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Official Citation: 2024 PCRLJ 229
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-01-31
Parties: Muqadar Khan vs The State and 01 Other
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-01-31, officially reported as 2024 PCRLJ 229. In this matter between Muqadar Khan and The State and 01 Other, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 PCRLJ 229
Court Name: Peshawar High Court Judge(s): Muhammad Naeem Anwar, Muhammad Ijaz Khan Title: Muqadar Khan vs The State and 01 Other Case No.: Cr. A. No. 171-M/2021 Date of Judgment:2023-01-31 Reported As: 2023 PHC 9, 2024 PCRLJ 229 Result: Accordingly Dismissed
JUDGMENT
JUDGMENT MUHAMMAD NAEEM ANWAR, J.- Appellant/convict Muqaddar Khan has preferred instant appeal u/s 410, Cr.P.C. against the judgment of the learned Additional Sessions Judge/Model Criminal Trial Court, Malakand at Batkhela, rendered in case FIR No. 53 dated 03.09.2017 u/s 302, 324, 337-F(ii)/34 PPC of Levies Post Khaar, District Malakand, whereby he was convicted and sentenced as under: 1. 302 (b) PPC Life imprisonment, with the directions to pay Rs.500,000/- as compensation to the legal heirs of the deceased within the meanings of section 544-A Cr.P.C or in default to undergo further 06 months S.I; 2. 324 PPC 07 years rigorous imprisonment, with a fine of Rs.100,000/- or in default to undergo further 04 months S.I; and 3. 337-F(ii) PPC 02 years rigorous imprisonment, with directions to pay Rs.50,000/- as daman to injured Noor Hayat or in default to undergo further 03 months S.I. All the sentences were ordered to run concurrently with benefit of section 382-B Cr.P.C. Injured Noor Hyat alongwith LRs of the deceased have also filed the connected Cr.R No. 44-M/2021 against the judgment of the learned trial Court qua the quantum of sentences awarded to the appellant. Both the cases, being off-shoots of one and the same judgment, are decided through this single judgment. 2. Brief but relevant facts of the case, as per contents of Murasila drafted on 03.9.2017, are that deceased then injured Khaista Rehman reported to IHC Ziaullah (PW2) at DHQ Hospital Batkhela
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to the effect that he was posted as lineman in village Dheri situated within the limits of Sub-Division Khar; that on the same day when he came home after repairing of a Transformer, the gate of his house was knocked in response of which he came out and saw that the present appellant, duly armed with pistol, was present there alongwith an unknown person who was unarmed. The appellant questioned him for interrupting supply of electricity to his house and brawled with him. During the fight, Noor Hayat (PW-8), who is nephew of the deceased, also came to the spot and was trying to separate them but the appellant started firing at them, as a result whereof Khaista Rahman as well as Noor Hayat got hit and sustained injuries on their bodies. The occurrence was stated to have been witnessed by Mudasir (PW-9) and Waqar Ali (abandoned). 3. Report of the deceased then injured recorded in shape of murasila, was converted into formal F.I.R wherein the appellant and his co-accused were initially charged u/s 324/34 PPC. Later on, complainant succumbed to the injuries on 07.09.2017, therefore, section 302 was added in the FIR with further addition of section 337-F(ii) PPC qua the injuries sustained by Noor Hayat. Both the injured were initially attended by Dr. Atta Ullah Shah (PW-4) in DHQ hospital Batkhela who gave his opinion Ex.PW-4/1 wherein he observed that: Injured pt. Khaista Rahman and Noor Hayat are well oriented with time, place and person and the injured are able to give statement to police and he given statement to police in my presence. Dr. Attaullah also examined injured Noor Hayat and found four firearm injuries on his body, the detail whereof as per report Ex.PW-4/2 is as under: 0.5 x 0.5 cm in anterolateral aspect of right leg. Entry wound. 0.5 x 0.5 cm in anterolateral aspect of right leg. Exit wound. Another wound 0.5 x 0.5 cm anterolateral aspect of right leg. Entry wound. Another wound 0.5 x 0.5 cm anterolateral aspect of right leg. Exit wound. The injured was referred to Peshawar for further management. Complainant Khaista Rahman in injured condition was examined by Dr. Gul Rahman (PW-3) on 03.0.2017 at 10:55 P.M and gave his report Ex.PW-3/1, which reads as follows: Patient Khaista Rahman brought to the Emergency department at the mentioned time and date by the attendants, stable and oriented with history of gunshot (FAI) wearing blue color cloths. On examination there was a lesion of about 0.5 x 0.5 cm on the lateral lower side of left thigh with another wound of about 1x1 cm on the medial upper side of left thigh near scrotum crossing scrotum with the same characteristics of wound with another wound on the medial upper side of the right thigh measuring about 1x1 cm and a wound of about 1x1 cm on the upper lateral side of right thigh. There was no other mark on the borders of wound. Stitches were taken from the right lateral side wound of the right thigh. Tight compressive bandages were applied to the Edematoused scrotum and other wounds, initial treatment was given and patient immediately referred to the tertiary health care unit for investigation and management. The injured complainant was also referred to LRH Peshawar but later on he died on 07.09.2017. Post- mortem on the dead body was conducted by Dr. Atta Ullah (PW-4). No wound was reported in Column Nos. II to IV except at Serial No. 13 of Column No. IV, the detail of which alongwith other relevant portion of the post-mortem report Ex.PW-4/3 is as under: (I) EXTERNAL APPEARANCE: Mark of ligature etc: Nil. Condition of subject: Stout. WOUNDS, BRUISES, POSITION, SIZE, NATURE. Patient when received at emergency was already dead. There were wounds (stitched) on the both lateral and medial sides of both thighs and scrotum. The clothes were embedded with blood.
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Cause of death: Excessive bleeding from wounds due to FAI. (13) Organs of generation external and internal: stitched wounds on the scrotum. (V) MUSCLES, BONES, JOINTS: Injury: Wounds on both the thighs both aspects (lateral and medial) and scrotum. (VI) REMARKS BY MEDICAL OFFICER. FAI. Blood vessels of thighs and scrotum damaged Dangerous injuries. Probable time that elapsed. (a) Between injury and death: 03-09-2017 10:55 pm to 07-09-2017 07:15 am. (b) Between death and Post-mortem: Approx: 20 Minutes. PW-4 also endorsed death certificate of deceased Khaista Rahman which is available on record as Ex: PW4/4. 4. Appellant was arrested on the following day of the occurrence i.e., 04.09.2017 who lodged a cross report vide Daily Diary dated 04.09.2017 alleging therein that on 03.09.2017 at about 21:30 hours he came to village Dherai for receiving generator sent by his brother from Saudi Arabia through Cargo; mistakenly, he knocked the door of the house of Khaista Rahman instead of Sherin Zaman, in response whereof Khaista Rahman came out from his house and likewise on his call about six other persons armed with sticks, iron rods and pistol came there, as such, Khaista Rahman with the help of his other unknown companions started beating him as result of which he sustained injuries on his head, forehead and also suffered on his body internally. 5. Name of the absconding co-accused became later on known as Sahib Zada alias Commando. After completion of investigation, challan was put in Court and formal charge was framed against the appellant but he did not plead guilty and opted to face the trial while co-accused Sahibzada was formally proceeded u/s 512 Cr.P.C with directions to prosecution to produce evidence in his absence. Prosecution produced and examined 10 PWs in support of its case and closed its evidence. After examination of the appellant u/s 342, Cr.P.C, the learned trial Court vide judgment dated 24.06.2019 convicted and sentenced him in the same manner as discussed earlier. Appellant challenged the judgment of learned trial Court before this Court through his earlier appeal Cr.A No. 305-M/2019 which was allowed vide judgment dated 10.02.2021 and the case was remanded to learned trial Court with directions to examine or re-examine all essential witnesses of the alleged cross version dated 04.09.2017 as Court witnesses who authored the report, medico-legal report of injured/appellant and bring any other relevant documents on the file of the present case through the authors of those documents deemed necessary by trial Court for just decision of the case. 6. On remand of the case, the learned trial Court recorded statements of 03 witnesses as CW-1 to CW-3 qua the DD dated 04.09.2017 and injuries sustained by accused by affording opportunity to both sides of cross-examination of the said witnesses. After recording additional statement of the appellant u/s 342, Cr.P.C. the learned trial Court found him guilty of the charge, hence, sentenced him through the impugned judgment in the same manner as in the first round, the detail of which has already been given in the earlier portion of this judgment. Hence, instant appeal and connected revision petition. 7. We have heard the arguments of learned counsel for the parties including the learned Assistant Advocate General on behalf of State and perused the record with their able assistance. 8. The case of prosecution against the present appellant is that he came to the house of deceased Khaista Rahman on 03.09.2017 at 22:30 hours and questioned him for disconnecting supply of electricity to the area where his house is situated, on which a fight took place between them during
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which nephew of the complainant namely Noor Hayat also came out of his house and tried to separate them but in the meanwhile the appellant fired at both of them with his pistol resulting into injuries on their bodies. The injuries sustained by complaint Khaista Rahman proved fatal because of which he subsequently died on 07.03.2017. In order to prove the above allegations against the appellant, prosecution has relied upon dying declaration of the deceased then injured available on record in shape of Murasila Ex.PA, ocular account furnished by injured Noor Hayat (PW-8) and Mudassir Khan (PW-9); and circumstantial evidence comprising of medical evidence, site plan, incriminating recoveries including the crime weapon pistol and matching FSL report thereof with the two empties recovered from the spot. 9. First of all, we would resort to dying declaration of the deceased then injured incorporated in Murasila. Dying declaration was previously governed under Section 32 of the Evidence Act, 1972. In Qanun-e-Shahadat Order, 1984 the relevant provision thereof is Article 46, which provides that statement of a person who is dead is relevant if it relates to the circumstance which resulted in his death and is admissible in proceedings wherein cause of his death is a matter in issue. A dying declaration, being the last words of a dying person, is an exception to the hearsay rule, may be admitted as evidence in criminal law. The rationale is that someone, who is dying or believes death to be imminent, would have less incentive to fabricate testimony. No doubt superior Courts have held that dying declaration is a weak type of evidence which requires deep scrutiny with great care and caution but on the other hand it is also a settled principle that a dying declaration can be considered as substantive piece of evidence if the Court is satisfied about its genuineness. Thus, dying declaration is required to be considered on case-to-case basis in view of the attending circumstances of each case and, if found genuine, may be relied upon against accused. The question that when can conviction of an accused be based on dying declaration of a dead person, the guiding principles in this regard have been laid down by Hon'ble Supreme Court from time to time in a number of cases, however, we would refer the case of "Farman Ullah Vs. Oadeem Khan and another" (2001 SCMR 1474). The law enunciated in respect of dying declaration in the said judgement can be enumerated as under: (i) No specified forum is available before whom dying declaration is required to be made; (ii) There is no bar that it cannot be made before a private person; (iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker; (iv) It should be influence free; (vi) In order to prove such declaration, the person by whom it was recorded should be examined; (vii) Such declaration becomes substantive evidence when it is proved that it was made by the deceased; (viii) Corroboration of dying declaration is not a rule of law, but requirement of prudence and such declaration when proved by cogent evidence can be made a base for conviction. In the present case, the occurrence took place on 03.09.2017 at 22:30 hours which was reported on the same date at 22:50 hours, as such, the report was lodged with exciting promptitude and there was no occasion for the deceased then injured either for consultation and deliberation or to record his report under the influence of someone else for implicating the appellant in a false case, especially, when there was no previous blood feud or even a grudge between them. Since, the law neither requires a specified forum before which a dying declaration is to be made nor it is required that a dying declaration is to be recorded in a particular form, therefore, the dying declaration in the present case cannot be discarded for having been recorded by an official of the Levies in shape of Murasila. The question whether Murasilaldying declaration had been drafted on the report of deceased then injured Khaista Rahman, not only said report was seconded by injured eye- witness Noor Hayat but he also verified the contents of Murasila when appeared during the trial
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proceedings as PW-8. The injured complainant and injured Noor Hayat were well oriented in time place and person as spelt out from certificate Ex.PW-4/1 endorsed by Dr. Attaullah (PW-4) who, in order to ascertain as to whether they were able to record statements, had examined both of them on their arrival to casualty of DHQ hospital Batkhela. Learned counsel for the appellant has objected the genuineness of the certificate Ex.PW-4/1 by contending that it was later on endorsed by doctor (PW-4) at the instance of I.0 for strengthening the case against the appellant, however, this objection of the learned counsel has no force in it because the defence counsel has brought nothing on record from the mouth of PWs to create even a slightest doubt qua the genuineness of said certificate. Zia Ullah IHC (PW-2), who recorded dying declaration of deceased then injured in shape of Murasila, has verified the contents of said report by stating that he had read over the report to deceased then injured whereafter he signed the same in his presence. During cross- examination, the defence counsel confronted the author of Murasila with overwriting on the figure '9' in the date of occurrence i.e., 03.09.2017 and father's name of the present appellant which was missing in the report. Overwriting on the figure `9', representing the month, appears to have been made for correction of clerical mistake as other documents prepared by the same author on the same date bear no overwriting, therefore, genuineness of Murasila dying declaration cannot be questioned on the basis of the mentioned ground. Insofar as non-mentioning father's name of the appellant by deceased then injured and non-mentioning name of his co-accused or his physical features are concerned, these facts indicate spontaneous and straightforward mode of the dying declaration as well as absence of any mala fide on the part of injured complainant otherwise he would have named some other person instead of an unknown accused, hence, the objection of the learned counsel in this regard also holds no water. Since, prosecution has adequately discharged its burden in establishing that the dying declaration had been recorded by deceased then injured himself without being influenced or tutored besides the dying declaration has been verified by injured eye-witness/ seconder of Murasila namely Noor Hayat (PW-8) as well as by the author of dying declaration whose statements have not been damaged during their cross-examination, therefore, we feel no hesitation by considering dying declaration of the deceased as a substantive piece of evidence. 10. Another objection of the learned counsel for appellant was that the occurrence had taken place on 03.09.2017 while the deceased died on 07.09.2017, therefore, in view of the mentioned interval, death of the deceased was not the direct consequence of the injuries attributed to the appellant. No doubt, the deceased had expired after four days of the occurrence as reflected from post- mortem report conducted by Dr. Attaullah (PW-4) as well as death certificate issued by him, however, he has reported two entry and two exit wounds on the body of deceased. As per pictorial annexed with the post-mortem report, both the entry wounds were caused by same bullet first hitting the lateral side of left thigh making its exit near the scrotum by causing damage thereto and made exit on the lateral side of right thigh in upward direction. It was brought during cross- examination of doctor (PW-4) that local anesthesia had been given to the injured complainant at Peshawar which not only suggests that deceased then injured was conscious even at the time of his arrival to Peshawar but the locale of injuries also shows that he was not under the immediate apprehension of death. In a similar situation in the case of "Sabir and others Vs. The State and others" (2001 SCMR 94), wherein the deceased had died after five days of the occurrence, the Hon'ble apex Court held that the fact that deceased expired after five days further confirms that there was no eminent danger of his death and made the statement consciously. in the present case, when the deceased had died after four days of the occurrence, whether his report can legitimately be treated as dying declaration or not, this question has been resolved by august Supreme Court of Pakistan in the case of "Wazir Gul Vs. The State" (1975 SCMR 289) by observing that:
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In the first instance, the law does not insist that for the purpose of being treated as a dying declaration, the statement should have been made under immediate apprehension of death. We cannot import into the statutory provision any such extraneous limitation. In the absence of a statutory requirement in this regard, the last incriminating statement made by the deceased could be legitimately treated as dying declaration as was rightly done in the instant case. It was a quite unembellished and straightforward statement having a ring of truth. The record shows that after the occurrence, the deceased was taken to DHQ hospital Batkhela in injured condition where he was examined by Dr. Gul Rahman (PW3) who, after applying tight compressive bandages to the wounds, referred him to LRH Peshawar for further management. After his death, he was brought back to Batkhela hospital on 07.09.2017 and post-mortem was conducted on the same day. The learned defence counsel has taxingly cross-examined the PWs especially Dr. Attaullah (PW-4) to shatter his opinion regarding death of the deceased as direct result of the injuries he had sustained in the occurrence and likewise the appellant has taken the plea in his statement u/s 342, Cr.P.0 that death of the deceased had not occurred as consequence of the injuries he had sustained in the occurrence. The above objections on behalf of defence are dealt with under the doctrine of Novus Actus Interveniens, a Latin phrase which literally means 'new act intervening'. According to explanation in Advanced Law Lexicon (5th Edition) Volume 3, the phrase means there was not such a direct relationship between the act of negligence and the injury that the one could be treated as flowing directly from the other. Thus, the doctrine mainly speaks about a new act or event intervening between the injury as result of initial act and death of the injured. In other words, an accused who caused injury to a person resulting into his death would be held responsible for murder of the latter but under the above principle, he cannot be held criminally liable for the consequences of a new event which intervened between the initial injury and death of the deceased. The Supreme Court of Canada in the case titled "Kenneth F. Salomon And Sterathal Katzaelson MontiRnV LLP Vs. Judith Matte-Thompson And 166376 Canada Inc." reported as 2019 SCMR 238 has laid down two conditions for applicability of the principle of Novus Actus Interveniens firstly, the causal link between the fault and the injury must be completely broken. Secondly, there must be a causal link between that new event and the injury. However, in the present case, neither the learned defence counsel was able to bring on record something from PWs that the deceased had sustained any injury other than those reported by Dr. Gul Rahman in his medico-legal report Ex.PW-3/1 nor the medical evidence divulge that some event had happened to break the causal chain between the injuries sustained by deceased at the time of occurrence and his death. Thus, the two conditions mentioned above have not fulfilled, therefore, the doctrine of Novus Actus interveniens cannot be applied to the present case, as such, the irresistible conclusion is that death of the deceased was the logic and direct consequence of the injuries he had sustained in the occurrence by firing of the appellant, which have been reported in medico-legal report in Ex.PW-3/1. Learned counsel for the appellant, while placing reliance on the judgment of this Court in the case titled "Shah Rukh Vs. The State" (2013 P Cr. L J 237) raised another objection that dying declaration had not been put to the appellant during his examination u/s 342, Cr.P.C, therefore, the last incriminating statement of deceased cannot be used against him. No doubt, it is settled principle of law that if any incriminating piece of evidence is not put to an accused in his statement under section 342, Cr.P.C. for his explanation then the same cannot be used against him for his conviction, however, we do not find ourselves in agreement with the contention of the learned counsel for the reason that dying declaration in the present case is available on record in shape of Murasila (Ex.PA) on the basis whereof FIR (Ex.PW-7/1) was chalked out against the appellant. Though the word 'dying declaration' has not been specifically mentioned in statement of the
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appellant u/s 342, Cr.P.0 but he has duly been confronted with Murasila and FIR in question No.3, which is reproduced below for the sake of convenience.
In our view, when Murasila and FIR have been put to appellant during his examination u/s 342, Cr.P.C, non-specification of the term 'dying declaration' would not make any difference. Especially when the appellant has made only denial to above question. Thus, the dying declaration in the present case, being straightforward and confidence inspiring can safely be relied upon towards the guilt of appellant. 12. It is a well-settled principle of law, as observed by Hon'ble apex Court in the case of "Majeed V/s. The State" (2010 SCMR 55) that a dying declaration, if made even before a private person, is free from influence and the person before whom such dying declaration was made was examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction, as such, in light of the rule laid down in the afore- referred judgment, corroboration of dying declaration is not a rule of law, but requirement of prudence. In the present case, besides the dying declaration, which by itself is sufficient to base conviction of the appellant, there is also unimpeached ocular account and circumstantial evidence of convincing nature on record through which prosecution has proved the guilt of appellant beyond shadow of reasonable doubt. Noor Hayat, who was victim of the same occurrence and verified the dying declaration by signing the same in hospital, appeared in the witness box as PW-8. In examination-in-chief, he reiterated the same facts as emerging from FIR. His presence on the spot at the time of occurrence cannot be doubted in view of firearm injuries on his person because of which he was shifted to DHQ hospital Batkhela for medical treatment alongwith the deceased at the same time though through a separate vehicle. He had attracted to the sport on hearing commotion in the street where he found the deceased and appellant indulged in a fight with each other. He tried to separate them but the appellant opened firing resulting into injuries on him as well as deceased. During cross examination he stated that when he came out, the deceased and appellant were fighting with each other which continued for 4/5 minutes. Although I.0 has not shown the house of the injured witness in the site plan, however, this omission on the part of I.0 is not sufficient to damage the version of injured eye-witness when admittedly he is nephew of the…
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