Find a Lawyer

Criminal Appeal No. 53 of 1985, decided on 6th April, 1987.

---S.302--Dying declaration--Evidentiary value of--Deceased in a fit state of mind to make statement--No evidence showing him to be incapable of making statement after receipt of in series--Evidence of deceased being not prompted or tutored by witnesses--No enmity of deceased or witnesses with accused to falsely implicate him--No legal flaw pointed out in recording dying declaration--Test laid down by Supreme Court to assess evidentiary value of dying declaration applied--Dying declaration, held could not be dubbed as unreliable in circumstances.--[Dying declaration].

---S.302--Dying declaration--Ocular testimony--Corroborative value of--Testimony of eye-witness suffering from no infirmity--Five years abscondence of accused, held, would provide enormous confirmatory strength to dying statement of deceased--Testimony of witness. not named in F.I.R. though inspiring confidence, kept out of consideration as a matter of abundant caution.

---S.302--Nature of offence--Culpable homicide not amounting to murder--Accused meeting deceased, by chance--Deceased empty handed--Accused giving repeated blows with knife--Accused taking undue advantage and acting in unusual manner--Offence of murder punishable under S.302, P.P. C. held, was clearly constituted- Conviction and sentence of lesser penalty considered appropriate and maintained in circumstances.

Ch. Zahoor Hussain for Appellant.

S.M. Naeem for A.A.-G. for the State.

Malik Rab Nawaz Noon for Complainant.

Date of hearing: 6th April, 1987. .

Anees Lodhi son of Agha Ali Ahmad Khan, caste Lodhi, aged 40/41 years, resident of Tehli Mohallah, Rawalpindi, has been convicted by Additional Sessions Judge, Rawalpindi, for the murder of Gul Dastigeer and sentenced to imprisonment for life and a fine of Rs. 20,000 or in default to undergo three years' R.I. vide judgment, dated 27th February 1985. Out of the fine, if recovered, Rs. 18,000 has been ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The convict has filed appeal (Criminal Appeal No. 53 of 1985) challenging his conviction while Mat. Sameen Gul, mother of the deceased has filed revision

(Criminal Revision No. 74 of 1985) praying for enhancement of sentence of the appellant. Both the matters are being disposed of by this single judgment.

2. The occurrence took place at 11-00 a.m. on 15-8-1978 in Gali Shah Chan Chiragh of Rawalpindi City and F.I.R Exh. P.J. was drawn up on the basis of the statement Exh. P.H. of Gul Dastigeer (deceased) recorded by Faqir Muhammad A.S.I. (P.W.14) at D.H.Q. Hospital, Rawalpindi, the same day at 1-30 p. m. and initially case was registered under section 307, P.P.C. Gul Dastigeer died in the hospital on 19-8-1978 at 9-30 a.m. whereafter the charge was altered to one under section 302, P.P.C.

3. On 15th August, 1978 Gul Dastigeer (deceased) was brought to D.H.Q. Hospital in injured condition where he was medically examined by. Dr. Agha Muhammad Zafar at 12-20 p. m. and admitted him as Indoor Patient. '

4. A.S.I. Faqir Muhammad (P.W.14) learning about the admission of Gul Dastigeer (deceased) in D.H.Q. Hospital, reached there and recorded his statement (Exh. P.R.) at 1-30 p.m. wherein he stated that 7/8 months before the occurrence he had made programme with Tameez-uz-Din alias Rana and Tariq, shopkeepers of Bara Market, Rawalpindi, to go out of the country for taking employment abroad. They purchased air tickets for Istambul but meanwhile restrictions were imposed on entry into Turkey, therefore, he (deceased) cancelled the programme. Tameez-uz-Din and Tariq felt annoyed over his cancelling the programme and demanded 'Tawan' (damages) from him which he refused to pay. On the fateful day, at about 11-00 a.m. while returning from District Courts he (deceased) went to the Bara Market and met Tameez-uz-Din and Tariq at their shop for gossip who had again demanded Tawan from him which led to exchange of hot words between them, however, he left for his home in the company of Abdul .Aziz Butt (P.W.6). When they crossed Sarafa Bazaar and entered the nearby street, a person known as Lodhi (appellant) a shopkeeper of Bara Market, Rawalpindi, approached him land asked as to why he was not paying the money to Tameez-uz-Din and Tariq. The deceased retorted "who he was" (to interfere) and that "he owned no money to anyone". At this Lodhi (Anees Lodhi appellant) whipped out a knife and inflicted injuries on his abdomen, lower lip right side of his chest and right hand, as a result of which he fell down. Abdul Aziz P.W. rescued him from the assailant. The appellant then decamped from the scene of occurrence. Abdul Aziz P.W. took him first to his house and thence he was brought to D.H.Q. Hospital by his relatives. Having made the statement, the deceased handed over his medico-legal report Exh.P.B./1 to Faqir Muhammad, A.S.I. (P. W.14), who sent statement Exh.P. H. to Police Station 'B' Division, Rawalpindi, where on its basis formal F.I.R. Exh.P.J.under section 307, P.P.C. was drawn up by Mehrban Hussain H.C. (P.W.11) at 1-45 p.m. Section 302, P.P.C. was added after he died on 19-8-1978.

4. Dr. Agha Muhammad Zafar (P.W.4) who examined Gul Dastigeer (deceased) while alive, found the following injuries on his person:

(1) A stab incised wound 3/4" x P x 2" deep probed exact depth was not probed. On left lower part of front of chest about 6" below left nipple between 5/6 o'clock position. There was profused bleeding from wound.

(2) An incised wound 1 " x 1/8" on left lower lip inner and outer part.

(3) An oblique superficial Tuner, cut 21" above left nipple.

(4) A small incised wound on back of right little finger terminal phalynx 1/3" x 1/10".

At that time he was conscious, his pulse rate was 78 per minute and blood pressure 130/90. He was operated upon and ultimately he died in the hospital on 19-8-1978. On the same day at 12-50 p. m. the same doctor conducted the post-mortem examination. On internal examination peritoneum was found repaired and cavity full of purulent material. Stomach was healthy and contained about four ounces of dark fluid. Intestines contained faecal matter and gas and bladder contained about 3 ounces of Urine. In the opinion of the doctor, all the injuries were antemortem, caused with sharp-edged weapon and injury No.1r was found sufficient to cause death in the ordinary course of nature. Probable time between injury and death was about 4 days and between death and post-mortem about 3 hours. In cross-examination the doctor stated that the injured was operated upon but he did not know who had operated him and what medicine or treatment was given to the deceased.

5. Faqir Muhammad, A.S.I. (P.W.14) investigated the case. He searched for the accused /appellant but he was not found. Zumard Khan (P.W.1), S.H.O. Police Station Banni, Rawalpindi, partly investigated the case. As the appellant was not traceable. Zumard Khan (P.W.1) obtained warrants of his arrest from the Court of Ilaqa Magistrate which, too, remained unexecuted so he got issued proclamation declaring him as absconder. A.S.I. Bashir Ahmad (P.W.9) with Tehsildar, Rawalpindi on 19-10-1978 in execution of warrant issued under section 88, Cr.P.C. attached appellant's belongings P-1 to P-237 vide memo. Exh. P.A., signed by him, where after challan was against him was submitted under section 512, Cr.P. C. in Court of Sessions Judge, Rawalpindi; who being satisfied that the appellant was absconding and there was no prospect of his arrest recorded statements of witnesses and consigned it to record on 2-7-1980. About 3 years later the accused/ appellant was arrested on 31-7-1983 by Khan Sikandar Khan, Inspector, Police Station Murree Road, Rawalpindi. Ch. Muhammad Nawaz S.1. (P.W.2) of P.S. Banni then arrested him in this case on 1-8-1983 and after interrogation sent him to judicial lock-up on 8-8-1983.

6. At the trial the prosecution examined as many as 14 witnesses. Agha Mumtaz Elahi (P.W.8), husband of the sister of the deceased, was re-called and examined as C.W.1 on 6-2-1985. The prosecution has relied on the testimony of Faqir Muhammad A.S.I. (P.W.14) who recorded dying statement of the deceased (Exh. P.H.), Zumard Khan, S.I. (P.W.1) who obtained proclamation against the appellant showing that he had absconded after the incident, Abdul Aziz (P. W.6) and Saeed Ahmad (P.W.7) who narrated about the occurrence and Dr. Agha Muhammad Zafar who proved that the deceased had died of knife injuries.

7. The appellant's case is of denial simplicitor. Replying question No.8, whether proceedings under section 87/88, Cr.P.C. were taken against hi[r and that his articles P.1 to P.237 were attached, the appellant replied that he had no knowledge about this. He explained that he did not abscond but had been doing business in Karachi before his arrest'. In reply to the question why this 'case against you, he stated that his late father had a business dispute with Agha Mumtaz Elahi P.W. who has, in fact, manoeuvred and involved him in the instant case. He further stated that the deceased was an immoral person who was done to death by some unknown assailant. He declined to produce any evidence in defence.

8. Abdul Aziz (P.W.6) an eye-witness largely supported the story given by Guj Dastigeer (deceased) in his dying statement Exh. P. H. He stated that he was shopkeeper' of Purana Qila and used to sell kites. Gul Dastigeer, deceased, was a resident of his Mohallah and lived abroad. He used to go out with him for stroll. On the day of occurrence he went with the deceased to District Courts at 8-30 a.m. They got free from there at 11-00 a.m. and went to Bara Market where they met Rana and Tariq at their shops. Rana and Tariq started demanding money from the deceased who refused to pay the same and a quarrel ensued between them. Thereafter they left for their homes. When they reached in Gali Shah Chan Chiragh, the appellant attacked and injured the deceased. Hearing the commotion, Saeed Ahmad P.W. and Hayat also arrived and saw the occurrence. On receipt of injuries the deceased fell down. They put him in the tonga for taking him to the hospital. Agha Mumtaz P.W. cousin of the deceased, met them in the way. They informed him of the occurrence. He admitted in cross-examination that Anees, appellant, and deceased had exchanged abuses at the time of occurrence and that during the exchange of abuses Anees appellant took out a knife and inflicted with it injuries on the person of the deceased. He admitted that Tariq and Rana (shopkeepers) were not related to the appellant

9. Saeed Ahmad (P.W.7) stated that on the day of occurrence he alongwith Hayat Muhammad (not produced) went to Sarafa Bazaar for making certain purchases where they heard hue and cry emanating from a street. They rushed there and saw Anees (appellant) dealing knife blows to the deceased the accused/ appellant then ran away. They took the deceased to his house and informed the inmates about the incident and then removed him to the civil hospital, Rawalpindi. In his cross-examination he stated, that the occurrence lasted for about 2 minutes. There was no blood on the spot where the deceased had fallen after receiving the injuries. About 10/20 persons the nearby shopkeepers had seen the occurrence. Aziz Butt (P. W.6) took about 2 minutes to inform the inmates of the house of, the deceased about the incident and then took the deceased to hospital and reached there in about 5/6 minutes.

10. The motive for the assault has been given out by Agha Mumtaz (P.W.8). He stated that he owned a shop in Kasosar Market (Bata Bazaar) Rawalpindi. Anees appellant negotiated with him for getting the said shop. He demanded Rs. 13,000 from him as 'Pagri' but the appellant agreed to pay Rs, 8,000. The matter was settled but Gul Dastigeer (deceased), his maternal cousin, asked him to insist that the appellant must pay Rs. 13,000. He did so as a result whereof the appellant paid him Rs. 13,000. The appellant felt annoyed with the deceased because due to his interference he (appellant) had to pay Rs. 5,000 more and that on this account he had attacked the deceased. He further stated that at 10/11 a.m. on the day of occurrence he met the deceased while being taken in a tonga to the hospital. He admitted that he did not disclose to police about paying of Rs. 13,000 by the appellant to him as 'Pagri' for getting shop from him. He stated that Gul Dastigeer (deceased) was employed abroad and was spending his leave in Pakistan during the days of occurrence. He denied that he had fabricated the story of paying of "Pagri" amount by the appellant in order to coin a motive for the occurrence. When re-called as C.W.1 for cross-examination the witness was mostly questioned by the appellant if the deceased was an educated person and could read and write but the witness expressed his ignorance about the same.

11. Learned trial Court after considering the material on record disbelieved the evidence adduced on point of motive as being discrepant and inconsistent. It however, believed dying statement Exh. P.H. of the deceased and the ocular testimony furnished by Abdul Aziz (P.W.6) and Saeed Ahmad (P.W.7), and held the appellant guilty of murdering the deceased observing that the occurrence took place in a broad day light in a Bazaar, therefore, appellant's substitution for another assailant was impossible. It also held that the appellant remained fugitive from law for about 5 years and was arrested after proceedings under sections 87/88, Cr.P.C. had been taken therefore, his abscondence constituted incriminating circumstance against him. However, lesser penalty has been awarded to him as the motive for the offence was obscure.

12. It is contended by the learned counsel appearing on behalf of the appellant that statement of the deceased (Exh. P. H .) is not entitled to any weight as it cannot be treated as dying declaration because when this statement was recorded, the deceased was not in imminent danger of death; that at the time of recording deceased's statement no doctor was present to certify that the deceased remained in a fit state of mind throughout while making this statement; and that it seems that the deceased was tutored by Mumtaz Elahi and other relatives who allegedly were present near him when statement Exh. P.H. was being recorded. Further submitted that because the deceased deliberately suppressed the fact of his abusing the appellant, therefore, his statement Exh. P.H. was not worthy of placing implicit reliance on it; that the name of Saeed P.W. was not mentioned in the dying declaration, therefore, his evidence should be ruled out of consideration and that solitary testimony of Abdul Aziz (P.W.6) a friend of the deceased cannot be made basis for convicting the appellant on capital charge. Lastly, he argued that taking the prosecution case on its face value an offence under section 304, P.P.C. is made out because the occurrence took place consequent upon exchange of abuses between them on their meeting each other per chance in the Bazaar wherein the appellant gave single blow to the deceased ultimately proving fatal. To the contrary, learned counsel for the state assisted by learned counsel for the revision petitioner supported the conviction and submitted that it was a cold-blooded murder and, therefore, calls for enhancing the sentence.

15. I have carefully considered the facts and circumstances of the case. Statement of the deceased Exh. P.H. was recorded by A.S.I. Faqir Muhammad (P.W.14) immediately after the occurrence. There is nothing on record to show that he was not in a fit state of mind to make statement at the relevant time. It has neither been asked from the doctor that after receipt of injuries in the abdomen the deceased's condition had in fact deteriorated rendering him incapable of making statement Exh. P. H. There is nothing on record to show either that during recording of the statement Exh. P.H. Agha Mumtaz or any other relative of the deceased had prompted him muchless to have tutored him to implicate the appellant. Not a slightest enmity of the deceased or of the eye-witnesses with the appellant was suggested to be existing between them before the occurrence, therefore, the deceased or the P.Ws. had no axe to grind by falsely implicating the appellant in this case. Learned counsel for the appellant was failed to point out any legal provision as not complied with for recording the dying declaration. It is no more good later that unless it is proved that deceased made the statement in imminent expectation of death, it shall not be regarded as dying declaration. To the contrary in a Supreme Court case his Lordship Mr. Justice Anwar-ul-Haq, laid down the following principle (concurred by his Lordship Mr. Justice Muhammad Akram) for assessing evidentiary -value of a dying declaration: -

"In order to test the reliability of a dying declaration, the Court has to keep in view the various circumstances like the opportunity of the dying man for observation, and whether capacity of the deceased to remember the facts stated had not been impaired at the time he was making the statement, by circumstances, beyond his control; whether the statement had been consistent throughout if he had made several dying declarations; and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. It also goes without saying that the exact contents of the dying statement should be proved by reliable evidence, ...................................................

If the Court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants there is no need for further corroboration. But if it appears to be unreliable by itself, or suffers from some infirmty, then it cannot form the basis of a conviction without corroboration."

Applying the aforesaid test, I am of the view that in the circumstances noted earlier there is no reason to dub the dying declaration Exh. P.H. as unreliable. I, therefore, find that the trial Court has rightly relied on this piece of evidence.

16. Testimony of Saeed Ahmad (P.W.7) although inspires confidence but since his name has not been mentioned as eye-witness by the deceased (in dying statement Exh. P. H.) I would by way of abundant caution keep it out of consideration, yet the statement of the other eye-witness, namely, Abdul Aziz (P.W.6) which suffers from no infirmity whatever, provides enormous confirmatory strength to the dying statement of the deceased in addition to incriminating circumstances of 5 years' abscondence of the appellant.

17. For what has gone above I find that prosecution through legal and reliable evidence has successfully proved, the appellant had killed the deceased. I do not agree with the learned counsel that the offence committed by the appellant constitutes culpable homicide not amounting to murder for the reason that the appellant gave repeated blows to the deceased, with a knife, who was empty handed and thus he had not only taken undue advantage but also acted in an unusual manner. Therefore, the occurrence though had taken place when the appellant and deceased met each other by chance and exchanged abuses, clearly constitutes offence of murder. I, therefore, hold that the learned trial Court has rightly held the appellant guilty under section 302, P.P.C Consequently, I maintain his conviction. The sentence (lesser penalty) is also appropriate in the circumstances of the case, therefore no case of for enhancement of the sentence is made out either. Resultantly both appeal of the appellant and the revision petition for enhancing sentence are hereby dismissed.

S. A. /A-115/L Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.