INAYAT ELAHI KHAN, J.--This appeal is by Muhammad Roshan son of Mir Hussain aged about 42 years resident of village Beerot within the jurisdiction of Police Station Bakot in District Abbottabad, who was tried for the murder of Mir Akbar son of Ali Murad resident of village Basian and convicted under section 302 of the Pakistan Penal Code by the Additional Sessions Judge, Abbottabad and sentenced to death with a fine of Rs.5,000 or in default to R.I. For one year. He was also directed to pay Rs.10,000 as compensation to the heirs of the deceased or in default to undergo further six months' R.I. The case is also before us for confirmation of the death sentence under section 374, Cr.P.C. This judgment will dispose of both the appeal and the reference.
2. The prosecution case as disclosed in the F.I.R. Lodged by Mir Akbar (deceased) on 4-10-1981 at 3- 15 p.m. Is that while returning from village Beerot, where he had gone to offer condolence on the death of the niece of one Kala Khan, when he reached the apple garden of Sharifullah Khan he saw Roshan Khan (appellant) who all of a sudden ran towards him and inflicted blows with his knife and injured him on his abdomen, head and back. Masood Ahmed and Sakhi Muhammad (P.Ws.) were present and had seen the occurrence. The motive stated in the report is that about 21 years ago there was a criminal case between him and the appellant under section 325, P.P.C. Wherein the appellant was acquitted and on account of this enmity he had caused him injuries with a knife.
3. Fazal Dad S.H.O. Police Station Bakot (P.W. 9) on receiving information arrived at the spot at about 4-00 p.m. And recorded the report of Mir Akbar in the form of a 'Murasla' Exh. P.A/1. He stated that after recording the report it was read over to Mir Akbar who thumb-impressed the same after admitting it correct. The 'Murasla' was sent to the police station for registration of the case under section 307, P.P.C. Against the appellant. He prepared the injury sheet of the deceased (then injured) and sent him to the Civil Hospital, Abbottabad for treatment. He inspected the spot, prepared the site plan Exh. P.W.9/2 and recovered some straw and blood-stained earth from the scene of occurrence. He arrested the appellant on the same day and recovered the blood-stained knife (Exh. P.4) at his pointation from near the scene of occurrence which was taken into possession in the presence of the marginal witnesses vide memo. Exh. P.W. 9/4. The blood-stained shirt and Bunyan of the deceased having corresponding cut marks were brought to him from the doctor which were taken into possession vide memo. Exh. P.W. 5/3. The blood-stained shirt of the appellant Exh. P.5 was also taken into possession by the same recovery memo. In presence of the marginal witnesses which was sealed into a parcel along with all the blood-stained articles and forwarded to the Chemical Examiner for opinion which revealed that all the articles were stained with human blood of the same group. He produced copy of the F.I.R. Exh. P.W.9/5 lodged by Mst.
Gulab Jan under section 324, P.P.C. Against the appellant. He stated that Sakhi Muhammad and Masood Ahmed P.Ws. Were present when the report of Mir Akbar was recorded. However, he did not obtain their signatures or thumb-impressions on the report as he did not expect that the complainant would not survive. On his arrival at the scene of occurrence he found the deceased bandaged with a 'Chadar' which he did not take into possession nor inquired as to who provided the same. Noman F.C. (P.W. 1) had accompanied the deceased then injured from the scene of occurrence to Abbottabad. He stated that at village Garhi-Habibullah the deceased expired and, therefore, he took his dead body to the mortuary and delivered it to the doctor for post-mortem examination. The clothes of the deceased handed over by the doctor were produced by him to the Investigating Officer. He along with Fazal Dad S . H . O. Arrived at the scene of occurrence at about 'Deegara-qza-wela'. He stated that "the relatives of the deceased obtained first-aid for the deceased in respect of his injuries from Muzaffarabad Hospital in the form of stitching and dressing" and that the deceased was given First-Aid at Muzaffarabad while he was being escorted by him to Abbottabad for the medical examination and after getting his wounds stitched and dressed at Muzaffarabad the deceased (then injured) was brought back to his village. He also stated that he had reached Muzaffarabad Hospital at 6-30 p.m. With the injured and subsequently the deceased died on the way to Abbottabad at Garhi Habibullah at 9/9-30 p. m. The fact that wounds of the injured were stitched before his death is supported by doctor Ghulam Sarwar who at the time of post-mortem examination found that the wounds of the deceased had been stitched although Dr. Malik Mahmood, who was serving at C.M.H. Muzaffarabad at the relevant time and was examined in this Court, could not recollect if any patient by the name of Mir Akbar was brought to him in injured condition and he stitched his wounds as according to him the record was not available since a long time had elapsed. Khan Muhammad I.H.C. (P.W. 2) incorporated the 'Murasla'
Exh. P.A./1 into the F.I.R. Exh. P.A. Muhammad Ashraf Khan, A.S.I. Of Police Station Cantt. Abbottabad was informed by Noman F.C. About the death of Mir Akbar deceased. Accordingly he went to D.H.Q.
Hospital Abbottabad and prepared the inquest report Exh. P.W. 4/1 of the deceased Mir Akbar and sent the dead body to the mortuary for post-mortem examination under the escort of F.C. Noman.
Haji Muhammad Azam (P.W. 5) is a Councilor of the locality. He is a marginal witness to the recovery memos. Whereby the Investigating Officer recovered the blood-stained knife and took into possession the blood-stained clothes of the deceased brought from the doctor and also the blood-stained shirt of the appellant. In his presence the appellant while in custody led the police to the apple garden of Sharifullah Khan and pointed out the blood-stained knife Exh. P.4 which was taken into possession by the Investigating Officer and sealed into a parcel. He stated that the knife was found at a little distance from the place where Mir Akbar was lying injured. Sakhi Muhammad (P. W. 7) stated that on the day of occurrence granddaughter of Kala Khan of Beerot had died and many people including himself and the deceased had gone there for condolence. On their return at about 3-15 p.m. When he and the deceased reached near the garden of one Sharifullah Khan, he heard the appellant calling out to the deceased to stop. The appellant then gave blows with a knife on the abdomen of the deceased who ran for his life in the garden and the appellant pursued him and gave him more blows. The deceased after having been injured fell to the ground. He stated that Masood Ahmed (P.W. 8) was present and working in his garden and he had also seen the occurrence. The appellant then threw away his knife and decamped from the spot. In his presence the police officer recorded the report of Mir Akbar who was in full possession of his senses at that time. Masood Ahmed (P.W. 8) is also an eye-witness. Lie stated that the house of the appellant is at a small distance from the garden of his father Sharifullah Khan. On the day of occurrence at about 31 p. m. He was busy working in his garden. He heard the appellant calling Mir Akbar to stop. He further stated that "Mir Akbar ran towards the garden to save his life. Roshan Khan gave him blows four in number. One hit him on the abdomen left side, one on the back of the head and two on the back. Sakhi Muhammad P.W. Was also present" The accused after throwing away the knife decamped from the scene of occurrence. That about 2 years before the occurrence the appellant had caused injuries to the sister of Mir Akbar (deceased) and was facing trial for the offence. He further stated that "After about quarter to an hour the police had also come to the spot. In the meantime many people had gathered there. I do not know who lodged the report. I have no relation with either of the parties". In cross-examination he stated that niece of Mir Akbar (deceased) is married to his elder brother Saeed. Sakhi Muhammad P.W. Is his relative. Mst. Gulab Jan is his paternal-aunt. He stated that the house of the appellant is at a distance of 30 paces from the spot. He denied the suggestion that the deceased had succumbed to the injuries before the arrival of the police. He also denied that the deceased was not capable of giving any statement or that he gave the statement on his behalf.
4. Dr. Ghulam Sarwar (P.W. 6) performed the post-mortem examination on the dead body of Mir Akbar on 5-10-1981 at 8-15 a. m. And found the following injuries:--
(1) A stitched wound (stab) 5on the left lower rib and in the left Hypbchondrium region.
(2) A stitched stab wound 1--" on the right back chest in scapular area.
(3) Stitched incised wound 3" on the back chest at the mid line.
(4) An incised wound 2" on the left back scalp and bone was exposed.
On internal examination the scalp muscles were found injured on the left side. Chest wall on the left front and the right back, right pleurae, right lung and left Hypochondrium region were injured.
Peritoneum or} the left side, small intestines and the spleen were also injured. In his opinion the death was due to shock and bleeding as a result of injuries to spleen, right lung and small intestines caused by sharp-edged weapon. He stated that probable time between injuries and death was about 6 to 7 hours and between death and post-mortem examination 11 to 12 hours. He stated that it was correct that before post-mortem examination first-aid was given to the deceased.
5. The appellant when examined at the trial under section 342, Cr. P. C . Pleaded innocence and stated that he had been falsely implicated on account of suspicion and enmity. He denied the recovery of the knife Exh. P. 4 at his instance. About the previous criminal case he stated that he was falsely charged by the sister of the deceased and, therefore, he was acquitted. About the dying statement of Mir Akbar he said that it was false and not made by the deceased. About the recovery of his blood-stained shirt he said that the shirt was stained with his own blood as he was beaten by the police. Regarding the Chemical Examiner's report that the blood on various articles including his shirt was of human origin and of the same group, he stated that "Many persons possess blood of the same group and that is why the blood banks are opened for this purpose in the country". He stated that the witnesses were not present at the spot as is clear from the conduct exhibited by them and they are closely related to the deceased and inimically disposed towards him. He, however, did not produce any defence.
6. The learned trial Court by placing reliance on the dying statement of the deceased, the oral testimony, the medical evidence and the recovery of the weapon of offence at the instance of the appellant and the motive for the offence convicted the appellant as stated above.
7. In support of the appeal it is contended that the law is well-settled that a conviction could not be based on a dying declaration alone unless it is corroborated by independent evidence and the prosecution in this case could not seek corroboration from the evidence of Sakhi Muhammad and Masood Ahmed who were mentioned as eye-witnesses but in fact were not present at the time of occurrence. It is also contended that from the nature of the injuries sustained by the deceased it was not possible for him to make statement to the police who arrived at the spot after about 45 minutes of the occurrence. It is next contended that the time of occurrence was wrongly given as 3-15 p.m. As from the medical evidence it appears that the occurrence might have taken place at about 1-15 p.m. About the eye-witnesses it is urged that had they been present they would have gone to the police station for lodging the report or would have taken the deceased to the hospital for treatment as he was critically injured. The learned counsel pointed out certain omissions in the statements of Sakhi Muhammad (P.W. 7) recorded under sections 161 and 164, Cr. P.C. Wherein he did not state that the deceased ran towards the garden of Sharifullah Khan after he was given first blow by the appellant nor that Masood Ahmea (P.W. 8) was the first to rush towards the deceased.
Similarly he did not mention about the place wherefrom the water was obtained for putting it in the mouth of the injured and also the fact that many people had gathered at the spot soon after the occurrence. Nor did he mention the fact that on arrival of the police the deceased (then injured) lodged the report while in full possession of his senses. About Masood Ahmed (P.W. 8) it is contended that he did not know as to who lodged the report on the arrival of the police and in case he was really working in his garden at the time of the incident he must have shown to the Investigating Officer the apples which he had picked from the trees. Similarly, the learned counsel commented on the conduct of the eye-witnesses by saying that in case they were present they might have attempted to put the injured on a 'Charpai' or taken him to the hospital or otherwise would have raised an alarm to attract the people or applied bandage to the wounds of the deceased which they have not done and this conduct was inconsistent with their presence at the time of the occurrence. The omissions in their earlier statements pointed out by the learned counsel, in our view, are not material and cannot be termed as contradictions. After going through their statements we find that they inspire confidence. Nothing material has been brought out in their cross-examination to cast doubt on their veracity. The mere fact that they are remotely related to the deceased would not make them interested witnesses as they had no personal motive of their own to falsely implicate the appellant or to substitute him for the real culprit. Their conduct can be explained as they are not very closely related to the deceased and being rustic villagers did not realize the importance of acting promptly in the matter and waited at the spot till the arrival of the other people and also the police. We are also not convinced by the arguments that the occurrence might have taken place at 1-15 p.m. Because from the statement of Noman (P.W. 1) it appears that he along with the injured reached Muzaffarabad at 6-30 p.m. Where the wounds were stitched and thereafter the deceased died on the way to Abbottabad at Garhi Habibullah at about 9/9-30 p.m. The time of death of Mir Akbar given by this witness shows that the doctor has correctly stated that the probable time between injuries and death was about 6 to 7 hours and the time between death and post-mortem examination about 11 to 12 hours. The learned counsel referred to AIR 1938 Lah. 265 and 1985 P Cr. L J 1040 and contended that in view of the serious injuries the deceased were found incapable of making statement soon after the occurrence. In the cited cases besides receiving injuries on some vital parts of the body they also sustained injuries to the heart and, therefore, found incapable of making statement. In the case in hand no injury was caused to the heart of the deceased and, therefore, no help can be sought from these cases by the learned counsel. From the nature of the injuries sustained by the deceased we are not inclined to agree with the learned counsel that the deceased might have died instantaneously or would have become unconscious and hence incapable of making statement to the police who arrived after about 45 minutes of the occurrence at the spot.
8. After going through the dying statement we are of the view that it rings true and inspires confidence and that it was made by the deceased when he was in full possession of his senses and could talk coherently. The occurrence having occurred in broad-daylight there is no reason to assume that the assailant was not correctly identified by the deceased. Similarly, there is no evidence of any prompting by the eye-witnesses or any outsider nor is there anything to assume that the deceased had falsely substituted the name of the appellant for the real culprit. The dying statement was made by the deceased immediately on arrival of the police at the spot. It is well- settled that a dying declaration is a valuable piece of evidence and if it is free from suspicion and believed to be true, it can be made sole basis of conviction of the accused. After having given our thoughtful consideration to the entire evidence and circumstances of the case we have come to the conclusion that the dying declaration was made by the deceased himself when he was in full possession of his senses and that it was made without any prompting or tutoring. In Taj Muhammad and others v. The State PLD 1960 Lah. 723 it was observed: "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. The value of a dying declaration in each case depends on its own facts and the circumstances in which the dying declaration was made in relation to those facts."
Even otherwise we find that the dying statement of Mir Akbar finds sufficient corroboration not only from the evidence of Sakhi Muhammad and Maqsood Ahmad (P.Ws.) but also from the medical evidence and the factum of recovery of blood-stained knife at the pointation of the appellant.
Furthermore, the report of the Chemical Examiner and Serologist (Exh.P.Q.) shows that the articles examined by him, which also included the blood-stained shirt of the appellant, were stained with human blood of the same group. This fact would go a long way to connect the appellant with the commission of the offence and we are not convinced by the explanation offered by him in this regard in his statement under section 342, Cr.P.C. The learned counsel for the appellant feebly contended that since the origin of the fight was shrouded in mystery, therefore, the capital punishment was not called for. In this regard it may by observed that there is no material on the record to support this contention. Even no suggestion was put to the witnesses' that before the appellant attacked and caused injuries to the deceased' there was any altercation between them.
The circumstances rather show that it was a case of pre-meditated murder because on seeing the deceased coming on the road the appellant all of a sudden attacked him with the knife and caused him injuries. Therefore, it is clear that there are no extenuating circumstances in favour of the appellant. We would, therefore dismiss his appeal and confirm the death sentence imposed upon him by the learned Additional Sessions Judge.
S.A.Death confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.