ZAFAR IQBAL alias SHAHID vs THE STATE

ABDUL HAMEED DOGAR J:---Petitioner Zafar Iqbal alias Shahid seeks leave to appeal against the judgment dated 14-5-2002 of a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Appeal' No,56-J of 2002 filed by him was dismissed and death sentence awarded to him by the learned trial Court was upheld and Murder Reference for confirmation of death sentence forwarded by the learned trial Court was accepted.

2. The fateful episode took place on 24-2-1998 at about 5/6 p.m. When at that time complainant/injured Muhammad Javed had gone to Mandi Morr from where petitioner took him to village Chhatta. Petitioner in order to extort Rs,14,000 from the complainant which money was with him at that time, arranged meal from his house in which he mixed some intoxicant. After having meal accused Anwar, Aurangzeb and one unknown person took him from the house of petitioner to the fields at about 12-00 midnight. After reaching there, petitioner fired 2/3 shots from his pistol, which hit the complainant on his abdomen and he fell down. He raised hue and cry which attracted P.Ws. Allah Ditta and Wali Dad to whom he narrated the entire incident. He was removed to the hospital immediately and it was on the next (lay i,e, 25-2-1998, Muhammad Ali, S.-I. Recorded his statement at about 10-00 a.m on the basis of which F.I.R. No,76 was registered at Police Station Qadirpur, District Jhang under section 324, P.P.C. Against the petitioner and co-accused namely, Anwar, Muhammad Ashraf and Aurangzeb.

3. Complainant succumbed to the injuries on 12-4-1998, therefore, sections 302/394/34 P.P.0 were substituted.

4. Initially, an incomplete charge-sheet was produced against three accused, namely, Anwar, Muhammad Ashraf and Aurangzeb before the Anti-Terrorism Court, Faisalabad, wherein petitioner Zafar Iqbal was shown as an absconder. After completing_ the necessary legal formalities, as required by law, he was declared proclaimed offender.

5. The trial proceeded against the above mentioned three accused who were acquitted by the trial Court. Thereafter, it was on 1-12-2003, petitioner was arrested and was sent up to face trial under sections 302/394/34, P.P.C. And section 7 of Anti-Terrorism Act, 1997 (hereinafter referred to as the Act) before the above mentioned Court.

6. At the trial, the prosecution examined as many as 13 witnesses, namely, (P.W.1) Dr.Abdul Aziz, (P.W.2) Muhammad Zaffar Iqbal Khan, (P.W.3) Ghulam Shabbir, (P.W.4) Rana Khushi Muhammad, (P.W.5) Allah Ditta, A.S.-I., (P.W.6) Abdul Aziz, (P.W.7) Muhammad Khan, (P.W.8) Allah Dad Khan, (P.W.9) Wali Dad Khan, (P.W.10) Muhammad Yousaf, (P.W.11) Muhammad Ali, S.-I., (P.W.12) Maqbool Sardar, S.-I. And (P.W.13) Arif Ali, Advocate Supreme Court.

7. As per medical evidence furnished by (P.W.6) Dr. Muhammad Zafar Iqbal, S.M.O. Of D.H.Q.

Hospital, Jhang, deceased Muhammad Javed had received the following in juries:

(i) A septic wound 24 c.m. x 20 c..m. x intestines coming out on the middle of abdomen.

(ii) A septic wound 2 c.m. x 1.5 c.m. x cavity deep, 1 c.m. Right from Injury No,1-.

(iii) A septic wound 3 c.m. x 2 c.m. x cavity deep on the right iliac fossa.

(iv) Colostomy done (an operture 7 c.m. x 4 c.m. For drains present.

(v) A septic wound 3 c.m. x 2 c.m. x cavity deep on the left iliac fossa. According to him, the cause of death in this case was septicemia, result of above mentioned injuries.

8. In his statement recorded under section 342, Cr.P.C. The petitioner denied the case of prosecution and pleaded innocence. He, however, neither examined himself on oath as required under section 340(2), Cr.P.C. Nor led any evidence in defence.

9. On the conclusion of the trial, the learned trial Court found the petitioner guilty and vide judgment dated 8-12-2001 convicted him under section 302(b), sentenced to death as Taazir. He was also directed to pay Rs,1,00,000 as compensation to the legal heirs of the deceased. He was also convicted under section 394, P.P.C. And sentence to imprisonment for life. Irrespective of above, he was also convicted under section 7 of the Act and was sentenced to death and was directed to pay a sum of Rs,1,00,000 and in default whereof to undergo further R.I. For 10 years.

Reference for confirmation of the sentence of death or otherwise was also forwarded to the learned Lahore High Court.

10. In appeal, the learned Lahore High Court, Lahore, vide judgment dated 14-5-2002 set aside the conviction and sentence under section 7 of the Act whereas upheld the sentence recorded under sections 302(b) and 394, P.P.C. With the modification that the sentence of imprisonment on account of default in payment of compensation under section 544-A, Cr.P.0 shall be S.-I. For six months.

11. We have heard Mr. Muhammad Amjad Malik learned Advocate Supreme Court for the petitioner and have gone through the record and the proceedings of the case in minute particulars.

12. Learned counsel for the petitioner contended that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice.

According to him, from the medical evidence as well as from the nature of injuries on the person of the deceased, the conclusion that he was in the state of fit condition to make statement is not believable. He emphasized that the statement of the deceased cannot be treated as dying declaration by stretch of any imagination as the deceased had expired almost 47 days after being injured and it is obvious that when he had made the statement, he was not having any imminent apprehension of death in his mind. He asserted that septicemia had occurred due to medical negligence and was not the result of injuries, which had been caused to the deceased.

13. Both the Courts below have rightly treated the F.I.R as dying declaration mainly for the reason that the injured was initially admitted in Casualty Ward of District Hospital, Jhang where his report was taken down by Muhammad AIL Sub-Inspector of Police Station Qadirpur, who noted his condition and stated that he was in full senses. The petitioner has not been able to shatter the evidence of Medical Officer and the author of the report, namely, Muhammad Ali, S.-I. On this aspect of the case, as such, its authenticity being voluntary in nature and spontaneous cannot be doubted. The contention that the deceased had expired almost 47 days after the occurrence and hence his statement Exh.PF could not be considered as dying declaration has no force for the reason that the deceased has sustained 2/3 fire shots in his abdomen and after receiving those injuries he had made the statement before Muhammad Ali obviously apprehending his immediate death. It is worth consideration that dying declaration made soon after the incident or at a time when the deceased expected death deserves great weight and cannot be discarded merely on- the assumption that it was the result of consultation or deliberation. This Court in the case of Farmanullah v. Qadeeni Khan and another (2001 SCM R 1474) has dealt with the similar aspect of the case and while finding dying declaration as valid and in accordance with the principles laid down by this Court from time to time set aside the judgment of acquittal passed by the High Court and restored the judgment of the learned Additional Sessions Judge, Nowshera whereby the respondent was sentenced to death.

14. To substantiate the admissibility of statement of the complainant as dying declaration, it would be relevant to refer Article 46 of Qanun-e-Shahadat, 1984, whereby statement, written or verbal of relevant facts made by a person who is dead, is admissible in evidence. The said dying declaration has been fully corroborated by the eye-witness account furnished by P.W., namely, Allah Dad and Wali Dad at trial. The ocular account was enough by itself to hold that petitioner responsible for murder of deceased, yet the medical evidence further corroborated the testimony of the eye- witnesses. There was no enmity between the parties, which excludes all possibilities of false implication or substitution. It was a pre-planned and brutal murder. The judgment of trial Court upheld by the High Court is strictly in accordance with the principles laid down by this Court relating to dispensation of criminal justice. Thus no interference is warranted.

15. In consequence, leave to appeal is refused and the petition is dismissed.