Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 158/2006 filed by Riyat Khan who was convicted and sentenced to death by learned Addl. Sessions Judge, Talagang, vide impugned judgment dated 27.4.2006.
Murder Reference No, 486 of 2006 for confirmation or otherwise of death sentence of Riyat Khan appellant shall also be disposed of through his single judgment.
2. Brief facts of the case are that Muhammad Afzal complainant, in injured condition got recorded his statement before Tariq Bin Aziz SI/PW-4 in THQ Hospital, Talagan, that he is cultivator and have goats to whom for the purpose of grazing, he takes in near cattle grazing area; today at about 11.00 a.m. as per routine, he brought out his goats for the purpose of grazing, one goat entered in the haveli of Muhammad Siddiq son of Hakim Khan, he entered to get back his goat in the haveli and then the goat while, running went inside a room, he went ahead to get back his goat and he saw in the room that Mst. Razia Begum wife of aforesaid Muhammad Siddiq was present with the young vagabond namely Riyat Khan on a cot in an objectionable condition, he was surprised and he reprimanded both of them. Thereafter by taking his goat he had gone to cattle grazing area. After sometime at about 12.00 noon Riyat accused while raising a chhuri came there in cattle grazing area who raised lalkara that as you had seen him and Razia Begum in objectionable condition, so he will kill you and then he gave a chhuri below no left side of chest of complainant. In the meantime on his hue and cry Ghulam Abbas and Noor Muhammad came there. Riyat Khan accused when saw them he escaped while raising the chhuri. Ghulam Abbas and Noor Muhammad brought him to Civil Hospital, Talagang.
3. The investigation of this case was taken over by 1ariq Bin Aziz SI, who on receiving information regarding the occurrence, reached Civil Hospital, Talagang, where he recorded statement Ex. PC of complainant. On 26.3.2004 Muhammad Afzal died in hospital. Coming to know in this regard Report No, 14(Ex. PH) was recorded in Roznamcha and thereafter FIR (Ex. PD) was chalked out on 26.3.2004.
Malik Muhammad Ijaz InspectOr (PW-10) on receipt of information of death of Muhammad Afzal reached at THQ Hospital, Talagang and prepared injury statement of deceased Ex.-PI, Inquest report Ex. PJ and sent the dead body for post-mortem examination. After that he inspected place of occurrence and prepared rough site-plan and recorded statements of PWs. On 14.4.2004, he arrested Riyat Khan accused and on 16.4.2004, accused got recovered chhuri P-3 from his house which was taken into possession by him vide memo. Ex. PG and after completion of formal investigation the accused was sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced ten prosecution witnesses in all, thereafter, learned DDA after tendering in evidence report of Chemical Examiner Ex. PM closed the prosecution case, then, the statement of the accused was recorded u/S. 342 Cr.P.C. in which he pleaded false implication. However, after conclusion of trial, the appellant was convicted and sentenced as mentioning above by the learned trial Court.
5. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.C. and other relevant material available on record, learned counsel for the appellant submits that dying declaration of the deceased is concocted one; that the prosecution witnesses namely Ghulam Abbas and Noor Muhammad were added later on; that it was obligatory duty of the SI who had recorded dying declaration of the deceased to get a case registered u/S. 324 PPC; that the said SI never written while recording dying declaration of the deceased that Muhammad Afzal remained in sense through while recording his statement and even did not give note to the effect that the recorded the statement of deceased verbatim; that no certificate was obtained from the doctor before writing the statement of Muhammad Afzal deceased; that Malik Muhammad Ijaz DSP/PW-10 stated before the trial Court that there was no `charagah' at the place of occurrence; that the said DSP found the motive part of the occurrence false one; that the motive set up by the prosecution does not appeal to reason; that the deceased never told the appellant that he would tell the people about his illicit relations with Mst. Razia; that there is lot of difference in writing of Ex.
PC written by Tariq Bin Aziz SI. He referred to Page 68 of paper book Ex. PI, and to submit that it is also not handwriting of Tariq Bin Aziz SI; that there is no cut mark on the shirt of bunian of the deceased; that even the doctor who medically examined the deceased in an injured condition, he did not mention any cut mark on the shirt and bunian the deceased; that report of Serologist was never produced before the learned trial Court; that chhuri has been planted upon the appellant; that no corroboration can be sought from the chhuri recovered on the pointation of appellant by the prosecution; that. Ghulam Abbas PW-9 first cousin of the deceased is chance witness and lives at a distance of one kilometer from place of occurrence; that said Ghulam Abbas concocted the false story to prove his presence at the place of occurrence. He has relied upon 1997 SCM R 457; 1997 PCr.LJ 229; 2008 PCr. LJ 1655; 1988 PCr.LJ 238 and 1983 PCr.LJ 1598 and lastly submits that if his arguments regarding acquittal of appellant are not accepted by this Court, then there are mitigating circumstances are available for lesser sentence because it is case of one injury and the blow was not repeated by the appellant; that the prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
6. On the other learned. DPG assisted by learned counsel for complainant submits that statements of Muhammad Afzal were recorded at 2.20 p.m. in the hospital and rapt was recorded at 2.35 p.m. that there is no question of false implication; that there was no background enmity between the parties; learned counsel has referred to the statement of appellant recorded u/S. 342 Cr.P.C. especially in reply why this case is against you and why the PWs have deposed against you and submits that appellant has not given reply to this question that why he was falsely implicated in this case; it is next submitted that the prosecution has proved its case against the appellant beyond any shadow of doubt and the appeal filed by the appellant is liable to be dismissed.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence had taken place on 24.3.2004 at 12.00 noon which was reported to the policy by complainant Muhammad Afzal (deceased) himself and the same was entered into daily diary on the same day at 2.30 p.m. and his statement was recorded in the hospital but the case was registered on 26.3.2004. It was inefficiency and negligence on the part of Tariq Bin Aziz SI/PW-4 who was under obligation to get the case registered u/S. 324 PPC. Learned counsel for appellant has laid much stress on the ground that it was the dying declaration that the police officer did not obtain permission from the doctor and he did not get the document signed by the doctor on which he recorded the statement of the deceased. We may state here that MLR of the deceased shows that it was only written by the doctor that Afzal was brought in an injured condition. His pulse and BP were not recorded by him and he gave a notice of injury because the deceased had no apprehension of his immediate death, so there was no need to get the permission from the doctor or to get the certificate of doctor on the said statement. The question is that appellant is only accused in this case, why the deceased for sake of arguments who was near to death would falsely implicate the appellant in this case and why he would leave the actual culprit. Ocular account is fully corroborated by medical evidence. Then there is recovery of blood- stained chhuri from appellant. It is a case of,single accused and it is a broad-day-light occurrence.
Parties were known to each other, belong to same village. The statement of Muhammad Afzal is fully corroborated by the statement of PW-9 Ghulam Abbas. Learned counsel for the appellant laid much stress that Noor Muhammad was not produced before learned trial Court. It may be mentioned here that the accused can be convicted and sentenced on the solitary statement of single witness, whose name find mentioned in the calendar of witnesses and FIR. The statement of Muhammad Afzal deceased is corroborated by Ghulam Abbas PW, who has no animus towards appellant and why he would falsely implicate the appellant in this case. We are fully convinced that it is the appellant who committed the murder of the deceased. Malik Muhammad Ijaz DSP/PW- 10 has stated that he found motive version to be false in this case. On the other hand he recorded statement of Mst. Razia Begum with whom allegedly deceased was seen in an objectionable condition. Can a lady give the statement to the I.O. to this effect, answer is no. Why the deceased would give false motive against the appellant and there was no reason to commit murder of deceased. Even no motive was suggested by the appellant for his false implication in this case.
However, it may be stated here that there was no previous background of enmity between the parties. The occurrence had taken place at a spur of moment. It is case of single blow and the blow was not repeated by the appellant. The deceased died two days after the occurrence, so it is a case where death sentence is not called for and mitigating circumstances are available in this case so though we maintain the conviction u/S. 302(b) PPC but convert his sentence from death to imprisonment for life with benefit of Section 382-B Cr.P.C. Death sentence is not confirmed and murder reference is replied in negative.