' RAZA AHMAD KHAN, J.--- By this jail criminal appeal, convict Umar Hayat has called into question the judgment of the learned Additional Sessions Judge, Haripur, dated 3-3-1988 whereby the appellant was convicted under ection 302, P.P.C. For the murder of Muhammad Riaz deceased by stabbing him in 15-11-1986 at about 13-55 hours within the limits of Police Station Haripur and was sentenced to suffer life imprisonment under section 302, P.P.C. And further to pay a fine of Rs,10,000 or in default of payment of fine, to suffer further R.I. For two years. The amount of fine if realized, was to be paid to the legal heirs of deceased Muhammad Riaz as compensation under section 544(A), Cr.P.C. There is also a criminal revision filed by the complainant for the enhancement of the sentence to death. The criminal appeal and the criminal revision both arc disposed of by this single judgment.
2. The prosecution case as unfolded in the F.I.R. Lodged by Muhammad Riaz deceased himself on 15-11-1986, is that on a day earlier, Umar Hayat appellant had come to the Baithak of the deceased and took alongwith him his watch. On following day i,e, on 15-11-1986 near the Water Tank of Sector No,I, Khalabat Township, he met the appellant and demanded his watch whereupon the appellant abused the deceased, took out a Chhuri and by stabbing caused him injuries on his abdomen and left hand. The deceased named Fazal Elahi and Chan Muhammad alias Chana to be attracted to the spot and witnessed the occurrence.
2-A. The deceased, in injured condition, was transported to the hospital. P.W. Khawas Khan, A.S.I., who was on patrol duty, when learnt about the occurrence at about 14-10 hours, rushed to the hospital and then recorded the report of the deceased which was read over to him and was thumb-impressed by the injured in token of its correctness. He sent the same in the form of Murasla Exh.P.A./1 to the Police Station Haripur where a case was registered initially under section 307, P.P.C. At 14-45 hours the same day. A.S.I. Khawas Khan then prepared his injury sheet (Exh.P.W.3/2) and handed over Muhammad Riaz ostensibly to Dr. Jehangir Khan (P.W.8) who on examination found the following injuries on his person:-
(1) Stab wound lower abdomen with small intestine protruding outside bleeding. Size about 1" placed transvcr sly, depth cannot be determined.
(2) Incised wound in size of 1" x 1/2" in first interdigital space.
' Injury was grievous in nature caused by sharp-edged weapon within one hour's duration. The medico-legal ,report was in his handwriting, correct and bore his signature. In cross-examination he found the injuries caused by two different blows.
3. Thereafter A.S.I. Khawas Khan left for the spot and prepared the site plan. He also arrested the appellant on 17-11-1986 and, while in custody, he led the police to Sector No,1, Khalabat Township and produced the weapon of offence Exh.P.3 from a place near Madrassa Maaraf-ul-Islam which was taken into possession vide memo. Exh.P.W.5/1, was sealed in a parcel and was later sent alongwith the clothes of the deceased to the Chemical Examiner whose report is Exh.P.2/1. It is affirmative to the effect that both the articles are stained with human blood of the same group.
4. Muhammad Riaz later had been shifted to District Headquarter Hospital, Abbottabad and succumbed to his injuries on 29-11-1986 at about 3-20 a.m. Body of Muhammad Riaz deceased on 29-11-1986 and found on external examination:
(1) Stab wound 2" x 1" x cavity deep right aliac fossa in the abdomen with labloituy inchsion in medical abdominal region done on 15-11-1986.
' On internal examination he found abdominal walls perforated, peritoneum perforated and inflamed, small intestines perforated and surgical repairs done and inflamed. Large intestine perforated, inflamed and surgical repairs done. In his opinion, the cause of death was due to peritonitis caused by perforation of intestines by means of stab wounds caused by sharp means and were sufficient to cause death of the deceased in the ordinary course of nature.
6. Consequently the section of law was altered from 307, P.P.C. To 302, P.P.C. And after completion of the investigation, the appellant was arraigned as an accused to face his trial on the charge of the murder of Muhammad Riaz deceased.
7. At the trial, as many as 10 witnesses were examined by the prosecution. It may be stated at this very stage that the two ocular witnesses Fazal Elahi and Chan Muhammad alias Chana named in the F.I.R. Had to be abandoned by the prosecution on 31-1-1988 for the reason of their having been won over. After concluding the prosecution evidence the appellant was examined under section 342, Cr.P.C. To which he made a general negative statement and claimed innocence. He also did not produce any evidence in his defence nor did he offer his statement on oath as required under section 340(2), Cr.P.C. In rebuttal of the allegations levelled against him.
8. The learned Additional Sessions Judge, by placing reliance on the dying statement of the deceased corroborated by medical evidence and the recovery of weapon of offence at the instance of the appellant as also the motive of dispute over the watch, convicted and sentenced the appellant as stated above.
9. With the assistance of the learned Assistant Advocate-General, we have gone through the whole record of the case with considerable degree of care and gave our serious consideration to all possible points on which the impugned judgment of the learned Additional Sessions Judge could be assailed in that; the two eye-witnesses mentioned in the F.I.R. Have not been examined, one of the witness namely, Aurangzeb who has been examined was not mentioned in the F.I.R. And that his statement has also been found by the learned Additional Sessions Judge not confidence inspiring and as such kept out of consideration, the conviction is based solely on the dying declaration which is a weak piece of evidence and the recovery of the weapon of offence is not free from doubt.
10. After careful examination of the case we have arrived at an inescapable conclusion that the impugned judgment of the learned Additional Sessions Judge is founded on well-reasoned grounds and the way he dealt with the prosecution evidence comprising of dying declaration, medical evidence and recovery of the weapon of offence is based on sound principles of appraising the evidence.
11. A perusal of the dying statement would reveal that the occurrence having taken place in a broad daylight, there cannot be any reason to assume that the assailant was not correctly identified by the deceased. Similarly there is neither evidence of any prompting by 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 within the shortest possible time on the arrival of the police in the hospital and there is not an iota of evidence on the record to even remotely indicate that the deceased was not in such a condition as to have made a coherent statement.
More so when the deceased remained alive almost about 2 weeks thereafter.
12. It is now well-settled that a dying declaration is a valuable piece of evidence and once the Judge arrives at a decision that it is free from any suspicion and rings true, it can be made the sole basis of the conviction of an accused person. In Zarif Khan v. The State PLD 1977 SC 612 it was observed:- "It cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
' If the Court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants, there is no need for further corroboration."
13. In the instant case we find that not only the dying declaration rings true for the simple and short reason that it was broad daylight occurrence; the identity of the accused could not be doubted and there are no allegations whatsoever, muchless any proof, that it was prompted from outside; we also find sufficient corroboration coming forth in the form of motive and the medical evidence coupled with the fact that there existed no such previous enmity which could have motivated the deceased to have brought a false charge against the appellant.
14. Again the factum of recovery of the weapon of offence at the instance of the appellant when examined in the light of the positive Serologist report of bearing human blood of the same group as the one which smeared the clothes of the deceased, goes a long way to establish the truthfulness of the charge against the appellant.
15. Although there is no ocular evidence in the case inasmuch as the two witnesses mentioned in the F.I.R., as stated above, have been reportedly won over and Aurangzeb, who did not figure in the F.I.R., has not been believed by the learned trial Court. Though we do not subscribe to the views of the learned trial Judge in his so doing, yet we have no hesitation in holding that the dying statement of Muhammad Riaz de-ceased corroborated amply by the medical evidence as also the recovery of the weapon of offence coupled with the Serologist report have brought home the guilt to the accused and he has been rightly convicted on the charge of murder.
16. As regards the sentence there is a revision petition against the lesser sentence awarded to the appellant as also the non-compliance of section 544(A), Cr.P.C. In its true spirit.
17. For not awarding the normal penalty, the learned Additional Sessions Judge has given reasons that the occurrence was not the result of premeditation and there being no enmity, the accused is a young man of about 22 years of age, and hence the deviation. We tend to agree with his reasons and it appears that both the accused and deceased when came across, each other, there took place exchange of hot words between the two on the question of demand of watch by the deceased from the appellant and there might he an element of provocation which prompted the appellant to have inflicted fatal injuries to the deceased.
18. On the point of compensation under section 544(A), Cr.P.C., we subscribe to the view of the learned counsel for the petitioner that the fine of , Rs,10,000 imposed by the learned trial Judge forms part of the sentence under section 302, P.P.C. Awarded to the appellant alongwith imprisonment for life and cannot be construed as due compliance of the provisions of section 544(A), Cr.P.C. A reference to section 544(A), Cr.P.C. Would reveal that as per its subsection (3) the compensation payable 'shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted'. It is thus clear that the order of the Additional Sessions Judge relating to the payment of the compensation out of the fine, if realized, is not consistent with the provisions as embodied in subsection (3) of section 544(A), Cr.P.C.'and as such cannot be sustained. It may be borne in mind that a bare reading of section 544(A), Cr.P.C. Would indicate that the compensation to be paid to the victim of aggression by a convict is in the form of an additional burden on him to any sentence which he is visited with and needs to be assessed and imposed independently of the sentence of fine so levied. This view of ours is further supported from the fact that as per subsection (2) of section 544(A), Cr.P.C., the compensation so awarded is to be realized as arrears of land revenue meaning thereby that the payment thereof is rather ensured by the Legislature.
19. In the circumstances while we maintain the conviction and sentences of the appellant, as per para. 17 of the impugned judginent of the learned Additional Sessions Judge, we alter the same in so far as the compliance of section 544(A), F Cr.P.C. Is concerned and order that in addition to the fine the appellant shall pay a sum of Rs,10,000 to the heirs of the deceased Muhammad Riaz or in default of) payment he shall suffer imprisonment for a further period of 6 months' R.I.
20. Resultantly both the appeals and the revision petition fail and we dismiss the same by upholding the judgment of the learned Additional Sessions Judge for the conviction and sentence of the appellant save to the extent of modification qua the question of compensation to be paid to the legal heirs of the deceased.
Appeal dismissed.