GHAUS ALI SHAH, J.-This appeal under section 410, Cr. P. C. Filed through Jail, is directed against the judgment dated 29th June, 1979 of the learned II Additional Sessions Judge, Jacobadad, whereby he convicted the appellant under section 302, P. P. C. And sentenced him to imprisonment for life and also to pay a fine of Rs. 1,000 and in default of payment of fine to undergo further R. I. For six months. The amount of fine if realised was ordered to be paid to the heirs of the deceased in terms of section 544, Cr. P. C.
2. The brief facts of the case are that Arz Mohammad. Naka Munshi of Octroi Post, Nasirabad, reported to Abdul Hameed Khan, S. H. O., Police Station Saddar, Jacobabad on telephone on 26th February, 1975 at 21.15 hours to the effect that a man who disclosed his name to be Ghulam Rasool son of Imam Bux Lashari, resident of near city Police Station carne at the outer door of Nasirabad Octroi post and fell down there. He was in serious condition as his intestines had come out. He also disclosed that he had been given blow by one Khan (appellant). This information was reduced in writing in the Roznamcha and subsequently incorporated in 154, Cr. P. C. Book as F. I. R.
3. Abdul Hameed, S. H. O. (P. W. 10) accompanied by his sub--ordinate staff proceeded to Nasirabad Octroi post where complainant Arz Mohammad was available and so also the injured, who was lying on a cot. He was able to speak. He had knife injuries on his abdomen and his intestines were out. The S. H. O. Recorded his dying declaration Exh. 12, in presence of Arz Mohammad and obtained L. T. I. Of the deceased Ghulam Rasool on it. He appeared to be in a serious condition and died there. The S. H. O. Proceeded to scene of offence which was shown to him by Axz Mohammad. It was situated at Octroi post where dead body of Ghulam Rasool was lying. There was no blood on the spot and he prepared such Mashirnama .Exh. 16 in presence of Mashirs Durani and Mohammad Sharif. He prepared inquest report of the dead body of Ghulam Rasool Exh. 15 in presence of the same Mashirs. He thereafter sent the dead body of Ghulam Rasool through P. C. Asrar Ahmed to the Medical Officer, Civil Hospital. Jacobabad, for post-mortem of the dead body. He then examined the complainant Arz Mohammad P. W. 5 and Manzoor Ahmed P. W.
6. He sent for the relatives of the deceased and examined Allahdino P. W. 4 and Mohammad Panah P. W. 3 on the same day. He arrested the appellant on 14th March, 1975 in presence of Mashirs Wahid Bux and Abdul Karim outside his house when he was carrying a licensed gun. He secured the gun and two live cartridges and prepared such mashirnama Exh.
5. The accused on interrogation voluntarily led the S: H. .O. And mashirs Wahid Bux and Abdul Kareem and showed the place where the deceased sustained injuries. This place. Was near Hussain Rice Mill at a short distance from Nasirabad Octroi post but nothing incriminating was found from there. The accused then led the S. H. O. And the mashirs to a place at a distance of 50 paces from Hussain Rice Mill and took out a knife from the earth which was stained with blood. The S.H.O. Secured it and sealed it in a parcel and prepared such mashirnama. Exh. 24 in ,presence of mashirs. It was subsequently sent by him to the Chemical Analyser who reported it to be stained with human blood vide his report Exh. 24.
4. The prosecution case is based on dying declaration, recovery of knife, the deceased last seen with the appellant Who took him from his house his name appearing in the F. I. R. And the Medical evidence.
5. The accused however denied, all the allegations and claimed to have been substituted for a real culprit as there were so many persons by name 'Mir Khan' particularly when no parentage of 'Mir Khan' was disclosed in the dying declaration.
6. The medical evidence shows that the deceased died as a result of a knife injury and there is no doubt about it Dr. Mohammad Sachal, Medical Officer, who performed the autopsy has deposed that the deceased's death was due to shock and haemorrhage resulting from an injury of a sharp- cutting weapon like knife which was ante-mortem and sufficient to cause death in normal course of life.
7. The point for determination is whether the offence was committed by the appellant or some body else? In this regard prosecution has led the evidence of Mohammad Panah P. W. 3 and Allahdino P. W. 4 on the point that the appellant had called the deceased from his house at about 6-30 or 7-00 p.m. And they went to "Masoom Shah" for enjoying songs. 1t was on the same night when a constable of Police Station Saddar, Jacobabad came to their houses and informed them that Ghulam Rasool was lying murdered. They on such information went to Police Station and found the deceased lying dead. The appellant was seen going with the deceased by both the P.
Ws. Allahdino P. W. 4 has also deposed to the effect that a dispute had occurred between the deceased and the appellant about a month prior to this incident as disclosed by the deceased but it subsequently ended in compromise.
8. We'll first of all examine dying declaration. The complainant Arz Mohammad P. W. 5 who is one of the signatories to the dying declaration has also stated that he informed Abdul Hmeed, S. H. O., on telephone what the deceased narrated to him at the octroi post. It was this information which was incorporated in 154, Cr. P. C. Book. He, Manzoor Ahmed P. W. 6 and Abdul Hameed S. H. O. P. W. 10 have deposed to the effect what he disclosed to them before his death. It was reduced to writing as "dying declaration" of the deceased and the same was signed by Arz Mohammad P. W. 5 and Manzoor Ahmed P. W. 6 in presence of Abdul Hameed, S. H. O. Saddar Police Station, Jacobabad.
The deceased has very clearly said in his dying declaration that Mir Khan, resident of Machi village who had accompanied him to "Masoom Shah" for enjoying songs gave knife blow on his stomach and he escaped and reached octroi post and that Mir Khan was Brohi by caste. All the three P. Ws.
Have stated before the trial Court that the deceased had made such dying declaration in their presence. The facts disclosed in the dying declaration stand strengthened by the evidence of P. Ws.
Mohammad Panah and Allahdino as disclosed above that the appellant and the deceased went together at about 6-30 or 7-00 p.m. For enjoying songs at "Masoom Shah " The "dying declaration" gets support from medical evidence also as time between injury and death has been shown to be within 1 to 5 hours. It shows that the deceased, who admittedly died between 9-15 and 10-00 p.m.
Was in a position before his death to make "dying declaration". There is even otherwise no apparent reason for him to falsely implicate the appellant. Moreover, the deceased gave the name of the appellant to Arz Mohammad who communicated it to police on phone which was incorporated in 154, Cr. P. C. Book much before recording of this dying declaration. We therefore accept this dying declaration to be true and genuine. There is also no reason for Arz Mohammad and Manzoor Ahmed to falsely depose a fact which was not actually stated by the deceased.
9. As far as production of the blood-stained knife is concerned there is evidence of Abdul Hameed, S. H. O., though both the mashirs on this point have not supported the prosecution case. However this recovery stands proved because evidence of the S. H. O. On this point is as good as any other witness. This view has been taken by their Lordships of the Supreme Court in case of Muhammad Khan v. The State (PLD 1975 SC 607).
10. Mr. Ghulamally H. Agha, the learned counsel for the State has contended that facts and circumstances reveal that the injury on the person of deceased has been inflicted by none else but the appellant. He has at the same time contended that the conviction under section 302, P. P. C.
Was not proper in view of the fact that there being one injury of a knife with a smaller blade, it would not be proper to infer from the circumstances if the appellant really intended to kill the deceased particularly when there was no eye-witness of the incident. The deceased has also not said anything except that it was the appellant who inflicted knife injury to him. He has therefore contended that conviction be altered from 302, P. P. C. To one under section 304 (II), P. P. C.
11. We have heard the appellant in person and have also considered the contention of the learned counsel for the State. There is no denial of the fact that the deceased had accompanied the appellant on his own accord which shows that there was no apprehension of any kind to the deceased in accompanying the appellant If there was any grudge on the part of the appellant, it has not come on the record and no presumption whatsoever can be drawn against the appellant/ accused. The circumstances under which the injury has been inflicted on person of the deceased have not clearly come on the record except that it was the appellant who inflicted the injury on the person of deceased. Though the appellant/accused has denied having are connection with the offence but we are satisfied from the evidence and --record that it was the appellant who caused knife injury to the deceased which resulted in his death. We therefore keeping this fact of single blow with a knife having ordinary blade feel that there was no intention on the part of the appellant of cause death of deceased. He is found guilty of offence under section 304 (II), P. P. C. And we therefore, alter his conviction from one under section 302. P. P. C. To 304 (II), P. P. C. And reduce his sentence to seven years' R. I. He is also directed to pay compensation of Rs. 1,000 only to the heirs of the deceased Ghulam Rasool son of Imam Bux Lashari in terms of section 544-A, Cr. P. C., and in default of payment of compensation to undergo further R. I. For six months. He has remained in jail from 14th March, 1975 to 29th June, 1979 without trial and period of three years spent by him in Jail shall be counted and included towards his imprisonment of sever, years' R. I.
12. The result is that with this modification in conviction any: sentence, the appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.