' QAZI MUHAMMAD FAROOQ, J.--- The appellant Muhammad Aman alias Pino, aged about 25/26 years, resident of Bahadur Garhi, Tehsil Hangu, was sentenced to death by the learned Additional Sessions Judge, Kohat, vide judgment dated 8-6-1991, under section 302, P.P.C. On the charge of committing the murder of Hurmatullah. He was also sentenced to pay a fine of Rs,50,000 or in default to undergo imprisonment for three years. Half of the fine, if recovered, was directed to be paid to the legal heirs of the deceased as compensation. He was further found guilty of the offence of house trespass after making preparation for committing the murder of the deceased and sentenced, without mentioning the relevant section of law, to five years R.I. And to pay a fine of Rs,5,000 or in default to undergo an additional imprisonment for six months.
2. The convict has filed the present appeal against his conviction and sentence and a brother of the deceased named Hasiyatullah Khan has filed a criminal revision for enhancement of the sentence of fine under section 302, P.P.C. And award of adequate compensation within the contemplation of section 544-A, Cr.P.C. To the heirs of the deceased and enhancement of sentence of five years to that of imprisonment for life under section 449, P.P.C. Reference for confirmation of the sentence of death awarded to the appellant is also before us. All the three matters are being disposed of by this judgment.
3. The incident giving rise to the case against the appellant and his co-accused Khalid, Purdil Khan and Malik Mir Aslam, who were acquitted during the first round, took place at about 8-25 a.m. On 15-7-1985 in the house of Hurmatullah deceased situate at a distance of half a kilometre from Police Station, Hangu and the F.I.R.-cum-dying declaration was made by the deceased in an injured condition on the same day at about 9-20 a.m. In Civil Hospital, Hangu which was recorded by Nizam Khan A.S.I. In the shape of a Murasila which was duly incorporated in F.I.R. No,317, dated 15- 7-1985 drawn up at Police Station Hangu.
4. The prosecution story, as unfolded in the F.I.R.-cum-dying declaration, is that on the fateful day at about 8-25 a.m. While the deceased was coaching his pupils in the outer portion of his house, where his father Himayatullah, brother Hasiyatullah and Shah Konain were also present, Malik Mir Aslam came there and asked him to come out of his room on which he came out and beheld the appellant and his brothers Khalid and Purdil Khan standing outside duly armed with Topaks. Khalid and Purdil commanded the appellant to kill him on which the appellant fired two shots at him from his double barrel shotgun as a result of which he fell down injured and the accused bolted away.
The motive for the occurrence was that on the preceding day an altercation had taken place between the deceased and the accused over the rent, for the month of June, of a shop which was in their possession as tenants under the complainant party. The occurrence was witnessed by the father of the deceased, his brother Hasiyatullah and Shah Konain.
5. The deceased in an injured condition was taken to the Civil Hospital, Hangu, situate opposite his house, where at 8-30 a.m. On 15-7-1985 Dr. Muhammad Younis examined him medically and found the following:-
(1) Fire-arm entry wound right side chest frontal aspect about 7th intercostal space and about 3" below right nipple circular in shape 1-1/2 x 1-1/2" in size.
(2) About 30 small entry wounds present along the margin of the wound No,1, small intestine out through the entry wound No,1.
(3) Fire-arm entry wound frontal aspect of right thigh about 4" above right knee joint. The wound is circular in shape 1" x 1" in size. 30 small entry wounds present along the margin of the entry wound seem to be caused by pellets.
(4) Fire-arm exit wound outer and lateral aspect of right thigh 1-1/2" x 1-1/2" in size in level with the entry wound No,3.
(5) Graze marks of pellets cutting the skin and missile along the inner margin of right elbow joint cutting upper end of right radian also 1-1/2" long.
' On the same day the deceased succumbed to his injuries in Kohat Hospital at 1-15 p.m. And the same doctor held autopsy on his dead body and found the following:-- External examination.
' As given in the injury sheet Exh.P.W.10/1. On internal examination the doctor found right side chest walls ruptured on frontal aspect, 7th and 8th ribs were also ruptured. Blood vessels of liver were damaged. Stomach was found empty containing only juice, large intestine contained faecal material, liver and gall bladder were badly damaged. In his opinion death had occurred due to badly damaged, liver by fire-arm causing internal haemorrhage and shock. Time between injuries and death was within 3-1/2 hours and between death and post-mortem examination within two hours.
6. To prove its case the prosecution examined as many as 13 witnesses including Dr. Muhammad Younis (P.W.10) and Nizam Khan S.H.O. (P.W.13). Syed Muhammad Konain (P.W.8) and Hasiyatullah (P.W.9) furnished ocular evidence while Dil Nawaz D.F.C. (P.W.1) deposed about the abscondence of the appellant and proved his reports on the warrant under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. And Javed Khan S.H.O. (P.W.7) stated that he had arrested the appellant from his house on 29-7-1988. Shad Muhammad (P.W.3), one of the recovery witnesses, stated that in his presence two empties of .12 bore Exh.P.3 were recovered by the I.O. From the spot vide recovery memo. Exh.P.R.2. The remaining witnesses namely, Wilayat (P.W.2), Haji Faiz Muhammad (P.W.4), Tasleem (P.W.5), Farid Hussain Shah (P.W.6), Badshah Hussain Khan (P.W.11) and Shamsul Qamar Khan D.S.P. (P.W.12) gave evidence of formal nature. The statement of the third eye-witness Himayatullah recorded on 4-12-1986 by the trial Court during the trial of the acquitted co-accused Khalid and Purdil Khan was transferred to the record of this file on account of his death.
7. When examined under section 342, Cr.P.C. The appellant denied the prosecution allegations and professed innocence. His plea was one of complete denial and false implication.
8. The salient features of the case highlighted above make it manifest that the prosecution case against the appellant rests on the dying declaration of the deceased, ocular evidence, medical evidence, motive, recovery of crime empties from the scene of occurrence and abscondence of the appellant after the occurrence.
9. The dying declaration of the deceased is available on record in the shape of Murasila Exh.PA./1, on the strength of which the F.I.R. Exh.P.A. Was drawn up. After evaluating it in the light of the well- known tests for determining the genuineness of a dying declaration we have come to the conclusion that it is implicitly reliable. There is nothing on the record to suggest that the deceased was inimically disposed towards the appellant or was swayed by any sinister design or oblique motive to implicate him falsely. The dying declaration is not only simple and straightforward but also rings true intrinsically and is compatible with the facts and circumstances of the case. It is also corroborated by the ocular evidence, medical evidence, recovery of crime empties and abscondence of the appellant. The occurrence took place in broad daylight at a place where it was not possible for the appellant to screen himself, therefore, there was no chance of mistake by the deceased in identifying and nominating his assailant. The deceased was capable of making a dying declaration as is evident from the statement of Dr. Muhammad Younis (P.W.10) and the certificate Exh.P.W.10/2 furnished by him regarding his physical condition at the crucial time and the signature of the deceased on the Murasila. There is no indication on record muchless positive that the dying declaration was recorded in presence of the relatives of the deceased and, as such, the possibility of prompting and tutoring stands excluded altogether.
10. Criticising the dying declaration the learned counsel for the appellant contended at the outset that the deceased was physically and clinically unable to talk as he was not in complete senses when brought to the hospital and his liver was badly damaged as stated by Dr. Muhammad Younis (P.W.10). The contention has no substance. After the occurrence the deceased in an injured condition was immediately taken to Civil Hospital, Hangu which according to the site plan Exh.P.B. Is situated opposite his house across the road and it is in the statement of Dr. Muhammad Youths (P.W.10) that when brought to the hospital he was not in complete senses but had regained senses after medical treatment. The death of the deceased had not occurred immediately from shock and haemorrhage, therefore, it appears that the portal vein or vena cava was not severely damaged and, as such, the opinion of the doctor carries weight that after medical treatment he had regained senses. In this context the following observations made in Modi's Medical Jurisprudence (Twentieth Edition page 288) may be reproduced advantageously:-- "In rupture of the liver death occurs immediately from shock and haemorrhage, especially if the portal vein or vena cava is injured, or it may occur within 48 hours. Sometimes, life may be prolonged for days if the liver substance alone is injured. A case occurred in Agra in which a man survived 5 days after the liver was ruptured."
' The brain heart, lungs, larynx and trachea of the deceased were not injured and his condition had become stable after timely medical treatment in the hospital, therefore, it does not stand to reason that he was unable to talk. It was next contended by the learned counsel that according to the post-mortem report stomach of the deceased was empty and his intestine contained faecal matter which suggests that he had not taken tea and had also not defecated, therefore, the story that at the time of occurrence he was coaching his students was absolutely false. The contention is devoid of force for the short reason that it pertains to certain habits of the deceased regarding which no question was put to any prosecution witness. It was further contended that the dying declaration was in conflict with the medical evidence because the deceased had fixed the number of shots fired at him by the appellant as two whereas Dr. Muhammad Youths (P.W.10) had opined that the injuries sustained by him could be the result of three independent shots. The contention has no force as the opinion of the doctor being based on approximation and visual observations cannot be treated as sacrosanct. The appellant had fired two shots at the deceased from a D.B.
Shotgun from a distance of about 13 feet which had hit him on the right side frontal aspect of his body. Keeping in view the spread of fire there can be no dispute with the proposition that the graze marks on the right arm of the deceased were caused by some spread out pellets. The opinion of the doctor that the graze marks on the right arm of the deceased could be the result of an independent shot is thus palpably incorrect. It was next contended that although Nizam Khan A.S.I.
(P.W.13) had recorded the F.I.R.-cum-dying declaration in the hospital yet he had neither obtained a certificate from the doctor to the effect that the deceased was in full enjoyment of his senses nor obtained his signature on the dying declaration and that the certificate Exh.P.W.10/2 allegedly given by the doctor to the father of the deceased without informing Nizam Khan A.S.I. Was manipulated later on and for this very reason the time of making of the dying declaration was mentioned in it as 10-00 a.m. Instead of 9-20 a.m. This contention too has no substance. Failure of Nizam Khan A.S.I. To obtain a certificate from the doctor or his signature on the dying declaration points only to his inefficiency and cannot destroy the dying declaration which is indubitably genuine. In so far as the certificate of the doctor Exh.P.W.10/2 is concerned it will suffice to say that it commands respect as Dr. Muhammad Younis (P.W.10) owned it at the trial and there is nothing in his cross-examination to make his credentials doubtful. It is in his statement that he had given the certificate on the request of father of the deceased in presence of the police. No doubt, Nizam Khan A.S.I. (P.W.13) expressed ignorance about this certificate but it appears that this was done by him out of sheer embarrassm ent as father of the deceased had done that which he had failed to do. Had it not been in his knowledge it would not have been available on record. The time of recording of the dying declaration is mentioned in the certificate in general terms as about 10-00 a.m. And this generalisation is neither fatal to the certificate nor to the dying declaration. It was lastly contended that the signature of the deceased on the dying declaration was fake as it did not tally with the signature of the deceased on the exercise book, Exh.DA., of one his students Nizamuddin which was pressed into service by the appellant in his statement under section 342, Cr.P.C. The contention cannot prevail because the exercise book has neither come from proper custody nor can be treated as legal evidence for want of formal proof. The said Nizamuddin being a brother of the appellant was available for recording his statement but instead of examining him as a defence witness an application was moved at a belated stage by the learned defence counsel to the effect that someone from the school in which the deceased had served may be called as a Court witness with attendance register of the schbol containing his signatures but without success.
11. The ocular evidence consists of the statements of three witnesses namely Hasiyatullah (P.W.9), brother of the deceased, Syed Muhammad Konain (P.W.8), pupil of the deceased, Himayatullah father of the deceased, whose statement recorded on 4-12-1986 during the trial of the acquitted co-accused of the appellant was transferred to the record of this file as a sequel to his death.
These three witnesses were present with the deceased at the time of occurrence and their presence at the time of occurrence is open to no question as Himayatullah and Hasiyatullah P.Ws.
Are inmates of the house of the deceased where the occurrence took place and Syed Muhammad Konain had come there to get tuition from the deceased. Besides being natural witnesses all of them gave a straightforward and consistent account of the occurrence and there is nothing in their statements to tarnish their credibility. Their testimony also does not suffer from any serious infirmity. No doubt Hasiyatullah and Himayatullah are closely related to the deceased but there is not even a suggestion that they had any diabolic design or animus to falsely implicate the appellant. They are related to the appellant also and there is no background of enmity between them. Similarly Syed Muhammad Konain P.W., who is an independent witness, has no enmity with the appellant. None of them thus can be branded with interestedness. The ocular evidence is not only confidence inspiring but is also corroborated by medical evidence, recovery of crime empties from the spot and abscondence of the accused after the occurrence which stands established beyond any doubt.
12. Criticising the ocular evidence the learned counsel for the appellant contended in the beginning that none of the eye-witneses was present at the spot because firstly; none of them had gone to the police station to lodge the report about the incident; secondly, it was in evidence that the eye- witnesses had helped the deceased in reaching the hospital and in the process their clothes had got besmeared with blood but their blood-stained clothes were not taken into possession; thirdly, the book which was being taught to Syed Muhammad Konain was not taken into possession and fourthly, at the time of occurrence Hasiyatullah P.W. Was supposed to be present in his office as it was in his statement that throughout the year the working hours of his office are from 8-00 a.m. To 3-00 p.m. These objections have not impressed us at all. The Civil Hospital, Hangu being close to the scene of occurrence the eye-witnesses were naturally more concerned with saving the life of the deceased than going to the police station for lodging the F.I.R. And the failure of the police to take into possession the blood-stained clothes of the eye-witnesses or the book of Syed Muhammad Konain (P.W.) reflects only on the inefficiency of the Investigating Officer. In any case these omissions are too insignificant to make the presence of the eye-witnesses on the spot of occurrence doubtful. In so far as the presence of Hasiyatullah P.W. In his house instead of his office is concerned it would suffice to say that it is in the examination-in-chief of Hamayatullah Khan that he and his son Hasiyatullah Khan had made a programme to offer "Fateha" on the death of the father of one of their "Kashtkar" and this part of his statement was not challenged in his cross- examination. It was next contended that the eye-witnesses had stated that the occurrence had taken place inside the house of the deceased whereas the empties were recovered from outside the house. This contention too has no substance because it appears that while decamping the appellant had reloaded his shotgun outside the house for obvious reasons. It was further contended that Syed Muhammad Konain was a trumped up witness as it did not appeal to reason that he used to come daily to the house of the deceased for getting tuition from his village which was admittedly at a distance of 13 miles from the house of the deceased. The contention has no force because the said witness being a pupil of the deceased was required to observe the tuition schedule that suited the deceased and moreover he runs a Music Centre in Hangu.
13. While dealing with the motive the learned counsel for the appellant contended that there was neither any evidence to the effect that the complainant party had rented out a shop to the accused party nor there was any proof in regard to the altercation between the deceased and the appellant that had taken place on the preceding day over the issue of non-payment of rent. We do not agree entirely with the learned counsel because in view of the receipt taken into possession by the Investigating Officer vide recovery memo. Exh.P.R./3 this fact stands proved that the complainant party had rented out a shop to Purdil, one of the acquitted co-accused of the appellant. However, there is no independent evidence to prove the alleged altercation between the deceased and the appellant which means that the motive has not been squarely proved. But this does not mean that the ocular evidence and the dying declaration should be discarded on this score because it is now well-settled that motive is not a necessary ingredient of murder.
14. This leaves us now with the sentences awarded to the appellant by the learned trial Court. The appellant was charged for committing an offence under section 452, Cr.P.C. Namely house trespass having made preparation for causing hurt, assault etc. But was convicted for an offence covered by section 449, P.P.C. Namely house trespass in order to the commission of an offence punishable with death though the section of law is not mentioned in the judgment of the learned trial Court. It is in the statement of all the three eyewitnesses that before the occurrence the appellant and his acquitted co-accused had hurled abuses on the deceased. It is a matter of common knowledge that abuses are seldom one sided. The parties are related to each other, there was an exchange of abuses before the occurrence and the motive has not been fully established, therefore, the provisions of section 452 or section 449, P.P.C. Are not attracted and the conviction and sentence of the appellant on this count is not sustainable. The prayer for enhancement of sentence on this count made in the connected revision petition has thus become infructuous. As to punishment under section 302, P.P.C. The appellant deserves some leniency. After all he was a young man aged about 18/19 years at the time of occurrence, there was an exchange of abuses before the occurrence and his elder brothers had commanded him to fire at the deceased. In forming this view we have gained insight and guidance from two judgments of the Supreme Court reported as Tariq Pervez and another v. The State and others 1987 SCMR 967 and Mst. Nooran v.
Altaf Hussain and others 1990 SCMR 413. In the former case it was observed that the accused being of 14/15 years, having no direct motive of offence and having acted under the influence of his elder brother (co-accused who was acquitted) was entitled to lesser sentence and in the latter case sentence of imprisonment for life was deemed appropriate for the accused who had acted under the influence of their uncle. We feel that the requirements of justice would be amply fulfilled if the appellant is awarded the lesser penalty of imprisonment for life.
In the result this criminal appeal is partly accepted, the conviction and F sentence of the appellant under section 449, P.P.C. Are set aside, the conviction on the charge of murder under section 302, P.P.C. Is maintained but the death sentence is altered to imprisonment for life and a fine of Rs,20,000 or in default three years' further R.I. He is also directed to pay a sum of Rs,30,000 as compensation to the heirs of the deceased within the meanings of section 544-A, Cr.P.C. Or in default to suffer six months' S.I. The amount of compensation shall also be recoverable as arrears of land revenue. The benefit under section 382-B, Cr.P.C. Is also extended in the computation of sentence of imprisonment. The sentence of death awarded to the appellant is not confirmed and the reference is answered accordingly. The criminal revision also stands partly accepted to the extent of award of compensation to the heirs of the deceased.
' Hereinabove are the reasons for our short order, dated 12-10-1992.