PLJ
2010 Sh.C. (AJ&K) 34
Present:
Iftikhar Hussain Butt, J.
GHULAM
MUSTAFA and another--Appellants
versus
STATE
& others--Respondents
Crl.
Appeal Nos. 85 & 99 of 2005, decided on 12.8.2008.
Dying
declaration--
----Evidentiary
value--It is not requirement of law that dying declaration must necessarily be
made to a magistrate or it must be certified by a doctor rather it depends on
the facts and circumstances of each case while considering the evidentiary
value or weight to such statement. In a proper case a person can be convicted
on the basis of a dying declaration and it is not at all necessary to look for
corroboration provided the Court is satisfied that dying declaration is a
truthful version and not fabricated in any other manner--Prosecution case
mainly rests on the ocular evidence, and the evidenciary value of the dying declaration
need not be put hard test for relying upon the same as would be the case where
the dying declaration is the sole evidence of the conviction cannot be recorded
with acting upon the dying declaration--No specific forum has been provided for
recording dying declaration and it can be made before a private person--It is
also not legal requirement that is must be read over or it must be signed by
its maker--The only legal requirement is that it must be independent and free
from influence of others--In this manner, a very close scrutiny is needed
because such declaration is made in absence of the accused without providing
him an opportunity of cross-examination--The sanctity attached with the dying
declaration by statute must be respected that a dying person is not expected to
tell lie and its veracity cannot be brushed away on the ground that prior to
recording such statement a certificate was not obtained by a doctor when the
dying declaration is relied upon then it does not require any independent corroboration
and conformatory evidence is required only when some discrepancies or
infirmities appear in such declaration. [Pp.
43, 44 & 45] A, B, C, D & E
AIR 1983 SC 164, AIR 1972 SC 1776, AIR 1958 SC Bomaby 22
& 1992 SCR 294, rel.
Criminal
Jurisprudence--
----Principle--Criminal
jurisprudence that in case where the evidence of eye-witnesses is reliable and
trustworthy any variation appearing in the medical evidence would not effect the ocular version of the eye-witnesses which has to
be relied upon. [P. 46] F
2005 SCR 66 ref.
Dereliction--
----It
is by now an enriched principle of law that the misfeasance or dereliction of
duty by the I.O. will not, now go the advantage of accused against the
prosecution as the approach of the Courts to a case carrying capital charge has
to be dynamic and these technical infirmities cannot stand in its way to do
Justice if its conscience is satisfied that the event as narrated by the
witnesses did take place and there is no earthly reason for him to lie--The
infirmities while preparing inquest report and injury forms and even their
non-production is not fatal to the prosecution case because these are hardly
material if the case is otherwise established by the prosecution. [P. 48] G & H
PLJ 2001 Cr.C. (
Ocular
Evidence--
----Principle--When
ocular evidence is reliable and satisfactory, the conviction in law can be
recorded on such evidence done without any further corroboration because
corroboration is required only to satisfy the conscious of the Court that
witnesses have spoken the truth and their deposition is worthy of credence. [P. 49] I
2000 SCR 123 rel.
Mr. Abdul Majeed Mallik, Advocate for (Ghulam Mustafa),
Convict-Appellant.
Ch.
Lal Hussain, Advocate for Complainant.
Mr. Muzaffar Ali Zaffar, Addl. A.G. for State.
Date
of hearing: 12.8.2005.
Judgment
As
the above titled appeals relate to the same incident and judgment; therefore,
these have been consolidated and will be disposed off by this single judgment.
Brief
facts of the case are that on 5.4.2001, Mehdi Khan Head Constable Police (P.W.
13) recorded the statement/dying declaration of Abdur Rasheed, complainant, in
Tehsil Headquarter Hospital Dudyal. The deceased-complainant alleged that he
installed a crush machine in village Gunchoor after acquiring the land on lease
from the Government of Azad Jammu & Kashmir whereby Ghulam Mustafa,
accused, also wanted to install his crush machine on the said land but the
complainant obtained temporary injunction from the civil Court. On 5.4.2001, the
labourers of Ghulam Mustafa, accused, started installation of the crush machine
on the said land. The complainant forbade the labourers in the light of
temporary injunction. In this regard, Ghulam Mustafa, accused, was informed by
some mason or by someone else. The complainant alongwith Ch. Muhammad Khan was
proceeding towards his house riding on the motorcycle. When the complainant
went ahead of the crush machine at
The
motive behind the occurrence has been stated to be a land dispute between the
parties.
On
this report, a case was registered against the accused under Sections 324 &
337-F(1), APC by Muhammad Rasheed Constable Police No.
200 (Incharge Police Station Dudyal) (P.W.9). On the same day, Abdul Rasheed
succumbed to the injuries; therefore, the case was altered to one under Section
302, APC. On 5.4.2001, Zulqarnain Khan (P.W. 15) prepared inquest report Exh.PN
and the injury form Exh.PK of the deceased. On the same day, he took into
possession the bloodstained clay vide recovery memo Exh. PA, Motorcycle No.
4737 AJK-D vide recovery memo Exh. PB and a 12-bore gun alongwith used
cartridge at the pointation of Ghulam Mustafa accused vide recovery memo Exh. PD in the presence of Allah Ditta (P.W.5) and Muhammad Farid
(P.W.6).
After
autopsy, the bloodstained clothing of the deceased were taken into possession
by said Zulqarnain Khan vide recovery memo Exh. PC in
presence of the aforesaid witnesses.
On
10.4.2001, Ghulam Rasool Patwari (P.W.7) prepared the site-plan Exh.PF in the
presence of eye-witnesses and the police. He took into possession the copies of
temporary injunction Exh.PJ, the suit Exh.PKK, the judgment
Exh.PL and the decree Exh.PM.
On
11.4.2001, he also took into possession the pellets of 12-bore gun recovered
from the body of deceased during the postmortem vide recovery memo Exh.PE
attested by the aforementioned P.Ws.5 & 6.
It
was reported by Chemical Examiner vide its report Exh.PP that the earth,
Shalwar, Qameez, Azarband and Bunyan of Abdur Rasheed deceased were stained
with blood.
It
was also reported by Director Forensic Science Laboratory Punjab vide its
report Exh.PQ that crime empty was found to be fired by 12-bore gun allegedly
recovered from Ghulam Mustafa accused.
The
postmortem of Abdur Rasheed deceased was conducted on 5.4.2001 by Dr. Saeed
Civil Medical Officer Tehsil Headquarter Hospital Dudyal vide postmortem report
Exh.PO. He noticed the following injuries on the body of the deceased caused by
firearm. The injuries are detailed as follows:--
"Multiple
pellets entry wound in the right hypochondrium. Two pellets entry wound in the
right lower thorax anteriorly in the midline. One pellet entry wound skin deep
on the right middle thigh anteriorly in the midline.
Opinion:--
According
to the opinion of doctor, the death occurred due to heavy intra-abdominal
haemorrhage caused by firearm."
The
accused was arrested on the day of occurrence and after necessary investigation
challan was filed against the convict-appellant Ghulam Mustafa under Section
302, APC. The charge was framed against the accused but he denied the guilt and
claimed the trial.
In
support of its case, the prosecution produced Muhammad Khan (P.W.2), Abdur Rauf
(P.W.3), Nasir Ali (P.W.4), Allah Ditta (P.W.5), Muhammad Farid (P.W.6), Ghulam
Rasool Patwari (P.W.7), Muhammad Rasheed Constable Police (P.W.9), Muhammad
Aslam Constable Police (P.W.10), Mehdi Khan Head Constable Police (P.W.13),
Raja Rab Nawaz DSP (P.W.14), Zulqarnain Khan Inspector Police (P.W. 15),
Shabbir Khan Constable Police, Zaheer Ahmad and Sajid Shabbir clerk of District
Headquarter Office Mirpur.
After
recording the evidence, the salient feature and circumstances appearing against
the accused in prosecution evidence were put to him for his explanation, as
required by Section 342, Cr.P.C. but he refuted the prosecution evidence and
pleaded to be innocent. The trial Court also conducted the purgation of the
prosecution witnesses, who were found `Adil' according to the report of
`Muzakki'.
After
completion of the trial, Additional District Criminal Court Dudyal, Camp
Mirpur, convicted and sentenced Ghulam Mustafa to life imprisonment under
Section 302(B), APC and also ordered him to pay amount of compensation Rs.
1,000,00/- (one lac) to the heirs of the deceased under Section 544-A, Cr.P.C
in default thereof to undergo four months simple imprisonment. However, the
accused was given benefit of Section 382-B, Cr.P.C vide its judgment dated
7.7.2005. Feeling aggrieved and dissatisfied, Ghulam Mustafa convict-appellant
lodged an appeal for his acquittal, whereas Mst. Nasreen Begum widow of complainant preferred an appeal for awarding the
death sentence to Ghulam Mustafa, accused. The aforesaid two appeals are
subject matter of this judgment.
In
support of the appeal, Mr. Abdul Majeed Mallik, Advocate, the learned Counsel
for the convict-appellant argued with vehemence that a false case has been
registered against the accused on account of enmity. The learned Counsel
further contended that a fake dying declaration was prepared to implicate the
accused with the commission of alleged offence which cannot be taken into
consideration because neither it discloses the time of writing nor it was
attested by any doctor or by any member of the hospital staff. Therefore, the
dying declaration is an afterthought story which has been fabricated by the
prosecution. The learned Counsel pointed out that the eye-witnesses Abdur Rauf
and Nasir Ali being workers of the deceased are interested witnesses;
therefore, their testimony cannot be relied upon. Furthermore, they are chance
witnesses. Thus, their testimony requires close scrutiny. The learned Counsel
also assailed the deposition of Muhammad Khan (P.W.2) on the ground that
according to the prosecution he was sitting on the motorcycle behind the
deceased but he did not sustain any injury; therefore, his presence at the time
of occurrence is also doubtful and suspicious. The learned Counsel emphasized
that the ocular version of the prosecution has not been corroborated by the
medical evidence because according to the site-plan, the shot was fired from a
distance of
1.
PLD 1970 SC 406.
2.
1984 SCMR 1092.
3.
PLD 1984
4.
1994 SCMR 212.
5.
2004 PCr.LJ 813.
6.
PLD 2006 SC 255.
Ch.
Lal Hussain, Advocate, the learned Counsel for the complainant controverted the
arguments raised by the learned counsel for the accused-appellant and submitted
that it is a day light occurrence, F.I.R has been lodged promptly, the names of
the accused and prosecution witnesses have been clearly mentioned, the motive
has been established and the prosecution story has been fully supported by the
dying declaration alongwith three eye-witnesses. The learned Counsel further
contended that obtaining a certificate from doctor about the condition of
deceased was not a mandatory legal requirement. The learned Counsel pointed out
that sanctity is attached to dying declaration by the statue which has to be
respected and relied upon and even dying declaration can be made before a
private person. According to the learned counsel, the dying declaration can be
made sole basis for conviction without any corroboration. The learned Counsel
maintained that the eye-witnesses are neither related to the deceased nor nurse
any grudge against the accused-person; therefore, the question of substitution
of the place of occurrence or the accused does not arise. The learned Counsel
vigorously argued that Muhammad Khan (P.W.2) was riding on the motorcycle
behind the deceased and for the reasons he did not sustain any injury;
therefore, his evidence cannot be ruled out of consideration on the score that
he was not injured. Similarly, Abdur Rauf and Nasir Ali, who were working at
crush machine of the deceased, witnessed the occurrence nearby; therefore, the
trial Court has rightly believed their evidence. The learned Counsel emphasized
that the report of postmortem fully corroborates the ocular version; therefore,
non-mentioning of the clothes of the deceased in the postmortem report or the
inquest report does not affect the prosecution's case adversely. The learned
Counsel laid great stress upon the point that no adverse presumption can be
taken against the prosecution on account of some discrepancies appearing in the
site-plan because it is not a substantive piece of evidence. The learned
Counsel pressed into service the submission that non-mentioning of departure of
Mehdi Khan (P.W. 13) in police diary or the refusal of Muhammad Rasheed (P.W.9)
about hearing of telephone call or non-availability of the documents of
ownership of motorcycle or non-examination of the place of installation of
crush machine are procedural defects and irregularities committed during the
course of investigation which cannot demolish the prosecution case. The learned
Counsel maintained that old age by itself is not a circumstance to reduce the
sentence because the accused is neither mentally senile nor physically infirm
rather the accused was strong enough to shoot at the deceased with precision,
who deserves the normal penalty of death for a deliberate commission of murder;
therefore, the accused may be awarded the sentence of Qisas. The learned
Counsel referred to me the following case law in support of his arguments:--
1.
PLD 1983 SC 27.
2.
PLJ 2001 SC 722.
3.
PLJ 2001 Cri.Cases 1072 DB.
4.
2001 PCr.LJ 1559.
5.
PLD 2001 SC 107.
6.
2001 SCR 402.
7.
2002 PCr.LJ 1965.
8.
2002 PCr.L J 787.
9.
PLJ 2005 SC 1099.
10.
PLJ 2005 SC 1747.
11.
PLJ 2005 Sh.C AJK 1.
12.
2005 SCR 166.
13.
PLD 2006
14.
PLD 2006
Mr.
Muzaffar Ali Zaffar, the learned Addl. A.G. appearing on behalf of the State,
has fully owned and supported the arguments raised by the learned counsel for
the complainant.
The
respective contentions of the learned counsel for the parties were examined
with care alongwith record and the case law cited. The prosecution case mainly
rests upon the evidence of dying declaration and ocular version of the
prosecution; therefore, it will be appropriate to firstly deal with the
evidentiary value of the dying declaration. In the instant case, on receiving
information that Abdur Rasheed, injured was brought to the hospital, Mehdi Khan
Head Constable Police (P.W. 13) went to the hospital and recorded his dying
declaration Exh.PJ, whereby he deposed that the accused wanted to install a
crush machine on the land which has been obtained by him on lease from the
government and he has also obtained a temporary injunction against the accused
from the relevant Court. On 5.4.2001, the accused was installing crush machine
but he forbade the labourers not to do so because a temporary injunction has
been issued. The accused was informed by some mason or somebody else about his
intervention; therefore, when he was proceeding towards his house alongwith
Muhammad Khan (P.W.2) riding on a motorcycle. At
Mehdi
Khan Head Constable Police (P.W. 13) fully supported the aforementioned
statement before the trial Court and despite of lengthy cross-examination his
testimony could not be shaken. He explained that he did not obtain ID Card of the deceased because he personally knew him. He
further stated that he did not obtain any certificate from doctor because the
deceased got recorded his statement in a befitting manner. The learned Counsel
for the defence laid great stress upon the point that dying declaration was
fabricated because neither the time of its recording was mentioned nor it was
certified by any doctor or staff member of the hospital. It was further
contended that the ID Card of the deceased was not
produced and his signature was also not got identified by any witness. In
support of the contentions, the learned Counsel referred to me the case
reported as Mst. Zahida Bibi V. The State (PLD 2006 SC 255), whereby it has
been opined that dying declaration in absence of doctor and without associating
any member of the hospital staff would be a statement under Section 161, Cr.P.C
and not a dying declaration of the deceased which is a weak kind of evidence
because of the absence of cross-examination; therefore, it is dangerous to
accept such statement without careful scrutiny of the evidence and the
surrounding circumstances. The learned Counsel also cited a case titled
Muhammad Latif & another V. Muhammad Hussain & 9 others (PLD 1970 SC
406), whereby it was held that the reliance cannot be placed on the dying
declaration which is recorded in the hospital in presence of all the
eye-witnesses because the possibility that deceased was tutored by these
persons cannot be ruled out. The learned Counsel further cited a case titled
Nazim Khan & 2 others V. The State (1994 SCMR 1092), whereby it was
observed that dying declaration recorded at Police Station in presence of
relatives of the deceased is not worthy of any credence. The learned Counsel
further referred to me a case reported as Muhammad Anwar V. The State (PLD 1984
Lahore 132) whereby it was held that a police officer recording dying
declaration knowing details of incident before time, no certificate obtained
from doctor to the effect that deponent remained conscious throughout and the
police officer not associating any person from hospital staff, dying
declaration though recorded in presence of doctor but no reason was assigned as
to the absence of signature of doctor on the declaration, the genuineness of
such dying declaration is doubtful in circumstances of the case. On the other
hand, the learned counsel for the complainant cited a case reported as
Farman-Ullah V. Qadeem Khan & another (PLJ 2001 SC 722) whereby it was
opined by the Apex Court that no specific forum has been provided by law before
whom such dying declaration is required to be made and it can be made even
before a private person. It was further held that there is no legal requirement
that the declaration must be read over or it must be signed by its maker. The
only condition is that it should be influenced free and the person by whom it
was recorded should be examined as a witness and when it is proved that it was
made by the deceased it becomes substantive evidence; therefore, corroboration
of dying declaration is not a rule of law but requirement of prudence and when
the dying declaration is proved by cogent evidence it can be made basis for
conviction. The learned Counsel for the complainant also referred to me a case
titled Niaz Ahmad V. The State [PLJ 2001 Cri.Cases (Lahore) 1072) (DB)],
whereby it was held that even a statement made under Section 161, Cr.P.C of an
injured person or the F.I.R recorded by him is admissible in evidence as dying
declaration if injured dies later. It was also observed that conviction can be
based upon a dying declaration without any other corroboratory piece of
evidence. However, the Courts look for corroboration as a rule of prudence
depending upon facts and circumstances of each and every criminal case, where
Courts would find for corroboration from other pieces of evidence.
It
transpires from the perusal of above cited cases that it is not requirement of
law that dying declaration must necessarily be made to a magistrate or it must
be certified by a doctor rather it depends on the facts and circumstances of
each case while considering the evidentiary value or weight to such statement.
In a proper case a person can be convicted on the basis of a dying declaration
and it is not at all necessary to look for corroboration provided the Court is
satisfied that dying declaration is a truthful version and not fabricated in
any other manner. I am fortified in my view from the following cases:--
In
Ramawati Devi V. State of Bihar (AIR 1983 SC 164), it was observed that there
is no requirement of law that dying declaration must necessarily be made to a
magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depends on the facts and
circumstances of each particular case. In a proper case, it may be permissible
to convict a person only on the basis of a dying declaration in the light of
the facts and circumstances of the case.
In
Lallubhai Devchand Shah & others V. The State of
In
It
has been held in Abrar Hussain Shah V. The State (1992 SCR 294), that the
evidentiary value of dying declaration depends on the circumstances of each
case, i.e. the words used by the deceased, the impartial character of the
witness who proves the dying declaration and also the mental calibre of the
concerned witness so as to exclude the possibility of misunderstanding the
words used by the declarant. The mere fact that the dying declaration was not a
detailed one is not sufficient reason to discard the same, especially so when
the witness proving the same is upright trustworthy and has no motive to
implicate the accused falsely. It may be observed that the prosecution case
mainly rests on the ocular evidence, and the evidentiary value of the dying
declaration need not be put hard test for relying upon the same as would be the
case where the dying declaration is the sole evidence of the conviction cannot
be recorded with acting upon the dying declaration. As we are of the view that
the testimony of the eye-witnesses needs no corroboration, we need not dilate
upon the question of dying declaration any more. Suffice it to say, if at all
any corroboration was necessary in this case that is furnished by dying
declaration because we find no reason to disbelieve the testimony of Dr.
Muhammad Arif, P.W.
The
evidentiary value of dying declaration was dealt with in a case titled Waris
Hussain Shah V. Abid Hussain Shah & 3 others (2001 PCr.LJ SC AJ&K 268)
as under:--
"The
dying declaration, as stated earlier, is only a corroboratory piece of evidence
which supports the ocular testimony given by the eye-witnesses. No hard and
fast rule can be laid down about the standard of the dying declaration. Its
veracity, authenticity and reliability vary from case to case. In some cases
the dying declaration alone may be considered sufficient evidence against the
accused, while in some, it cannot at all be relied
upon unless it is proved to be reliable or to be supportive of the other
evidence on record. In the case in hand the dying declaration is in line with
the ocular account of the eye-witnesses. No animosity smacks from the dying
declaration, hence its authenticity and reliability cannot be said to be doubtful
for the reason that it is made in the presence of the eye-witnesses, which of
course, is also not true."
The
above stated catena of decisions lays down the principle that no specific forum
has been provided for recording of dying declaration and it can be made before
a private person. It is also not legal requirement that it must be read over or
it must be signed by its maker. The only legal requirement is that it must be
independent and free from influence of others. In this manner, a very close scrutiny
is needed because such declaration is made in absence of the accused without
providing him an opportunity of cross-examination. If
it is found
that deceased had opportunity to identify the accused at
the time of making the declaration, his memory was not impaired, his statement
was consistent throughout, it was made at the earliest opportunity and it was
proved by whom it was recorded then the sanctity attached with the dying
declaration by statute must be respected that a dying person is not expected to
tell lie and its veracity cannot be brushed away on the ground that prior to
recording such statement a certificate was not obtained by a doctor.
The
dying declaration recorded by Mehdi Khan ASI Police (P.W. 13) when examined in
the light of the criterion as mentioned hereinabove, I am of the opinion that
it has been proved beyond any shadow of reasonable doubt and being a
substantive piece of evidence it was rightly relied upon by the Court below. It
is an admitted fact of the case that the occurrence occurred in broad-day light
and only a single accused was nominated by assigning a specific role leaving no
question of mistaken identity. Therefore, I do not find any reason to
disbelieve the aforesaid P.W. who is a government servant having no grudge or
rancour against the convict-appellant.
In
such state of affairs, I cannot subscribe to the view of learned counsel for
the defence that dying declaration is not reliable because it was averred by
the deceased in his civil suit that the accused wanted to install a crush
machine adjacent to his land, whereas according to the dying declaration, it
was deposed by him that he had installed a crush machine in the land obtained
from government on lease, which proves the fact that dying declaration was not
testified by the deceased.
As
stated above, when the dying declaration is relied upon then it does not
require any independent corroboration and confirmatory evidence is required
only when some discrepancies or infirmities appear in such declaration. It will
be pertinent to note here that the prosecution has also produced three
independent and trustworthy eye-witnesses who have no motive to implicate the
accused falsely.
Muhammad
Khan (P.W.2) is neither related to the deceased nor has any enmity or ill well
against the convict-appellant. It has also been proved on the record that at
the time of occurrence he was riding on the back seat of motorcycle which was
driven by the deceased. Therefore, he is a natural and important witness of the
occurrence and his statement cannot be ignored on the basis that he did not
sustain any injury during the occurrence.
Similarly,
Abdur Rauf (P.W.3) and Nasir Ali (P.W.4) have been working with the deceased
but their evidence before the trial Court was recorded after a year and three
years of the occurrence respectively. In such state of affairs, it cannot be
believed that they have not spoken the truth, unduly favoured their deceased
boss and falsely implicated an innocent person substituting the real culprit.
Both the above mentioned eye-witnesses were present nearby the place of
occurrence; therefore, they are also natural and trustworthy witnesses and
cannot be described as chance witnesses. Abdur Rauf (P.W.3) basically belongs
to Kotli whereas Nasir Ali (P.W.4) belongs to
The
next question which heeds determination is as to whether the medical evidence
contradicts the ocular version. The learned Counsel for the defence has
strenuously contended that occurrence took place somewhere else by some other
persons and the victim was targeted from a very close range. According to the
learned counsel, if the deceased was fired upon from a distance of
As
far as the question of non-appearance of Doctor Saeed (P.W.8) is concerned, the
secondary evidence of Sajid Shabbir, clerk DHO Office, has been recorded after
following the required procedure i.e. after recording the statement of Shabbir
Khan Constable police No. 466 P.W. that Dr. Saeed has gone to Saudi-Arabia.
Sajid Shabbir P.W. has clearly deposed about the identification of the
signature of Dr. Saeed on the postmortem report Exh.PO.
Pursuant
to the above discussion, all the eye-witnesses are unanimous on the point that
Abdur Rasheed was killed by the fire of Ghulam Mustafa, accused, with the
.12-bore gun which hit him upon his abdomen who fell down and later on
succumbed to the injury, whereas according to the defence, the occurrence took
place in early hours of the morning at crush machine of the accused whereby the
deceased went to forbid the labourers of the accused and some of the labourers
fired a shot upon him and fled away. The above stated version has not been
specifically taken by the defence either at the time of framing of charge sheet
or at the time of seeking explanation of the prosecution evidence from him, as
required by Section 342, Cr.P.C, but it only emerges from the style of
cross-examination and suggestions put to the prosecution witnesses. When both
the versions of the prosecution and the defence are taken into juxtaposition
and appreciated in its true perspective, the version of the prosecution seems
to be more probable, plausible and trustworthy, which was taken from the day
first, whereas the defence has not produced any evidence or record in support
of its version. Therefore, the version of the defence is neither plausible nor reasonable.
At the same time, I am also cognizant of the fact that in absence of raising a
counter version by the defence, the prosecution cannot be absolved from its
duty to prove its case beyond any reasonable shadow of doubt. The minute
scrutiny of the ocular version, who stood the test of cross-examination
alongwith the evidence of dying declaration, the time and place of occurrence
and death of Abdur Rasheed at the hands of accused by firing a shot have been
fully established. The recoveries of bloodstained clay and motorcycle coupled
with the above stated sufficient evidence, the place of occurrence has been
proved to be same as alleged by the prosecution in F.I.R. The dying declaration
was also promptly recorded which made basis of F.I.R. Both accused and
eye-witnesses are nominated and a clear role has also been ascribed to the
accused. There is no dispute of identification of the accused. It was never
possible for the eye-witnesses to involve an innocent person in a heinous case
of murder instead of a real culprit. The motive setup by the prosecution, a
land dispute between the deceased and the accused has also been abundantly
established and to prove the motive, the copies of the suit Exh.PKK, stay order
Exh.PJ, decision Exh.PL and decree Exh.PM have been produced by the
prosecution. As stated in earlier part of the judgment, the dying declaration
has been proved to be authenticate and reliable which provides ample support to
the ocular version. The postmortem report by Dr. Saeed, the site-plan prepared
by Ghulam Rasool Patwari (P.W.7), the recovery of rifle alongwith a used
cartridge extracted from the body of the deceased, the bloodstained clothing of
the deceased, the reports of Chemical Examiner and Forensic Science Laboratory
Punjab also furnish sufficient confirmatory and corroboratory evidence. In this
manner, the version of the prosecution is clear, cogent and trustworthy.
As
far as an objection raised by the learned counsel for the defence about
non-mentioning of the clothing of the deceased in inquest report or in the
report of postmortem, the non-mentioning of departure of Mehdi Khan from Police
Station in daily diary, the refusal of hearing a telephone call by Muhammad
Rasheed (P.W.9), the non-production of registration papers of motorcycle or non-examination
of the crush machine do not demolish the prosecution case because these are
simply treated irregularities and procedural defects committed during the
course of investigation. (2002 P Cr.LJ 1785).
It
is by now an enriched principle of law that the misfeasance or dereliction of
duty by the I.O. will not, now go the advantage of the accused against the
prosecution as the approach of the Courts to a case carrying capital charge has
to be dynamic and these technical infirmities cannot stand in its way to do
justice if its conscience is satisfied that the event as narrated by the
witnesses did take place and there is no earthly reason for him to lie. (PLJ 2001 Cri.Cases Lahore 700).
It
will be relevant to point out that the purpose of inquest report is only to
find out the cause of death of a person and not the person who had caused the
death; therefore, in the inquest report only description of wounds or other
marks of injuries on body of the deceased, manner of causing injuries and kind
of weapon used alone are required to be mentioned. To provide brief history of
the case or details of place of occurrence and the name of accused is the
responsibility of either the victim if survives before his death or the
eye-witnesses of the occurrence. In this respect, reference can be made to a
case titled Arif V. State & 2 others (PLD 2006
It
has been held time and again by the Apex Court that the infirmities while
preparing inquest report and injury forms and even their non-production is not
fatal to the prosecution case because these are hardly material if the case is
otherwise established by the prosecution. There may be some importance of
inquest report and injury sheet in certain cases when cause of death is
doubtful but in the instant case, the defence has admitted itself that the
deceased was killed by firing a shot by some unknown Pathan labour. In this
regard, reference can be made to a case titled Abdur Rasheed & 3 others V.
Abdul Ghaffar & 5 others (2001 SCR 240).
In
the instant case, the next point which falls for determination is the evidence
of recovery witnesses Allah Ditta (P.W.5) and Muhammad Farid (P.W.6). The
evidence of both the above stated witnesses has been assailed by the learned
counsel for the defence on the ground that they are closely related to the
deceased, whereby on the contrary the learned counsel for the complainant has
also submitted that the evidence of friends and relatives cannot be ignored on
the ground of relationship. I have carefully perused the evidence of both P.Ws.
mentioned above and did not find any material contradiction or glaring defect;
therefore, the evidence of recovery witnesses cannot be discarded on the ground
that it was not witnessed by independent witnesses of the locality. Similarly, mere relationship of the witnesses of recovery memos.
is not a solid ground to reject their testimony
dubbing the same as doubtful. (2001 SCR 240).
It
may also be pointed out that it is well settled principle of law that when
ocular evidence is reliable and satisfactory, the conviction in law can be
recorded on such evidence alone without any further corroboration because
corroboration is required only to satisfy the conscious of the Court that
witnesses have spoken the truth and their deposition is worthy of credence. (2000 SCR 123).
In
view of above stated ocular and corroboratory evidence alongwith the evidence
of dying declaration, I reach the conclusion that the prosecution has
established its case beyond any shadow of reasonable doubt. Therefore, the
impugned judgment passed by the trial Court does not suffer from any
illegality, manifest error or perversity which has to be maintained.
So
far as the case of awarding capital punishment is concerned, I am of the view
that in the light of peculiar facts and surrounding circumstances of the case,
the capital punishment should not be awarded to the convict-appellant for the
following reasons:--
1. There has been inordinate delay in the
disposal of case. The occurrence took place on 5.4.2001 whereas the impugned
judgment is being recorded after seven years and the accused has already
undergone the agony of protected trial and remained detained in lockup for more
than seven years. (1992 SCR 294).
2. The convict-appellant was not awarded
capital punishment by the trial Court who had the opportunity of recording the
evidence of prosecution and was in better position to form its opinion on the
appraisal of prosecution evidence; thus, he had an expectancy of life. (2000 SCR 124).
3. The convict-appellant is 73 years old.
For
what has been stated above, the appeal filed by Ghulam Mustafa,
convict-appellant, having no force is hereby dismissed and the counter appeal
filed by Mst. Nasreen Begum also fails. Resultantly, the impugned judgment
dated 7.7.2005 recorded by trial Court is maintained.
(M.S.A.) Appeal
dismissed.