' RAUF AHMAD SHEIKH, J.---Nauman Azam appellant has assailed the vires of judgment dated 30- 3-2010 passed by Mr. Tariq Khurshid Khawaja. Learned Additional Sessions Judge/Juvenile Court, Taxila, District Rawalpindi. Passed in case F.I.R. No,812 of 2008 under section 302, P.P.C. Police Station Wah Cantt. (Sessions Trial No,4 of 2009) whereby he was convicted under section 302(b). P.P.C. And sentenced to imprisonment for life with an order to pay a sum of Rs,2.00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. Briefly stated the prosecution version embodied in the statement (Exh.PC) of Hafiz Muhammad Farooq son of Abdul Aziz, Caste Bhatti Rajput, aged about 22 years; resident of Thata Khalil, Sharqi Mohallah, Taxila, subsequently reduced into formal F.I.R. (Exh.PC/1) is that the complainant/deceased used to impart tuition to the children. In the morning of 30-12-2008, he was playing cricket with his companions at 16-Area, Wah Cantt. And during the play, a quarrel took place between him and Muhammad Nauman Azam son of Muhammad Azam, resident of 15-G 194 Wah Cantt (appellant) but the other friends got the matter patched up. After sometimes the appellant asked Hafiz Muhammad Farooq to accompany him to the main gate of the ground for gossiping so he went to the main gate with him. They remained chatting with each other and then the appellant said that he would fetch Pepsi Cola for drinking. After sometimes he returned with two small bottles of Pepsi Cola in his hand. It was 1.15 p.m. He gave one bottle to the complainant/deceased and started taking the other bottle himself. The complainant had taken only two sips and felt burning in his throat. He threw the remaining bottle immediately thereafter.
He felt pain in his abdomen and also vomitted. Nauman Azam immediately fled away. The complainant/deceased made a telephone call to Arslan Khan, who removed him to the hospital.
He alleged that Nauman Azam had administered some poisonous substance to him. This statement was recorded at 7-30 p.m. At lmambargah Haider Road. Thereafter the Medical Report No,821 of 2008 was obtained wherein the Doctor had stated that the opinion about administration of poison or intoxicant material would be given after report of Chemical Examiner. Report No,15 dated 30-12-2008 was entered in the Roznamcha. On 31-12-2008 an intimation was given by one Muhammad Ghalib on telephone that Hafiz Muhammad Farooq had died due to administration of poison and on receipt of this information, Nazir Ahmad, S.-I., arrived in the hospital, prepared the inquest report, submitted an application for postmortem examination and sent the complaint to the Police Station for registration of the case.
3. After investigation the appellant was sent up to face the trial. According to the birth certificate, his date of birth was 16-5-1995 so he was tried under the Juvenile Justice System Ordinance, 2000.
He was charged under section 302; P.P.C. He pleaded not guilty and claimed the trial.
4. The prosecution has examined 11 witnesses in support of its allegations. The medical evidence is adduced by Dr. Muhammad Shujahat Khan (P.W.9) and Dr. Muhammad Ali (P.W.10) Dr. Muhammad Shujahat, Khan (P.W.9) stated that he examined Hafiz Muhammad Farooq son of Abdul Aziz aged 22 years on 30-12-2008 and his observations were as under:-- "This was a young man brought by Police whose blood pressure was 120/80. Pulse was 70 per minute. He was semi conscious with history of some narcotics intake having black beard. His deep reflexes were absent."
' He, however, secured the sample of blood and urine and sent the same to the Chemical Examiner for detection of any narcotics, alcohol or poison. He has proved the copy of MLR No,821 of 2008 (Exh.PH). Dr. Muhammad Ali (P.W.3) stated that on 31-12-2008 at 3-30 p.m. He conducted the postmortem examination of Hafiz Muhammad Farooq on the application (Exh.PK) submitted by the Police. After the postmortem examination, he sent different visceras i,e, brain, lung, heart, liver, small intestine, large intestine, spleen, kindneys, stomach and preservatives along with his observations to the Chemical Examiner for detection of poison, etc. He proved the postmortem report (Exh.PL) and the endorsement on inquest report (Exh.PM).
5. Muhammad Arslan Khan (P.W.5) stated that he and Muhammad Farooq deceased both were students of Qari Muhammad Saghir in Jamia Masjid, Wah Cantt. So they got intimacy with each other. He listened recitation of the Holy Quran from deceased Hafiz Muhammad Farooq as he was repeating his lessons (Hifz-i-Quran). It is stated that on the day of occurrence, he was in his house, when he received telephone call from Hafiz Muhammad Farooq at about 1-25 p.m., who informed him that he was not feeling well and was in serious problem and was present at the main gate of Dinya Park, Wah Cantt. He rushed to the above-mentioned place. Hafiz Muhammad Farooq told him that Nauman Azam appellant had administered him something in the soft drink due to which he has become seriously ill and was vomitting. He informed Muhammad Aftab, brother of Hafiz Muhammad Farooq on telephone and removed him to P.O.F. Hospital, Wah Cantt. The Police arrived there and recorded the statement of Hafiz Muhammad Farooq (Exh.PC) and he put his signatures on the same in his presence, which are available on the complaint as (Exh.PC/1). It is further stated that in his presence Muhammad Iqbal maternal uncle of the deceased and his other relatives arrived there before whom he narrated these facts. Muhammad Iqbal (P.W.6) stated that on 30-12-2008 he was informed by Aftab that Hafiz Muhammad Farooq was seriously ill so they arrived in P.O.F. Hospital, Wah Cantt. He asked Muhammad Farooq as to what had happened with him, who told that Nauman Azam appellant had administered some poisonous thing to him in Pepsi bottle and asked them to take him to the Police Station for furnishing an information of the occurrence. They boarded Hafiz Muhammad Farooq in the Carry Van available outside the Hospital and when they reached at Imambargah, they saw Police officials there. The Police recorded statement of Hafiz Muhammad Farooq deceased (Exh.PC) which was signed by him. He proved his signatures of the deceased on the complaint (Exh.PC/1). The Police officer told them to go to Civil Hospital, Taxila and when they arrived there, the Doctor was not in the hospital so they remained in the room for half an hour. The Doctor admitted the deceased in the Hospital. The deceased remained admitted in the Hospital for the night and on the next day i,e, 31-12-2008 he died due to poison administered by the appellant. He proved his signatures on the receipt (Exh.PE) and memo of pointation (Exh. PF).
6. Zafar Ali, S.-I. (P.W.7) proved the F.I.R. (Exh.PC/1) and stated that it was recorded on the basis of complaint (Exh.PC) prepared and sent by Nazir Ahmad, S.-I. Khurram Shahzad (P.W.8) has proved the site plan with scale (Exhs.PG and PG/1)-. Yasir Javaid (P.W.1) stated that after the postmortem examination on 31-12-2008, the Medical Officer gave him the last worn clothes of the deceased, one sealed envelope and the sealed philas, which he handed over to the I.O., who secured the same through memo of recovery (Exh.PA), Muhammad Iqbal (P.W.2) stated that on 31-12-2008 Nazir Ahmad, I.O. Gave him one sealed parcel and ten sealed phials, which he kept intact in the Malkhana in safe custody and on 5-1-2009, he handed over the sealed parcel to Muhammad Iqbal N2342/C for onward transmission to the office of the Chemical Examiner. He further stated that on 30-12-2008 the I.O. Had given him the envelope and two phials containing blood and urine of the deceased Muhammad Farooq, which he handed over to Anwar Sher 1545/C on 10-1-2009 for onwards transmission to the office of the Chemical Examiner. Muhammad Anwar Sher (P.W.3) stated that he delivered the sealed parcel and two phials intact in the office of the Chemical Examiner. Muhammad Iqbal (P.W.4) stated that on 5-1-2009 the Moharrer handed over to him one sealed parcel and ten phials for onward transmission to the office of the Chemical Examiner and he delivered the same in the said office on the same day Nazir Ahmad, S.-I. (P.W.11) stated that on 30-12-2008 Hafiz Muhammad Farooq made his statement (Exh.PC) before him, which was read over to him and in token of its correctness, he put his signatures (Exh.PC)' on it. He prepared the injury statement and sent Hafiz Muhammad Farooq to THQs Hospital for medical examination and after return Muhammad Iqbal, Constable, produced two sealed phials and one envelope, which he secured through memo of recovery (Exh..PB). He handed over the case property to Moharrer Malkhana. On 31-12-2008 he received an information that Hafiz Muhammad Farooq had died in the hospital so he arrived there and prepared the inquest report (Exh.PM). On the same day, Khurram Khan 5873-C handed over the last worn clothes of the deceased, one sealed envelope and ten sealed phials, which he secured through memo (Exh.PA) and handed over these articles to the Moharrer Malkhana. He has also proved the memo of pointation (Exh.PF).
7. The prosecution has also produced the report of the Chemical Examiner regarding blood and urine (Exh.P0) and report of Chemical Examiner regarding visceral of the deceased (Exh.PP).
8. The accused in his statement under section 342, Cr.P.C. Denied the correctness of the prosecution version and truthfulness of the witnesses produced by it. He contended that (Exh.PC) is a false and fabricated document prepared by the I.O. In connivance with the complainant party and the signatures of Hafiz Muhammad Farooq on it are forged and fictitious. He further contended that according to MLR (Exh.PK) Hafiz Muhammad Farooq was examined in the hospital at 6-50 p.m.
Whereas (Exh.PC) appears to have been recorded at 7-30 p.m. So the prosecution version regarding taking of samples of blood and urine is highly doubtful and the evidence produced by it is untrustworthy. He stated that he was only 13 years old at the time of occurrence and so could have not even imagined to commit the murder. It is stated that the P.Ws. Are closely related to the deceased so they have deposed falsely due to their interests and the Police officials are under influence of the relatives of the deceased and have made false statements. He, however, opted neither to produce the defence evidence not to appear as his own witness on oath under section 340(2), Cr.P.C.
9. After conclusion of the trial, the learned trial court proceeded on to convict and sentence the appellant as above.
10. Learned counsel for the appellant has contended that the complaint (Exh.PC) is a fake document and the signatures of the deceased (Exh.PC/1) are forged; that according to MLR (Exh.PH) the deceased had arrived in the hospital at 6-50 p.m. Whereas the statement (Exh.PC) appears to have been recorded at 7-30 p.m., which shows that that it was recorded after deliberations and pondering over alter demise of the deceased; that even if for the sake of arguments it is admitted that the deceased had made any statement before the Police, the same alone cannot be made basis for recording conviction as no independent corroboration is available; that taking of samples of urine and blood is not established so report of the Chemical Examiner has no value in the eyes of law; that the appellant, who was only 13 years old had no motive to cause Qatl-e-amd of the deceased and a boy aged about 13 years had no means to make arrangement for poison, which could be used to kill a human being and that the sentence awarded to the appellant is very harsh.
11. Controverting these arguments the learned counsel for the complainant and the learned D.P.-G.
For the State have contended that the deceased himself informed P.W.5 about the administration of some poisonous substance in the soft drink, who had removed him to the P.O.F. Hospital, Wah Cantt. Where the I.O. Had recorded his statement so the involvement of the appellant in the commission of the offence stands establishment beyond doubt; that the medical evidence fully corroborates the statements of P.Ws. 5 and 6; that no specific mode of making dying declaration is prescribed under the law and the same may be made basis for recording conviction, if it otherwise inspires confidence. In this respect, reliance is placed on Majeed v. The State (2010 SCM R 55) and Farmanullah v. Qadeem Khan and another (2001 SCM R 1474).
12. The most important piece of evidence in this case is statement of the deceased (Exh.PC) recorded after about six hours of the occurrence. He had categorically stated that after the quarrel, the matter was patched up but the appellant took him to the main gate of the ground for gossiping and then gave him some poisonous thing in bottle of Pepsi Cola and after taking two sips, he felt burning in the throat, pain in the abdomen and he vomitted. Learned counsel for the appellant has vehemently contended that this is a forged document. He has specially made emphasis on the timing given on the complaint and the MLR (Exh.PH). P.W.5 has categorically stated that the deceased had made the statement and put his signatures on the same in his presence. It is true that there is difference as to the place where it was made between the statements of the P. Ws. And the I.O. But that will not make the statement doubtful because it is a matter of common knowledge that without the report of the Chemical Examiner, the Police remains hesitant in recording the statement and registration of the case. In fact, the I.O. Had made an endorsement to the effect that after receipt of the report the position would be clear and action would be taken. P.W.6. Has stated that they were taking the deceased in the Van as he had insisted that the information be furnished to the Police and on their way they had met the I.O. Near Imambargah and the deceased made statement there. His statement coupled with the statement of the I.O. Shows that P.W.5 might have forgotten the exact place with the passage of time but this discrepancy is not fatal to the prosecution case. Immediately after administration of poison, the deceased not only informed this fact to P.W.5 but also narrated the events to P.W.6. Both of them have no enmity or grouse against the appellant. Article 46(1) of the Qanun-eShahadat Order, 1984 provides that a statement made by a person as to cause of his death or as to any circumstance of the transaction resulting into his death is relevant in all cases in which the question for determination is the cause of death of the maker of such statement. No specific mode for making of this statement is required under the law. This statement may be made verbally or in writing before any person. In this case the deceased firstly informed P.W.5 about the administration of poisonous substance by the appellant. He is only 15 years old boy, who was learning Holy Quran by heart along with the deceased in the Mosque. He had no interest, with the deceased or enmity with the appellant. He has categorically stated that the deceased had told him that the appellant had administered poison in the soft drink. His statement is fully corroborated by the statement of P.W.6, who has also no enmity with the appellant. In the same manner, P.W.11 has categorically stated that the deceased narrated the events, which were reduced into writing in form of complaint (Exh.PC) and then after admitting correctness of the same he put his signatures on it. This statement clearly proves that the deceased himself narrated the events and pointed out the person, who administered poison to him. Dr. Muhammad Shujahat Khan (P.W.9) has stated that he took the samples of urine and blood of the deceased, when he was examined in the hospital on 30-12-2008.
The report of the Chemical Examiner (Exh.P0) shows that Aluminium Phosphide was detected in the blood and urine. After the demise, his visceras were sent for chemical examination as is clear from the postmortem report (Exh.PL) and the report (Exh. PP) re-affirms that Aluminium Phosphide was administered to him. The deceased had stated that the appellant was the person, who had administered this poison to him, in the Pepsi Cola. This strong medical evidence, coupled with statements of P. Ws. 5 and 6 lends full corroboration to the dying declaration as to the cause of death of Hafiz Muhammad Farooq deceased and involvement of the appellant in the commission of the offence. In these circumstances, the learned trial court rightly held that the appellant was responsible for causing Qatl-e-Amd of the deceased. These findings are based on the proper appraisal of the evidence. Learned counsel for the appellant has urged that if his arguments regarding innocence of the appellant are not accepted, then keeping in view his age, a lenient view be taken. It is true that the deceased is shown to be juvenile and his date of birth, as per (Exh.DA) is 16-5-1995 but he was about 13 years, 7 months and 14 days old at the time of occurrence. In these circumstances, he is not entitled to the benefit of the provisions of section 83 of the Pakistan Penal Code as a 13 years old boy is deemed to be mature enough to understand the consequences of his acts. It was not a case of sudden provocation rather after the quarrel and patching up of the matter, he left the place of occurrence and brought the poisonous material and deceitfully administered it to the deceased. The quantum of punishment awarded to him commensurate with the gravity of the offence.
13. For the reasons supra, I am of the considered view that the learned trial court properly appraised the evidence and arrived at just Conclusion. The well reasoned findings recorded by it do not call for any interference. The appeal is without merits and the same is hereby dismissed.