' WALI MUHAMMAD KHAN, J.--Through the instant Criminal Appeal, the State through Advocate- General N.-W.F.P. Peshawar has called in question the order dated 5-8-1984 of the learned Sessions Judge, Kohat whereby he acquitted Said Muhammad accused/respondent No,2 herein from the charge under section 302/34, P.P.C. And converted the charge under section 302, P.P.C. To section 326, P.P.C. Against Irshad Muhammad alias Dadai accused/respondent No,1 herein and sentenced him to five years' R.I. And a fine of Rs,2,000 or in default six months' R.I. Which, on recovery, was to be paid as compensation to the heirs of deceased Abdul Wahab.
2. The brief facts of the case, as narrated by Sarwar Khan P.W.10 are,that on 18-12-1980 at 9 a.m. He was taking tea in the hotel of one Ikhtiar when the deceased Abdul Wahab also came there with a Taratha' in his hand and after obtaining milk from the hotel-keeper took the same and thereafter went outside. Sarwar Khan also followed him and saw Irshad Muhammad accused/respondent No,1 grappling with the deceased Abdul Wahab who was injured and he (P.W.) took him in a pick- up to the Hospital where the A.S.I. On his arrival recorded his (deceased's) statement. The statement of Abdul Wahab deceased then injured, was recorded by A.S.I. Muhammad Hanif Khan (P.W.4) in the shape of murasilacum-dying declaration Exh.PA./1 which was later on correctly incorporated in the F.I.R. Exh.PA. The dying declaration was recorded in the presence of Dr. Shad Ali Khattak (P.W.1) whose signature also bear thereon. Soon thereafter Abdul Wahab succumbed to the injuries and the said A.S.I. Prepared his inquest report and injury sheet Exh.P.E. And Exh.P.D.
Respectively and despatched the dead body for post-mortem examination under the escort of Jamal Khan F.C. (P.W.6). In the meantime accused/respondent No, 1 arrived in the hospital in injured condition and the A.S.I. Recorded his report in the shape of murasila under section 324, P.P.C. And forwarded the same also to the Police Station for the registration of the case on the basis whereof a, cross case was duly registered vide F.I.R. Copy Exh.DA. On the file of the instant case. He also arrested accused/respondent No,2 Said Muhammad on 25-12-1980.
3. On the registration of the case Sahadat Iqbal then S.H.O. (P.W.8) rushed to the spot and prepared site plan Exh.P.B. With all its footnotes correctly. From the spot he recovered blood-stained earth vide memo. Exh.P.C./1. F.C. Jamal Khan (P.W.6) was handed over one white banyan and another banyan of green color by the Doctor, who on arrival at the spot, handed them over to Sahadat Iqbal (P.W.8) and he (P.W.8) took them into his possession vide memo. Exh.P.C. In the presence of Khan Wazir A.S.I. (P.W.3) and Samand Khan (P.W.5). The S.H.O. Examined the P.Ws. And arrested Irshad Muhammad accused/respondent No,1 on the same day. Before the completion of investigation he was transferred and therefore, Muhammad Ishaq his successor (P.W.9) completed the investigation and submitted complete challan against the accused/respondents Nos.1 and 2 before the Illaqa Magistrate who in his turn sent up the accused for trial before the Court of Sessions.
4. Both the accused/respondents were charge-sheeted under section 302/34, P.P.C. To which they pleaded not guilty and claimed trial. The prosecution produced Dr.Shad Ali Khattak (P.W.1), Muhammad Akram (P.W.2), Khan Wazir A.S.I. (P.W.3), Muhammad Hanif Khan A.S.I. (P.W.4), Samand Khan (P.W.5), Jamal Khan F.C. (P.W.6), Iran Shah (P.W.7), Saadat Iqbal Inspector (P.W.8), Muhammad Ishaq Khan S.H.O. (P.W.9) and Sarwar Khan (P.W.10) in support of its case.
5. Dr. Shad Ali Khattak (P.W.1) was present in the Hospital when deceased Abdul Wahab,then injured, was brought there on 18-12-1980 at 10-45 a.m. And he attended to him in the usual discharge of his duties. According to him, A.S.I. Muhammad Hanif Khan (P.W.4) soon arrived in the Hospital and recorded the statement of Abdul Wahab in the form of dying declaration Exh.P.A./1 and that he (doctor) also endorsed a certificate thereon. Thereafter the deceased succumbed to the injuries and he conducted the post-mortem examination at 1235 hours the same day and found the following injuries on his person:- EXTERNAL EXAMINATION.
(1) A stab wound 1" x 1/2" x 1/2" on medial surface of right thigh just above knee.
(2) A stab wound 1/2" x 1/4" x 3/4" on right side of chest and 4th intercostal space 1" lateral to sternum.
(3) An incised wound 1/2" x 1/4" x 1/4" on medial surface of left thumb.
(4) Small cuts on little and ring fingers of right hand. INTERNAL EXAMINATION.
Thorax: Walls (right) injured.Blood vessel injured at the site of injuries. Abdomen: Stomach was healthy and contained semi-fluid food.
' In his opinion the deceased died of shock as a result of hemorrhage from stab wounds on right thigh and right side of chest. Probable time between injuries and death was about one and a half hours and between death and post-mortem examination was about forty minutes. He was cross examined at length about the dying declaration but nothing material favoring the accused/respondents could be elicited from him. He was questioned about the nature of the injuries on the person of Irshad Muhammad accused/respondent No,1 but since no record to that effect was available before the Court at the time of his deposition, he could not give any answer from his memory.
6. Both the accused/respondents were examined under section 342, Cr.P.C. Both of them denied the occurrence. Irshad Muhammad accused/respondent No,1 however,stated that the deceased Abdul Wahab and his father had attacked him and injured him in the incident. A specific question was put to him that he had admitted the altercation and stabbing in his F.I.R. Of the cross case under section 324/34, P.P.C. Which he denied. On the appraisal of the evidence produced in the case, the learned trial Judge accepted the dying declaration of the deceased Abdul Wahab and on its basis found Irshad Muhammad accused/respondent No,1 guilty for causing injuries to Abdul Wahab deceased. However,while determining the nature of offence, he concluded as follow:- "Next remains the actual nature of the offence and the quantum of punishment. The deceased Abdul Wahab had received stab blows. There was only one injury on his person which, of course, had been inflicted on a very vital part of his body. It was this injury which proved fatal immediately after the occurrence. But at the same time it is in the evidence that there had been an altercation not only before the actual occurrence and inside the hotel but also outside the hotel when both the deceased and the accused left those premises peacefully. It was during the above scuffle that accused Irshad Muhammad gave injury to the deceased. So the facts of the case would easily suggest that it was a case under section 326, P.P.C. And the charge is converted accordingly,for, I see no prejudice to the trial of the accused in terms of section 537, Cr.P.C. 1, therefore, convict the accused Irshad Muhammad for the offence under section 326, P.P.C."
' Accused/respondent No,2 Said Muhammad was found not guilty for the murder of Abdul Wahab deceased and was accordingly acquitted.
7. We have heard Mian Muhammad Ajmal Additional Advocate-General for the Appellant(State), MrAttaullah Khan Advocate for accused/respondents and have perused the record of the case with their assistance.
8. The instant case entirely hinges on the dying declaration Exh.PA./1,recorded by Muhammad Hanif Khan A.S.I. (P.W.4) in the presence of Dr. Shad Ali Khattak (P.W.1) in the LMH, Kohat, of Abdul Wahab deceased who was then in serious injured condition, expecting imminent death. He has directly charged Irshad Muhammad accused/respondent No,1 for delivering him stab blows, which ultimately resulted in his death. The same was apparently recorded immediately after the occurrence without loss of much time and there was no possibility of prompting of the deceased to level false charge against Irshad Muhammad accused/respondent No,l. The narration of the dying declaration makes it ring true. The occurrence admittedly took place in broad day light and the cause of death, being delivery of stab blows, obviously from close range, there could be no obstacle in the identification of the assailant. Irshad Muhammad accused/respondent No,1 has attributed his injuries to the deceased in the same altercation thereby admitting his presence on the spot at the time of the instant tragedy. Admittedly there is no previous enmity between the parties. The trial Judge has accepted the dying declaration and his finding was not challenged by the accused/respondent No,1 through a regular appeal. The Dying Declaration bears the certificate of the doctor who was already attending to the deceased, then injured, and he, in his statement in Court, has admitted his endorsement on the same, leading to the irresistible conclusion that the dying declarant was fit to make his statement. Muhammad Hanif Khan A.S.I. (P.W.4) who recorded the dying declaration had no animosity with the accused party and there is no reason why his statement should not be believed. We are, therefore, convinced that the dying declaration Exh.P.A./1 embraces all the essential ingredients of a dying declaration according to the judicial pronouncements of the superior Courts and we accept the same as genuine and true.
9. The dying declaration is also corroborated by direct and circumstantial evidence. As stated in the introductory part of this judgment, Sarwar Khan (P.W.10) saw Irshad Muhammad accused/respondent No,1 grappling with the deceased. He also saw him injured and took him to the Hospital in the pick-up whereafter the father of the deceased also came. This witness was also examined under section 164, Cr.P.C. By Magistrate 1st Class on 15-1-1981 in the presence of the accused/respondents and the said statement too is available on the print book. In the said statement he directly charged accused Irshad Muhammad for giving dagger blows to the deceased. He was bitterly cross-examined while appearing at the trial as P.W.10 and also at the time of his examination under section 164, Cr.P.C. But no question appears to have been put to him regarding his interestedness in favour of the prosecution or against the defense. He is a natural disinterested witness and there is no reason why his deposition should not be relied upon. The recovery of the blood from the spot, according to the site plan Exh.P.B. Further corroborates the prosecution theory.
10. The most important question requiring determination in the instant appeal is whether the act of the accused/respondent No,1 falls within the ambit of murder according to the provision of section 300 of the Pakistan Penal Code or amounts to voluntary causing of grievous hurt as defined in section 322, P.P.C.. In adopting the latter course the learned trial Judge has advanced the solitary reason that there was only one injury inflicted on a very vital part of the body of the deceased and that it was only this injury which proved fatal. This observation of the learned trial Judge is is direct contrast with the testimony of Dr. Shad Ali Khattak (P.W.1) who found two stab wounds on right thigh and chest, one incised wound on medial surface of left thumb and small cuts on litte and ring fingers on the right hand of the deceased, and according to him the blood vessel at the site of the injuries had been cut and the deceased died of shock as a result of hemorrhage from stab wounds on right thigh and right side of chest. In view of the injuries on the person of the deceased as a result of the stab blows it cannot, by any stretch of imagination, be held that the assailant did not intend to murder the deceased but wanted to cause only grievous hurt to him. The finding of the learned trial Judge absolving the accused/respondent No,1 from the charge of murder and convicting him under section 326, P.P.C. For causing grievous hurt to the deceased is not only whimsical and perverse but in ignorance of the basic concept of criminal jurisprudence.
11. Learned counsel for the State (appellant) cited the judgment of the Supreme Court in case Muhammad Siddique v. The State, reported as 1970 SCMR 313 in support of his arguments and it would be profitable to reproduce the relevant dictum as follows:-- "It was next contended by the learned counsel for the appellant that as the injury was caused on the left thigh of the deceased which is not a vital part of the body, the appellant should be given a lesser penalty of transportation for life.The contention of the learned counsel has not impressed me because the attack by the appellant was premeditated. He - was armed with a Chhuri of 9" blade and attacked the deceased with considerable force which resulted in cutting the femoral vein which is a large blood vessel on the thigh. It is, therefore, quite clear that he intented to cause the injury which was found on the deceased person and that injury was sufficient to cause the death in the ordinary course of nature. This case is clearly covered by the third clause of section 300, P.P.C.
In the circumstances of this case the appellant does not deserve any lenient view. I would, therefore, uphold his conviction and dismiss the appeal'.
' He also cited another judgment of the same august Court in case Muhammad Amin and another v. The State", reported as 1971 SCM R 766 wherein it was held that though none of the injuries caused to the deceased were individually sufficient to cause death but death nevertheless caused due to cumulative effect of multiple injuries, the case clearly fell under Clause 3rdly of section 300, P.P.C.
And conviction of accused under section 302, P.P.C. Held perfectly justified.
12. The aforesaid judgments of the august Supreme Court coupled with the facts and circumstances of the instant case narrated above leads us to the only conclusion that the offence with which the accused/respondent No,1 is charged squarely falls within the mischief of murder and he was liable to conviction and sentence under section 302, P.P.C.. In consequence his conviction and sentence under section 326, P.P.C. In the impugned judgment is manifestly wrong and illegal and liable to be set aside.
13. As regards the injuries on the person of Irshad Muhammad accused/respondent No,1 suffice it to say that the defence utterly failed to bring on record the nature of the injuries sustained by accused/respondent No,1 presumably because the injuries on his person were superficial in nature and could not be considered as sufficient in the ordinary course of nature to extend to him the benefit of right of self-defence. The learned trial Judge too did not extend to him the benefit of private defence.
14. Reverting to the case of Said Muhammad accused/respondent No,2, he is not given active role in the dying declaration. The solitary witness Sarwar Khan (P.W.10) has not attributed any positive role to him and, therefore, his acquittal by the learned trial Judge is neither perverse nor illegal and we are not pursuaded to disturb the order of the learned trial Judge so far as his acquittal is concerned.
15. The upshot of the above discussion is that we partly accept this appeal, set aside the conviction and sentence passed against Irshad Muhammad accused respondent No,1 under section 326, P.P.C., convict him under section 302, P.P.C. And sentence him to imprisonment for life and a fine of Rs,5,000 or in default six months' R.I. With a further order that he shall pay Rs,10,000 as compensation under section 544-A, Cr.P.C. Payable to the heirs of the deceased Abdul Wahab or in default thereof further six months' S.I. The accused/respondent No,1 is reported to have been released from jail after undergoing the sentence imposed upon by him under section 326, P.P.C. But at the moment is stated to be in jail in connection with another criminal case. Vide our short order the jail authorities have been informed to take respondent No,1 into custody for undergoing the remaining period of his sentence of imprisonment for life. He will enjoy the benefit of section 382-B, Cr.P.C. The appeal against Said Muhammad accused/respondent No,2 stand dismissed.