate and that of the Doctor, there remains no doubt that the injured did make a statement before them voluntarily. The suggestion that some of the witnesses had visited him before recording his statement, does not contain any weight. There is no circumstance suggesting that the deceased made statement under the influence of any one else or did not make statement voluntarily.
12. To test the genuineness and veracity of the statement/dying declaration, its contents are most important and relevant to be considered and appraised. According to the deceased he went to the house of his uncle to attend the circumcision of his cousin. After taking meals he was accompanied by his uncle Muhammad Saddique and his cousin Sarfraz. Sadique and Sarfraz were following him, When he reached near the Mosque Nizamia Rizwia. The appellant Muhammad Slier Malang who lives in a nearby house was standing in the gate of the mosque. He was carrying a gun. When the deceased reached near him. He find a shot from in front hitting his abdomen. The occurrence was witnessed by Muhammad Sarfraz and Muhammad Saddique. Muhammad Saddique has been examined as PWrlO. By the prosecution. The manner in which the statement has been, made creates an irresistible impression that the same has been made voluntarily without any outside interference or tutoring. The argument that there is discrepancy in-between the statements made by the PWs. And the dying declaration especially with regard to the presence of the deceased and the witnesses at the place of occurrence, .Is not of much significance. On all the main and significant points there is complete consistency and parity in-between the prosecution version contained in the FIR. Depositions made in the Court and the dying declaration.
The witnesses and the deceased were coming after taking meals which is consistent 'position taken up bv all the PWs. The venue of occurrence is in front of the mosque. The assailants was also stated to be standing in or in front of gate of the mosque armed with a shot gun and that he find a-shot from his gun hitting the deceased on his abdomen. The deceased was accompanied by Muhammad Saddique who has been examined as PW-10. Therefore, on all material points There is absolute consistency and uniformity in the version put forward by the witnesses and the deceased.
The learned counsel, however, has laid much emphasis on the point that the deceased did not state anything with regard to motive. Omission to state something unless the same^contradicts the prosecution version cannot be treated as important or significant. Both the. Eye-witnesses have deposed about the motive which in the circumstances of the case appears to be true and acceptable. The omission to make a statement with regard to motive on the contrary makes the dying declaration -more credible and voluntary. Had the deceased been tutored he would .Have made' statement absolutely consistent with the PWs. Which would otherwise, have become doubtful. Visualizing that the deceased at the time of making the statement had been find at on a vital part and must be suffering severe pain, In that condition if a part of prosecution version is omitted the same would be quite normal and natural. Also keeping in mind that the declaration has been made in narrative form and the deceased was not examined in answer to question form.
The deceased would not even be aware that he hits to make a statement with regard to motive as well. It shows that the statement-was recorded honestly and faithfully and no suggestion was even made to the deceased so as to obtain his statement or dying declaration on the point which according-to the learned counsel was an omission. The nutshell of-the above discussion is that dying declaration has been properly recorded which sounds to be true and trustworthy and can safely be relied upon.
13. The dying declaration is not the only evidence. There is eye-witness account as furnished by Allah Bakhsh complainant and Muhammad Saddique PWs. Named in the FIR as well as named by the deceased in his dying declaration. Both the witnesses have made consistent statements. A perusal of the same inspires confidence. A mere suggestion that there was some dispute in the family which other ise is not established or admitted can hardly furnish any ground to discredit the testimony of the witnesses. The presence of-the witnesses at the place of occurrence appears to be natural in the circumstances of the case. If the witnesses have in fact seen the occurrence there does not appear to be any reason to spare the real culprit and implicate an innocent person. The prosecution therefore, has succeeded in proving '.He guilt of the appellant and his conviction is unexceptionable. As regards the quantum of sentence, although it has been argued by the learned counsel that there is no motive proved by the prosecution and on the contrary even at all there was a motive the same is insufficient to commit murder, the argument cannot be acceded to. The motive has been set up by the prosecution and has been successfully proved by the prosecution witnesses. Mere fact that the learned counsel considers the motive to be inadequate, does not appear to be a sound argument. The prosecution has come forward with a motive what was known to it. The fact that the appellant reflected to it more severely than an ordinary person varies from person to person. Mere fact that a person has been murdered on the basis of inadequate or trivial motive, in our view cannot furnish' a valid ground Cor altering the sentence of death to imprisonment for life. The appellant committed murder of a young by who was twenty years of age and only for the reason that he did not accede to his demand of severing his relations with one Muhammad Bashir Talokar. We, therefore, uphold his conviction u/S. 302, PPC and for tack ol any mitigation confirm the sentence of death.
14. We however, have noted that on account of amendment in Section 302, PPC, the sentence of fine cannot be imposed. Although compensation can be awarded which has already been done by the learned trial Judge, amounting to Rs.JO.O0O/-. Since in default thereof, no sentence has been specified. We, therefore, while maintaining Rs.10,000/- as compensation to the heirs of the deceased, order to suffer six months' S.I., in default thereof. The sentence of fine being illegal is set aside.
Sentence of death is confirmed.