NOOR MUHAMMAD Versus State

SHAHJI RAHMAN KHAN, J.--- This criminal appeal is directed against the judgment and order dated 22-11-2007 passed by Sessions Judge, Swabi whereby he convicted the appellant Noor Muhammad under section 302(b), P. P. C and sentenced him to death and ordered to pay Rs.100,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Murder Reference No.30 of 2007 has also been submitted by the trial Court in terms of section 374, Cr.P.C. for confirmation or otherwise of the death sentence. Both the matters having arisen out of the impugned judgment dated 22-11-2007 are being decided through this common judgment.

2. The prosecution story in brief is that on 18-4-2005 deceased Tasir Rahman then injured reported to the police that accused Noor Muhammad son of Nazir Muhammad had come to the house of Muhammad Saeed (absconding accused) at Darra. Daughter of Muhammad Saeed absconding accused was engaged to Noor Muhammad accused and in this regard an altercation took. place between Tasir Rahman deceased then injured and the said Muhammad Saeed whereupon Noor Muhammad appellant at the instigation of the absconding accused Muhammad Saeed fired at Tasir Rahman deceased then injured as a result of which the latter received injuries. Motive for the offence was stated to be an oral altercation between the parties on the ladies dispute. A report to this effect was recorded by Shamsur Rahman A.S.-I. P.W.3 at casualty District Headquarters Hospital Swabi on 18-4-2005 at 1435 hours in the shape of Murasila Exh.P.A./1. The said A.S.-I. thereafter prepared the injury sheet Exh.P.W.3/1 of Tasir Rahman and referred him for medical treatment under the escort of Sair Zaman FC.

3. Dr. Syed Asghar Ali P.W.8 on 18-4-2005 at 2-40 p.m. in District Headquarters Hospital, Swabi examined the deceased then injured and found the following:---

Injured conscious well-oriented in time, space and person.

Injuries.

(1) Fire-arm entry wound size 1 /4 x 1 /4 on back between both scapulas.

(2) Fire-arm entrance wound near wound No.1 size 1/4 x 1/4 inches.

(3) Fire-arm entrance wound near wound No.2 size 1/2 x 1/2 inches.

(4) Fire-arm entrance wound near wound No.2 size about 1/4 x 1/4 inches.

(5) Fire-arm entrance wound size 1/4 x 1/4 near wound No.3.

(6) Fire-arm wound on neck at left side about 1/2 x 1/2 in length skin deep.

(7) Fire-arm entrance on right foot size 1/4 x 1/4 inch.

(8) Fire-arm exit wound on the right sole size 1/4 x 1/4.

(9) Fire-arm exit wound on the abdomen between epigastriam and umbilicus with omentum size 2 x 2.

(10) Fire-arm entrance wound on the left shoulder size 1/4 x 1/4 probable duration between injury one hour. Weapon of offence used as fire-arm.

4. After initial treatment the deceased then injured was referred to L.R.H. Peshawar whereafter obtaining high risk consent from Iqbal P.W.7 brother of the deceased then injured, Tasir Rahman, he during the medical treatment succumbed to his injuries in the hospital on 19-4-2005 and the autopsy on his dead body was conducted by Dr. Adil P.W.10 on 20-4-2005 at 8-30 a.m. and he found the following:---

External appearance.

No ligature of mark or dissection seen on the neck. A young average built male, clothes changed, rigor mortis fully developed.

Injuries.

(1) A group of four fire-arm entry wounds on right back of chest, an area of 12 x 4 c.m. is involved, each measuring 1.5 x 1.5 c.m. It was two c.m from mid line and 5 c.m. below base of neck.

(2) Fire-arm exit wound, left back of neck 1 x 5 c.m. in size, 3 c.m. from mid line and 3 c.m. above back of neck.

(3) Fire-arm exit on base of neck on the left side.

(4) Two exit wounds left upper shoulder covering an area of 2 x 1 c.m., 1 c.m. from base of neck and 7 c.m. from tip of shoulder.

(5) One exit wound on left side back of abdomen lumber region 1 x 5 cum in size, 2 c.m. above the breast 9 c.m. from mid line.

(6) Fire-arm entry wound on right side of opigastrium 3 x 2 c.m. in size, 1 c.m. from mid line, 2 c.m. below costral margin.

(7) Laprotomy incision mid line 22 c.m. in length.

(8) Surgical incision done for colostomy, 5 c.m. from mid line 7 c.m. below costral margin.

(9) Left front of abdomen, 1 x 5 c.m. in size, 6 c.m. from mid line, 13 c.m. below costal margin, drain right side abdomen, just on mid line 4 c.m. below costal margin.

Internal examination.

Cranium and spinal cord. Neck soft tissues injured.

Thorax .---Walls ribs, cartilages, pleurae, larynx and tracheas and left lung injured.

Abdomen .---Walls, peritoneum, diaphragm, stomach, pancreas, small intestines and large intestines injured.

In the opinion of this doctor, the deceased died due to injury to the left lung, small and large intestines, pancreas and major bold vessels after abdomen due to fire-arm injury.

5. On receipt of Murasila Exh.P.A./1 the contents thereof were incorporated into F.I.R. Exh.P.A. by Fazal Karim A.S.-I. P.W.5 and investigation was entrusted to Khan Ghalib S.-I. P.W.9. During investigation he prepared site-plan Exh.P.B. at the instance of Mst. Shaista P.W.6. During spot inspection he recovered and took into possession blood-stained earth from the place of the deceased vide recovery memo. Exh.P.C. and also took into possession blood-stained clothes of the deceased Tasir Rahman vide recovery memo. Exh.P.C./1. He also took into possession a sealed bottle containing spent bullet Exh.P.3 vide memo. Exh.P.C./3. On receipt of information regarding the death of Tasir Rahman on 19-4-2005, the section of law from 324, P.P.C. was changed to section 302, P.P.C. vide Mad Report No.5 recorded on 19-4-2005 which read as under:---

6. After completion of investigation and arrest of the accused Noor Muhammad from District Nowshera by Hidayat Ali S.-I. P.W.4 supplementary challan against the accused appellant was submitted in the trial Court. In support of their case, the prosecution recorded the statements of ten witnesses at the trial and at the close of the prosecution case, the convict appellant was examined under section 342, Cr.P.C. who professed innocence and false implication and declined to produce defence evidence or to record his statement on oath under section 340(2), Cr.P.C.

7. After hearing arguments in the case, the learned trial Court convicted the appellant to death sentence and ordered him to pay Rs.100,000 as compensation to the legal heirs of deceased under section 544-A; Cr.P.C. Hence this criminal appeal by the appellant and Murder Reference was made by the trial Court under section 374, Cr.P.C. as indicated above.

8. We have-listened to the comprehensive arguments of the learned counsel for the parties as well as the learned counsel for the State and examined the record.

9. Assailing the prosecution case the learned counsel for the appellant vehemently argued that it was an un-witnessed occurrence, that the dying declaration/report Exh.P.A. attributed to the deceased Tasir Rahman was fabricated and worthless in that before its recording fitness certificate from the doctor present in the hospital was not obtained, that he was capable of giving correct and coherent statement; that in the dying declaration neither the time of occurrence was given nor eye-witnesses were named therein, that the ocular evidence furnished by Mst. Shaista P.W.6 was full of contradictions, discrepancies, improvements and was also incompatible with the dying declaration; that the incident had not taken place in the mode and manner as described by the prosecution; that the dying declaration is not worth the piece written thereon because the injuries sustained by Mst. Amrozia wife of Muhammad Saeed absconding accused were suppressed and registration of cross-case therefor against the deceased Tasir Rahman and his brother Faiz Rahman (abandoned P.W.) vide F.I.R. No.111 of the same date, time and place registered under sections 324/109/34, P.P.C. was not disclosed by the deceased then injured in his report nor by the prosecution witnesses. Therefore, the learned trial Judge having failed to properly appreciate the evidence of the prosecution legally and factually has committed illegality and having not taken into consideration the registration of the cross-case against the appellant has wrongly convicted the appellant. The learned counsel for the appellant therefore submitted that by acceptance of this appeal, the impugned conviction and sentence be set aside and the appellant may be acquitted of the charge levelled against him.

10. As against that, thy learned counsel appearing for the State assisted by learned counsel for the complainant contended that the accusation against the appellant was fully supported by the dying declaration of deceased Tasir Rahman to which sanctity is attached. Keeping in view the ocular evidence of Mst. Shaista P.W.6 which did not suffer from any infirmity and is corroborated by medical evidence and the incriminating recoveries made from the spot, the appeal being bereft of merits be dismissed and the impugned conviction and sentence be maintained.

11. We have carefully considered the arguments addressed at the bar and after thoroughly scanning the material available on record, we have come to the conclusion that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt and as such the appellant is entitled to the benefit of doubt.

12. Admittedly it is true that sanctity is attached to the dying declaration because a dying man is not expected to tell lies (PLD 2006 SC 255) but being weak kind of evidence it requires close scrutiny and corroboration. Some of the well known tests for determining the genuineness of dying declaration are as to whether it rings true, whether the dying man was capable of making it (1997 SCMR 449), whether it was free from outside prompting (PLD 1978 SC 298) and is not inconsistent with other evidence and facts and circumstances of the case. In the case in hand, the dying declaration was recorded by Shamsur Rahman A.S.-I. P.W.3 without obtaining fitness certificate from the doctor in view of the fatal and critical injuries sustained by the deceased then injured Tasir Rahman. The dying declaration was recorded in presence of close relatives of the deceased wherein neither the time of occurrence was given nor any eye-witness was named therein. In the dying declaration the injuries sustained by Mst. Amrozia wife of Muhammad Saeed absconding accused were suppressed and registration of cross-case against deceased Tasir Rahman and his brother Faiz Rahman abandoned P.W. was not disclosed. It was admitted by Shamsur Rahman A.S.-I. P.W.3 in his cross-examination that before the aforesaid exercise he had received a lady in injured condition whose injury sheet was prepared by him and she was referred to lady doctor for medico-legal examination and placed on record injury sheet Exh.P.W.3/X-1 of the said lady and also recorded report for the lady in the shape of Murasila Exh.P.W.3/X-2. It was admitted by Mst. Shaista P.W.6 that she was very much present with her husband when his statement was being recorded by the doctor as well as by the police. Other persons were also present at the time of recording of the statement of the deceased then injured but she was contradicted by Dr. Syed Asghar Ali P.W.8 in cross-examination by stating that he had countersigned the Murasila Exh.P.A./1 in his office after conducting medico-legal examination of the injured. In the attending circumstances the possibility of outside prompting cannot be ruled out when the dying declaration is not corroborated by any independent piece of evidence and registration of cross-case F.I.R. No.111 of the same date, time and place was ignored. The learned counsel for the State was not in a position to explain as to why the eye-witnesses and investigators concealed and suppressed the fire-arm injury to the person of Mst. Amrozia wife of Muhammad Saeed, absconding accused despite registration of cross-case referred to above.

13. Corning to the ocular evidence furnished by Mst. Shaista P.W.6I she is admittedly wife of the deceased. Her name and that of Faiz Rahman (abandoned P.W.) are not mentioned in the dying declaration Murasila Exh. P. A./1 as eye-witness of the occurrence. In her statement she has also named Faiz Rahman as eye-witness of the occurrence. But despite of registration of cross-case against him and the deceased for causing grievous injuries to Mst. Amrozia wife of Muhammad Saeed absconding accused mention thereof was not made by her in her police and Court statement. This witness has also given a different motive for the occurrence than that mentioned in the Murasila by Tasir Rahman deceased. This witness has stated that they took the injured to Swabi Hospital where her deceased husband made report to the police in presence of the doctor where her husband was referred to L.R.H. Peshawar where he succumbed to his injuries and that her statement was recorded by the police as well as by the Magistrate and that spot was also inspected by the Investigating Officer at her instance. In the cross-examination she admitted that before their arrival to the hospital Mst. Amrozia had been brought over there in injured condition and was lying there and that it was correct that her husband and brother in law were charged by Mst. Amrozia for firing and causing fire-arm injuries to her. The witness stated in cross-examination that her statement was recorded after the death of her husband in the police station and the site-plan was prepared by the investigating officer Khan Ghalib P.W.9 at her instance. Contradicting her it was stated by Khan Ghalib P.W.9 that on receipt of copy of F.I.R. at the police station at 1630 hours on 18-4-2005, he reached the spot within 15/20 minutes where Mst. Shaista P.W.6 was available on the spot. She was examined by him on the spot and at her instance he prepared the site-plan Exh.P.B on 18-4-2005. But at the relevant time Mst. Shaista was attending to her husband in the hospital and strangely enough in the site-plan Exh.P.B prepared on 18-4-2005 the Investigating Officer has mentioned Tasir Rahman as deceased and not injured whereas in fact Tasir Rahman then injured died on the next date at L.R.H. Peshawar and to this effect report was recorded at Mad No.5 on 19-4-2005 reproduced above. Because of the afore noted infirmities and contradictions in the statement of Mst. Shaista, her statement cannot be believed as any eye-witness of the occurrence.

14. So far as the medical evidence is concerned, it is well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of injuries, kind of weapon used in the occurrence but it would not connect the accused with the commission of a crime.

15. Not a single empty was recovered from the spot and the recovery of blood-stained earth from the spot and the blood-stained clothes of deceased Tasir Rahman taken into possession by the investigating officer by itself do not connect the convict appellant with the commission of the offence when ocular account has already been disbelieved.

16. For what has been discussed above, this appeal is allowed, the conviction and sentence passed by Sessions Judge, Swabi on 22-11-2007 are set aside and the appellant Noor Muhammad son of Nazir Muhammad is acquitted of the charge. He is to be released forthwith if not required in any other case. The Murder Reference No.30 of 2007 is answered in the negative.

Above are the reasons in support of our short order of the day.

H.B.T./70/P Appeal allowed.