FAZLUR REHMAN KHAN, J.---This Criminal Appeal is directed against the judgment/order dated 21- 12-2004 of the learned Additional District and Sessions Judge-I, Charsadda, whereby Pervaiz, appellant, has been convicted under section 302(b), P.P.C, and sentenced him to death as `Tazie, subject to the confirmation by this Court and also to pay a sum of Rs,1,00,000, payable as compensation to the legal heirs of the deceased under S.544-A, Cr.P.C., in case F.I.R. No,135 dated 8-4-2003 of P.S. Sardheri under section 302, P.P.C. The learned trial Court has also made a reference vide Murder Reference No,46 of 2004 for the confirmation of his death sentence.
2. According to the prosecution version, as given in the Murasila, Exh: PA/1, recorded at the instance of complainant Abdul Ghani, then injured, at Civil Hospital, Charsadda, on the day of occurrence, he was plugging in his field. At about 1300 hours, Pervaiz son of Wazir Gul, resident.. Manga, the appellant, came there and not only fired at him With a pistol, but also gave him stab blows, and on account of stabbing, he received injuries. No motive for the offence was stated in the F.I.R.
3. On 8-4-2003, at 1410 hours, Syed Abdullah Shah, A.S.I. (P.W.4) recorded the Murasila at the instance of Abdul Ghani, injured. After recording the Murasila, the same was explained and read- over to the complainant, who after admitting the same to be correct thumb-impressed it in token of its correctness. 1).W. Syed Abdullah Shah, A.S.I., then prepared the injury-sheet, Exh.P.W.4/1, of the complainant and referred him to the doctor concerned for medical examination/treatment. He then sent the Murasila to the P.S. For registration of the case.
4. On 8-4-2003 at 2-05 p.m., Doctor Muhammad Ayaz, (P.W.3), examined injured Abdul Ghani and found the following,- "The injured was fully conscious.
INJURIES
(1) One stab wound cavity deep right side of the chest in front of the 7 intercostal space 2-1/2" with sharp margin in the (Midline).
(2) One wound on the left side of the chest protruding fats from it with sharp margins 1/2" x 1/4" muscles injured + cavity deep.
(3) One linear sharp wound on back of left side of sacrum 3" muscle deep.
(4) One linear wound supra iliac region on the right flank.
(5) One incised wound on the postural aspect of right arm below the elbow.
NATURE OF INJURIES. DANGEROUS: Weapon used. 1, 3, 4 were caused with sharp weapon, No,2 was fire-arm, later on confirmed by surgeons in LRH, Peshawar. The injured was referred to LRH Peshawar. In cross-examination, this witness stated that when the injured was brought before him, the police was busy in recording his report and preparation of other documents and he was busy in his treatment. He further stated therein that at the time of his examination, the injured was fully conscious, because he made conversation with him.
5. During the days of occurrence, Dr. Muhammad Hamayun (P.W.8), was posted as Medico-legal Officer at K.M.0 Peshawar. On 9-4-2003, at 8-30 a.m., he conducted the autopsy on the dead body of the deceased and found the following;- "External Appearance: He was hospitalized before death, having average built white bearded man of 60-65 years age, wearing grey colour shalwar blood-stained with no defects by rigor mortis and P.M. Lucidity are developing.
Injuries.
(1) An incised wound on left back up abdomen 4 x 1 cm in size. 1 cm from mid line. 5 cm below from costal margin.
(2) Fire-arm entry wound on left back of abdomen 1 x 0.5 cm in size. 2 cm below costal margin. 11 cm above iliac crest.
(3) Fire-arm exit wound on left front of abdomen 2 x 1 cm in size. 3 cm from mid line. 5 cm below costal margin.
(4) A stitched lapartomy wound 19 cm in length. 3 cm below epigastrium, .5 cm above pubic symphysis.
(5) A stitch stab wound on right front of chest. 4 z 2 cm in size. 10 cm from mid line. 3 cm below nipple.
(6) A stitched surgical wound (for intubation), on right front of chest 2 x 1 cm in size, 14 cm from mid line. 9 cm below axilla.
(7) A stab wound on right outer abdomen 3 x 1 cm in size, 21 cm from mid line, 1 cm above iliac crest.
(8) An incised wound on posterior aspect of right, fore-arm 4 x 0.5 cm in size, 1 cm below elbow, 15 cm above wrist. Thorax: Walls, ribs, cartilages, pleurae, right lung and blood vessels are injured.
Abdomen: Walls, peritoneum, small intestine, large intestine, liver, spleen, left kidney are injured. Stomach was found healthy and empty." In his opinion, the deceased died due to the injuries to the right lung, intestines, liver, spleen, left kidney and corresponding blood vessels due to fire-arm injuries.
The date and time of admission in hospital was 8-4-2003 and 3-45 'p.m. The date and time of expiry was 9-4-2003, 4.45 a.m. Time between death and post-mortem 3 hours and 45 minutes as per hospital record. In cross-examination, this witness stated that injury No,1 noted by him was not a stab wound and he noticed that injury No,5 was a stitched stab wound. He also stated that he had noticed that injury No,7 was a stab wound and injury No,8 was of the same nature as injury No,1.
6. During the days of occurrence, Zahir Shah Khan, A.S.I. (P.W.7) was attached to P.S. Sardheri as A.S.I. On the receipt of the Murasila, Exh:PA/1, he incorporated the same into F.I.R. Exh:PA. After lodging of the F.I.R. He rushed to the spot, where he prepared the site-plan, Exh:PB, at the instance of P.W. Hussain Khan (since abandoned) and Farhad Ali (P.W.5). From the spot, P.W. Zahir Shah Khan, A.S.I., recovered some blood-stained earth and one empty of .30 bore (P-1) freshly discharged, which he took into possession vide recovery memo., Exh:P.W.5/1. On 13-4-2003, he took into possession blood-stained garments of the deceased, received from the Doctor, vide recovery memo. Exh:P.W.1/1. He sent the blood-stained garments of the deceased, the blood-stained earth, the empty recovered from the spot and the weapons of offence (pistol and dagger produced to him by Fazli Rabbi) to the Forensic Science Laboratory for chemical analysis and opinion and on receipt of the report (P-2), placed the same on the file. He recorded the statements of P.Ws. On completion of the investigation, he handed over the case file to S.H.O. Of the P.S for submission of challan against the accused in Court.
7. The appellant was charged under section 302, P.P.C., to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 8 witnesses, out of whom, as already stated, P.W. Dr. Muhammad Ayaz medically examined the complainant, then alive, and P.W.
Dr. Muhammad Hamayun, after his death, conducted the post-mortem examination on the dead body of the deceased, while P.W. Zahir Shah Khan, A.S.I. Has investigated the case, whereas P.W.
Farhad Ali has furnished an eye account of the occurrence. P.W. Syed Abdullah Shah, S.I., has recorded the Murasila, Exh:PA/1, which on the death of the complainant, has been treated as 'dying-declaration'. Rest of the witnesses are formal one.
8. On conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. But he denied the charge against him, pleading innocence, having been falsely implicated.
However, he neither examined himself as his own witness under section 340(2), Cr.P.C. Nor produced any evidence in his defence. On appraisal of the evidence on record and hearing the learned counsel for the parties, the appellant was found guilty, as such, convicted and sentenced as stated earlier.
9. We have heard M. Zahoorul Hach Bar-at-Law, Advocate for the appellant, Mr. Abdul Munaf Mohmand, Advocate for the complainant and Mr. Muhammad Waseem Tariq, Advocate for the State.
10. In support of the appeal, the learned counsel for the appellant contended that before recording the Murasila, Exh.PA/1, which on the death of the deceased was converted into dying-declaration, P.W. Syed Zahir Shah, A.S.I., has not obtained any certificate from P.W. Dr. Muhammad Ayaz that the deceased then alive was in his full senses and was capable to give a correct version of the occurrence, which casts doubt over the dying-declaration. It was further contended that at the time of lodging of the F.I.R., the deceased, then alive, had stated that he received all injuries with a dagger and similarly while examining the deceased. P.W. Dr. Muhammad Ayaz had not noticed any fire-arm injury but at the time of post-mortem examination, P.W. Dr. Muhammad Hamayun noticed Injury No,2 as fire-arm entry wound on left back of abdomen with exit wound on the left front of abdomen (Injury No,3). There is, therefore, a contradiction in the ocular version and the medical evidence on record, which also casts high doubts over the prosecution version. He also contended that while convicting the appellant, the learned trial Court has placed reliance, in support of the dying declaration, on the recoveries of one empty of 32 bore from the spot, the crime pistol (P-1) and crime dagger (P-2) vide recovery memo., Exh.P.W.7/6, but the two crime weapons were neither produced by the appellant nor any marginal witness of this recovery memo. Has been examined and though the author (Investigating Officer) of this recovery memo. Has been examined in the connected case vide F.I.R. No,136 dated 8-4-2003, under section 13, Arms Ordinance against the appellant but the evidence of one case legally cannot be read as evidence in another case.
Therefore, the dying declaration is not supported by any evidence on record and such a dying declaration alone cannot be made the basis of conviction. In support of his arguments, he placed reliance on:--
(1) PLD 1966 SC 708, (2) PLD 1990 SC 686, (3) 1992 PCr.LJ 2026 (Karachi), and (4) 1999 PCr.LJ 707 and 1087 (Peshawar).
11. So far as the first argument of the learned counsel for the appellant is concerned, though it is correct that no certificate from P.W. Dr. Muhammad Ayaz has been obtained by P.W. Syed Abdullah Shah, A.S.I. Showing that at the time of recording the dying-declaration (Exh.PA/1) the deceased, then alive, was in full senses, but in the cross-examination, as already noted, P.W. Dr. Muhammad Ayaz, has stated that when the injured was brought to the hospital, the police was busy in recording the report and preparation of other documents and he was busy in his treatment and at that time, the injured was fully conscious, because he made conversation with him. It is thus clear that at the time of recording of the Murasila Exh.PA/1, the deceased was in full senses, capable of giving version of the occurrence and the omission to obtain a certificate from the Medical Officer to that effect was a mere irregularity, which does not cast any doubt on the dying-declaration. This argument is, therefore, rejected.
12. As far as the second argument of the learned counsel for the appellant is concerned, though it is also correct that the deceased in his dying declaration has not stated that he also received injuries with the fire-shot of pistol, but he has clearly stated therein that the appellant first fired at him with a pistol and the non-observance of such fire-arm injury, either by the police at the time of preparation of the injury sheet or by P.W. Dr. Muhammad Ayaz, while giving him first aid, appears to be the result of oversight. Besides, at such odd hours of the occurrence, how it can be expected from the complainant/injured to exactly tell that with what type of weapon, he received which injury. This argument of the learned counsel for the appellant is, therefore, without force and also rejected.
13. As far as the last argument of the learned counsel for the appellant is concerned, it is correct that as per law laid down in the authorities cited at the bar and quoted. Above, the evidence recorded in one case cannot be read as an evidence in the other case and the prosecution has failed to prove the recovery memo. Exh.P.W.7/6, by producing in Court its marginal witnesses, but the dying-declaration (Exh.PA/1) has been legally proved by producing its author P.W. Syed Abdullah Shah, A.S.I who has been subjected to lengthy cross-examination, but nothing has been taken out from his mouth, which could cast doubt over the dying-declaration, Exh.PA/1.
14. No doubt, sometimes a dying declaration alone cannot be made a basis of conviction and as a matter of abundant caution the superior Courts ask for its corroboration but it is not a rule of law, but requirement of prudence, and if it is proved that it is influence-free or does not suffer from any infirmity, it becomes a substantive piece of evidence and it alone can become a basis of conviction. In this connection, reliance can be placed on (1) 1996 PCr.LJ 1989 (Quetta), (2) 1999 PCr.LJ 1305 (Peshawar), (3) 2001 PCr.LJ SC(AJ&K) 286 and (4) 2001 SCM R 1474.
In the present case, we observe that there is no delay in recording of the Murasila Exh.PA/1, which on the death of the injured, has been treated as dying declaration. Moreover, there is nothing on record to show that at the time of recording, of this dying declaration, the deceased was influenced by any of his relatives. Besides, no infirmity in the dying declaration has been pointed out by the learned counsel for the appellant. In the circumstances, we are of the considered view that the learned trial Court has rightly placed reliance on the dying declaration.
15. Having disposed of the case on merits, we will now take up for consideration the quantum of punishment. On going through the record we find that the motive for the offence has neither been stated by the deceased in his dying declaration nor the same has been disclosed by the defence, as such, the same remains shrouded in mystery and in such a situation, the superior Courts have usually refrained from either awarding or confirming the capital punishment of death to the accused.
16. Accordingly, we maintain the conviction of the appellant. However, on partial acceptance of this appeal, we convert his detail sentence into imprisonment for life with benefit under section 382-B.F Cr.P.C. Resultantly, the Murder Reference No,46/2004 is answered if the negative. The amount of compensation awarded under section 544-A, Cr.P.C. Is maintained but in default thereof the appellant shall undergo 6 months S.I. Instead of one year S.I. It is clarified that at the time of writing short order, we by oversight thought that the learned trial Court has imposed fine, which could not be done under section 302(b), P.P.C., but at the time of writing detailed judgment, it transpired that the learned trial Court has actually ordered payment of compensation under section 544-A, Cr.P.C.
Which needs correction. Accordingly, with the foregoing modification of the ' sentence of imprisonment in default of payment of compensation, the same is maintained and the short order of this Court stands modified to that extent.