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Petitioner: Irfan Ullah VS Respondent: The State etc
Court Name: Peshawar High Court Judge(s): Syed Muhammad Attique Shah, Sahibzada Asadullah Title: Irfan Ullah vs The State etc Case No.: Cr.A No.131-B of 2021, Murder Reference No.02-B/2021 Date of Judgment:2022-05-10 Reported As: 2022 PHC 150 Result: Civil Revision Dismissed
JUDGMENT
JUDGMENT SAHIBZADA ASADULLAH, J. Appellant, Irfan Ullah, was tried by the learned Sessions Judge, Bannu for the offences under sections 302/353 PPC read with 15-AA, in case FIR No.11 dated 21.08.2018 registered with Police Station CTD, Bannu and vide judgment dated 30.07.2021, the appellant was convicted under section 302(a) PPC and sentenced him to death as Qisas alongwith payment of Rs.5,00,000/- (Rupees Five Lacs) as compensation under section 544-A Cr.P.C to the legal heirs of deceased or in default thereof, to undergo six months S.I. The appellant was also convicted under section 15-AA and sentenced for 01 year S.I with fine of Rs.10,000/- or in default thereof, to suffer 01 month S.I. The sentences were ordered to run concurrently and benefit under section 382-B Cr .P.C was also extended to the appellant. 2. Through the instant appeal, the appellant has questioned the legality of the impugned judgment and the awarded sentence, whereas, the learned trial Cour t has sent the connected Murder Reference No.02-B/2021 under section 374 Cr.P.C for confirmation of the death sentence or otherwise, while respondent has preferred Criminal Revision Petition No.34-B/2021 for enhancement of the compensation amount. Since all these matters have arisen out of same judgment, therefore, we intend to decide the same through this single judgment. 3. Succinctly , facts of the present case are that on 21.08.2018 at 14:45 hours, complainant Khalid Khan LHC / DFC No.1554, aged about 33 / 34 years, in injured condition, at the Emergency Ward of Civil Hospital, Bannu lodged a report to the effect that he is posted as DFC at PS Basia Khel. On the day of occurrence, he was present in the area while discharging his duties, when accused Irfan Ullah, appellant herein, called him to meet him for some information, so he, on his motorcycle, came to his village Kachkot Asad Khan, where he found accused armed with pistol, who, on seeing him, started firing at him with the intention to commit his qatl-e-amd, resultantly , he got injured and fell on the ground, while accused decamped from the spot after the commission of offence. The
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complainant was shifted to Civil Hospital, Bannu by the people of the locality . No enmity was disclosed. Hence, the FIR. 4. After completion of investigation and arrest of the accused / appellant, prosecution submitted complete challan, where at the commencement of trial, the prosecution produced and examined as many as 12 witnesses. On close of prosecution evidence, statement of appellant / accused was recorded under section 342 Cr.P.C, wherein he professed innocence and false implication, however , neither he opted to be examined on oath as provided under section 340(2) Cr.P.C, nor wished to produce defence evidence. After hearing arguments, the learned trial Court vide the impugned judgment dated 30.07.2021, convicted and sentenced the accused / appellant Irfan Ullah as mentioned above. Feeling aggrieved the appellant approached this court through the instant criminal appeal, whereas the learned trial Judge requested this Court through the connected Murd er reference for confirmation or otherwise of the awarded sentence. 5. The learned counsel for the parties along with learned Asstt: A.G representing the State were heard at length and with their valuable assistance, the record was gone through. 6. In the unfortunate incident the complainant after receiving firearm injuries was shifted to the hospital, where he reported the matter to one Zahir Shah Khan ASI, who after drafting the murasila , prepared his injury sheet and the injured was referred to the doctor for his medical examination. The investigating officer after receiving copy of the FIR, visited the spot and on his personal observation, prepared the site plan. During spot inspection, the investigating officer collected two empties of .30 bore from the place of the accused and blood stained earth from the place of the deceased. Initially , the matter was investigated through a joint investigation team duly constituted under section 19(1) of the Anti-T errorism Act, 1997. It is pertinent to mention that at the time of report, a mobile phone was handed over by the deceased then injured, which was taken into possession and thereafter , the deceased then injured was referred to the doctor for his medical examination. The injured was examined and his medico legal certificate was prepared. The unfortunate injured could not survive and succumbed to the injuries on 24.08.2018, on his death the section of law was altered from section 324 PPC to 302 PPC. The accused was arrested on 26.08.2018 and at the time of his arrest, a mobile phone alongwith a .30 bore pistol were recovered from his personal possession. The investigating officer after collecting the mobile phones both, from the deceased and the convict appellant, applied for the call data record, which was collected, the same transpires that both the deceased and the convict / appellant were in active communication with each other on the day of incident and even, a little before the incident. During investigation, section 7 of the Anti-T errorism Act, 1997 was deleted and as such, the matter was remitted to the Court having jurisdiction in the matter . The convict / appellant faced trial and on conclusion of the trial, the learned trial Court was pleased to convict the appellant vide the impugned judgment. 7. The learned trial Court assessed the evidence thoroughly and after application of its judicial mind to the collected material and recorded statements, convicted the appellant as stated above. The impugned judgment was read with the help of learned counsel for the parties, which tells that the matter was dealt with thoroughly and that the learned trial judge fully appreciated the material aspects of the case. As the appellant has questioned his conviction before this Court through the instant criminal appeal, so this Court feels it essential to reassess and re-appreciate the already assessed and appreciated evidence. True that in the incident, a police official lost his life and it was he who reported the matter while injured, but equally true that the accused deserves to be treated in accordance with law and has the right to fair trial. Yes, the deceased met a tragic death, but we will not allow the gravity of the matter to govern us, by doing so, we will lose the confidence of all involved, and there is every likelihood of miscarriage of justice. We are to tread with care to discover the involvement of the appellant in the death of the deceased. The sole determining factor in the instant case is the declaration of a dying man with no eye witness account and as such, we are burdened with additional care, so to rescue the innocent and punish the guilty . True that dying declaration has received several interpretations regarding its evidentiary value, but we cannot ignore the judicial consensus in holding it a weak kind of evidence, it has never been thrown away , rather emphasis is provided for its corroboration from independent sources. History tells that once sanctity was attached to the declaration made by a dying person, but with passage of time, this approach went through a drastic change with the drastic change in moral values and behavior of the society . The consensus once built up was revis ited and the courts of law were
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burdened with the additional liability of the due diligence and extra care, while convicting the accused. In the recent past, keeping before the moral degenerat ion of society , the sole declaration of a dying man was hardly considered a ground to convict unless corroborated. In this particular case, we are to see the worth of the report made by the complainant then injured. This is for us to examine that the prosecution followed the law on the subject and the guidelines provided. As we have no other eye witness who saw the tragedy and the complainant did not face the taxing cross examination, so we are bound to scan through the record before we conclude. We accept that the claim of prosecution is based on circumstantial evidence and we are firm in our belief that in cases, which hinge on circumstantial evidence, heavy duty is cost upon the prosecution to build up an unbroken and well connected chain, with the collected evidence, where its one end touches the neck of the accused charged and the other the body of the deceased. Prudence accepts no missing link and in case of a missing link, the prosecution would be the worst sufferer and the accused a beneficiary . To proceed with the matter in hand, we are eager to know that what evidence is collected, apart from the report made. This is for us to assess the collected evidence, to gauge its worth and competence, more particularly its inherent worth that could lend support to the statement of a dying person. 8. The moot questions which this Court is to determine are; as to whether the deceased then injured was capable to talk; and as to whether the matter was promptly reported, that too, by the deceased then injured; and as to whether the statement of the doctor inspires confidence regarding the alertn ess and consciousness of the deceased then injured; and as to whether the Call Data Record collected by the investigating officer connects the appellant with the death of the deceased; and as to whether the deceased and the appellant went on talking through their respective mobile phones with each other a little before the incident and as to whether it was the appellant who killed the deceased. 9. As the entire case of the prosecution revolves around the dying declaration of the deceased then injured, so we deem it essential to determine its evidentiary value. This court is to see as to whether the deceased then injured was shifted to the hospital soon after the incident and as to whether he was examined by the doctor , the moment he was brought before. In order to ascert ain this particular aspect of the case, the statements of two witnesses i.e. the doctor who examined the deceased in injured condition and the scribe who reported the matter are of much importance. The doctor was examined as PW-04 who stated that on the day of incident, he was present in the hospital when the deceased was brought by the people of locality in injured condition. After receiving the injured, he started his medical examination and prepared his medico legal certificate; that while providing treatment to the injured, in the meanwhile, the local police attracted to the hospital who started drafting the murasila and prepared the injury sheet. The scribe was examined as PW-11, who stated that when he reached to the hospital, the injured was under treatment of the doctor and by the same time, he reported the matter which was taken in the shape of murasila and his injury sheet was prepared; that after preparation of the injury sheet, the deceased was referred to the doctor for further treatment. It is pertinent to mention that the matter was reported to the local police at 15:30 hours and it was agitated by the learned counsel for the appellant that when the report was made after the medical examination then an inference could be drawn that the matter was investigated and later on, after consultation and deliberation, the appellant was charged for the death of the deceased. We are not persuaded with what the learned counsel for the appellant submitted, as both the witnesses i.e. the doctor and the scribe categorically admitted that at the same time, the treatment of the injured was in progress and the police official was busy in drafting the murasila. We are conscious of the fact that the scribe when appeared before the trial Court, during his cross- examination, stated that after drafting the murasila and preparation of the injury sheet, the injured was referred to the doctor for his medical examination, but the same alone is not sufficient to discard the report of the deceased then injured, as the injured had no mala fide to falsely implicate the appellant for the injuries caused to him. True that the scribe has shown an abnormal alertness and wanted to toe the lines, as in criminal cases, first the report is made, then the injury sheet is prepared and thereafter , the injured is referred to the doctor for his examination, but this explanation of the scribe can only and only be considered a procedural lapse, which cannot overweigh the confidence inspiring report of the complainant. Both the witnesses walked with bonafide, had they any mala fide then they would have told the story in the manner that would suit the prosecutio n. The prime question for us to
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determine is; as to whether at the time of making the report, the deceased was capable to talk; and as to whether a certificate was obtained from the concerned doctor regarding his alertness and orientation and as to whether the seat of injuries on person of the complainant was so severe to confirm that at the time of his examination, he was not in senses. In order to appreciate this particular aspect of the case, we deem it essential to go through the statements of the doctor i.e. the doctor who examined the injured when he was brought to the hospital and the doctor who conducted the autopsy on the dead body of the deceased. The doctor , who provided first aid to the injured at the time of his arrival to the hospital, confirmed that while examining the injured he was capable to talk and the same has been mentioned in the medico legal certificate. The doctor was asked as to whether any certificate was provided by him to the local police and as to whether any request was made by the local police in that respect, the doctor replied in affirmative and stated that a written request was made which was duly endorsed by him. He further stated that it was he who opined to the local police regarding the orientation and capability of the deceased then injured, to talk. The doctor who conducted autopsy on the dead body of the deceased was examined as PW-02 who stated that it was he who conducted postmortem of the dead body of the deceased and that he found two firearm injuries on his abdomen. He further stated that at the time of postmortem examination, he observed that the major organs, inside the body , were injured. An attempt was made to extract from the mouth of this witness that due to excessive bleeding, the deceased then injured was not in a position to report the matter , but this witness did not reply to appease the appetite of the learned counsel representing the complainant. There is no denial to the fact that the deceased received firearm injuries on the vital parts of his body and that the major organs of his body were injured, but we cannot ignore that the deceased then injured survived for three long days and thereafter breathed his last in the Khyber Teaching Hospital, Peshawar . The attending circumstances of the present case leave no ambiguity in mind that the complainant was in senses and was fully oriented in time and space. The certificate asked by the police and report tendered by the doctor leaves no ambiguity that the deceased was capable to talk. When this Court reaches to a conclusion that it was the complainant who reported the matter then in that eventuality , this Court is under the obligation to search for independent corroboration, as the sole statement of the complainant is not sufficient for convicting the appellant. We feel it essential to scan through the record once again in order to find out as to whether the collected evidence supports the stance of the complainant and as to whether the prosecution succeeded in creating a chain. Whether the dying declaration alone can form the basis for conviction or not has been questioned by the apex Court in its reported judgment "Farmanullah Vs Qadeem Khan and another" ( 2001 SCMR 1474 ) wherein it is held that: "It has to be remembered that the Legisla ture has advisedly , as a matter of sheer necessity , incorporated in section 32 an exception to the general rule that hearsay is no evidence. In the very nature of things the sanctity of oath and the test of cross-examination are not available to ascertain the veracity of a dying statement, but the nature of the statement itself and the circumstances under which it is made make probable the truth of the statement and thus, take the place of oath and cross-examination. On first principles, the sanctity attached to such statements by the statute should be respected unless there are clear circumstances brought out in the evidence to show that a dying declaration is not reliable for any reason." 10. Initially , for investigation of the case, a joint investigation team was constituted under section 19(1) of the Anti- Terrorism Act, 1997. The matter was investigated from different angles and the investigating officer made efforts to collect independent evidence in support of his case. The record tells that the investigating officer took into possession a mobile phone from the deceased at the time of his examination by the doctor , and from the appellant soon after his arrest. It is pertinent to mention that the respective cell numbers of the deceased and accused were thoroughly investigated and in that respect, the Call Data Record was collected. The Call Data Record which comprises of several sheets, was duly exhibited and we, with the help of learne d counsel for the parties, went through the same. It is interesting to note that on the day of incident, there was an active communication between the deceased and appellant, more particularly , a little earlier to the time of occurrence. We noted that on the day of incident, the deceased received a call from the cell number shown in possession of the appellant when he was present at Bus stand in Bannu City. It is pertinent to mention that soon thereafter , a second call was received by the deceased when he was proceeding towards the village of the appellant, whereas we found that the last call was
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received by the deceased when he had already reached near the village of the appellant. This was questioned time & again by the learned counsel for the appellant that the prosecution could not succeed in linking the appellant with the collected cell number and that even the prosecution failed to bring on record the ownership of the cell number in possession of the deceased. We understand the anxiety of the learned counsel representing the appellant, on this particular aspect of the case, and it was his anxiety which forced us to revisit the collected material and recorded statements. True that the respe ctive cellular companies were not visited by the investigating officer, and equally true that the forms, initially filled by the deceased and appellant for acquirin g their respective cell numbers, have not been taken into possession, but the record tells that the investigating officer did visit the franchise wherefrom both, the deceased and the appellant purchased the SIMs in their possession and to substantiate its claim the prosecution collected the relevant documents. It is pertinent to mention that on the day of incident, the deceased while leaving the police station recorded his departure in Daily Diary No.12 of the even date, where he expressed his onward engagement in the area and the said document was never questioned and which lends support to the prosecution story . 11. The prosecution took the pain to produce and examine all the relevant witnesses, including the marginal witness in whose presence, the spot was inspected, the empties were recovered and blood was collected. One of the marginal witness who accompanied the Investigating Officer was examined during trial, who was questioned time and again regarding his departure with the Investigating Officer, the time spent on the spot and the completion of spot proceedings, but nothing detrim ental could be extracted from the mouth of this witness to favour the appellant. This witness remained consistent throughout and his consistency further added to the credibility of the investigation conducted. There is no denial to the fact that the accused was arrested on 26.08.2018 and from his personal possession, a .30 bore pistol was recovered and section 15 AA was inserted in the FIR. It was on pointation of the appellant that addition in the site plan was made, where the accused / appellant pointed out the place wherefrom he fired at the deceased. It was vehemently argued that the appellant was charged on the basis of mala fide and that he had no hand in the affair, but the record tells that the appellant was actively involved in the business of narcotic and in that respect several FIRS were registered against him in the concerned police station. The investigating officer collected the details of all the cases, where the appellant was charged and a list was produced before the Court which was duly exhibited. We went through the collected FIRS and found that in all the cases registered against the appellant, the appellant was convicted. The defence took the plea that no major punishment was awarded to the appellant in the referred cases and the quantum of awarded sentence does not hold him responsible for the death of the deceased, as the prosecution is to prove its own case on the strength of the collected evidence. We are not impressed with the submissions made at the bar, as this is not the quantum of sentence, rather the involvement of the appellant in the like activities which confirms the stance of the complainant that the appellant was nourishing a grudge against the deceased, the reasons disclosed by the deceased for his injuries, while reporting the matter , fully persuades us that the appellant had an axe to grind. 12. The investigating officer dispatched, the crime empties collected from the spot alongwith .30 bore pistol recovered from the possession of the appellant, to the firearms expert to ascertain as to whether the collected empties were fired from the recovered pistol. The firearms expert after chemical analysis held that the same were fired from the recovered pistol and in that respect a positive report was submitted. The number of empties collected from the spot confirms the stance of the complainant as the deceased was having two entry wounds on his abdomen. The safe custody right from collecting the empties from the spot and its dispatch with the recovered weapon, to the firearms expert has been proved on record. The investigating officer recorded the statement of all the concerned police officials including, Muharrir of the concerned police station in whose custody the articles were lying and the police official who took the same to the laboratory , they were produ ced before the Court and their statements were recorded. Both the witnesses were thoroughly examined on material aspects of the case, but they remained consistent throughout. The positive laboratory report is a circumstance that supports the statement of the complainant to a greater extent. True that the laboratory report, in itself, is not sufficient for convicting an accused charged, but equally true that it can be considered a circumstance in aid to the collected evidence. In the present case, we lurk no doubt in mind that the report of the complainant is fully supported by the positive laboratory report.
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13. Next important piece of evidence is the medical report, which fully supports the prosecution case. The number of injuries on person of the deceased and the empties collected from the spot support the stance of the complainant. We are fully convinced that the appellant made two fire shots and the deceased received the two, so the medical evidence fully supports the stance of the complainant. True that medical evidence is confirmatory in nature which alone is not sufficient for the conviction of an accused charged, but equally true that when the prosecution otherwise succeeds in bringing on record strong evidence in its favour then medical evidence has the key role to play and the present case is no exception. It was vehemently argued that dying declaration is a weak kind of evidence and is hardly sufficient for the conviction of an accused charged. We are afraid that the defence went wrong while asking our indulgence in its favour . It has never been held that the declaration of a dying man worth no consideration, but instead much care is advised and for that purpose, precautionary measures were asked. If we hold that dying declaration is a weak type of evidence we never intend that it has no sanctity , if such would be the intention then the…
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