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Criminal Appeal No. 162 and Murder Reference No. 62 of 1982, decided on 25th March, 1984.

---S. 302--Recovery evidence, evaluation of--Crime gun as well as crime empties sent to Forensic Science Laboratory together--Some doubt, held, created as to whether real crime empties sent to laboratory or not- Recovery discarded, in circumstances.--[Recovery].

---S. 32(1)--Dying declaration--Statement of deceased correctly recorded by Investigating Officer after due verification by doctor as to his ability to make statement--No serious apprehension of deceased's immediate death in view at time of recording his statement, thereby necessitating presence of a Magistrate to have statement recorded as a formal dying declaration--Statement of deceased, in circumstances, held, relevant and admissible under S. 32(1), Evidence Act.

---S. 302--Evidence, appreciation of--Sentence--Motive, ocular account recoveries, medical testimony and statement of deceased, conclusively proving guilt of accused--No mitigating circumstances in favour of accused available, entitling him to lesser penalty--Conviction and sentence of death maintained, in circumstances.

Sardar Muhammad Latif Khan Khosa for Appellant.

Kh. Shaukat Ali for the State.

Date of hearing: 25th March, 1984.

--Sharif Khan, Liaquat and Allah Ditta were tried by an Additional Sessions Judge of Faisalabad under sections 302/34, P.P.C. for the murder of one Murad, deceased. The learned trial Judge, by his judgment dated 1-3-1982 convicted Sharaf Khan, accused, under section 302, P.P.C. and sentenced him to death, subject to confirmation by this Court, and to pay a fine of Rs. 6,000 or in default of payment of fine to further undergo rigorous imprisonment for two years. Half of the fine, if recovered, was ordered to be paid to the legal heirs of Murad, deceased. Liaquat and Allah Ditta, accused, were however acquitted on the charge. The appeal (Criminal Appeal No. 162 of 1982) preferred by Sharaf Khan, convict, against his conviction and sentence and the reference (M.R. 62 of 1982) submitted by the learned trial Judge for the confirmation of the death sentence imposed on the convict, are both now before us for consideration and will be disposed of by this judgment.

2. The brief facts of the case are that on 23-1-1979 at about noon time, Noor P.W.10 and Muhammad P.W.11, sons of Murad, deceased, and the said deceased himself were sitting at their Dera constructed on their land when Ghulam Ali son of Lai (won over P.W.) and Noor son of Wali Muhammad (won over P.W.) were working on a Bailna. At that time, Sharaf Khan, accused, armed with a .12 bore shot gun, Liaqat accused, armed with a hatchet and Allah Ditta, accused, armed with a Sota appeared there and Sharaf Khan, accused, raised a Lalkara that he would teach them a lesson for the marriage of Mst. Amiran. Simultaneously, Sharaf Khan, accused, fired two shots with the shot gun at Noor P.W.10, which missed because he laid himself flat on the ground. Murad deceased, in order to run away, had just got up when Sharaf, accused, fired with the gun, which hit Murad, deceased, on his buttocks. After the receipt of the injuries Murad) deceased, fell on the ground. At that time, Liaquat and Allah Ditta, accused, raised Lalkara that he should not leave anybody alive. In the meantime, Pehlwan son of Bahadur (won over P.W.) and others were attracted to the place of occurrence, and on seeing them, the accused left the place of occurrence.

The motive for the offence was that Mst. Amiran, daughter of Humayun, was fiance of Sharaf, accused, but due to their strained relations it was broken by Humayun and she was married with Noor P.W.10. Sharaf accused was annoyed over this and on account of that, all the three accused in furtherance of their common intention, attacked and caused injuries to Murad, deceased, which resulted in his death.

After the occurrence Noor P.W.10 went to the Police Station Garh where he lodged his F.I.R. Exh. P.K. at 1-30 p.m. which was recorded by Asghar Ali Gondal S.I. P.W.12. After recording the F.I.R. Exh. P.K. the police officer proceeded to the Civil Hospital, Faisalabad, where Murad was lying injured. He submitted an application Exh. P.H. before Dr. Abdul Hamid Medical Officer P.W.8 to inquire if Murad was fit to make a statement. The said doctor vide his endorsement Exh. P.H/1 declared that Murad, injured, was fit to make a statement. Accordingly, the statement marked "A" of Murad, deceased, was recorded under section 161, Cr.P.C. by Asghar Ali Gondal S.I. P.W. 12. There after, the police officer proceeded to the place of occurrence from where he recovered blood-stained earth vide memo. P.L. and three crime empties

vi< a memo. P.M. which were taken into possession in the presence of Noor P.W.10, Asghar Ali Gondal S.I. P.W.12 and Ghulam Ali (won over P.W.).

3. The same day Dr. Abdul Hamid, Medical Officer, P.W.8 examined Murad deceased and found two firearm wounds of entry on his left and right buttocks which were opined to have been inflicted within four hours.

4. On 25-1-1979 all the three accused were arrested by Asghar Ali Gondal, S.I. P.W.12. Sharaf Khan, accused, produced his licensed gun P.3 and two live cartridges P.4/1-2 which were taken into possession vide memo. P.C. Likewise, Liaqat and Allah Ditta, accused, produced hatchet P.5 and Soti P.6 respectively, which were taken into possession vide memos. P.D. and P.E. The said recoveries were witnessed by Ghulam Muhammad P.W.6, Asghar Ali Gondal S.I. P.W.12 and Anwar (won over P.W.).

5. On 1-2-1979, Murad, deceased, died and Dr. lmtiaz Ahmad Gill P.W.7 the same day at 3-00 p.m. conducted the post-mortem examination on his dead body. He found the same two firearm injuries which had been observed by the earlier doctor, as also another wound, which was the result of surgery that had in the meantime been carried out.

He found the small intestines and uninary bladder punctured. Deat-; was due to peritonitis and shock resulting from injuries to the small intestine and urinary bladder, which injuries were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about 10 days and between death and post-mortem examination about seven hours. The gun P.3 recovered from Sheraf Khan, accused, and the three crime empties recovered from the spot were sent to the Forensic Science Laboratory, for examination, where they were found to match. After completing the necessary investigation, the challan against all the three accused was sent up.

6. At the trial, the prosecution produced Noor P.W.10 and Muhammad P.W.11 in proof of the motive and the ocular account, Ghulam Muhammad P.W.6, Noor P.W.10, Asghar Ali S.I. P.W.12 in support of the recoveries, Dr. Imtiaz Ahmad Gill P.W.7, Dr. Abdul Hamid P.W.8 and Dr. Bashir Ahmad Kahloon P.W.9 to corroborate the medical testimony and the report Exh. P.U. of the Director Forensic Science Laboratory to show that the empties recovered from the spot had been fired from the gun recovered at the instance of Sharaf Khan accused.

7. At the trial, all the accused admitted their relationship, but denied all the other allegations that were levelled against them. Sharaf Khan accused admitted that he produced his licensed shot gun with live cartridges, as required by the investigating officer, but he had never used the weapon in the commission of the offence. He asserted the crime empties were planted on him. The other two accused denied the recovery of the weapons of offence at their instance. All the three accused stated that the statement 'marked "A" of the deceased was fabricated by the police officer during investigation. All of them imputed their false investment to enmity.

8. The learned trial Judge, relying upon the motive, the ocular account, the deceased's dying declaration, the recoveries and the medical evidence, convicted and sentenced Sharaf Khan accused, as stated above, but acquitted the rest.

9. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. Learned counsel for the appellant has not challenged the evidence as regard the motive. We must, therefore, assume that the learned counsel is satisfied as regards its existence. He has however, challenged the ocular account and made the following submissions: First, that Noor P.W. 10 and Muhammad P.W.11 are the sons of Murad, deceased, and being related to the deceased are interested witnesses. They are al-o inimically inclined. Second had these two witnesses been present Noor P.W.10 would have been the first to have been attacked, as he was the person who had married Mst. Amiran, who was earlier engaged to Sharaf Khan, appellant. Third, that Ghulam Ali and Noora (won over P.W.) who were allegedly working at the Bailna, were independent witnesses and since the were not produced, a presumption should be drawn that had they been so produced, they would have given the evidence against the prosecution. It is true that Noor P.W.10 and Muhammad P.W.11 are the sons of the deceased, but they were present at the spot at the time of occurrence and are, therefore, natural witnesses. They have no past enmity against Sharaf Khan, appellant, to falsely implicate him in particular on a capital charge of murder. It is true that Noor P.W.10, against whom Sharaf Khan, appellant, bore a grudge, escaped death, but that was only because of his good luck

In fact, he was fired at twice by Sharaf Khan, appellant, and it was only by falling flat on the ground that he managed to escape. His father Murad, deceased, who also was sitting nearby and had got up and attempted to escape received a part of the spread from the third fire shot on his buttocks. The fortuitous escape of Noor P.W.10, therefore, cannot advance the inference that he and Muhammad P.W.11 were not present. As regards Ghulam Ali and Noor P.Ws who were working at the Bailna, they could not be produced as they had been won over. If the defence were so very sanguine about their testimony, they could have produced them in their defence, which they did not do. In these circumstances, nothing turns on the non-production of these two witnesses. The ocular account as given by Noor P.W.10 an Muhammad P.W.11 is summarised in para. 2 above and need not b. repeated. The F.I.R. was lodged promptly within 3 hours of the occurrence by Noor P.W.10 himself. The occurrence is a broad day light occurrence and no question of mistaken identity arises. Their evidence is straightforward, natural and convincing and has a ring of truth. They bear no enmity against any of the appellants. Their evidence, therefore, alone is sufficient to bring home the guilt to the appellant.

10. The recovery of the three crime empties from the spot, which have been found to match with the licensed gun P.3 recovered at the instance of Sharaf Khan, appellant, is proved by Ghulam Muhammad P.W.6, Noor Muhammad P.W.10 and Asghar Ali Gondal S.I. P.W.12. None of the three witnesses has any enmity against the appellant. It is true that both the guns P.3 and the three crime empties were sent to the Forensic Science Laboratory together on 13-2-1979, which can throw some doubt as to whether the real empties were sent to the Forensic Science Laboratory but in view of the ocular account, which we have found to be sufficient by itself to convict the appellant, the recovery of the gun and the crime empties, which match, is not without significance.

11. The medical testimony furnished by Dr. Imtiaz Ahmad Gill P.W.7 and Dr. Abdul Hamid P.W.8 conclusively show that Murad, deceased, received two pellet injuries on his buttocks, which ultimately ruptured his intestine and urinary bladder, leading to his death. The said injuries corroborate the ocular account to the extent that the deceased was fired at from the, back as he was attempting to save his life.

12 The evidence as regard the dying declaration marked "A" of Murad, deceased, recorded under section 161, Cr.P.C., is given by Asghar Ali Gondal S.I. P.W.12. It is submitted on behalf of the appellant that since the said statement is neither signed by the deceased nor authenticated by Dr. Abdul Hamid P.W.8 as having been recorded in his presence, the same is inadmissible and cannot be acted upon. The testimony of Asghar Ali Gondal S.I. P.W.12 is very clear to the effect that before he recorded the dying declaration marked "A", he first submitted en application Exh. P.H. to Dr. Abdul Hamid P.W.8 to certify whether Murad, deceased, was fit to make a statement and that only after the said doctor certified his ability to do so, vide his endorsement Exh. P.H./1 that he recorded the said statement. Dr. Abdul Hamid P.W.8 confirms having verified the ability of the deceased to make the statement, whereupon he scribed the endorsement Exh. P.H./1. Both these witnesses have no enmity against- the appellant. The testimony of the police officer that he correctly recorded the dying declaration marked

"A" of Murad, deceased, cannot, therefore, be discarded. At the time, when the statement was recorded, there was no serious apprehension of the deceased's immediate death. In these circumstances, there was no necessity to send for a Magistrate to have the statement recorded as a formal dying declaration. Taking all circumstances into consideration, the statement marked "A" is relevant and admissible under section 32(1) of the Evidence Act and corroborates the fact that the deceased met his death as a result of the gun shot fired by Sharaf Khan, appellant.

13. The upshot of the above discussion is that the motive, the ocular account, the recoveries, the medical testimony and the statement marked "A" of the deceased, conclusively prove the guilt of the appellant. He appears to have been properly convicted and sentenced. There being no mitigating circumstances in favour of the appellant he is not entitled to lesser penalty.

14. For the foregoing reasons this appeal is dismissed. The death sentence of Sharaf Khan, appellant, is hereby confirmed.

S. G. D. Appeal dismissed.

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