' Javid lqbal C.J.--Mati-ur-Rahman, son of Haji Abdul Sattar Khan, aged 32, armed with revolver, has been convicted under section 302. P.P.C. For the murder of Hamidullah Khan, aged 32, and sentenced to death plus fine of Rs, 5,000 or in default to undergo three years' rigorous imprisonment with the direction that if the fine was realized from him, it should be paid as compensation to the heirs of the deceased. The judgment has been passed as against him by the Sessions Judge, Mianwali on 3rd June, 1980. The appeal as well as the reference for the confirmation of death sentence awarded to the convict are being taken up together and disposed of by this judgment.
2. The occurrence took place at 11-30 a.m. On 29th December, 1978 near Sarai Ata Muhammad Battian in Mianwali City at a distance of one mile from Police Station Saddar Mianwali. Statement (Exh. P.L.) was made by Khan Bahadur (P.W.12), cousin of the deceased at 1-20 p.m. On the same day and it was recorded by Ata Muhammad A.S.I. (P.W.14) who met him outside the Civil Hospital, Mianwali while on patrol duty and had come to know about the incident. Initially a case was registered against the appellant under section 307. P.P.C. But on the death of this deceased at 4-30 a.m. On 6th January, 1979 in the hospital it was altered to section 302, P.P.C.
3. The motive for the crime, as stated in the F.I.R. Is that Muhammad Afzal Khan, uncle of the deceased, had been murdered by Abdul Ghaffar, brother of the appellant, and since then there had existed enmity between the parties. However, 5/6 days before the present occurrence there was an encounter between the appellant and the deceased but the situation was saved. Learned counsel for the appellant has diverted our attention to Exh. D.D. At page 82 of the printed paper- book which is judgment, dated 21st December, 1960 in the murder case of Muhammad Afzal Khan deceased whereby Abdul Ghaffar and Fazalur Rahman, both brothers of the present appellant, were tried by the Sessions Court and were acquitted. Learned counsel has also taken us through paragraph 18 at pages 50/51 of the printed paper-book in which the trial Court has on the motive version regarding the murder of Muhammad Afzal Khan by observing that murder had been forgotten and buried under the burdens of physical life till the matter was ignited, so to say, by the deceased by entering into a dispute with the appellant at the bus-stand, because in the cross- examination Khan Bahadur P.W. Had stated that 5/6 days before the present occurrence an incident had taken place between the deceased and the appellant at the bus-stand and at that time this witness was not present. However, on the very same day, the deceased on reaching his house had been telling about the same to those present, including his father, and the father had reprimanded that he should not disturb the peaceful life. Thus, according to the trial Court, the peaceful life was disturbed after 1960 when the present incident took place. The trial Judge, therefore, relied essentially on the dispute of the appellant and the deceased at the bus-stand only 5/6 days before the present occurrence as the real cause of occurrence rather than the motive version in respect of the murder of Muhammad Afzal. Learned counsel also submitted that in any case this immediate cause for the occurrence should have also not been believed by the trial Judge because the father of the deceased had not been produced in support of the same and that admittedly Khan Bahadur P.W. Was not present at the time of the incident, although he claims to be present at the time when the deceased narrated this incident to his father.
4. In the F.I.R. The occurrence is stated to have taken place in the following manner Khan Bahadur (P.W.12) accompanied by Amir Umar Khan (not produced, given up as won over) and the deceased were passing through the bazar and when they reached near Sarai Ata Muhammad Battian in Mianwali city, the appellant suddenly confronted them and raised a lalkara to the deceased and at the same time fired a shot through his revolver at him. The shot hit on the left side of his belly. On this the deceased started running. The appellant fired the second shot which hit on the back side of the left thigh of the deceased and went through and through. On this the deceased fell down on the ground. The occurrence was witnessed besides Khan Bahadur P.W. By Amir Umar Khan (not produced) as well as by Mumtaz Khan (P.W.13), another close relative of the deceased, who chanced to be near the place of occurrence. Thereafter, the deceased in an injured condition, was put in a taxi-cab by Khan Bahadur P.W. And brought to the Civil Hospital, Mianwali. At the civil hospital Mianwali, the deceased in an injured condition was medically examined and in the meantime, the police arrived at the hospital and the statement of Khan Bahadur P.W. Was recorded.
5. According to the version given in the F.I.R. The prosecution has produced two eye-witnesses of the occurrence, namely, Khan Bahadur (P.W.12) and Mumtaz Khan (P.W.13), both close relatives of the deceased. Amir Umar Khan, although cited as an eye-witness in the F.I.R. Has not been produced but was given up as won over.
6. The appellant was arrested on 31st December, 1978 by Khurshid Alam 5.1. (P.W.15). At his instance, was recovered .32 bore revolver '(Exh. P.5) and it was taken into possession vide memo. Exh. P.O., dated 9th January, 1979. The attesting witnesses are Khurshid Alam S.I. (P.W.15), Sikandar Hayat (P.W.11) and Habib Ullah (not produced). It may be pointed out at this stage that the said revolver was not sent to the Forensic Science Laboratory. In paragraph 33 at page 59 of the printed paper- book the trial Judge has observed that at the trial stage it was discovered that the bullet lead (Exh.
P.1) which was recovered from the dead body of the deceased, could not be fired from the said revolver. It is also stated at page 40 line 30 of the printed paper-book by Khurshid Alam 5.1. P.W. In his cross-examination that he had tried to put the bullet lead in the chamber of revolver (Exh. P.5) but it was of bigger bore and did not fit in the chamber or the barrel of the said revolver. In any case, since the said revolver had not been sent to the Forensic Science Laboratory and no crime empty was recovered or picked up from the spot, this recovery is of no consequence and no importance could be attached to the same.
7. The appellant in his statement before the trial Court denied having participated in the occurrence and he disowned the recovery and stated that he had been falsely implicated by the police in this case. He pleaded innocence but did not produce any defence.
8. Dr. Muhammad Akram Khan (P.W.2) conducted medical examination on the person of the deceased while he was brought in an injured condition to the hospital at 12-15 p.m. On 29th December, 1978 and noted the following injuries on his person:--
(1) A fire-arm wound of entry on the left side of chest.
(2) A fire-arm wound of entry on the back of left thigh with wound of exit.
' Both these injuries were caused by fire-arm and were fresh.
' On the same day Ata Muhammad A.S.I. P.W. Came to the hospital and moved an application before the Medical Officer (Exh. P.C.) in order to find out as to whether the patient was capable of making a statement and he vide his report (Exh. P.C./1) replied in the affirmative. Subsequently on 2nd January, 1979 on the basis of the operation notes of Dr. Abdul Qadir (P.W.4) surgeon he declared injury No,1 as dangerous to life and on the basis of the X-rays taken by the said doctor, injury No,2 was declared as simple. Dr. Abdul Qadir Khan P.W. Had given him the bullet lead taken out of the body of the patient. On 30th December, 1978, he wrote ruqqa (Exh. P.E.) to the police that dying declaration of the patient be recorded. The police reached the hospital alongwith the M.Agistrate on the same day at 6-55 p.m. The Magistrate made query (Exh. P.F.) whether the patient was capable of making a statement and the Medical Officer gave his opinion (Exh. P.F./1) in the affirmative. On this the Magistrate recorded the dying declaration (Exh. P.C.) of the patient and thereafter he gave his certificate (Exh. P.C. /1) to the effect that the patient had remained in senses while making the statement. In the cross-examination this Medical Officer stated that when he examined the patient and the A.S.I. Had come to the hospital, a statement of the patient was recorded but he was not sure if it was recorded by him or by the A.S.I. He had handed over that statement to the police. He further stated that it was in that situation that either he or the A.S.I. Had recorded the statement of the patient so that the possibility of the late arrival of the Magistrate would not affect the recording of the dying declaration. He could not state whether the dying statement was recorded before the medical examination or just thereafter. He could say that if he had not recorded the dying declaration, then the one recorded by the A.S.I. Must have been certified by him. He could not say, nor he could remember, nor he could contradict whether in that statement there was anything to the effect that the deceased was fired at by somebody in the rush of the bazar and that he had further told that his relatives would make the proper report. He did not remember, nor could he contradict whether no eye-witnesses were mentioned in that dying declaration. He could not say whether in that statement the deceased had not named anybody as his assailant. According to bed-head ticket (Exh. D.A.) the patient was admitted on 29th December, 1978 at 12-45 p.m. In room No,2 of the private ward and at the abovementioned time he was removed to the said room. He stated that it might be correct that the dying declaration was recorded on that day at about 1 p.m. Taking away the dying declaration the A.S.I.
Had left the hospital. He did not know where that statement was at present. According to him, he did not remember as to whether or not the first dying declaration was recorded under application (Exh. P.C.) as endorsed by him at Exh. P.C. /1. He stated that the relatives of the deceased had contacted him that they were not satisfied with the first dying declaration and that a fresh one was to be recorded. He further stated that he might have told the Magistrate that an earlier dying declaration had also been recorded by him or by the A.S.I. He might have told him that the same was in possession of the police. He stated that it was correct that when the dying declaration (Exh.
P.C.) was recorded, the relatives of the patient were present in his room in the private ward and were sent, out when it was recorded.
' Dr. Ashiq Ali (P.W.3) conducted the post-mortem examination on the dead body of the deceased at 11-30 a.m. On 6th January, 1979. The deceased had died in the hospital at 4-30 a.m. On 6th January, 1979. He noted the same injuries on his person except that they were stitched. In his opinion the death had resulted due to haemorrhage and shock leading to peritonitis, jaundice and renal failure due to injury No,1 which was sufficient to cause death in the ordinary course of nature.
Injuries Nos.1, 2 and 3 had been caused by a firearm and were ante-mortem, while the rest were operational and post-operational wounds. He stated in the cross-examination that with good operation and post-mortem medical care general peritonitis was easily controlable and that all the three ailments mentioned above were post-operational complications. He also stated that due to incompatible blood transfusion or the reaction of some anti-biotic medicine jaundice could develop. It was detected by him for the first time on 2nd January, 1979. This further led to uraemia which led to renal failure. This also led to death. He had observed the haemorrhage and signs of shock on 30th December, 1978.
' Dr. Abdul Qadir Khan (P.W.4) stated that the X-ray film had indicated a radio opaque foreign body, most probably a bullet in the body of the patient, which meant that possibly there was injury to the intestines. Soon thereafter he operated upon the patient. During the operation bullet lead (Exh. P.1) was recovered from the right loin below the muscles which was handed over to Dr. Muhammad Akram Khan P.W. According to his operation notes (Exh. D.A.), on opening the abdominal cavity, it was found full of blood-stained gastic and intestinal contents. After cleaning it was found that there was a big hole on the anterior border of the stomach and two big holes in the transverse colon; one hole in the mesentery and the adjoining portion of the ascending colon. They were all repaired and stitched. There was a big cut in the peritoneum covering the ascending colon. This was also stitched. There was no apparent injury to liver, gall-bladder, spleen and kidney. The above-mentioned holes and cut in the peritoneum were all due to the bullet. There was no other deformity or ailment in the abdomen of the deceased. In the cross-examination he stated that when the intestines are injured, specially in the lower portion, highly infectious material oozes out and causes peritonitis and infection.
9. We have heard learned counsel for the parties and carefully perused the record. Firstly it is argued by learned counsel that the motive version in the instant case was not proved. It is submitted that in the F.I.R. The motive of the occurrence given is that Muhammad Afzal Khan, uncle .Of the deceased, had been murdered by the brothers of the appellant long time ago but in the light of Exh. D.D. At page 82 of the printed paper-book vide judgment, dated 21st December, 1960 in the murder case of the said Muhammad Afzal Khan deceased the brothers of the present appellant were acquitted. Even the trial Court has not placed reliance on the motive version regarding the murder of Muhammad Afzal Khan, as according to it, it had been forgotten and buried over a number of years. According to learned counsel, the other motive given in the F.I.R.
Was that 5/6 days before the present occurrence, there was an encounter between the appellant and the deceased but the situation was saved. This motive has been relied upon by the trial Judge who has observed that the deceased by entering into a dispute with the appellant at the bus- stand 5/6 days before the present occurrence had ignited the old matter. Commenting on this observation learned counsel for the appellant has vehemently argued that the first-informant, namely, Khan Bahadur P.W., was not a witness of the said incident. He only volunteered this information before the trial Court that the deceased mentioned about the incident to his father while he was present. Learned counsel further submitted that the improved version of the incident, as given by Khan Bahadur P.W. Before the trial Court, was that the deceased had attacked the appellant with a knife at the bus-stand and the appellant had run away. But this had not been so stated in the F .I.R. So, the argument of learned counsel is that if the motive version about the murder of Muhammad Afzal Khan as given in the F.I.R. Was not acceptable, even the immediate cause of the occurence that there was a confrontation between the appellant and the deceased 5/6 days before the present occurrence; was also shrouded in mystery and it could not be ascertained clearly as to what had happened 5/6 days before the present occurrence between the parties. Learned counsel further argues that the motive version of the immediate cause appears in the so-called dying declarations but then according to him, in the instant case, there were numerous dying declarations alleged to have been recorded by the prosecution of the deceased while he was still alive. In this connection it is stated that there was one dying statement which was recorded by the Medical Officer but it became non-existent and had not been placed on the record. There was another dying declaration (Exh. P.S.) which was recorded on 29th December, 1978 as a statement of the deceased while still alive under section 161, Cr.P.C. By the Investigating Officer. There was still another dying statement (Exh. P.C.) which was recorded by the Magistrate in the instant case on 30th December, 1978. Then there is also a dying statement marked 'A' and marked 'C' at page 79 of the printed paper book recorded on 29th December, 1978 claimed to be recorded by the doctor. Finally there is dying statement marked 'A/1' recorded on 30th December, 1978. So, learned counsel argues that the immediate cause of the occurrence remains shrouded in mystery because even if these dying statements were accepted as correct, they only indicate that the deceased had attacked the appellant with a knife. Why he attacked him, when the old hatchets had been buried after a number of years remains shrouded in mystery and the Court has not been taken into confidence about it. We agree with learned counsel on this point. It cannot be ascertained as to what was the real motive of the commission of crime. The motives as given in the F .I .R . Are stated in the said dying declarations and they do not clarify the matter. It was next argued that the recovery evidence, in The instant case, is not reliable. We also agree with learned counsel on this point. We have already discussed in paragraph No, 6 above as to why the recovery evidence in the instant case is of no consequence and no importance could be attached to it. It was next argued by learned counsel that both the eye-witnesses of the occurrence, in the instant case, produced by the prosecution were interested witnesses who had motive to falsely implicate the appellant. He also submitted that they were in any case chance witnesses and that at the time of the occurrence they were not accompanying or not likely to accompany the deceased. It is, therefore, submitted that the ocular testimony in the instant case should be rejected. We do not agree with learned counsel on this point. Even if the said two eye- witnesses were considered to be interested in the sense that they were closely related to the deceased, their close relationship with the deceased would not by itself make them interested witnesses. It is only a principle of abundant caution to ask for corroboration in such circumstances.
Otherwise if the ocular testimony of related witnesses is being supported by circumstances and is convincing, there is no reason why it should not be accepted. In the instant case, only a single accused person is being named by them who is said to have fired shots at the deceased. Then it is a day time occurrence which took place at 11-30 a.m. On 29th December, 1978 in a public place namely, bazar near Sarai Ata Muhammad Bhattian, in Mianwali City. Furthermore, the prosecution version is that while the deceased was passing through the bazar the appellant suddenly confronted him and after raising a lalkara fired a shot through his revolver at him which hit him on the left side of his belly. On this the deceased in order to save his life started running. But he was chased by the appellant who fired at him for the second time hitting on the back side of the left thigh of the deceased and the shot went through and through. It was on this that the deceased fell down on the ground. Thus, in the bazar when there were so many other people, the problem of identity of the appellant was simply not there and since a single accused person was being mentioned, there was no question of even any substitution. Even otherwise there is nothing on the record to show that the deceased had many other enemies who could have done the job. We are, therefore, of the view that even if the recovery evidence was of no value, in the instant case, or the two eye-witnesses produced by the prosecution were closely related to the deceased, reliance could still be placed on their ocular testimony as it was being supported by the circumstantial evidence as well as the medical evidence. Eventually learned counsel led us through a long argument about the different dying statements recorded of the deceased in the instant case.
Briefly speaking, the case of defence is that the decease was alone in the bazar at the time of the occurrence. He was suddenly fired at by some unknown assailant and it was an unwitnessed occurrence. The two eye-witnesses produced in the instant case were closely related to the deceased and they were chance witnesses. Since their testimony was not reliable, the Investigating Agency deemed it necessary to introduce the evidence of dying statements. We were asked to believe that a particular dying statement had been recorded by the Medical Officer in which the deceased, while still alive, had stated that he could not see or know as to who his assailant was and in that dying statement he had not even mentioned the presence of the two eye-witnesses.
This dying statement is not forthcoming on the record. According to learned counsel, it was deliberately made to disappear. But according to the prosecution, such dying statement only existed in the imagination of the defence. It was non-existent because it had not been recorded at all. Learned counsel took us through the cross-examination of Khan Bahadur P.W. Who had said that the doctor had recorded the statement of the deceased while he was still alive at 1-30 or 1-45 p.m. On 29th December, 1978 in the General Ward while he was standing at the door about 14/15 feet away and that this statement was signed by the deceased. Dr. Muhammad Akram Khan P.W.
Had stated in the cross-examination that he was not sure if the dying statement of the deceased was recorded by him or the A.S.I. However, he had handed it over to the police. He had further stated that there was fear that the deceased, while still alive, was in a precarious condition and that he may not die before his statement could be recorded. So, it was in this background that either he or the A.S.I. Recorded the statement so that the possibility of the late arrival of the Magistrate did not affect the recording of the dying statement. He further stated that he could not say, nor he could remember, nor he could contradict whether in the statement there was something to the effect that the deceased was fired at by somebody in the rush of the bazar and he had further told that his relatives would make the proper report. He also could not remember, nor could he contradict whether no eye-witness was mentioned in the said dying declaration. Thus, learned counsel relying on the confusion which has been created by the Medical Officer by making non-committing and vague statements is attempting to take advantage of the same in favour of the defence. These statements of the doctor are neither here nor there and one could also not rule out the possibility that he was deliberately creating this confusion in order to make concessions in favour of the defence. The correct position is that the deceased in an injured condition was brought to the hospital at 12-15 p.m. On 29th December, 1978. Arrangements were being made to get his dying statement recorded and for that purpose the Magistrate had to come. It is reasonably probable that due to the precarious condition of the deceased the Investigating Officer was anxious to record his statement before he died or before the Magistrate might have arrived.
Consequently, it appears from Exh. P.S. Which was recorded on 29th December, 1978, that the Investigating Officer proceeded to record statement of the deceased in an injured condition under section 161, Cr.P.C. It is in fact that statement about which the doctor is also talking, although he is creating confusion by saying that he did not know whether he recorded it or the A.S.I. If this statement is perused, it supports and corroborates the ocular testimony in the instant case. At this stage learned counsel vehemently argued that this statement had not been handed over to the appellant when the trial commenced and an application was moved many months thereafter by the P. P. That copies of the statement of the deceased under section 161, Cr.P.C. And that of dying declaration were yet to be provide to the appellant and that, therefore, the trial be adjourned. Thus, according to learned counsel Exh. P.S. Was an afterthought and had been handed over to the defence at a belated stage and, therefore, it should not be relied upon. It is further submitted that despite its defect, the trial Court had erroneously relied upon this document as a dying statement.
Learned counsel submitted that the other dying statement, in the instant case is Exh. P.G. Which was recorded by the Magistrate on 30th December, 1978 at 7-15 p.m. This dying statement has not been relied upon by the trial Court. So far as the other alleged dying statements are concerned, they may not be discussed as they are not relevant for our purpose. We have carefully considered these documents and in our view the dying statement recorded by the Magistrate on 30th December, 1978 (Exh. P.C.) was the document which amongst others was handed over to the defence before the commencement of the trial and it should have been relied upon by the trial Court. So far as Exh. P.S. Is concerned, this was a statement under section 161, Cr.P.C. Of the deceased recorded by the Investigating Officer a day earlier i,e, on 29th December, 1978 under the apprehension that he might die before the Magistrate had arrived to record his statement as he was in a precarious condition. Exh. P.S. Appears to have been withheld and was not provided to the defence at the commencement of the trial. It was this document which was provided to the defence at a subsequent stage. Be that as it may, it does not make any difference, for, in substance Exh. P.S. And Exh. P.C. Give the same narration of facts and circumstances in which the deceased had been fired at by the appellant. In our considered opinion, therefore, both these documents are reliable in the sense that they complement each other. The trial Judge in our considered view, should have relied upon Exh. P.G. Which had been recorded by the Magistrate in the instant case and which corroborates the ocular testimony. In the light of what has been discussed above, we are convinced in our mind that the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt. .In the circumstances the conviction of the appellant under section 302, P.P.C. Was quite proper and is accordingly maintained. However, there remains the question of sentence to be awarded in the instant case. Learned counsel has vehemently argued about two extenuating circumstances calling for the awarding of lesser penalty. The first is that the immediate cause of the occurrence, in the instant case, remains shrouded in mystery as the motive version given in the F.I.R. Could not be established. The second is that according to the medical evidence, particularly of Dr. Ashiq Ali P.W. Who conducted post-mortem examination, the death had resulted due to haemorrhage and shock leading to peritonitis, jaundice and renal failure due to belly injury. He had stated that with good operation and post-operational medical care general peritonitis could be easily controlable and that in the instant case all the above three ailments which led to the death of the deceased and which are mentioned above were due to post-operational complications. He also stated that due to incompatible blood transfusion or the reaction of some anti-biotic medicine jaundice could also develop. It was detected by him for the first time in the case of the deceased on 2nd January, 1979. This further led to uraemia which led to renal failure. In other words, in the light of the medical evidence, according to learned counsel, if post-operational complications had not developed, the deceased might have been saved. In the light of these extenuating circumstances learned counsel pleaded that in the instant case the awarding of lesser penalty would be sufficient to meet the ends of justice. We find force in his argument. Since the real cause of occurrence remains shrouded in mystery and the motive as set up by the prosecution could not be established and furthermore since post-operational complications may have also been the cause of death of the deceased, in the instant case, we are of the considered opinion that case was made out for alteration of the sentence of death awarded to the appellant to that of imprisonment for life. It is ordered accordingly. In the light of the above discussion the conviction of the appellant under section 302, P.P.C. Is maintained but his sentence is altered from death to that of imprisonment for life. The sentence of fine is maintained. The Jail authorities are hereby directed to grant the benefit of the provisions of section 382-B, Cr.P.C. To the appellant at the time of computation of his sentence of imprisonment for life. With this modification the appeal is dismissed. The death sentence awarded to the appellant is not confirmed.