' ABDUL HAMEED DOGAR, J.---This appeal with the leave of the Court is directed against the judgment, dated 19-2-2002 passed by a learned Division Bench of the Peshawar High Court, whereby Jail Criminal Appeal No,320 of 1999 filed by the appellant was dismissed and Murder Reference No,4 of 2000 sent for confirmation of his death sentence was answered in affirmative.
The appellant and absconding accused Fazli Malik were sent up to face trial for committing Qatl- e-Amd of Khalid Khan before the Court of learned Sessions Judge, Mardan, who vide judgment, dated 3-7-1999 found the appellant guilty of charge and convicted under section 302, P.P.C. And sentenced him to death. He was also directed to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. In case of default, he was directed to suffer simple imprisonment for six months.
2. The fateful episode in this case took place on 4-6-1997 at about 6-00 a.m. Khalid Khan deceased and P.W. Muhammad Saeed his cousin had gone to field called Bheri Baba' in order to answer the call of nature. As per case of the prosecution, deceased Khalid Khan was going a few paces ahead of Muhammad Saeed P.W. And started urinating, there appeared appellant with absconding accused Fazali Malik duly armed with Kalashanikov rifles etc. Who fired at him from their respective weapons. Resultantly, he sustained injuries and fell down. P.W. Javid also got attracted at the spot.
Injured Khalid Khan was removed to District Headquarter Hospital, Mardan in injured condition where he himself reported the matter to the P.W. Abdullah Jan, Incharge Casualty Department of the Hospital. The said report was sent in the shape of Murasila to the police station for registration of the case where formal F.I.R. Was registered as Crime No,219 at Police Station Shahbaz Garhi under section 324/34, P.P.C., Medical Officer duly attested the said report of the Incharge.
3. The motive, as narrated in the F.I.R., was that few days prior to the occurrence, there had occurred an altercation between the deceased and appellant regarding some theft matter which resulted in the instant incident.
4. On the same day at about 11-45 a.m. Injured Khalid Khan succumbed to the injuries in the hospital whereafter his inquest report was prepared and his dead body was despatched to mortuary for postmortem examination.
5. P.W. Khalid Khan, A.S.-I., started investigation and prepared site plan of the place of occurrence on the pointation of the P.Ws. He secured blood-stained earth, ten empties of 7.62 bore and sealed them into a parcel and prepared the recovery memo. He also took into possession the clothes of the deceased bearing corresponding cut marks. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. And on receipt of the information of death of injured changed the offence from under section 324/34, P.P.C. To section 302/34, P.P.C.
6. On 6-6-1997, the appellant was arrested and on 8-6-1997, Kalashnikov was recovered at his pointation. The empties and the Kalashnikov were sent to Fire-arms Expert for analysis and the report whereof was found positive in respect of nine empties out of ten. Accused Fazli Malik absconded and was declared proclaimed offender whereas the case proceeded against the appellant only.
7. P.W.4 Dr. Khalil-ur-Rehman, Medical Officer, who examined the deceased while in injured condition and also conducted his postmortem examination after the death found the following injuries on his person:--
(i) There was fire-arm entry wound on left iliac region 'about 4" lateral to midline size 1/2" x 1/2" with mesentry and loops of gut lying out.
(ii) Fire-arm exit wound on posterior aspect of left upper buttock size 1" x 1".
(iii) Two fire-arm entry wounds on interior aspect of right upper arm each size 2 x 2 c.m.
(iv) Fire-arm exit wound on post lateral aspect of right upper arm size 4 x 4 c.m.
(v) Fire-arm exit wound on posterior aspect of right chest below scapula size 4 x 4 c.m.
8. At the trial, P.Ws. Muhammad Saeed and Javid furnished the ocular account of the incident. F.I.R.
Lodged by deceased/complainant was treated as dying declaration.
9. The appellant in his statement under section 342, Cr.P.C. Denied the case of the prosecution and claimed innocence. He neither examined himself on oath nor led any evidence in defence.
10. On conclusion of trial, appellant was found guilty and was convicted and sentenced as stated above.
11. We have heard Ch. Muhammad Akram, learned Advocate Supreme Court for the appellant and Sardar Shaukat Hayat, Additional A.-G. For the State and have gone through the record and the proceedings of the case in minute particulars.
12. Ch. Muhammad Akram, learned Advocate Supreme Court for the appellant contended that the case of the prosecution is based on interested evidence, as such, it requires independent corroboration which is lacking in this case. According to him, from the medical evidence as well as from the nature of injuries on the person of the deceased, the conclusion that he was in the state of fit condition to make statement is not believable particularly when he is said to have bled profusely at least for two hours after sustaining the injuries. The possibility that injured had become unconscious after sustaining the injuries cannot be ruled out and in such circumstances, the very reporting of the matter by the deceased becomes highly doubtful. He further contended that according to the site plan 30 empties of Kalashnikov were recovered, whereas in the recovery memo. Only 10 empties have been shown. Out of which nine had matched with the Kalashnikov said to have been recovered from the appellant is also another important aspect of the matter which makes the case of the prosecution to be doubtful in nature. He seriously attacked the investigation and argued that the same was dishonest,. Thus the entire case of prosecution has been engineered against the appellant with some ulterior motive.
13. On the other side, Sardar Shaukat Hayat, Additional A.-G. Controverted the above contentions of the appellant's counsel and argued that the prosecution has fully proved the case by producing evidence in the shape of dying declaration of the deceased and ocular version furnished by P.Ws.
Muhammad Saeed and Javid. Irrespective of above, medical evidence and that of recovery of empties, Kalashnikov and the positive report of the Forensic Science Laboratory further corroborate the ocular evidence.
14. Both the Courts below have rightly held the F.I.R. As dying declaration mainly for the reason that the injured was initially admitted in Casualty Ward of District Mardan where his report was taken down by Abdullah Jan, Incharge/H.C. Who noted his condition and stated that he was in full senses.
Moreover, the Medical Officer on duty also attested the statement of the deceased and in the initial medical examination, he has also categorically mentioned that the injured was conscious and well oriented. The appellant has not been able to shatter the evidence of Medical Officer and author of the report, namely, Abdullah Jan Incharge/H.C. On this aspect of the case as such, its authenticity being voluntary in nature and spontaneous cannot be doubted.
15. The said dying declaration has been fully corroborated by the eye-witness account furnished by P.Ws. Muhammad Saeed and Javid adduced at trial. The evidence of P,W. Muhammad Saeed being cousin of deceased could not be brushed aside on this score alone particularly when he and P.W. Javid were the natural eye-witnesses of the incident. As per recovery memo. From the spot, only ten empties of Kalashnikov were recovered and sealed and were sent to Forensic Science Laboratory for comparison. The contention of the learned cdunsel for the appellant that as per site plan 30 empties were recovered is devoid of force mainly for the reason that, firstly, it is not noted in the site plan that police recovered 30 empties, secondly, that the site plan is not a substantive piece of evidence. Motive, recovery of empties, blood-stained earth from the spot, recovery of Kalashnikov from the appellant, its positive report by the Fire-arms Expert and absence of any motive for false implication are strong circumstantial pieces of evidence to further corroborate the above mentioned ocular version.
16. For what has been discussed above, we are of the considered opinion that the prosecution has fully established its case against the appellant beyond any shadow of doubt. Thus we do not find any exception with the impugned judgment which is accordingly maintained and the appeal being devoid of force is dismissed.