' Matee Ullah son of Muhammad Shaft, aged 25, armed with revolver, has been convicted and sentenced vide judgment, dated 18-11-1984 of the Additional Sessions Judge, Gujranwala, as follows: He is convicted under section 302, P.P.C. For the murder of Muhammad Iqbal, aged -about 28 and was sentenced to life imprisonment plus fine of Rs,10,000 or in default to undergo two years rigorous imprisonment with the direction that he should pay further Rs,20,000 as compensation to the heirs of the deceased or in default thereof to undergo six months further- rigorous imprisonment. The appeal of the convict is being disposed of by this judgment alongwith Criminal Revision No,67 of 1985 for enhancement of his sentence to death.
2. The occurrence took place on 24-5-1983 at 8-30 p.m. In the music-centre shop of the appellant situated in Mohalla Tootianwala at a distance of one furlong.From police station Baghbanpura Gujranwala. Statement Exh.P.L. Was made by Muhammad Iqbal deceased, while he was still alive, in the hospital and it was recorded by Mushtaq Hussain A.S.I. P.W.10 at 4-25 a.m. On 2-5-1983 when on getting information of the incident he arrived at the hbspital. Formal F.I.R. Exh.P.L/1 was registered at the police station at 4-45 a.m. On the same day by Majid Beg A.S.I. Whose handwriting was proved by Mushtaq Hussain A.S.I. P.W.10. The deceased died in the hospital on 30-5-1983, i.e. Five days after the occurrence, and his statement had been treated as a dying declaration.
3. The motive for crime, as stated in the F.I.R., is that on the day of occurrence an unknown motor- cyclist had struck against a child right in front of the shop of the appellant. The appellant and two other persons, namely Muhammad Arshad (not produced) and Muhammad Zarif (not produced as he had died before the trial commenced) took the motor-cyclist and -the child inside the shop of the appellant and they started interrogating the motor-cyclist. On this the deceased also entered the shop of the appellant and he said that they should not harass the motor-cyclist unnecessarily as the child had accidentally come in front of him. This led to an altercation and exchange of abuses between the deceased and the appellant and it is in this background that the occurrence followed.
4. In the F.I.R. Which was subsequently treated as dying statement, Muhammad Iqbal deceased, while he was still alive, stated that as the abuses were being exchanged between him and the appellant, suddenly the appellant took out a revolver from the Nefa of his Shalwar and fired at the deceased hitting him on the left side of his chest. The deceased fell down on the ground and thereafter, was removed to the hospital where his statement was recorded by Mushtaq Hussain A.S.I. P.W.10.
5. It may be pointed out that two persons had been cited as eye-witnesses of the occurrence namely, Muhammad Arshad and Muhammad Zarif. Muhammad Arshad has not been produced, whereas Muhammad Zarif had died a couple of months before the trial commenced in the instant case. Thus, there is no eye-witness produced of the occurrence in this case. There is only the statement of the deceased which is treated as dying declaration of his on the one side and on the other side is the version given in defence by the appellant himself when his statement was recorded by the trial Court.
6. The appellant was arrested on 30-5-1983 by Zulfikar Ali A.S.I. P.W.11. From the counter of his shop was recovered revolver Exh.P.1 which was taken into possession vide memo. Exh.P.B., dated 30-5- 1983. The attesting witnesses are Saifur Rehman P.W.2 who does not support the recovery and states that it was not recovered in his presence, Muhammad Yusuf F.C. P.W.3 and Zulfikar Ali A.S.I.
P.W.11. There is also a lead bullet recovered from the dead body of the deceased by the Medical Officer at the time of post-mortem exal dnation. Learned counsel points out that both the lead bullets as well as revolver Exh.P.1 were despatched to the Fire-arms Expert and according to his report Exh.P.Q. Both these articles were sent to him on 30-6-1983 and the lead bullet matched with revolver Exh.P.1.
7. The appellant in his statement ,before the trial Court gave his own version of the occurrence. He stated as follows: "Muhammad Iqbal deceased was a bully of the Illaqa. He asked me not to report the matter to the police and on my refusal he started abusing me and became furious. He pulled out a revolver and wanted to shoot at me. During the grappling it went off hitting Muhammad Iqbal. I removed him to the civil hospital Gujranwala and got him admitted in the hosptial. I also donated my own blood in order to save Muhammad Iqbal. I had also signed the medico-legal report. The police after consultations and deliberations with the brothers and relatives of the deceased have recorded a false statement only to save Muhammad Iqbal from any future action. I had informed the police about the identity of all those persons in whose presence this incident had taken place but they had refused to bring anything on record. Since the same did not fit in with the false story as recorded in the complaint Exh.P.L."
' Needless to say that he disowned the recovery and pleaded innocence or that he had acted in the exercise of his right of self-defence. However, he did not produce any defence. He was even given the option to appear as his own witness but he did wish to appear as a witness in disproof of the charges against him as in evidence from the order of the Additional Sessions, Judge, Gujranwala, dated 14-11-1984 on the file.
8. Dr. Shah Nawaz P.W.7 medically examined the deceased, while he was still alive, at 10-45 p.m. On 24-5-1983 and found on his person a lacerated wound 8 x 7 c. m. Going deep with inverted edges and blackened margins on the front lower part of left chest. He stated in the examination-in-chief that the deceased in an injured condition was brought to the hospital by Matee Ullah, the present appellant. The condition of the patient was serious and he was in a state of shock. The injury was kept under observation. It was fresh on arrival and was caused with fire-arm.
' On 31-5-1983 the patient died in the hospital at 8-30 p.m. However, on 25-5-1983 the A.S.I.
Produced before him application Exh.P.F. Asking his opinion as to whether or not the injured was fit to make a statement. He declared the injured fit to make a statement. He stated in the cross- examination that immediately after finishing the medical examination of the injured, he had informed the police at 11-00 p.m. On 24-5-1983.
' Dr. Anjum Javed P.W.1 conducted the post-mortem examination on the dead body of the deceased at 9-30 a.m. On 1-6-1983 and noted the same injury on his person except that there were surgically stitched wounds. A bullet was removed from post-abdominal wall left side upper part and was sealed in a phial. In his opinion death occurred due to shock as a result of septicaemia which developed from fire-arm injury which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem. The duration of injury was about 7 days, whereas between death and post-mortem examination it was about 12 hours. Lie stated in the cross-examination that the blackening of the injury was caused because of the fire-arm wound. It was correct that the wound had become septic. It was incorrect that septicaemia was possibly the result of negligence of the Medical Officer. In such like injuries septicaemia occurred in every case but some patients recover from that and some do not.
' I have heard learned counsel for the parties and carefully perused the record. It is evident that there was no previous enmity between the appellant and the deceased. In fact, there is nothing on the record to indicate as to whether they even knew each other or not. The background in which the occurrence took place is that an unknown ,motor-cyclist had struck against a child in front of the shop of the appellant. The appellant and two other persons namely, Muhammad Arshad (who had been given up as won over) and Muhammad Zarif who had died before the trial commenced, took the motor-cyclist and the child inside the shop of the appellant and they started interrogating the motor-cyclist. On this the deceased is stated to have been attracted to the scene and entered the shop of the appellant. He is alleged to have stated that they should not harass the motor- cyclist unnecessarily as the child had accidentally come in front of him. On this an altercation started between the deceased and the appellant and it led to exchange of abuses between them.
While the abuses were being exchanged, the prosecution version is that the appellant took out a revolver and fired at the deceased hitting him on the left side of his chest. The deceased fell down on the ground in an injured condition and thereafter he was removed to the hospital. According to the version of the appellant the deceased was a bully of the Illaqa. I asked learned counsel if there was anything on the record to indicate that the deceased was in fact a bully or whether or not there had been any cases registered against him or if he had any criminal record. There is nothing, on the file to this effect. The appellant further stated that the deceased had asked him not to report the matter to the police and on the refusal of the appellant he became furious and started abusing him., Then the deceased pulled out the revolver and wanted to shoot at the appellant. Thereafter grappling started between them and the revolver went off hitting the deceased. The appellant further stated that it was he who had removed him to the Civil Hospital Gujranwala. This may be true because Dr. Shah Nawaz P.W. Who medically examined the deceased while he was still Alive at 10-45 p.m. On 24-5-1983, had stated that he was brought to the hospital by the appellant. The appellant further stated that he also donated his own blood in order to save the deceased.
However, Dr. Shah Nawaz P.W. Was neither suggested in the cross-examination as to whether the appellant had donated his blood to save the life of the deceased nor had he so stated in his examination-in-chief. The appellant then stated that the police after consultations and deliberations with the brothers and relatives of the deceased had recorded a false statement only to save the deceased from any further action. This part of the statement appears to be of no avail because there was no previous enmity between the appellant and the deceased and the trial Court has rightly observed that this would negate the suggestion that the appellant was falsely involved in this case by the Investigating Officer and that the statement of the deceased was recorded after consultation with the deceased and his relatives. It is also stated by the appellant in his statement before the trial Court that he had informed the police about the identity of those persons in whose presence this incident had taken place but they had refused to bring anything on the record because the same did not fit in with the false story as recorded in the statement of the deceased. It may be pointed out at this stage that the occurrence had taken place at 8-30 p.m. On 24-5-1983 in a shop in a busy bazar of Gujranwala. If the prosecution did not produce some of those persons who might have witnessed the occurrence, the defence certainly could have produced D.Ws. In support of the version given by the appellant. In my view the case of defence primarily rested on the fact as to whether the deceased was a bully of the Maga or not. The defence did not produce any evidence documentary or oral even to establish this assertion. In fact, two of the persons who were named as eye-witnesses in the statement of the deceased made while he was still alive, namely, Muhammad Arshad (he had not been produced by the prosecution because he was stated to have been won over) and the other person namely, Muhammad Zarif unfortunately died before the trial commenced. Thus, we have before us nothing else in this case except the statement of the deceased made while he was still alive and which was treated as dying declaration and on the other side the version given by the appellant and the question is as to which should be accepted and which should be rejected. Learned counsel states that the statement o the deceased made while still alive was recorded in the hospital by Mushtaq Hussain A.S.I. P.W. Under section 161, Cr.P.C. And `that since it was not recorded by a Magistrate, it should not have been considered as a dying statement. He also submitted that at the time oflA the recording of the dying statement as stated by Ghulam Muhammad P.W. Who identified the dead body of the deceased before the Medic Officer when he reached the hospital, the brother, mother and wife o the deceased were already present there. The police had already reached the hospital before he reached there and that the A.S.I. Was recording the statement of the deceased. Learned counsel on the basis of this evidence on record submitted that since the relatives of the deceased were present at the time of the recording of the statement,- the decease could have been tutored and, therefore, on that account also the dying statement should not be relied upon. I do not agree with learned counsel on these points. First of all Dr. Shah Nawaz P.W. Had state that the Investigating Officer had produced before him application Exh.P.F. Asking his opinion if the injured was fit to make a statement. He declared the injured fit to make a statement at 5-05 a.m. On 25-5-1983, which actually meant continuation of the same night. It is understandable that at the time, when the deceased was lying in an injured condition, his near relatives must have come to be present by his side. It is nowhere mentioned by Ghulam Muhammad P.W. That the A.S.I. Was recording the statement of the deceased while the relatives were tutoring or talking. To the deceased as to how the incident took place. The deceased was in full senses at that time and is said to have died five days after the occurrence. He was the only person who could give the correct narration as to what had happened. Consequently, after hi death, his statement was rightly treated as a dying declaration. Cannot reject it merely on technical grounds like not having been recorded by a Magistrate or while it was being recorded by the police, brother, mother and wife of the deceased were present. Furthermore, when there is no previous enmity between the appellant and the decease and when it could also not be established that the deceased was bully, then there was no reason why he should falsely implicate the appellant. In the light of what has been placed on the record in the form of evidence, I am inclined to think that the appellant was short-tempered man and possibly a bully and not the deceased. I have carefully considered the version of the appellant.
He could not establish that the deceased was a bully and had 'told him not to .Report the matter to the police. In fact, there is nothing on the record to show that the motor-cyclist was in any way related' to the deceased due t which the deceased should be sympathetic towards him just as there is nothing on the record to show that the child who had been hit by the motor-cyclist was related to the appellant. The appellant wants me t believe that this version should be accepted as correct merely because he took the deceased in an injured condition to the hospital, aithoug the doctor does not state that the appellant had donated his blood in order to save the life of the deceased. The appellant was given option to appear as his own witness if he so desired in disproof of the charges against him but he did not wish to appear as such. So far a the recovery evidence in this case is concerned, it is understood that according to the prosecution the fire-arm was picked up from the counted of the shop of the appellant and the piece of lead bullet recovered from the dead body of the deceased matched with the same according to the opinion of the Fire-arms Expert. Needless to say that the appellant had disowned the recovery because according to his version it was the deceased who had whipped out the fire-arm. Be that as it may according to the medical evidence the deceased had been hit at almost point blank range, i.e. From a distance within three feet I have carefully considered the two versions but in my considered opinion the version given by the appellant is false. In that view of the matter, I am convinced in my mind that the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt. In the circumstances, his conviction .As well as sentence awarded to him were quite proper and are accordingly maintained. The result is that this appeal is dismissed.
' So far as Criminal' Revision No,67 of 1985 is concerned, in my view no case is made out for enhancement of the sentence of the appellant to death because as it has been discussed above, there was no previous background of enmity, it was not a premeditated affair and had taken place in a sudden flare-up. In that view of the matter, I do not find any substance in Criminal Revision No,67 of 1985, which is likewise dismissed in limine.