Full Judgment Text & Judicial Ruling

2002 P Cr

2002 P Cr. L J 1457

[Peshawar]

Before Tariq Parvez Khan, and Abdur Rauf Khan Lughmani, JJ

NOOR JALAL KHAN‑‑‑Appellant

versus

THE STATE and others‑‑‑Respondents,

Criminal Appeal No. 18 of 1999, decided on 24th April, 2002.

(a),Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Deceased who was injured in the occurrence himself was the complainant in the case and his statement was considered as dying declaration which was corroborated by prosecution witnesses‑‑‑Dying declaration was recorded and prepared in hospital by a person totally unconcerned with affairs of police station and no evidence was available to the effect that Police Officer who recorded statement/dying declaration of deceased had any friendly connection with complainant side or was hostile towards the accused‑‑‑Such document, though did not carry certificate from Doctor nor in the beginning it contained routine observation by police stating that injured was in senses, but such omission should .not detract evidentiary . value of dying declaration if Court was otherwise satisfied from the record and from circumstances leading to occurrence that there was no delay; that deceased could speak; that there. was no doubt about identity of accused; that no motive existed of a degree due to which deceased, while nearing his death would tell lie and that no element of prompting was involved‑‑ Capacity of injured to speak, would depend on nature of injuries suffered by ‑ him‑‑‑Evidence on record proved that when deceased (then injured) was received in hospital he could talk‑‑‑Prosecution witnesses had categorically stated that in their presence on arrival of police deceased had himself made report‑‑‑Witnesses were not even suggested that what they had stated was incorrect ‑‑‑F.I.R. was promptly recorded‑‑‑Occurrence had taken place in daylight, firing proceeded by command of .acquitted co‑accused, parties were co -villagers‑‑‑No chance; in circumstances existed of misidentity regarding assailants by complainant‑‑‑Nothing could be brought on record to suggest that deceased might have been fired at by someone else and not the accused and absconding co‑accused‑‑‑Conviction recorded by Trial Court against accused would not require any interference.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 46‑‑‑‑Dying declaration‑‑‑Recording and evidentiary value of‑‑‑No doubt, in the present case, dying declaration neither. carried certificate from Doctor nor in the beginning it contained routine observation by police stating that injured was in senses, but such omission should not detract the evidentiary value of dying declaration if Court was otherwise satisfied from record and from circumstances leading to occurrence, firstly, that there was no delay; secondly that deceased could speak; ‑thirdly that there was no doubt about identity of. accused; fourthly . there was no motive of the degree‑ for which deceased while nearing his death would tell lie and fifthly that no element of prompting existed.

Sanaullah Khan Gandapur for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.‑G. for the State.

Dost Muhammad Khan for the Complainant

Date of hearing: 24th April, 2002

JUDGMENT

TARIQ PARVEZ KHAN, J.‑‑‑ Deceased Nisar Ahmad Khan is, himself complainant of the case. On 1‑8‑1996 at 8‑45 a.m. crime was reported to Mir Ahmad Khan, A.S.‑I: of Police Station Lakki when he proceeded to Civil Hospital, Lakki on receipt of information that an injured has been brought to the hospital.

2. In the hospital, Nisar Ahmad Khan deceased, then injured, stated that on the day of occurrence after sunrise time he in the company of his brother Abdur Rahim and Sabz Ali, driver of the tractor, were levelling the ground in the compound where they intend to construct a new house but in the meanwhile the present appellant, Nooi Jalal, his absconding co‑accused Amir Kamal alias Foolad and their father Noor Kamal, the . acquitted accused, came to the spot and under the command of their father Amir Kamal armed with kalashnikov and Noor Jalal armed with Mark‑IV rifle started firing at him and as a result he got wounded.

Motive for the crime stated was dispute over the same plot where tractor was being used.

3. Learned trial Judge after believing the statement of Nisar Ahmad khan deceased made as dying declaration and who later died, finding corroboration from statements of Abdur Rahim (P.W.4) and Sabz Ali (P.W.5), found the appellant guilty for the offence of Qatl‑e‑Amd and A while convicting him, awarded the sentence of life imprisonment with a fine of Rs.50,000 which amount, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation.

4. The occurrence has taken place in the territorial limits of Police Station Ghazni Khel but the report was made in Civil Hospital, Lakki within the territorial jurisdiction of Police Station Lakki, Muras(la was, therefore, sent to Ghazni Khel for registration of the case, therefore; Sarfraz Khan, S.‑I. (P.W.3) conducted the investigation on the spot. He prepared the site plan and on spot inspection recovered an empty of 7.62 bore besides a live round of the same bore.

5. Conviction and sentence has been assailed through Criminal Appeal No.18 of 1999 where judgment, dated 11‑3‑1999 has been impugned. The said judgment is also not acceptable to the complainant party, therefore, Abdur Rahim (P.W.4). has filed quashment petition praying for enhancement of the sentence of life imprisonment to death and also for enhancement of compensation amount.

6. Learned counsel appearing for the appellant has vehemently

injured was received in the hospital, he could talk and even at the time of his dispatch from Lakki Hospital to Bannu, he could still talk.

Two witnesses, namely, Abdur Rahim and Sabz Ali, have categorically stated that in their presence on the arrival of the police, the deceased himself made the report. These two witnesses were not even suggested that what they had stated is incorrect.

11. The occurrence has taken place in daylight, the firing preceded by command by acquitted co‑accused, the parties are co‑villagers, therefore, there is no chance of misidentity regarding the assailants by the complainant.

The prompting element will also be absent in the case not only because no such suggestions were made to the witnesses including the scribe of the F.I.R., but also because of absence of blood‑feud enmity between the parties.

There is no foundation laid in the cross‑examination that the deceased might have been fired at by someone else and not the present accused and the absconding accused.

12. The capacity to speak of the deceased is again manifest from the Murasila itself where if we advert to the "Karwai police" part, it is recorded that after the report was made, same was read over to the deponent and after accepting the same to be correct, he has thumb impressed it.

No doubt that deceased was highly educated and has not signed the, statement, but it has been solicited from the mouth of the witness that "the deponent has not disclosed to him that he was educated but as a routine we obtained the thumb‑impression".

13. When there is no doubt left in our mind regarding the capacity of the deceased then injured to make statement and when his statement is supported by the author of the statement, the doctor who first examined him, and then such statement has been corroborated through two witnesses, namely, Abdur Rahim and Sabz Ali, the conviction recorded by the trial Court would not require any interference.

As far petition for enhancement of the sentence and for enhancement of the compensation is concerned, we do not find any merit in the same because the deceased has received one fire‑arm injury for which two persons are charged, therefore, a lenient view in awarding sentence was bound to be taken.

Rs.50,000 as imposed fine on the accused/ appellant is a wrong application of law because after the amendment brought in section 302, P.P.C. no fine can be imposed. The sentence of fine is set aside but because compensation under section 544=A, Cr.P.C. is mandatory, we order that amount of ks.50,000 shall be paid as compensation to the legal heirs of the deceased recoverable as arrears of land revenue.

As a result, we dismiss both the appeal and quashment petition.

H.B.T./512/P

Appeal dismissed.

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