1. Rizwan Ashiq, appellant herein, is in receipt of a guilty verdict, returned to him by a learned Addl. Sessions Judge at Gujjar Khan vide impugned judgment dated 17-9-2012; he has been convicted under Sections 392 and 302 (b) of the Pakistan Penal Code, 1860 and sentenced to ten years RI with a fine of Rs.10,000/- or to undergo six months SI in the event of default and death along with compensation of Rs.200,000/- or to undergo six months SI in default of payment thereof, respectively, vires whereof, are being challenged through Crl. Appeal No.63-J of 2012 clubbed with Murder Reference No.93 of 2012, being decided together through this single judgment.
2. Prosecution case is structured upon statement Ex.PG of Muhammad Ilyas (PW-6) recorded by Muhammad Idrees, SI (PW-11) 8:15 p.m. on 25-2-2010 at Tehsil Headquarter Hospital Gujjar Khan wherein it is alleged that on the eventful day at about 4:30 p.m. Tanvir Hussain, 33, hereinafter referred to as the deceased, met the complainant in his van at Taxi Stand Gujjar Khan; he was being accompanied by Rizwan Ashiq appellant seated in the front seat and left for Mandra within his view; at about 5:00 p.m, the deceased informed the complainant on his cell phone that he was shot by the appellant, who had decamped from the scene after taking away the van, pursuant whereto, the complainant rushed towards Mandra, when came across the deceased, being shifted in injured condition to the hospital in a rickshaw; In the hospital, the deceased was pronounced dead. Muhammad Idrees, SI (PW-11) took initial investigative steps that included seizure of bloodstained earth and two casings (P-6/1-2). Autopsy was conducted by Dr. Tariq Mehmood (PW-4) at 8:30 p.m; two entry wounds on the left side of chest, near left nipple, beside the midline, with blackening were noted accompanied by their exits; both the injuries caused hemorrhagic shock leading towards death in the ordinary course of nature within one hour of receipt thereof; time between the death and the autopsy was estimated as one hour and fifty minutes.
The appellant was arrested at 12:30 a.m. after midnight with the vehicle and pistol P-8, secured vide inventory. As the investigation concluded, the appellant was sent to face trial before a learned Addl. Sessions Judge at Gujjar Khan; indicted on 9-4-2010, he claimed trial, pursuant whereto, prosecution produced 11 witnesses besides placing reliance upon forensic reports Ex.PP, Ex.PP/1 and Ex.PQ. Muhammad Ilyas (PW-6) and Tariq Mehmood (PW-9) are witnesses of the last seen departure of the deceased in the company of the appellant on his fateful journey; the former also testified about the last communication of the deceased regarding circumstances subsequent to his departure. Khuram Shahzad (PW-7) is the witness, who had attended the deceased, abandoned in injured condition, shortly after receipt of injuries; he is also privy to the narrative details furnished by the deceased. The appellant confronted prosecution evidence with a denial and blamed a misconceived and misplaced suspicion for his prosecution, without opting to be a witness in disproof of charge. The learned trial Judge, however, vide impugned judgment proceeded to convict and sentence the appellant as referred to above.
3. Learned counsel for the appellant contends that there is no direct evidence to frame the appellant with the charge and that evidence of last seen and dying declaration solely based upon oral narrative of the declarant are too weak pieces of evidence to justify conviction on a capital charge with ultimate penalty and that no significance could be attached to positive Forensic Science Laboratory Report Ex.PQ in view of even date dispatch of casings and the weapon. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant defended the impugned judgment on the ground that prosecution successfully brought home the charge with evidence, best available in the circumstances of the case and that given the enormity of appellant’s conduct, who according to them, committed this crime while he was on bail in a case of identical nature, deserved no leniency.
4. Heard. Record perused. No doubt, there is no direct evidence; as the deceased alone witnessed the calamity that befell upon him, however, direct evidence is not the only methodology to prove an indictment; it can be accomplished through indirect or circumstantial evidence as well albeit with extra caution and once the chain of circumstances is constituted in such a way that no reasonable inference except for the guilt is drawn to the exclusion of every hypothesis of innocence, conviction on capital charge may be recorded without demur; reliance is placed in the case of Jaffar Ali Vs. The State (1998 SCMR 2669).
5. Events, ending up, into the homicidal death of the deceased, came up in quick succession; he left in the company of the appellant from taxi stand Gujjar Khan at 4:30 p.m. and called the complainant at 5:00 p.m. to inform him about the receipt of fire shots and snatching of vehicle at the hands of the appellant; the complainant after responding to the information, attended the deceased in injured condition and finally reported the incident at THQ Hospital 8:15 p.m; the dead body was on the mortuary table at the same point of time and autopsy was conducted just after fifteen minutes i.e. 8:30 p.m. The appellant was arrested shortly after midnight at 12:30 a.m. This remarkable promptitude excludes every hypothesis of consultations, deliberations or guess-work and in this backdrop, the evidence of last seen, comfortably fits within the ambit of proximity of time and space with its due mention in complaint Ex.PG.
Next piece of evidence comprises of narrative details furnished by Muhammad Ilyas (PW-6) and Khuram Shahzad (PW-7) on the basis of information shared with them by the deceased soon after the occurrence and shortly before his death; these details constitute statement of relevant fact within the contemplation of Article 46 (1) of the Qanun-e-Shahdat Order, 1984, “Leterm Mortem”, word said before death, dying declaration, a juridical myth, “most mystical in its theory and most arbitrary in its limitation”, based upon the maxim “nemo mariturus presumuntur mentri” that truth sits upon the lips of a dying man as he anticipates to meet his Maker; popular belief notwithstanding, the principle cannot be applied with empirical exactitude in order to ensure safe administration of criminal justice and for that possibility of prompting or casting of wider net needs to be ruled out with such precautions, nonetheless, the last words under the imminence of death, are recognized irrevocably as a possible basis to sustain a charge even in cases punishable with death penalty, without corroboration, when found by the Court as truthful relation of circumstances of the transaction resulting in the death.
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