The appellant was tried by the learned Session Judge, Vehari in case F.I.R No, 78/2004 dated 31.03.2004, registered at Police Station Saddar, Vehari under Section 302 PPC. The prosecution produced as many as 10 PWs apart from documentary evidence, where after statement of the appellant Munir Ahmad was recorded in terms of Section 342 Cr.P.C. After hearing the learned counsel for the parties, the learned trial Court proceeded to pass the impugned judgment and observed that the prosecution had proved the case against the petitioner beyond any shadow of doubt and convicted him WS 308 PPC. The appellant was sentenced to imprisonment of 14 years R.I. as Tazeer and was also held liable to pay Diyyat amount to the tune of Rs,3,00,000/- (Rs, Three Lac). The impugned judgment reflects that the convict-appellant being minor was given benefit of section 306 PPC and instead of awarding him maximum penalty, lesser penalty was awarded. Para 25 of the impugned judgment is reproduced hereunder for ready reference:- "Admittedly, there is nothing on the record to suggest that Munir Ahmad accused is an assault person. On the other hand, certified copy of the birth register Ex. DC, read with other material available on record, the accused is provenly minor and such benefit of Section 306 PPC has to be given to him who becomes liable to be punished under Section 308 PPC. The entry of birth register was objected to during evidence but the same cannot be sustained because fustily, no rebuttal thereof has been placed on record and secondly, it is a certified copy of public record and so have to be relied upon. He was also shown as minor on record. However, since he was having sufficient maturity to realize the consequences of his act, the said Munir Ahmad accused in addition to pay Diyyat amount in the sum of Rs,3,00,000/- is also punished with imprisonment of 14 years R.I. as Tazir. The diyat money shall be payable to the legal heris of the deceased. However, the benefit of Section 382-B Cr.P.0 .shall be given to the accused in case he complies with the orders of this Court regarding the deposit of diyyat money."
2. It is contended on behalf of the appellant that it was in fact an un-witnessed occurrence that the learned trial Court disbelieved the ocular account; that the learned trial Court proceeded to pass the impugned judgment on the basis of solitary statement of Muhammad Hafeez, deceased, without there being any corroboration and the prosecution has hopelessly failed to prove the case against the appellant beyond any shadow of doubt. He prays for acceptance of this appeal and seeks acquittal on the strength of afore-stated submissions.
3. On the contrary, learned DPG supports the impugned judgment and submits that the prosecution has successfully proved the case against the appellant. He refers to paras 22 to 24 of the impugned judgment, which are re-produced hereunder for ready reference:-- "Before closing any discussion on ocular account, I would like to once again upon the statement of Muhammad Hafeez deceased Ex.PG, wherein the names of these two PWs were also nominated by him. The learned defence counsel has tried to get an edge that this statement was got recorded after prior deliberations, because if the ocular account is not believable, how come the statement Ex.PG can be relied upon, when Muhammad Hafeez too had mentioned their names as eyewitnesses. I am not prepared to give the edge as claimed by the defence on the simple reason that is a usual practice of the I.Os to make padding during investigation for which the prosecution case should not suffer at all specially when Muhammad Hafeez who was critically injured with multiple injuries, could not afford to substitute the accused for the seal culprit. If his statement is taken into consideration, he had categorically stated that Munir Ahmad accused had spent night with him at his house and then had in the next morning gone on bicycle with him towards Chak No, 190/EB and at the place of occurrence had injured him despite his resistance.
This part of the statement of Muhammad Hafeez being natural, without any flaw and having involved solely the accused to be responsible for causing injuries on his person, cannot be brushed aside. The learned defence counsel further raised objection that the said statement cannot be termed as a dying declaration but keeping in view the dictum as laid down in PLD 1992 Supreme Court 211 this argument has not force. As per the said case law, there was no need for the presence of a Magistrate or any doctor to attest it. Moreover, no question was put to the doctor as to the fitness of the deceased to made a statement in that injured condition. So, we would have to believed that the injured was quite fit to make a statement particularly when he remained living and conscious in the hospital for about eight days thereafter and the injuries were also of such nature which could not make him unconscious as the evidence on record also suggests that same adequately. According to the learned defence counsel, this statements could at the most be treated as the one recorded under Section 161 Cr.P.C. Again this is not helpful to the accused because of the above said citation which provides that "law does not prescribe any special mode of recording the dying declaration. The statement of an injured recorded by the police U/S 161 Cr.P.0 during the course of investigation is not hit by Section 162 Cr.P.C. As such the dying declaration is a good piece of evidence and it can be relied upon by the prosecution. It is not necessary for the admissibility of dying declaration that the deceased at the time of making it should have been under expectancy of death. A statement under Section 161 Cr.P.0 of an injured is an admissible evidence even through the injured had died much later." The same view was taken by the Hon'ble Judges of August Supreme Court of Pakistan in 2001 SCM R 94. In view of the above, when Muhammad Hafeez had no previous enmity with Munir Ahmad accused and were quite well acquainted with each other he could not spare the real culprit and implicate Munir Ahmad accused falsely which is always a rare phenomenon in case of single accused.
In view of the above discussion, the prosecution case stands based upon the aforesaid solitary statement of the said deceased. It is clear from his statement that the deceased was quite in a fit state of mind and the remains hardly any doubt that he was not in a position to speak and make a statement. Further, the voluntary statement given by him finds corroboration by the statement of Muhammad Aslam S.I./I.O.(PW-11) who too had no enmity against the accused to involve the accused falsely. It was read over by the said police official to Muhammad Hafeez who had thumb marked the same as a token of its correctness. No doubt the same was not recorded as a dying declaration because at that time apparently, there was no apprehension of the death of Muhammad Hafeez, who had died about eight days later on. Therefore, as also observed in the aforesaid citation (2001 SCM R 94) non-attestation by the same either by the medical officer or by any other person would not render it to be false. So, I fully believe the statement given by Muhammad Hafeez deceased that none else except Munir Ahmad accused had inflicted Chakku blows on his person.
RECOVERIES On 21.4.2004, the recovery of crime weapon i.e knife was effected at the pointation of the accused vide memo Ex.P.M and same is relevant under Article 40 of Qanoon-e-Shahadat Order, 1984 the association of two respectable inhabitants is not required where the accused himself leads the police to a particular place and thing is recovered from that place. So, the prosecution case to the extent of recovery of weapon of offence stands proved. As far as the recovery of bicycle is concerned, it was recovered from his house jointly inhabited by the family members of the accused. So, even if this recovery is disbelieved, the recovery of Chakku, the weapon of offence is sufficient to connect Munir Ahmad accused with commission of offence under reference. I, therefore, believed the recovery of Chakku in this case as alleged by the prosecution vide memo Ex.P.M.
CONCLUSION In the light of the above discussion particularly the true and voluntary statement given by Muhammad Hafeez deceased in injured condition, the conviction can be based upon the same when it is corroborated by medical evidence and the recovery of Chakku effected on the pointation of the accused as aforesaid. He is, therefore, found to be involved in the commission of murder of Muhammad Hafeez deceased. The nature and number of injuries clearly show that he intended to inflict grievous injury on the person of the deceased, which would have taken his life.
Muhammad Hafeez had resisted and as such the accused had been able to cause injuries on various parts of body of the deceased but ultimately managed to give grievous hurt which later on caused the death of Muhammad Hafeez. The mere fact that none of the injury was given on vital part of his person would not make any difference as the accumulative effect of Injuries No, 3 and 4 did cause irreversible shock which took life of Muhammad Hafeez and so the accused cannot be absolved of his responsibility to cause his death. The absence of motive is also not helpful to the accused because it is always in the mind of the accused and cannot be prejudged or conceived as to when and how or the accused shall act or react in any given situation. On the other hand intention of accused in this case can easily be gathered from the fact that he manager to get company of the deceased Muhammad Hafeez, took him out to a distant place, away from his house, which was a field of standing wheat crop to cover up commission of his time. Therefore, no doubt, is left as to the intent of the accused to commit the murder of Muhammad Hafeez i.e the way he acted and injury him critically. The presence of weapon of offence i,e, Chakku with him is also an additional factor to prove his guilt in this regard."
4. I have given my anxious consideration to the arguments, advanced by both the learned counsels and have also gone through the record with their able assistance.
5. I find that the learned trial Court in the impugned judgment has taken notice of all the submissions, made at bar by learned counsel for the appellant. The appellant was the sole accused. The deceased in his statement prior to death categorically implicated the appellant and no reason whatsoever is available on record suggesting false implication of the appellant in the case. The oral account is supported by the medico legal and recovery evidence. I am not inclined to interfere in the impugned judgment, which is otherwise well-reasoned and perfectly legal. The appeal being devoid of any merits is hereby dismissed.