AFTAB FARRUKH, J.-Nisar Ahmad appellant was tried by Mr. Ghulam Sarwar Sheikh, Additional Sessions Judge, Gujranwala, for the murder of Muhammad Arshad. The learned Additional Sessions Judge found him guilty under section 302, P. P. C. And sentenced him to imprisonment for life and to pay a fine of Rs. 10,000 or in default to suffer further imprison--ment for five years. The appellant has challenged his conviction through Cr. A. No. 461 of 1979, whereas Rehmat Ali, father of Muhammad Arshad deceased, has filed Cr. R. No. 565 of 1979 for the enhancement of the sentence of imprisonment for life to death. We propose to dispose of both the matters together by this judgment.
2. The occurrence took place on 31July, 1974 at about 8-30 a. m. Within the jurisdiction of Police Station Ahmad Nagar, District Gujranwala at a distance of about seven miles from the Police Station. Mr. Muhammad Farooq Chaudhary, Magistrate Ist Class, Gujranwala, (P. W. 7) recorded the statement (Exh. P. D.) of Muhammad Arshad deceased (when he was alive and admitted to hospital at Wazirabad) on the same day on the basis of which F. I. R. (Exh. P. D./3) was registered at Police Station Ahmad Nagar at 2-15 p. m. On 31July, 1974.
3. The facts of the case, succinctly stated, are that on the day of occurrence, i.e. 31July, 1974, at about 8-30 a. m. Muhammad Arshad deceased was returning to his own village Mansoorwali from village Kalra. When he was at a distance of about half a killa from his village, Nisar Ahmad appellant met him and enquired from him as to where from he was coming. Muhammad Arshad told him that he was returning from village Kalra after handing over the horse to one Riaz. At this the accused took out a pistol from his dub and fired six shots at him one after the other and thus caused him injuries. On receipt of the injuries Muhammad Arshad fell down. According to thest st st deceased, the occurrence was witnessed by Abdul Hamid, Project Manager, Abdul Halim (P. W. 11) and Muhammad Salim, who took the deceased to Wazirabad Civil Hospital, on the same day where his statement (Exh. P. D.) was recorded on the basis of which F. I. R. (Exh. P. D./3) was registered at the Police Station. Muhammad Arshad, however, died in the hospital at 8 a. m. On 2August, 1974.
Anwar Husain Shah S. H. O. (P. W. 13) conducted the investigation and took into possession the blood-stained earth from the place of incident vide Memo. Exh. P. I. This Memo was attested by Ghulam Qadir and Inayat Husain (not produced) in addition to the Investigating Officer. The Chemical Examiner vide his report (Exh. P. M.) found the earth to be stained with blood, whereas the Serologist vide his report (Exb. P. N.) opined that the blood was of human origin.
The appellant was arrested on 19th August, 1974, but no recovery has been effected at his instance.
4. The appellant pleaded his innocence and when asked during his statement under section 342, Cr. P. C. Why this case was against him and why the P. Ws. Have deposed against him, he replied as under:- "Due to my enmity and party faction with Ghulam Qadir, Fateh Ali and Inayat Husain P. Ws. I have been falsely implicated in this case. There was litigation in respect of consolidation proceedings in the village between my father and the above-mentioned P. Ws. The dying declaration was also procured by those P. Ws. Against me. There are many-other persons by the name of Nisar Ahmad, son of Nasrullah Cheema, in my village. I am innocent and I have been falsely roped in` this case."
The appellant, however, produced no evidence in his defence, but he placed on record Exh. D. A., a certified copy of the statement of Aroora before the Inquiry Magistrate.
5. Dr. Gulzar Ahmad (P. W. 14) on 3rd August, 1974, at 4-50 p. m. Performed the post-mortem examination on the dead body of Muhammad Arshad and found the following injuries on it:-
(1) Fire-arm somewhat oval-shaped wound --" x --" at lower portion of right side of abdominal cavity.
(2) Fire-arm round wound 1/2" x 1/4' at the lower portion of the, chest.
(3) Fire-arm abrasion 1/2" x 1/4'' at the outer aspect of the upper arm.
(4) Fire-arm wound 1/2" x 1/4" at third phalanx of palmer aspect of " right ring finger.
(5) Surgically stitched wound 3" x 1" with corrugated drainage tube in place in middle line of the lower abdomen.
Death, in the opinion of the doctor, was due to shock and haemorrhage etc. As a result of Injuries Nos. 1 and 2, which were sufficient to cause death in the ordinary course of nature. The time between injuries and death was 65 hours and between death and post-mortem examination was 19 hours.
6. The learned counsel for the appellant has submitted that admittedly there is no motive, no incriminating recovery, and out of the three independent eye-witnesses one died, one was not produced and Abdul Halim (P. W. 11) who appeared did not support the case of the prosecution and, therefore, it would not be safe to maintain the conviction solely on the basis of dying declaration (Exh. P. D.) as the enemies of the appellant may well have made believe Muhammad Arshad deceased that the appellant was the real assailant, and in the light of the above submission, the learned counsel has criticised the credibility of the dying declaration.
7. The reason for lack of interest shown by the prosecution to prosecute its case vehemently or that for the witnesses turning hostile or not coming forward to depose is easily understandable. The deceased was a Faqir lad, while the appellant, a Jat, belongs to the land holder class. Muhammad Arshad deceased was working as a peon in Agricul--ture Department and after the office hours be used to serve the father of the appellant i.e. In the house of, the appellant. In these circumstances, it appears that the balance of vested interest entirely tilted in favour of the appellant and against the deceased. The availability of ocular testi--mony, the motive or the incriminating recoveries isnd not a sire qua non for a conviction. A conviction can be well maintained on the dying declara--tion alone if a Court is satisfied that the dying declaration was genuinely made or truly reduced into writing and that the declaration itself has a ring of truth around the version mentioned therein, therefore, we are left with examining the sole question as to whether the dying declaration satisfies the above-stated test.
8. The learned counsel for the appellant' has referred us to the statement (Exh. D. A.) made by Aroora P. W. Before the Committing Magistrate, which P. W. Was not produced at the trial.
We have been referred to the testimony of Abdul Majid Constable (P, W. 2) who has mentioned that at about 8 a. m. Or 9 a. m. Information of the murder was received at Police Station Ahmad Nagar, and it is on record that this Police Station is at a distance of seven miles from the place of occurrence, whereas according to the dying declaration (Exh. P. D.) the incident took place at 8-30 a. m. And, therefore according to the learned counsel for the appellant, the dying declaration is a manipulat--ed document and the incident might have taken place much earlier than 8-30 a. m.
It has also been pointed out that P. W. 7, Mr. Muhammad Farooq Chaudhary, Magistrate Ist Class, Gujranwala, has admitted---
(1) that when he arrived at the operation theatre in the hospital, besides the doctor, 2/3 other persons were also present there and they appeared from amongst the public ;
(2) that Exh. P. D. Did not bear a certificate to the effect that the same had been read over to the deponent and it was claimed to be correct by him;
(3) that document (Exh. P. D.) bears thumb-impression ;
(4) that Exh. P. B., the application for the recording of dying decla--ration did not bear the signatures, nor any order passed by him or written by him, nor the fact as to at what time the same had been presented to him as well as neither any medico-legal report, nor any ruqqa from the Medical Officer was appended to the application (Exh. P. B.); and
(5) that the narration in the dying declaration is so detailed that it looks to be a tutored statement.
9. No doubt P. W. 4, Ghulam Rasul, has accepted the suggestion chat Aroora P. W. Was related to him as well as to the deceased, we would not look into the document (Exh. D. A.) as this is not a substantial evidence in the case, at best for the appellant, we can draw an inference that he would not have supported the case for the prosecution, but that too cannot be stated as a finding of fact for the reason that we do not know that Aroora, if he appeared, he would have stuck to the old state--ment wherein he made concession in favour of the appellant. He might well have stated that the statement was obtained from him under coercion in any case, had be appeared, both sides if thought necessary, could lave had opportunity to cross-examine him for the purposes of eliciting the truth.
Similarly, we are not sure if P. W. 2, Abdul Majid Constable, had a watch with him and was stating the time correctly or that when Muhammad Arshad deceased mentioned 8-30 a.m. As the time of occurrence, he had a watch on his person and he had a look at the time. May be he has also mentioned the time by guess work and a guess work on either side can well nigh result in a difference of an hour or so, if not more. In any case, quite a few cases have come to the notice of this Court wherein formal witnesses, like P. W. 2, Abdul Majid Constable, and Aroora, have made deliberate concessions on having been won over and as noted earlier, same seems to be the position in the case of Aroora (who was never produced at the trial) as well as P. W. 2 Abdul Majid and this practice has been depreciated by the Supreme Court in Bagu v. The State (PLD 1972 SC 77) therefore, we would ignore the statement (Exh. D. A.) as well as the deliberate concessions made by P. W. 2 Abdul Majid Constable.
For the recording of a dying declaration or treating a statement as dying declaration there is no particular procedure or formality which has to be followed as a pre-condition for treating a statement falling under section 33 of the Evidence Act as dying declaration, nor a mere technical defect in the recording of a statement would render the statement as inadmissible in evidence. We have already stated that the essential test is a satisfaction that the deceased in fact made a statement and that if reduced into writing, the same has been truly reduced into writing and that the dying declaration inherently has a ring of truth around it. In this regard I need not refer to the plethore of authorities, as it would suffice to refer to Rob Nawaz's case (PLD 1974 SC 87). In any case a defect on the part of the Investigating Officer would not call for throwing away the entire case of the prosecution and this view was also taken by this Court in Asghar v. The State (PLD 1970 Lah. 878).
10. The dying declaration was recorded by Mr. Muhammad Farooq, Magistrate Ist Class, Gujranwala, (P. W. 7) and there is not even a suggestion that he was mixed up with anyone or that his integrity could be doubted. He has appeared as a witness and stated at the trial that Muhammad Arshad deceased was healthy and stout person and there was no sign of weakness appearing on his face. When he recorded the statement Muhammad Arshad was conscious and in a fit condition to make the statement and the doctor recorded certificate (Exh, P. C/1) to that effect, He has further clarified that he did not enquire about the educational qualifications from Muhammad Arshad injured. He asked as to whether Muhammad Arshad would sign or put his thumb-impression and since he replied that he would affix his thumb-impression on the statement the witness got the same impressed on the statement. 1t will not be out of place to mention that Muhammad Arshad was educated upto only 4th class and he had received a fire-arm wound at the third phalanx of palmer aspect of right ring-finger, a fire-arm oval-shaped wound in the lower portion of the chest as well as in the loins and, therefore, in that state of pain and agony it is in the normal course of events that Muhammad Arshad, practically an illiterate boy, would have axed only the thumb-impression.
Similarly, no capital can be made out of the admission of Mr. Muhammad Farooq (P. W.7) that when he arrived in the operation theatre, 2/3 public persons were also present besides the doctor.
He has nowhere stated that anyone was tutoring Muhammad Arshad deceased, We are of the view that Muhammad Arshad in fact made statement (Exh. P. D) which has been truly and substantially reduced into writing by Mr Muhammad Farooq (P. W. 7):
11. This is a day-time occurrence. The deceased-has received 4/5 firearm injuries, which are all received in front and from close distance. He received the injuries on 31July, 1974 at 8-30 a.m. And expired on 2nd August, 1974-at 10 p.m. He knew the appellant very well as after office hours he worked in their house. In the circumstances, the question of mistaken identity does not arise, and since only one person is named in this daylight occurrence; where the culprit could not have escaped un--identified, we rule out the possibility of substitution and none could have persuaded the deceased to falsely implicate the appellant, i.e. The son of the deceased's master.
Muhammad Arshad deceased, an innocent lad, in a straightforward manner stated that he was not aware of the motive for which the murderous assault was made on him. If the statement would have been a prompted one as usual, some motive would have been introduced and for 4/5 firearm injuries on him, the alleged enemies of the appellant could have thrown the net more widely and roped in other family members of the appellant. We are of the view that the statement is a straightforward and truthful account of the incident by a poor innocent lad and we are satisfied that his version has the ring of truth around it and, therefore, we have no hesitation whatsoever in accepting the statement (Exh. P. D.) and we find the same sufficient to uphold the conviction of the appellant for the murder of Muhammad Arshad.
12. The learned trial Court has awarded the lesser penalty on the ground that there is no ocular account or evidence of recovery of the weapon of offence or that of the motive. If the Court is satisfied about the identity of the assailant, the former two factors are hardly worth consideration. If there was any mitigating circumstance, it was for the appellant to have come forward with thest truth and lay foundation for the consideration of that and any such circumstances we do not find on the record and we cannot enter into the realm of conjectures in favour of either side for the devil alone knows his mind, suffice it to say that on the evidence that is before us this seems to be an up-start act of wanton murder of a poor Faqir lad and this calls for the normal penalty of death which we do hereby award to the appellant. He shall be hanged by the neck till he is dead. We also maintain the sentence of fine and the whole of it, if realised, be paid to the heirs of the deceased.
13. The result is that Criminal Appeal No. 461 of 1979, filed by the appellant is dismissed and Criminal Revision No. 565 of 1979 filed by the father of the deceased is accepted.