INAYAT ELAHI KHAN, J.-Lal Zarif son of Habibullah aged 55/56 years resident of Asghar Kili, Tehsil Charsadda stands convicted under section 302, P. P. C. For the murder of Hanif Muhammad his first cousion, by the Additional Sessions Judge, Charsadda vide judgment dated 14-10-1980, and sentenced to imprisonment for life and a fine of Rs. 2,000 or in default thereof one year R.
1. The convict has preferred this appeal from Jail and Mr. Abdul Samad Khan Advocate was appointed at State expense, to argue the appeal on his behalf.
2. The occurrence took place on I1-9-1978 at 12.30 noon when deceased Hanif Muhammad was working in his field in village Pala: situated in Maira Tangi. The accused arrived, armed with a rifle, and fired effectively at the deceased (then injured) who was later on removed by some strangers to the Civil Hospital Charsadda, where his report dying declaration (Exh. PA/I) was recorded by Adam Khan A. S. I. (P. W. 2), who then forwarded the Murasla to Police Station Tangi for the registration of the case. In the F. I. R. Dying declaration the deceased had stated that while he was working in his field in village Palai, accused Lai Zarif arrived and fired at him with his rifle whereby he was hit on his left buttock from the front side. The motive mentioned in the F. I. R. Is that the deceased and the accused had a dispute over the landed property. He further stated that 3/4 persons have witnessed the occurrence but he did not know their names. After the occurrence the accused appellant absconded and was arrested subsequently on 26-3-1979.
3. Lal Zarif accused is not only the first cousin of the deceased but also his step father having married the mother of the deceased after the demise of her first husband.
4. Doctor Muhammad Shafiq, who had performed the autopsy on the dead body of the deceased, was not available as he had left for Iran and therefore, Rukhanud Din Compounder Lady Reading Hospital, Peshawar (P. W. 8) was examined to prove the handwriting and signature of the afore-- said doctor, and thus the post-mortem report Exh. P. A, injury sheet Exh. P. G and. The pictorial Exh. P.
D. I were proved through the evidence of this witness.
5. Adam Khan A. S. I. (P. W. 2) who recorded the F. I. R. Dying declaration (Exh. PA/1), stated that the report was read over and explained to the deceased (then injured) who after admitting the same as correct had put his signature thereon. He deposed that the deceased (then injured) was in his full senses when he made the report. This witness had also prepared injury sheet Exh. P. C. Of the deceased. Rahmatullah Khan A. S. I (P. W. 4) had prepared the site plan (Exh. P. B). He had also arrested the accused appellant Lai Zarif on 26-3-1979 and had submitted supplementary challan against him. Abdul Hanan F. C. (P W 5) was entrusted with the warrant of arrest of the accused- appellant, but be returned the same unserved on the ground that the accused was not traceable.
Mst. Mobar Zamina widow of the deceased (P. W. 6) deposed that accused Lai Zarif is the first cousin and also the step-father of her deceased husband. She stated that her deceased husband owned sufficient landed property in Parang Ghar (T. T.), but she was living with her husband in Sakhakot where her husband, after retirement from the army, had settled. She stated that the property of her deceased husband and the accused was joint, but was exclusively in possession of the accused who had also sold away a portion thereof without the consent of her husband and that her husband intended to get back the land thus sold from the purchaser on payment of money but this fact caused annoyance to the accused-appellant. She further deposed that her husband had effected partition with the accused and wanted himself to plough his own share of the land. She stated that when she went to Lady Reading Hospital to see her husband, she found him in full senses, who also told her that he was fired at and wounded by the accused-appellant. In cross-examination she stated that her husband was fired at Parang Ghar (T. T.) which was at a distance of 20 miles from the residence.
6. Muhammad Irshad Khan A. S. I. (P. W. 7) who was on duty at Casualty Department Lady Reading Hospital, had prepared the injury sheet Exh. P. C. 2 and inquest report Exh. P. D. 3 when the deceased expired in the hospital.
7. Mohammad Anwar Khan S. H. O. Police Station Tangi was examined as C. W.
1. He stated that he had inspected the spot along with Rahmatullah Khan A. S. I. And Patwari halqa. The place where the occurrence took place was found to be located in the settled area. Rahmatullah Khan (A. S. I. (C. W.
2) had partly investigated the case and prepared the site plan Exh. P. B. Liaqat Ali Patwari halqa (C W-3) deposed that the place of occurrence was situated in khasra No, 294 in village Palai Barazai.
He also placed copies of the revenue record on the file.
8. The accused when examined in the trial Court pleaded. That he was innocent and falsely charged. He did not wish to produce defence.
9. The prosecution case mainly rests on the dying declaration (Exh. P. A/1), absconsion of the accused and the existence of the motive for the commission of the offence.
10. From the evidence of Adam Khan (P. W. 2), who recorded the dying declaration, it is established that the deceased was in his full senses while making the report. Mst. Mohar Zamina (P. W. 6) also stated that when she visited her deceased husband in the Lady Reading Hospital, she found him in possession of his full senses, who also informed her that he was fired at and wounded by the accused appellant. This lady had also deposed, to the existence of a dispute between the deceased and the accused over' the landed property. She further stated that a portion, of the joint property was sold away by the accused and the deceased intended to get back the property from the purchaser and that this fact annoyed the accused-appellant.
11. On 13-9-1978 at 8.20 a. m., Dr. Muhammad Shafiq had performed the post-mortem on the dead body of the deceased and found the following injuries on his person :- External Examination
(1) Fire-arm entrance wound on the R.I. F. ----- x -----.
(2) Fire-arm exit wound on right buttock 3--- x 2---.
On the internal -examination of the abdomen he, found the anterior abdominal wall injured in R.
1. F.
By fire-arm. Paritoneum was injured and contained fluid. The small intestines were found to have multiple pruforations which were stitched. Large intestines were found normal containing faecal matter. In the opinion of the doctor the cause of death was due to irreversible shock due to haemorrhage leading to death due to circulatory failure, The time between injury and death was given as 48 hours and between death and post-mortem examination 12 hours. The nature of the injury and the fact that the deceased, after having been injured on 11-9-1978 at 12-3 noon remained alive up to 11.00 p. m. On 12-9-1978, would go a long way to show that the injury caused to the deceased was not of such a nature as would have resulted in his instantaneous death, or would have affected his power of speech. Therefore, the evidence of Adam Khan A. S. I. (P. W. 2) and Mst.
Mobar Zamina (P. W. 6) that the deceased was in his. Full senses and could talk coherently, cannot be doubted in the circumstances of the case and it can be safely inferred that they have spoken the truth while deposing as to the condition of the deceased at the time of his making the report and subsequently .When he was admitted to the hospital.
12. The absconsion of the accused from 11-9-1978 to 26-3-1979 '' not been sufficiently explained by the accused appellant when he was examine by the, trial court in this respect. Thus, his absconsion coupled with the existence of a strong motive of a dispute over the landed property, lend sufficient corroboration to the dying declaration that it was the accused-- appellant who was responsible for causing the fatal injury to Hanif Muhammad deceased.
13. The learned counsel for the accused appellant urged that the dying declaration was not attested by the doctor to show that the deceased (then injured) was in possession of his senses at the relevant time. He further argued that the location of the injury shows that there was no intention to kill on the part of the accused appellant and the fact of the deceased having stated that he was hit on the left buttock from the front side, does not tally with the medical report which shows a fire- arm enterance wound on the R.
1. F. ----- x ----- and exit wound on the right buttock. He also argued that the dying declaration cannot be made sole basis of conviction in the absence of unimpeachable evidence to prove the veracity of the dying declaration. We are not impressed by these arguments. The mere absence of an endorsement by the doctor would not ipso facto affect the credibility of the dying declaration if the same is otherwise found to be true and genuine. "It must be remembered that when words are scarce they are hardly spent in vain and they usually speak the truth who breath their words in. Pain". Similarly the argument that there was no intention to kill on the part of the accused appellant and the deceased having stated to have received a fire-arm injury on his right buttock from the front side would be of no consequence, as from the medical evidence and the dying declaration it is established that the deceased was fired at from the front and the exit wound was found on his right buttock. It cannot be denied that the nature of the injury, was serious which had caused damage to the vital internal organs of the abdomen.
14. Regarding the credibility of the dying declaration, there is nothing on the record to suggest that it was not to be relied upon for it was the result of prompting from any outside quarter or that some one pursuaded the deceased to substitute the appellant for his real assailant. Rather there is evidence to prove that the dying declaration was made by the deceased when he was in full possession of his senses and that it was made without any prompting or tutoring. A dying declaration' is a valuable piece or evidence and if it is free from suspicion and believed to be true it can be made sole basis of the conviction of the accused. In Abdur Raziq v. The State (PLD 1964 Pesh. 67) reliance was placed on PLD 1960 Lah. 723 wherein it was held that :-- "If a dying declaration is found to be genuine and true, it can by itself form a satisfactory basis for conviction. Some of the main tests for determining the genuineness of a dying declaration are : whether intrinsically it rings true, whether there is no chance of mistake on the part of the dying man in identifying or naming his assailants and whether it is free from prompting from any outside quarter and is not inconsistent with the other evidence and circumstances of the case."
15. Having given our thoughtful consideration, we have come to the conclusion that the dying declaration is true and free from suspicion. We entertain no doubt about its credibility. Particularly when it stands corroborated by the absconsion of the accused appellant and the existence of a strong motive for the commission of the offence. We accordingly maintain the conviction and sentence of the appellant and dismiss the appeal.