1. This bail application is moved on behalf of the applicant, who facing trial under section 302, P.P.C.
2. Before Sessions Court, Larkana.
3. Case for the prosecution in brief is that sometime before incident there was exchange of hot words between the applicant and deceased Mukhtar Ahmed. On the day of incident viz: 1-2-1986 at about 7-45 p.m. The deceased was attacked by the present applicant and one unknown person. Present applicant is alleged to have caused blow on his left buttock with knife. The applicant ran away. On his cries P.Ws. Kaloo and Aligul came and he informed them about the incident He also lodged F.I.R.
4. On the same day at Warah Police Station at 8-30 p.m. Under section 324, P.P.C. The deceased died 1-3-1985 As such the case was converted into one under section 302, P.P.C and the applicant was rearrested and challaned as such.
5. It is argued by learned counsel for the applicant that the only evidence against the applicant is statement of the deceased recorded In F.I.R. Which may now be treated as dying declaration. He contends theft even according to F.I.R. No other person is alleged to have seen the incident but two persons were informed of the incident: by the deceased. He contends, that the conviction cannot be based on the dying declaration-alone and in support he has relied upon 1984 P Cr. L J 2852 where a Division Bench of this Court has held that dying declaration alone; as a rule, could not be made basis of conviction for a charge on capital offence. However, in the case of Zarif Khan v. The State PLD it 77 SC 612 their Lordships of the Supreme Court had held that dying declaration becomes evidence and conviction can be based solely on the dying declaration. Their Lordships further held 'that dying declaration can be challenged on any ground permissible in case of challenge to evidence of a witness e.g enmity. It was also further held that presumption that truth sat upon lips of dying man, was applicable on, to a dying declaration made by a person knowing his death to imminent and 'when author of dying declaration was a man unquestionable integrity and persons giving evidence about such declaration were also persons of integrity.
6. It is, contended that in the instant case the dying declaration viz. F.I.R. Was recorded one month before the death of deceased and at that time the deceased had no knowledge or fear that he will die.
7. It is further submitted, that this F.I.R. Is contradicted by the evidence of two Witnesses inasmuch as that according to the F.I.R./dying declaration two persons, namely, the present applicant and one unknown person had attacked the deceased whereas according to the witnesses, Whom the deceased is alleged to have immediately informed about the incident he told them only of the present applicant and did not mention the other unknown person it is argued that no implicit reliance can be placed on such dying declaration alone.
8. It is further contended, that injury was inflicted upon non-vital part of the body of the deceased and as such intention to commit murder could not be attributed to the applicant. Reliance is placed on PLD 1974 Pesh. 33 where a D.B. Of Peshawar High Court had held 'If a man armed with a knife or dagger stabs another in the arm or in the leg, it can generally be urged on his behalf that he was not trying to kill, and that he was not trying to inflict such bodily injury as is sufficient in the ordinary course of nature to cause death. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. If, therefore, a stab with a knife or a dagger aimed at an arm or a leg severs an artery and the injured man dies as a result, it may be quite reasonable to argue, that the offence is not one of culpable homicide and that the assailant can only be presumed to have intended to cause hurt or grievous hurt, with a dangerous weapon.
9. It is, further, submitted, that even in post-mortem notes the medical officer has not given opinion, that injury on the deceased was sufficient in the ordinary course of nature to cause death. Looking to the factual and legal position of the case the case appears to be one of further inquiry and presently it can be said that there are reasonable grounds to believe that the accused may not have committed non-bailable offence. As such the applicant is ordered to be released on bail in the sum of Rs.50,000 and P.R. In the like amount to the satisfaction of the trial Court.