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Petitioner: KASHIF-UR-REHMAN and others VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Javaid Iqbal, Amir-ul-Mulk Mengal Title: KASHIF-UR-REHMAN and others vs THE STATE Case No.: Criminal Appeals Nos.151, 159 and Criminal Revision No,69 of 1995 Date of Judgment:1996-03-05 Reported As: 1996 P Cr. L J 1689 Result: Order accordingly
JUDGMENT
JUDGMENT ' JAVED IQBAL, J.--- This .Is an appeal preferred under section 410, Cr.P.C., against the judgment, dated 21-6-1995 passed by learned Additional Sessions Judge-II, Quetta, whereby the accused was convicted under section 302, P.P.C. And was sentenced to undergo life imprisonment. 2. Briefly stated the facts of the case are that on 124-1993 on the basis of a Fard-e-Bian allegedly got recorded by deceased Rana Ejaz a case under section 324, P.P.C. Was registered at Gawalmandi Police Station, Quetta, vide F.I.R. No,43 of 1993 which was subsequently converted from section 324, P.P.C. To that of section 302, P.P.C., after death of Rana'Ejaz. The accused was arrested on the same day and recovery of alleged crime weapon was also effected. The challan was submitted on 15-5-1993 and charge framed on 15-11-1993 to which he pleaded not guilty and claimed trial. 3. The prosecution in support of accusation produced Abdul Jabbar (P.W.11), Dr. Muhammad Amin Mengal (P.W.2), Muhammad Shafique (P.W.3), Maqsood Ahmed, A.S.-I. (P.W.4), Abdul Rauf (P.W.5) , Rashid Ahmed (P.W.6), Taj Muhammad (P.W.7), Kashif Imran (P.W.8), Muhammad Qasim (P.W.9), Rub Nawaz (P.W.10). Muhammad Yousaf (P.W.11), Muhammad Amin (P.W.12), Zahid Hussain (P.W.13), Farooq Jamil (P.W.14), Muhammad Zikria Kasi (P.W.15) and Essar Asghar (P.W.16). On the conclusion of trial the learned Additional Sessions Judge-I, Quetta, convicted the accused under section 302, P.P.C. And sentenced him to undergo life imprisonment. The statement of accused was got recorded under section 342, Cr.P.C. Whereby he denied the allegations and stated that he was innocent and no offence whatsoever was committed by him. He further stated. That the witness being friends of deceased have deposed falsely against him. He also denied the . Recovery of
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crime weapon. He did not prefer to record his statement on oath under section 340(2), Cr.P.C. No defence whatsoever was led. 3. It is mainly contended by Mr., M. Zafar, Advocate on behalf of convict/appellant that the impugned judgment of conviction and sentence being contrary to facts and law, is liable to be set aside as the learned trial Court has failed to appreciate the facts of the case and relevant law which has resulted in grave miscarriage of justice. It is next contended that in fact the prosecution has failed to prove the charge beyond shadow of doubt as entire prosecution evidence is tainted, interested, contradictory and unreliable. It is urged vehemently that the trial Court has appreciated that the prosecution version is not free from doubt and in spite of it benefit whereof has not been given to the . Accused in violation of the settled norms of justice. It is agitated with vehemence that the Dying Declaration cannot be relied upon and learned trial Court has also expressed its doubt about the authenticity of the dying declaration as contained in Fard-e-Bian. Mr. M. Zafar, Advocate contended strenuously that prosecution has failed to establish that any dying declaration was ever got recorded by the injured, who was reportedly in a critical condition and was shifted immediately to Operation Theatre, hence no time was available for recording the dying declaration of injured and in fact, it is an afterthought and fabricated one, as such no reliance can be placed on it. It is further argued that the recovery of pistol allegedly used in the commission of alleged offences, is highly doubtful as no private witness was associated during search and its ultimate transmission to , Karachi and is only supported by police officials and resultantly the report of the Ballistic Expert cannot be made a sound base for the conviction of convict/appellant. The learned defence counsel remained critical regarding the statement of Zikria Kasi (P.W.15) and according to him he had attempted to ' prove the dying declaration of the deceased which was not taken into consideration by the learned trial Court as nothing was stated about this aspect of the matter in affidavit sworn by Zakria Kasi. It is further argued that learned trial Court has erred while relying upon the ocular testimony of Essar Asghar (P.W.16) being a highly partisan and interested witness whose testimony cannot be taken into consideration being a chance witness. It is also pointed out that keeping in view the statement of Dr. Muhammad Amin Mengal (P.W.2) the death of deceased was not direct result of the injuries allegedly inflicted upon him and moreso, the medical evidence pertaining to injuries by deceased on 12-4-1993 was not taken into consideration without any lawful justification. In support of his contention Mr. M. Zafar, Advocate has referred various authorities including the following:-- ' PLD 1960 SC, 223, PLD 1960 Kar. 697, 1968 PCr.LJ 176, 1969 ' PCr.LJ 274, 1974 PCr.LJ 391, 1976 PCr.LJ 249, 1971 PCr.LJ 229, 1993 PCr.LJ 90, AIR 1957 All. 53, PLD 1975 SC 607, 1977 SCMR 72, 1995 SCMR 664, 1975 PCr.LJ 787. 4. Cliaudhary Ejaz Yousaf, Additional Advocate-General appeared on behalf of State and strenuously controverted the position as explained by Mr. M. Zafar, Advocate by arguing that prosecution has proved its case beyond shadow of doubt by producing unimpeachable evidence which remained unshaken and has rightly been relied upon by the learned trial Court. It is further contended that incident occurred in a broad daylight and hence the question of mistaken identity does not arise and Rana Ejaz deceased, who was shifted immediately to hospital and got recorded his Fard-e-Bian also narrated the entire incident in an unambiguous manner. The said Fard-e-Bian can be treated as dying declaration which was got recorded by the deceased at his, own without any exaggeration or dishonest improvement and there is no reason for discarding it being corroborated by recovery and motive. It is also pointed out that the accused was apprehended and a pistol was got recovered which was subsequently sent to Ballistic Expert, who gave positive opinion. It is also argued that the provisions as contained in section ,103, Cr.P.C. Are mandatory in nature, but keeping in view the emergent situation no private witness could be associated and a plausible explanation has been given by the Investigating Officer, explaining that no private person
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was readily available to be associated as witness. Learned Additional Advocate-General has also mentioned the medical evidence and in his opinion the subsequent development resulting into death of Rana Ejaz were mainly related to the injuries as inflicted by the, accused and hence he cannot be absolved from the accusation as levelled against him. It is further argued that the prosecution witnesses remained firm to the test of cross-examination and in spite of various searching questions their version remained unshattered and mere on the ground of friendship and inter se relationship their evidence cannot be brushed aside. The learned Additional Advocate- General contended that prosecution on the basis of ocular version, dying declaration duly corroborated by recovery of pistol, motive, medical evidence and circumstantial evidence has proved its case beyond shadow of doubt and the impugned judgment being free from any grave illegality or infirmity does not call for any interference. In support of his contention, the following authorities were referred:-- AIR 1945 'Crl. 513-514, PLD 1985 SC 361, 1980 SCMR 649, PLD 1990 SC 1088, PLD 1987 SC 467, PLD 1975 SC 607, 1970 PCr.LJ 373, PLD 1983 Pesh. 148, PLD 1977 SC 612. 5. We have carefully examined the respective contentions as adduced on behalf of convict/appellant and for State in the light of relevant provisions of law and record of the case. We have minutely perused the impugned judgment passed by learned Additional Sessions Judge-I, Quetta. We have also examined the evidence as adduced by the prosecution in support of accusation. Abdul Jabbar (P. W.1) is Chemical Examiner, who conducted Chemical and. Serological analysis of the blood-stained articles and opined that the same were stained with human blood and submitted his report (Exh.P.A/A). He was subjected to cross-examination, but nothing beneficial could be extracted, but on the other hand he clarified that all the precautions were taken .And requisite formalities completed such as after due checking the parcel-1 (containing blood- stained earth) and parcel No,2 (containing blood-stained Shalwar and shirt) were received and after analysis the same were sealed with report and sent to concerned police station through a Police Officer after obtaining his signatures. Dr. Muhammad Amin Mengal (P.W.2) has deposed that on 13-6-1993 he was posted as Police Surgeon, Sandeman Provincial Hospital, Quetta, and examined the deceased at 9-00 a.m., who expired in hospital on 12-6-1993 at 5-00 p.m. With the following observations:-- "The deceased was seriously injured, on 12-4-1993 with the history of gunshot wounds and was admitted in the Surgical Unit Ward-II and then after surgical interventions and admissions he was then referred to Surgical Unit-III, for Orthoteatic intervention and treatment. From the record of the Medico-Legal Officer on the first day, he sustained 7 injuries under M.L.C. No,1308/AM and the injuries from serial No,8 to 12 noted on autopsy by me which were surgical scars and therapeutic procedure wounds. The details of the autopsy is as under:-- ' On external examination, the deceased was stout, rigor mortis present complete and fixed, post- mrotem staining like brown present on dependents parts and fixed, wearing cream colour Shalwar and Qamees. Crainu Spinal Cord. Healthy and not opened. Thorax. (1) Walls ribs and cartilages. Healthy. (2) Pleurae. Healthy. (3) Larynx and tracheae. Have regurivitated foecal material. The remaining viscrae were healthy. Abdomen. (1) Wall. One surgical scar starting from the upper abdomen and mid paramecia up to pubic region., distended profusely. (2) Peritoneum. The peritoneum was adhered and subject to the abdominal scars. (3) Mouth, pharynx and esophagus, mouth closed, pharynx and esophagus healthy. (4) Diaphragm. Burst and thorax and abdominal cavity was continued to each other.
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(5) Stomach and its contents. Congested and empty. (6) Pancreas. Healthy. (7) Small intestines and their contents. Congested empty and there was adhesions of jejunum and ileum observed. . (8) Large intestines and their contents. The large intestines (caecum) was ruptured and abdominal cavity was full of foecal mixed material of cottons swabs preserved for chemical analysis. (9) Liver. Enlarged. (10) Spleen. Healthy. (11) Kidneys. Hypertrophied and congested (brown in color). (12) Organs of generation external and internal. Healthy. ' Muscles bones joints. The left thigh was dissected medial parallel to the surgical scar and the fractured feamur exposed which was not united. ' Remarks. The deceased sustained bullet wounds on 12-4-1993 which were grievous in nature. But the deceased suddenly developed acute abdomen S/S on 11-6-1993 and died on 12-6-1993 although he was passing normally for the period 12-4-1993 to 11-6-1993 except the left fracture feature, from the Hospital Chart record. ' To exclude any poisoning the biological samples sent for . Chemical analyses which were:-- (1) Blood from cubital vein. (2) Contents of the abdomen in a cotton swab. - Conclusion/opinion. (1) The injuries were grievous caused by fire-arms which he sustained on the 12-4-1993. (2) The cause of death was rupture of saecum and toxemia and bursting of the diaphragm embracing the vital organs (heart and lungs). (3) The report of the Chemical Examiner which was received in the office on 19-871994 revealed "Nil" regarding any poisoning." He issued post-mortem report on 13-6-1993 which is Exh.P.2/A duly signed by him. He was subjected to cross-examination, wherein he admitted that cause of death was not the direct result of injuries sustained by the deceased on 12-4-1993. He also admitted that deceased remained hospitalized and during that period he used to visit his house. We have carefully examined the cross-examination and if injury No,8 and conclusion No,2 are read together, the result would be obvious that the death resulted due to rupture of saecum and toxaemia which developed due to focal material, peritonitis and bursting of the diaphragm embrassing the vital organs (heart and lungs), the root cause of all these developments which resulted into death was caused by gunshot wounds. Had these wounds not been there, the question of rupture of sacrum does not arise. The inflicted injuries ultimate proved fatal which resulted into death. Any advantage of intervening period during which deceased survived cannot be given to accused who completed his task and made various fires and survival of deceased for a short period makes hardly any difference. The violence of attack by means of firing was sufficient to justify the inference that accused had full knowledge of the likely effect of his attack. There is no cavil to the proposition that if death ensues as a natural or likely consequences and result from an injury voluntarily caused the person responsible for causing that injury is deemed to have caused death. It is remarkable to note that ' when the disease which actually causes death is meeningitis, peritonitis, tetanus, phnumoniaetc and it is the natural and probable result of injury which the person inflicting the injury has caused, the person who inflicts the injury be held responsible for the disease arising from the injury. 1936-39 Cr.LJ 217 and AIR 1937 (R) 429. Similarly "where a person inflicted grievous injuries on an other, and as a result of these injuries pneumonia supervened and the latter died, it was held that the offence committed was that of murder" 1929-31 Cr.LJ 198. Similarly where an injury was inflicted on a person by a blow which in the judgment of competent medical men rendered an operation advisable,
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and, as a preliminarily to the operation, chloroform was administered to the patient, who died during its administration, and it was agreed that the patient would not have died but for its administration, it was held that the person causing injury was liable to be indicted for manslaughter (1883) 15 Cox 174 and (1911) 5 Cr. Law Report 35. The above verdicts are based on "causa, causant" which means the real cause. There is no doubt that rupture of saecum and toxeamia developed due to foecal material peritonitis which bursted the diaphragm and resultantly the heart and lungs were badly damaged which resulted into death acid the, said entire development was due AO fire-arm injuries inflicted by accused, and as such he cannot be exorv rated on the ground that death was not a direct result of gunshot wounds. Muhammad Shafique (P.W.3) has deposed that on'12-4-1993 about 12-00 noon when he was sitting in his shop he heard gunshot fires and saw an injured person lying on the road and one person was running towards Moti Ram Road, Quetta and meanwhile some people had put the injured person in a vehicle. Muhammad Shafique (P.W.3) was got declared hostile by the learned District Attorney and resultantly he was not subjected to cross-examination by the learned defence counsel. It is, however, to be noted that the statement of a hostile witness cannot be discarded altogether and his deposition can be relied upon up to the extent of happening of occurrence, gun-shot reports and lying of one injured person on the road. He also saw one person running towards Moti Ram Road, Quetta. It is to be noted that said aspect was corroborated by Muhammad Yousaf (P. W.11) whose version has been examined at relevant place. It is well-settled by now that such statement can be relied subject to corroboration. Maqsood Ahmed (P.W.4) has deposed that on 12-4-1993 he alongwith Muhammad Qasim, S.-I./S.H.O. Alongwith other police officials reached the house of accused situated at Arif Road in order to arrest him as a case was got registered against him vide F.I.R. No,43 of 1993 under section 324, P.P.C. He further deposed that the house was encircled and they knocked at the door, in response whereof accused came out, who upon enquiry told S.H.O. His name as Kashif-ur-Rehman and also showed his willingness to effect the recovery of pistol which was used in firing made at his brother-in-law. The accused was arrested who took them to a room located towards western side and got recovered a pistol .30 bore kept in black leather cover lying on cupboard and informed that it was the same pistol with which he had fired at his brother-in- law. The pistol was checked and on unloading 4 live cartridges of .30 bore were found in a magazine. The pistol was without any number which was taken into possession by Muhammad Qasim, who after making Fard (Exh.P.4/A) sealed it into a parcel alongwith sample of seal and the parcel was affixed, four stamps of Police Station Gawalmandi duly signed by him and Tariq Mehmood. He also signed sketch of pistol (Exh.P.4/B) and made identification mark on leather cover. He identified pistol (A/1), Leather cover (A/2), separate magazine (A/3) and live cartridges (A/4 to A/7). He was subjected to an exhaustive cross-examination. It is, however, to be noted that no personal enmity whatsoever was alleged. The witness has deposed what he did in a straightforward manner and no dishonest improvement whatever was observed. No contradiction could be pointed out in the statements got recorded under section 161, Cr.P.C. And that before the trial Court. He deposed in a categorical manner while answering one of the questions during cross- examinations as under:-- "I had stated in my 161, Cr.P.C. Statement that accused Kashif-urRehman was arrested in this case and he upon investigation of S.-I./ S.H.O., had revealed that he had badly injured his brother-in-law by firing indiscriminately and had kept the pistol in a cupboard in a room of his house, which he can recover." ' He refuted the suggestion that doctor's clinic is situated just in front of accused's house. He admitted that in his presence no private person was associated as a witness. He also showed his ignorance that doctor's house is also situated nearby. He denied the suggestion that no recovery was made from drawing room. He also denied that the whole proceedings were completed at
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police station. He also denied that a false statement was given by him. No mala fides or ill-will was alleged. Abdul Rauf (P.W.5) has deposed that on 12-4-1993 he alongwith other police staff including Rubnawaz, A.S.-I. Under the supervision of Qasim, S.H.O. Were present at Quarry Road, opposite Taj Store, and Rub Nawaz, A.S.-L. Inspected the site and collected blood-stained earth and put the same in a white colour glass water and sealed into parcel along with sample of seal vide Fard Exh.P.5/A duly signed by him. He identified bloodstained earth as Art.P.8. He further deposed that Rub Nawaz, A.S.-I. Had also recovered six empty cartridges of .30 bore having Mark of 38/84 at the bottom from the front of Taj Store and sealed the same into parcel along with sample of seal vide recovery memo. Exh.P.5/B duly signed by him. He identified the empty recovered cartridges as Art.P.8 to Art.P.15, which were kept in parcel (Art.P.9). He was subjected to cross-examination and no question was asked regarding number of cartridge duly recovered from the spot. No enmity was alleged and Abdul Rauf H.C. (P.W.5) stood firm to the test of cross-examination and his testimony remained unsheltered. He denied the suggestion that entire proceedings were conducted at police station. Rashid Ahmed (P.W.6) has deposed that on 12-4-1993 he was performing his duties at National Saving Centre, Quarry Road, Quetta, and could not see the person who fired and he also did not see the victim. An attempt was made by the learned District Attorney to get him declared hostile, but it was not allowed by the learned trial Court. His statement however, can be relied up to the extent that shooting took place near Taj General Store (place of occurrence). Taj. Muhammad (P.W.7) deposed that on 12-4-1993 Ejaz had come to his shop at about 12-00 noon and he went towards godown when he heard gunshot firing and when he came out from godown Ejaz was lying on the road meanwhile one vehicle arrived there and Ejaz was taken to hospital in the same. He further deposed that he could not see any person while firing or running away. He was got declared hostile and resultantly was not cross-examined by the learned defence counsel. It is worth while to mention here that the statement of hostile witness cannot be ignored altogether and this aspect of the matter has been discussed earlier. It would not be out of place to mention here that he has admitted the occurrence and infliction of injuries by gunshots and removal of injured in car to hospital. Kashif Imran (P.W.8) has deposed that on 12-4-1993 the blood-stained clothes of deceased Rana Ejaz were taken in possession by A.S.-I. Rub Nawaz in his presence and sealed the same into parcel (vide recovery memo. Exh.P.8/A) duly signed by him and that of Muhammad Umer. He identified parcel A/16 and blood-stained Shalwar and shirt A/17 and A/18. He also identified his signatures and that of Muhammad Umer. He was subjected to cross-examination, but nothing advantageous could be extracted. No personal enmity whatsoever was alleged. Mere bald assertion of false statement cannot be considered. Being a natural witness his testimony can be relied upon as he stood firm to the test of cross-examination. He denied categorically that blood-stained clothes (A/17 and A/18) were not taken into possession. He also mentioned that Muhammad Umer had reached hospital prior to him. Muhammad Qasim (P.W.9) has deposed that on 12-4-1993 he was posted as S.H.O., Police Station Gawalmandi when about 12-30 noon he received a telephonic message from hospital that one injured person was brought and in response whereof he alongwith Rub Nawaz, A.S.-1. Tariq Manzoor, A.S.-I., Maqsood* Ahmed, A.S.-I. And other officials reached Casualty Department at Civil Hospital, Quetta where he found an injured person whose name was subsequently revealed as Rana Ejaz, whose memo. Of injuries were prepared and delivered to the doctor. He went on saying that statement of injured Rana Ejaz was recorded (Exh.P.9/A) and thereafter he deputed Rub Nawaz, A.S.-I. For further investigation, and after a while when he was yet in hospital, he received an information from Mukhbar-e-Khas that accused namely Kashif-ur-Rehman, who fired upon and injured Rana Ejaz, was present in his house located at Arif Road. He further deposed that he alongwith Rub Nawaz, A.S.-I., Tariq Manzoor, A.S.-I., Maqsood Ahmed, A.S.-I. And other armed officials immediately rushed to Arif Road, at the house of Kashif-ur-Rehman and arrested him in Case No,40 of 1993 registered under section 324, P.P.C. And
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conducted investigation at the spot, and during investigation accused stated that he injured Rana Ejaz at Quarry, Road by firing and further informed that the pistol was lying on iron cupboard which is in a room located at Western side and recovery can be effected and resultantly the outer door of said room which was at road side was opened and accused Kashif-ur-Rehman, who was ahead got recovered a pistol from cupboard which was in black colour leather cover. It was .30 bore pistol having handle of black colour with Barrel M.20, and on unloading the same 4 live cartridges were found in the Magazine while one live cartridge was found in the "Hamaial" and the same were taken into possession in presence of Tariq Manzoor, A.S.-I. And Maqsood Ahmed, A.S.-I. In Case No,43 of 1993 registered under section 324, P.P.C. And made it into sealed parcel. He further deposed that since no licence could be produced as such, a case under section 13-E of Arms Ordinance was also registered against Kashifur-Rehman. He prepared map of recovery of weapon duly signed by witnesses which is Exh.P.9/B bearing his signatures as well. On 26-4-1993 Investigating Officer handed over him the file for the purpose of preparation of incomplete challan and needful was done. Incomplete challan is Exh.P.9/C duly signed by ,him. He also identified pistol as Art.P.1, cover Art.P.2, Magazine Art.P.3 and cartridges Arts.P.4 to 7. He was subjected to a lengthy cross- examination, but his testimony remained unshattered apart from a few minor contradictions relating to times and departure and arrival on various places, such as from police station to hospital and then hospital to the house of…
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