' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal Appeal No.104 of 1999 and Criminal Revision Application No.107 of 1999 as they arise out of one and common judgment.
2. The present appeal and the revision application have been directed against the judgment dated 29-6-1999, passed by the learned IIIrd Additional Sessions Judge, Kandhkot, in Sessions Case No.177 of 1993, by which the learned Judge had convicted the appellants under sections 302, 148, 149, and sentenced each of them to suffer imprisonment for life by treating it as 14 years imprisonment and fine of Rs.20,000 or in default thereof to suffer R.I. For one year more. It was directed that after the recovery of the fine amount the same be paid to the legal heirs of the deceased, under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was extended to the appellants.
3. The revision application has been filed with a prayer to enhance the sentence of the appellants.
4. The facts giving rise to the present appeal and revision application are that on 1-10-1993 at 7-00 a.m. The deceased Qurban, who was also complainant in the case, alongwith P.W. Gul Hasan and Haji Menhoon went to Kandhkot from their village and reached the Bazar at 7-00 a.m. The deceased was driving the car whereas P.W. Gul Hassan was sitting on the front seat and P.W. Haji Menhoon was sitting on the rear seat of the car. They noticed that the appellants Hakim Ali, Muhammad Ali and absconding accused Khair Muhammad and Sarwar were standing there, who singled the complainant to stop the car, on which the car was stopped. Thereafter, absconding accused Noor Muhammad and Khair Muhammad came in front of the car, who were armed with TT pistols and fired at the deceased Qurban, who received the injuries. Thereafter, the absconding accused Khair Muhammad fired from his pistol at P.W. Gul Hassan, which also hit him. The appellants, viz., Hakim Ali, Muhammad Ali, armed with TT pistols fired from their pistols with the result that the rear glass of the car was broken and the bullets hit the deceased and P.W. Gul Hassan. Thereafter, absconding accused and appellants started running. In the meantime police came there and they were successful in apprehending the appellants Hakim Ali and Muhammad Ali. The police secured one TT pistol from the possession of appellant Hakim Ali. Thereafter, P.W. Haji Menhoon took the deceased and P.W. Gul Hassan to the police station where the deceased lodged the report.
5. The F.I.R. Was recorded by the A.S.-I., who had apprehended the appellants. The police prepared the Mashirnama of injuries on the person of injured persons. They were referred to hospital for examination and treatment. The Investigating Officer visited the place of Vardat and secured the blood-stained earth and empties from there. On the next day the deceased died in the hospital where his post-mortem examination was conducted.
6. The motive of the incident has been alleged that before this incident the car of the deceased met with an accident in which one Muhammad Sharif, relative of the appellants died, therefore, a case was registered against the deceased. The Neckmard, settled their dispute, under which the deceased Qurban was required to pay a sum of Rs.150,000 to accused party. The deceased paid Rs.100,000 to them. The remaining amount of Rs.50,000 was to be paid at about 10 a.m. Or 12 noon on the day of incident. It is alleged that in order to take avenge of the death of Muhammad Sharif this incident took place.
7. After completing the usual investigation the appellants were challaned in the Court of law.
8. On 14-9-1994, a charge under sections 302, 324, 427, 148 & 149, P.P.C., was framed against the appellants, but they pleaded not guilty. In support of the case the prosecution examined following six witnesses:-- S.No. P. W . No . Name of witnessesSummary of evidence
1. P.W.1 Dr. Azizur Rehman He conducted the post-mortem examination of the deceased. He stated that deceased died in the hospital on 3- 10-1993
2. P.W.2 Fateh Muhammad Mashir of injuries on the person of deceased and injured Gul Hassan, Vardat, where he found a silver colour car with rear glass broken and blood lying in it.
Three empties were secured from there.
3. P.W.3 Gul Hassan Brother of deceased Qurban, eye-witness. He supported the prosecution case and implicated the appellants.
4. P.W.4 Dr. Abdul Subhan Medical Officer. He examined the deceased on 1-10- 1993 at 7-30 a.m.
Found four fire-arm injuries on his person. The injuries were fresh and were caused by fire-arm weapon.
He also examined injured Gul Hassan and found two injuries on his person, which were fresh and caused by fire arm weapon.
He disclosed that the deceased was conscious.
5. P.W.5 A.S.-I. Akbar Khan He reached the Vardat on fire-arm reports. Saw the car where deceased and P.W. Gul Hassan were lying injured. He saw the appellants running away. They were followed and apprehended by him with the help of another police constable. A pistol was secured from the possession of appellant Hakim Ail.
He came to the police station where he recorded the F.I.R. Of deceased. He conducted the investigation of the case.
6. P.W.6 Nazar Muhammad (Tapedar)He prepared the sketch of the (Tapedar) Vardat on the pointation ofP.W. Haji Menhoon.
9. P.W. Haji Menhoon was given up by the prosecution on the ground that he was won over by the accused party. Thereafter, the prosecution closed their side.
10. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. They stated that they were involved in the case due to accident in which their relative Muhammad Sharif died. They did not examine themselves on oath or led any evidence to their defence.
11. After considering the material available on the record, the learned trial Judge convicted the appellants mentioned above under the impugned judgment by treating the imprisonment for life as 14 years. The appellants, were dissatisfied with the said judgment, therefore, they have preferred the present appeal whereas/revision Application has been filed by Feroze to enhance the sentence.
12. We have heard the Advocate for the appellants, Advocate for the applicant in revision application, counsel for the State in both the matters and with their assistance perused the record of this case very carefully.
13. The learned Advocate for the appellants has stated that all the P.Ws. Are interested and hostile; that the deceased was not able to speak because of the injuries; that F.I.R. Could have not been registered in fifteen minutes after the incident; that no car was produced before the trial Court; that motive has not been proved; that ocular testimony is in conflict with medical evidence and that P.W. Haji Menhoon has not been examined, therefore, a presumption under Article 129(g) of Qanoon-e-Shahadat Order, 1984, may be raised. He has further stated that the case of the prosecution is rightly doubtful, therefore, he has requested for the acquittal of the appellants.
14. On the other hand, the learned Advocate for the applicant in revision application and learned State counsel have stated that injuries on the person of the deceased were not such where he could have lost his conscious but he was in his complete senses and F.I.R. Was lodged at the police station within shortest possible time in which the name of all the accused including the appellants with their specific role have been mentioned; that there is no question of substitution of the accused within the short time as the deceased had no opportunity to consult with anybody because of the incident; that the deceased was able to speak and was conscious, therefore, F.I.R.
Can be treated as dying declaration, which is sufficient to convict the appellants even without anycorroboration. They have further stated that the dying declaration has been fully supported and corroborated by P.W.3 Gul Hassan and medical evidence; that the appellants were caught red-handed at the spot and from appellant Hakim Ali a pistol was secured; that the case of the prosecution is fully supported and corroborated by police officials who have no motive or cause to falsely implicate the appellants; that both the doctors have specifically stated that the deceased was conscious. They have further stated that no adverse presumption can be raised by not examining Haji Menhoon as he was given up by the prosecution on the ground that he was won over by the accused party; that the presence of P.W.3 Gul Hassan cannot be disputed as he was injured and had witnessed the incident, which had occurred during day time, therefore, the question of mistaken identity of the accused does not arise; that there is no enmity between the deceased to implicate the appellants. On the proposition of dying declaration, they have relied upon cases of Niamat Ali v. State (1981 SCM R 619) and Mst. Shamim Akhtar v. Faiz Akhtar (PLD 1992 SC 211). They have stated that the prosecution has proved the case against the appellants; that the trial Court had committed illegality by treating the life imprisonment as 14 years as according to section 57, P.P.C. The life imprisonment is 25 years therefore, they have requested that the sentence may be enhanced.
15. We have given due consideration to the arguments and find that the incident took place on 1- 10-1993 at 7-00 a.m. Whereas the report was lodged at 7-15 a.m., within fifteen minutes. The distance between the place of Vardat and the police station was one furlong. In the F.I.R. The deceased Qurban had given the details of the incident as mentioned in the earlier part of the judgment and assigned the specific role to the absconding accused and the appellants. The deceased was immediately referred to hospital where he was examined by P.W.4 Dr. Abdul Subhan, who found him conscious. He was admitted in hospital where operation was conducted and on the next day he died in the hospital. P.W.3 Gul Hassan and P.W.5 A.S.-I. Akbar Khan have categorically stated that the deceased was conscious. From the above evidence, it has been established that the faculty of speech of the deceased was intact and he was able to give a statement which was recorded by the P. W. 5 A.S.-I. Akbar Khan. In such situation, the F.I.R. Can be treated as dying declaration, which is a substantive piece of evidence and conviction can be maintained on that count. Reliance is placed on Ghulam Zehra v. Malik Muhammad Sadiq.(1997 SCM R 449) and the case of Mst. Shamin Akhtar (supr)
16. In this case the dying declaration has been fully supported and corroborated from the evidence of P.W.3 Gul Hassan and P.W.5 A.S.-I. Akbar Khan. The P.W.5 has categorically stated that he had recorded F.I.R. Verbatim, which was same correct and bears his signatures. The dying declaration is further supported and corroborated by the medical evidence as according to P.W.2 Dr. Abdul Subhan the deceased had received following four injuries:--
1. A LTP. Wound 1.5 c.m. In diameter x chest cavity deep on right lateral side of chest at the level of 7th rib. Wound of entry.
2. Two LTP. Wounds each measuring 1.5 c.m. In diameter on back at the level of 3rd. Lumbei vertibrea on left and right side oval in shape. Wounds of entrance.
3. Two LTP. Wounds each 1.5 c.m in diameter on most upper part of left thigh laterally. Wounds of exit.
4. A lacerated garter type wound 4 c.m x 2 c.m. x muscle deep on right upper arm laterally. Wound of entrance as well as exit.
17. The injuries were fresh and were caused by fire-arm weapon. The presence of P.W.-3 Gul Hassan cannot be disputed as he was also injured and received the following two injuries:--
1. A lacerated punctured type wound 1 c.m. In diameter a chest cavity deep on left lateral side of chest. Just below illa oval in shape, communicating through and through with the wound of exit 1 c.m. In diamater on back of chest below left scapular region.
2. A lacerated punctured type wound 1 c.m. In diameter muscle deep on left upper arm antario medially, communicating through and through with round of exit 1 c.m. In diameter x muscle deep on left upper arm posterio medially.
18. As per evidence of Dr. Abdul Subhan both the injuries were fresh caused by fire-arm weapon.
19. According to the evidence of P.W.-4 Dr. Abdul Subhan the deceased and P.W.3 Gul Hassan were received by him on 1-10-1993 at 7.30 a.m. As such the dying declaration is fully supported and corroborated by the medical evidence.
20. It is pointed out that both the appellants were caught red-handed at the spot as just after the incident they were apprehended by P.W.5 A.S.-I. Akbar Khan as he saw them running away from the vardat. From the possession of appellant Hakim Ali a pistol was secured.
21.After considering the material available on the record, we are of the considered view that the prosecution have proved, their case against the appellant therefore, they were rightly convicted by the trial Court. As regards the sentence the trial Court had treated the life imprisonment as 14 years but according to Section 57, P.P.C. The imprisonment for life is 25 years, as such it appears that there is mistake apparent on the face of record, which is required to be corrected, therefore, imprisonment of 14 years, treated as imprisonment for life in the impugned judgment is corrected as 25 years.
22. The learned trial Judge while convicting the appellants under section 302, P.P.C. Also sentenced them to pay fine. A perusal of section 302, P.P.C. And its clauses show that no sentence of fine is provided under any such clauses, as such the sentence of fine was not proper, therefore, there shall be no sentence of fine, but the amount be treated as compensation as required under Section 544-A, Cr.P.C.
23. From the facts and circumstances of the case, no case for enhancement of sentence has been made.
24. Above are the reasons of our short order dated 3-8-2003, by which we had dismissed the Criminal Appeal No.104 of 1999 and Criminal Revision Application No.107 of 1999, in the following manner:-- "...For reasons to be recorded separately, we dismiss Criminal Appeal No.104 of 1999 and the Criminal Revision No.107 of 1999, with the modification that while the conviction of the appellants is maintained for an offence under section 302(b), P.P.C., the sentence of impzisonment for life is also maintained. It is clarified that the quantum of the sentence shall be calculated within the meaning of section 57, P.P.C. And not as 14 years as recorded in the impugned judgment. There shall be no sentence of fine. Benefit of section 382-B, Cr.P.C., extended to the appellants is maintained."