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Petitioner: AYUBConvict VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Muhammad Daud Khan, Muhammad Khurshid Khan Title: AYUBConvict vs THE STATE Case No.: Criminal Appeal No, 168 of 1978 Date of Judgment:1979-11-17 Reported As: 1980 P Cr. L J 201 Result: Appeal and revision dismissed
JUDGMENT
JUDGMENT ' MUHAMMAD KHURSiliD KHAN, J.-The appellant, Ayub, 45 years old and resident of Lahore, a village in Swabi Tehsil, was convicted by the Additional Sessions Judge, Mardan at Swabi, on 6th of July, 1978, under section 302 read with section 34 of Pakistan Penal Code, and sentenced to transportation for life and a fine of Rs, 5,000 or in default to undergo 6 months' rigorous imprisonment, for having committed the murder of his co-villager Sharnshad, in furtherance of his common intention with Aurangzeb, the absconding accused, by firing at him (Shamshad) on the 21st of January, 1977 at about 2-00 p. Main the area of Vand Budho, distant 4/5 furlongs from Police Station, Lahore. In the event of the realization of fine, it was ordered to be paid to the heirs of the deceased by way of compensation. The convict has come in appeal against his conviction and sentence. A Revision Petition has also been filed by one Sardar Khan for the enhancement of sentence awarded to the appellant. This judgment will dispose of the appeal as well as the revision. ' The facts on which the prosecution case is founded, may be outlined thus :- ' Ayub appellant is maternal uncle's son of the absconding accused Aurangzeb, A sister of the former is also engaged to the latter. Both of them were "Tarburs- of Shamshad deceased of this case. They owned adjacent lands in Vand Budho and some time before the present occurrence there developed a dispute between the two accused persons on the one hand and the deceased and his brothers on the other, over a joint Pulla. On the day of occurrence i,e, on 21st of January, 1977, at about Peshin Vela, Shamshad was proceeding from the village to the land belonging to him in Vand Budho. When he reached on the Pulla near his land, he was fired at by the appellant and his companion Aurangzeb. He was hit and fell down. While in injured condition, he was rushed to
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Lahore Police Station, 4/5 Furlongs away where within. 45 minutes, his First Information Report was recorded by the then S. H. 0. Musanif Gui P. W. 7. The entire incident is described in the First Information Report and the names of the appellant and Aurangzeb are also set out therein. The Station House Officer prepared the injury sheet Exh. P. W. 7/1, sent the injured to the Hospital under the escort of Foot Constable Gul Muhammad P. W. 8 and himself proceeded to the spot. On reaching there, he inspected the spot and prepared the site plan Exh. P. W. 7/3 with all the notes thereon. He took into possession blood-stained earth from the spot and made it into a sealed parcel vide Memo. Exh. P. W. 2/1. He recovered a '12 bore empty Exh. P. 1 from point No, 6 shown in.The site plan vide recovery memo. Exh. P. W. 2/2 and made it into a sealed parcel. ' The same day, Musanif Gul, S. H. 0., arrested Ayub accused at 6-00 p. m. =At the time of his arrest, he lodged a cross report with the S. H. a In the said report, Ayub charged Shamshad (deceased), his two brothers Kishwar and Shadai, and his son Zahur, for having fired at him ineffectively at 2-00 p. m., the same day. On the basis of this report, a case under section 307 read with section 34, Pakistan Penal Code was registered. ' Dr. Dilawar, Medical Officer, Government Lady Reading Hospital, Peshawar, examined Shamshad while in injured condition, on 21st of January, 1977 and found a fire-arm entrance wound on his person having been caused within 6 hours duration. The injured succumbed to the injuries in the Hospital on 23rd of January, 1977. On the receipt of an information about his death, Masood Pervez, then Sub-Inspector, Police Station, East Cantt., Peshawar, P. W. 9, proceeded to the Hospital and on reaching there, he prepared injury statement Exh. P. W. 9/1, and inquest report P. W. 9/2 in respect of the dead body and dispatched it for post-mortem examination. ' The autopsy on the dead body was conducted by the same doctor, Dr. Dilawar, on the same day on which Shamashad breathed his last. Death, in doctor's opinion, was due to shock and haemorrhage resulting from the fire-arm injury. Exhibit P. W. 11/2 is the post-mortem report prepared by the doctor. After the post-mortem examination, the doctor handed over a bottle containing a spent bullet Exh. P. W. 4 recovered from the dead body of Shamshad deceased, a shirt Exh. P. 5 and Banyan Exh. P. 6, both stained with blood and belonging to the deceased, to Masood Pervez, Sub-Inspector P. W. 9, who took them into possession vide recovery memo. Exh. P. W. 9/3. The latter made over the same to Musanif Gul P. W. 7, who made the shirt and Banyan into a sealed parcel vide Memo. Exh. P. W. 3/1. The blood-stained earth and the clothes of the deceased were sometime later sent to the Chemical Examiner for examination. ' Aurangzeb accused absconded after the occurrence. A warrant under section 204, Criminal Procedure Code was issued for his arrest but was returned unexecuted. Thereupon, proceedings under section 87 of the Code of Criminal Procedure were taken and a proclamation was published as required by the law for the time being in force. In spite of all this, he has not so far been apprehended. ' The report of Chemical Examiner Exh. P. W. 7/10 disclosed that the earth and clothes sent to him for examination were stained with blood. According to the Serologist, the shirt and Banyan were stained with human blood whereas material was insufficient to find out if the earth sent to him for examination was also stained with human blood. ' The prosecution examined 11 witnesses at the trial to support its case, The accused when examined pleaded not guilty, professed in innocence and attributed the case to a false charge against him on account of enmity with the prosecution witnesses. No evidence, however, was led in defense.
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' Upon consideration of the evidence on the record, the trial Court found the accused guilty of the charge against him and consequently convicted and sentenced him, as already indicated. ' The question whether Shams had died as a result of fire-arm injury received by him on the 21st of January, 1977, at about Peshin Wela, is not in dispute. It is even otherwise amply proved on the record that he died on account of the injury received by him at the time and on the date aforesaid. The injury-sheet and the post-mortem report prepared by Doctor Dilawar Khan who examined Shamshad for his injuries and after his death, performed the post-mortem examination on the dead body, clearly show that the deceased received a fire-arm injury on 21st of January, 1977 and died as a result of shock and haemorrhage resulting from the same. It is thus obvious that Shamshad died an unnatural death as a result of fire-arm injury so received by him. ' The moot question in the case, however. Is as to whether the criminal act complained of in this case was done by the appellant along with the absconding accused Aurgngzeb in furtherance of a common intention. In order to fix guilt on the appellant, the prosecution in the main placed their reliance on the dying declaration incorporated in the First Information Report Exh. P. A, and the ocular evidence supplied by Naqshband P. W. 5 and Mumtaz P. W. 6. ' A variety of questions has been mooted on behalf of the appellant against the validity of his conviction. All these questions shall be dealt with by us at their proper stage. It appears that the First Information Report Exh. P. A, was recorded at the Police Station at 2-45 p. m. On 21st of January, 1977, i. e. About 45 minutes after the occurrence, the distance between the police station and the scene of occurrence being 4/5 furlongs. The same day, Musanaf Gui, Station House Officer, Police Station, Lahore, proceeded to secure the accused and at 6-00 p. m. He came in contact with the appellant. At that time, the appellant made a report to him which was recorded in a Murasla. The report is in the following terms :- "Today I had gone to my land situate in Vand Budho. That in the meanwhile, Kishwar, Shadai, Shamshad sons of Mir Azam and Zahoor son of Shamshad, residents of the village, armed which Topaks and Temacha came and told me as to why I had broken their Pullah, upon which an altercation between us took place and all the four fired at me with the intention of killing me. But fortunately I was saved. At the spot, Shan Nazar son of Sarkar, Zarkand son of Jabbar, residents of the village, were present who have seen the occurrence. I charge all the aforesaid four persons for firing at me. I could not go to the Police Station, or the place of occurrence, for report on account of fear. Now I make the report." ' This Murasla was sent to the Police Station, Lahore, where it was incorporated in the First Information Report Exh. P. W. 7/4, and in consequence thereof, a case under section 307/34, Pakistan Penal Code was registered. Although the report refers to an incident having taken place at the time and date at which the occurrence resulting in injury to Shamshad deceased took place, it makes no mention of any firing at the latter and states that the informant (Ayub appellant) had been fired at ineffectively by Shamshad (deceased) and three others. In his statement under section 342, Criminal Procedure Code, the appellant admitted having lodged this report. This was objected to on behalf of the defence before the trial Court at the time of final arguments and the Sessions Judge as is apparent from his judgment impugned before us, overruled this objection and held that the report made by the accused before the Sub-Inspector was not hit by section 162 of the Criminal Procedure Code. One of the points in this case raised before us concerns the admissibility of this report. The admission of the appellant having reference to his presence at the spot at the relevant time in the report made by him cannot be said to be a confession in any sense of the term and consequently section 25 of the Evidence Act would be inapplicable to it. This provision of law was no pressed before us, and we think rightly. What was strenuously argued before us by the learned
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counsel for the appellant was that the report of the appellant was a statement made in the course of an investigation as by the time it was made, investigation of .The crime had been started and that the trial Court was in error in holding that the report was not hit by the provisions of section 196, Criminal Procedure Code, and as such was admissible in evidence. He argued that the investigation of the case registered at the instance of Shamshad deceased having already commenced, the report made by the appellant who was accused of committing the crime would unhunt to a statement made by the accused to a Police Officer in the course of an investigation under Chapter XIV of the Criminal Procedure Code, and it would not, therefore, be used against him for the purpose of showing his presence at the spot at the time of occurrence. Support for this view was sought from the decision in Krishna Iyar and another v. The State (1), Pakala Narayana Swami v. Emperor (2) and Suleman Shah v. Ayub and 5 others (3). ' We have carefully examined the cases relied upon by the learned counsel for the appellant and have given a careful and dispassionate consideration to the matter and have arrived at the conclusion that these cases are distinguishable. In the first of these cases, the accused concerned was arrested on board the ship in the Madras harbour with a sum of money upon his person. On that occasion, he gave a false name and pretended ignorance of the scene of offence. Their Lordships of the Madras High Court, holding that the statement so made by the accused should have been excluded under section 162, Criminal Procedure Code, made certain observations which would be of some use to us with reference to the legal position on the point. The observations read : "The evidence of the Inspector of Police, harbour division (P. W. 46), that on that occasion he gave a false name and said that he did not know where Mayavaram was has been admitted, but we are clear that it should have been excluded under section 162, Criminal Procedure Code. We think that the arrest was certainly made in the course of the investigation into the offence and we cannot agree that the statements are admissible under section 8, Evidence Act, as explanatory of conduct". ' The facts of the case, Pakala Narayana v. The Emperor, bearing-upon the construction placed on section 162, Criminal Procedure Code, were that the accused had made a statement to the Police before arrest as also before the First Information Report was lodged against him. The question in this regard which came up for consideration before their Lordships to the Privy Council was whether such a statement was hit by section 162. It was held that the statement was inadmissible as would appear from the following observations of their Lordships : "The present Board have had the advantage of the presence of Sir George Rankin in giving a full consideration to all the reported decisions ; and they have come to the conclusion that the words of the section lead to the conclusion that the statement is not admissible even when made by the person ultimately accused". ' The third was a case where the report was made by an accused at the police post, an hour and a half before the complainant had lodged the First Information Report at the Police Station In that "situation of the matter, their Lordships of the Sipreme Court took the view that in regard to the said statement, the application of section 162, Criminal Procedure (1) AIR 1935 Mad. 479 (2) AIR 1939 P C 47 (3) PLD 1971 SC 751 ' Code, was completely ousted as no case had by then been registered naming the said person as an accused and the stage at which the statement made to a Police Officer is rendered inadmissible under section 162 was not thus reached when the report was so made by the accused. It was, therefore, held that the report was completely admissible in evidence and the Courts below had erred in excluding it from their consideration. ' The facts on, and the circumstances in, which the statements made by the accused in the first two cases were held inadmissible under section 162, Criminal Procedure Code, have no resemblance
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whatsoever to the facts and circumstances of the case before us. In those cases, investigations were not made in respect of the versions given in the statements of the accused the statements were not treated as separate information reports and the reports were not registered separately. It was in these circumstances that it was held that the statements of the accused shalt have to be regarded as having been made in the course of an investigation and, therefore, were inadmissible under section 162. Since in the present case the statement made by the appellant had been treated as a separate information report ; it was registered separately and investigation had also been made in respect of the version ,contained therein, it would not be possible, on the rule laid down in the aforesaid authorities, to hold that the statement made by the appellant in the present case was inadmissible under section 162. As regards the third and the last case referred to above, it may be stated that it had also facts altogether different from the one before us. That case even otherwise can be of no avail to the appellant obviously for the reason that there the report made by the accused was held admissible by the Supreme Court observing that both the Courts below had erred in excluding from consideration the report so made which was an important piece of evidence. Needless to say that in the aforesaid case, the report by the accused was made an hour and a half before the complainant party had lodged the First Information Report, whereas in the present case, the statement was made by the accused about three hours after the First Information Report was lodged. This fact distinguishes one case from the other. Apart from this, all that these authorities can be said to lay down is that section 162, Criminal Procedure Code, applies to those statements only which are made in the course of an investigation. As stated already, the facts of those cases were entirely different from the one before us. In this situation, the statement made by the appellant in the present case cannot be held inadmissible on the basis of the decisions in the said cases. The question whether a statement is recorded "In course of an investigation" or not, is a question of fact to be decided o the circumstances of each case. ' The most notable pronouncement on the question as to what is meant by the expression "in the course of an investigation" occurring in S. 162, Criminal Procedure Code, and as to when a statement can be regarded as step in furtherance of the pending investigation, is that delivered in 1956 by their Lordships of the Supreme Court in Shahamad v. The State (1). It has been adopted and applied repeatedly in some subsequent decisions and its correctness can hardly be doubted. In that case, one of the accused named in the First Information Report in regard to an offence of murder lodged a report at the Police Station a few hours after, laying information to the effect that the murdered man had met his death as a result of certain sequence of events different from the one set out in the First Information Report in which he had been cited as an accused. (1) PLD 1956 SC (Pak.) 238 ' Investigation was made in respect of both the versions and ultimately persons accused in the earlier report were challenged while the other report was cancelled. The Sessions Judge convicted the accused charged in the earlier report on the ground that the report made by one of them established their presence at the occurrence and to that extent the evidence of the eye-witnesses became strengthened against them. It was argued befor etheir Lordships of the Supreme Court on behalf of the appellant that the report of the appellant was a statement madein the course of an investigation as by the time it was made, investigation of the crime had been started. This contention was repelled by their Lordships holding that the expression "in the course of an investigation" occurring in section 162 does not refer only to the duration of investigation and the word "investigation" must refer to the investigation of the specific allegation of crime already reported and that the section can apply only to those statements which are steps in furtherance of the pending investigation. It was further held that the mere fact that a statement is made during an investigation is not by itself sufficient to bring it under section 162 ; that keeping this rule in view as also the fact that investigation had been made in respect of both the reports, and the report of
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the accused was registered separately, the statement in question could not be said to be a step in the investigation of the specific allegation made in the First Information Report moreso when the statement was not intended or treated as a step in furtherance of the pending investigation. In view of this position, we are clear in our mindsthat the aforesaid authority is on all fours with the present case, in which also the appellant has been named in the First Information Report as an accused and lodged the report a few hours after the First Information Report was recorded laying formation referring to certain sequence of events different from the one set out in the First Information Report Exh. PA. The investigation was also made in respect of both these versions and ultimately the persons accused in the earlier report were chailaned. There can be little doubt that these material facts are common to both the cases, namely, the one reported as PLD 1956 SC (Pak.) 238,and the other one before us. It follows, therefore, that the rule laid down in the former case should apply to the case before us. It will note out of place to mention here that the said authority was followed by the Supreme Court in the case of All Zaman v. The State (1) and the principle enunciated in the former case was re-affirmed. The legal position on the point was considered thoroughly in the latter authority and it was held rather in more explicit terms, that counter report lodged by an accused, after complainant's report may be used against the accused, although notas substantive piece of evidence. In our opinion, the decision in the case of Shahamad, followed as it has been in All Zaman v. The State, would govern the present case. We have, therefore, no difficulty in holding that the report made by the appellant in this case to the Police Officer is not c hit by section 162, Criminal Procedure Code, and was, therefore, rightly regarded as admissible piece of evidence, by the trial Court as evidence of admission that the appellant was present at the occurrence. ' The second point urged by the learned counsel for the appellant was that Shamshad, while alive, was examined for his injuries, and on his death the autopsy on his corps was conducted by Dr. Dilawar who has not been examined at the trial as a witness to prove his reports, and instead a Dispenser, namely, Mumtaz, came forward to prove the same. (1) PLD 1963 SC 152 ' It was argued that the reports of the doctor were improperly brought on the record as summons for service upon him was not entrusted to a Police Officer. The learned counsel argued further that even if it were assumed for the sake of arguments that there was nothing improper in bringing on record the said reports, the prosecution ought to have produced some other medical expert from whom the position whether in view of the serious nature of the injury, Shamshad was or was not deprived of his senses and the power of speech ; could be ascertained. On the first impression, this argument of the learned counsel appears to be of some substance in it, but on a careful consideration it appears that the argument is one of form having no substance whatsoever. It may at once be stated that the Administrator, Government Lady Reading Hospital, Peshawar, vide his letter No, 3263 dated 15th May, 1978, informed the trial Court that Dr. Dilawar had left the country for service and his whereabouts were not known. It was further stated in the letter that no other doctor out of the Casualty Staff was acquainted with his handwriting. On this point, Mumtaz P. W. Also came forward with the statement that Dr. Dilawar was out of the country. This question of fact was never disputed by the appellant before the trial Court at any stage of the proceedings. Since the factum of the doctor being abroad stood proved by the material before the trial Court, it would be immaterial that the summons for service upon the doctor was not entrusted to a Police Officer. The reports having further been proved by the statement of P. W. Mumtaz as being in the handwriting of Dr. Dilawar, cannot be said to have been improperly brought on the record. The trial Court, in our view, was perfectly justified in coming to the conclusion that the doctor being out of the country, his attendance could not be procured without an amount of delay or expense which, in the circumstances of the case, was unreasonable.
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' As regards the second ground raised by the learned counsel for the appellant, it is pertinent, in this connection, to point out that there is overwhelming evidence on the record to show that the injury sustained by the deceased did not deprive him of his senses and power of speech. The evidence, to which reference will be made while dealing with the dying declaration, is of such a nature that had there been any opinion by a doctor to the contrary we would have certainly preferred the evidence to such ari opinion. It is also significant that no request on behalf of the appellant was made to the trial Court for the summoning of a medical expert.. This fact alone would disentitle the appellant to raise such an objection before US. ' We now turn to the merits of the case. The prosecution in the main placed reliance on the dying declaration and the ocular account of the occurrence furnished by Naqashband P. W. 5 and Mumtaz P. W. 6. These witnesses are the first cousins of Shamshad deceased. It appears that they are also related to the appellant and the absconding accused. In this regard, the statement of Naqshband P. W. That Ayub accused is the son of his maternal aunt could not be challenged by reference to any evidence on the record. It follows, therefore, that the deceased and the eye-witnesses as well as the accused persons were related inter se. ' With regard to enmity, it may…
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