ABDUR ROW AN KHAN, J.---This judgment will dispose of (i) Criminal Appeal No,54/91 Sabir etc. v. The State , (ii)
Murder Reference No,3/1991 and (iii) Criminal Revision No,56/1991 Habibur Rehman etc. v. The State. Criminal Appeal No, 54/1991 has been filed by the appellants against the impugned judgment dated 11-12-1991 of the learned Additional Sessions Judge Haripur , whereby all the appellants were convic ted under section 302/34, P.P.C.
But out of them two appellants Sabir and Juma were sentenced to death and a fine of Rs,10,000 or in default to two years' rigorous imprisonment while the other two appellants Abdus Sattar and Mushtaq were sentenced to imprisonment for life and a fine of Rs,15,000 each or in default of payment of fine to undergo two years' rigorous imprisonment. Murder Reference No,3/9 1 has also been put up before us for confirmation. Criminal Revision No,56/91 has been moved by the complainant side for enhancement of fine, awarding of compensation and confiscation of property of all the accused and enhancement of sentence of appellants Mushtaq and Abdus Sattar to that of death. The F.I.R. In this case was .Lodged by Khalil-ur-Rehman deceased himself while in injured condition on 19-3-1990 at 18-40 hours in Emergency Ward of Civil Hospital, Haripur regarding the injuries which were inflicted on him the same date at 5-30 p.m. It is to be noted here that acco rding to the Medical Officer the complainant died of these injuries on 24-8-1990 at 10-30 a.m. It was stated in dying statement that at 5-30 p.m. He (the deceased) along with his son Habib-ur-Rehman P.W.6, Muhammad Khalil (P.W. Not produced), Iqbal P.W.7 and others were leaving for his house after attending the funeral of the wife of Munsif Khan. When they reached near the house of Jehandad all of a sudden the appellant. Came. In front of him out of whom Sabir appellant addressed him. In the meantime Mushtaq and Abdus Sattar appellants got hold of him while the appellants Juma and Sabir gave dagger blows with which he received injuries on various parts of the body . Motive for the crime was given as sometime back one Haji Yousaf had been killed for which Juma etc. Were charged and he was siding the relations of the deceased. Moreover , he had also contested elections against Juma Khan appellant.
2. It will be pertinent to give a brief resum e of the relevant evidence which was examined at the trial as that would be helpful in understanding the prosecution case in its correct perspective. P.W.1 Abdul Aziz I.H.C. Had prepared inquest report Exh.P .W.1/1 of the deceas ed after his PM Examination. P.W.2 Haji Muhammad Younas is marginal witness to the recovery memo. Exh.P .W.2/1 whereby Chhuri P.1 which was buried under the earth and a stone was lying over it was recovered at the behest of accused Sabir . Similarly accused Juma also led the Police to the fields of Karim Bakhsh and at his pointation a Churn was also recovered through mem o. Exh.P .W.2/2 which has also been witnessed by this witness. P.W.5 is Dr. Muhammad Tariq Medical Officer who had examined the deceased then alive on 19-8-1990 at 7 p.m. For his injuries. He had found the following injuries:---
(i) An incised W ound on right side iliac fossa of size of T x peritonium deep.
(ii) An incised wound in groin right side of 2" x muscels deep.
(iii) An incised wound on left side abdomen in nupechedrium of size of 2" x Iperitoneum deep.
(iv) An incised wound in left hypechendrium just closed to vertebra column of size of 2" x peritoneum deep with bleeding- and destension abdomen.
(v) An incised wound on back chest in the area of alpine of size of 1" x pleura deep.
(vi) An incised wound in neck right side.
' P.W.6 Habib-ur-Rehman is son of the deceased who furnished ocular account of the occurrence. According to him the deceased was his father and that the sister of appellant Juma is wife of Sabir appellant while sister of appellant Abdus Sattar is wife of appellant Mushtaq and that appellant Sabir and Abdus Sattar are brothers inter se.
Regarding the main incident, he stated that on the eventful day at Deegar Vela he along with his deceased father and Muhammad Iqbal P.W. And Khalil-ur -Rehman son of Ghulam Qadir (abandon ed witness) were going back to their house after performing the funeral of the wife of Munsif Khan. When he reach ed near the house of Jehandad he found the appellants present there. Sabir appellant asked his father "as to what mischief he was doing"?
Thereafter Mushtaq and Abdus Sattar appellants got hold of his father while Sabir and Juma appellants gave him blows with dagger . The witness tried to rescue his father but appellants Mushtaq and Abdus Sattar gave him kicks and fist blows. After the occurrence he decamped from the spot. He supported motive in respect of the murder of Muhammad Yousaf and while clarifying the second motive about the elections he stated that his father had obtained more votes than Juma appellant in his own village. The injured was placed in a cot and was taken to Suzuki stand from where he was carried to hospital in injured condition. His father reported the incident to the Police and case was registered on that report. The site plan was also prepared at his instance. The next eye- witness Muhammad Iqbal was examined as P.W.7. This witness is son-in-law of the deceased. He gave similar account as was given by P.W.6 and, therefore, there is no need to repeat. P.W.8 is Muhammad Anwar A.S.I. Who recorded the report of Khalil-ur-Rehman and after recording it read it over to him who admitted it correct and signed it. He had also investigated the case and gave details of the investigation.
3. The accused in their defence examined D.W.1 Muhammad Riaz Record-Keeper National Identity Card who produced the original form `Alit' of Khalil-ur-Rehman and exhibited its photo stat as D.W.1/1. The form was obviously produced to show the signature of Khalil-ur-Rehman. D.W.2 Zaka-A. Malik Handwriting Expert compared the signature of the deceased on Form 'Ali? Of the photo stat Exh.P A. And comp ared with his signature over the F.I.R. He produced his report in this respect D.W.2/1 according to which the two signatures did not tally with each other . The accused were examined under section 342, Cr .P.C. They pleaded innocence and false implication.
4. The learned counsel for the appellants probably conscious of the foremost reliance of the prosecution on the dying declaration challenged its authenticity on various grounds. He stressed that the cross-examination of the two Medical Officers out of whom one examined the deceased when alive and the other who conducted the post- mortem examination clearly suggests that the deceased was not physically capable to make a statement. It is, however , to be noted that the perusal of the cross-examination of both the witnesses does not support this contention. The witnesses have neither of their own stated anything about the capacity of the deceased to make a statement nor cross-examiner has made any effort to ask direct questions from these witnesses in this respect. The following portion of the cross-examination of P.W.2 Dr. Muhammad Tariq rather belies the assertion of the defence counsel: "I did not note down in the medico legal report that the injured was in senses. Volunteered that the injured was in senses. However , I have not written so in my report."
' It was known to the defence that the petitioner would rely on the dying declaration and the scribe of the DD who is a responsible officer would obviously support it but in spite of it they avoided to ask any relevant question from the Medical Officers in order to clarify that the nature of injuries on the deceased was such which had rendered him unable to make report to the Police. It was in this context argued that according to the expert who was examined by the defence as D.W.2 the signature of the deceased on the dying declaration does not tally with his signature on the National Identity Card. However , keeping in view the cross-examination of this witness as a whole and particularly this portion that "It is correct that there was a case in which the trial Judge of the High Court had passed remark against me," not much importance can be attached to his opinion. Moreover , the expert opinion cannot prevail as against reliable direct evidence which finds support from independent circumstances on record. It was also pointed out that the dying statement has not been countersigned by the Medical Officer who was available at that time and that it is in violation of the Police Rule No,25.21. If it. Is proved that the dying man was capable to make a statement and that he had no reason to substitute the real culprit for those accused by him then merely because of negligence of the scribe the authenticity of the dying declaration cannot be doubted and its evidentiary value cannot be discarded. It is possible that the. Police Officer who recorded the dying declaration in this case did not feel the necessity of citing any witness to the dying declaration because at that time he could not foresee that the injured would expire. In this particular case the deceased remained alive for six days, therefore, the omission to obtain attestation of the doctor is not that much material and particularly when them is no reason to 'doubt the signature of the deceased on the dying statement.'' The scribe of the dying statement should always try to obtain verification of the dying statement by the persons who are available at the time of making it so as to ward on such like objection. However , in the peculiar circumstances of the present case we are of the view that the absence of any attesting witness would not cause any adverse reflection on the veracity of the dying declaration. The Police Rules referred to also prescribe that if possible independent persons should be made witness of the dying statement. But every Criminal case proce eds on its own facts and if the Court comes to the conclusion that dying declaration is otherwise truthful then such an omission would not adversely affect the prosecution case. It was next contended that even if the F.I.R. In this case is proved to have been made by the deceased then as he had no apprehension of immediate death, therefore, under the law it cannot be made basis of conviction. The argument is oblivious of the provision of Article 46 of Qanun-e-Shahadat and section 162 of the Criminal Procedure Code.
Article 46 of Qanun-e-Shahadat reads as under:--- "When the statement is made by a perso n as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
' Section 162(2) of the Criminal Procedure Code is to the following ef fect:--- "Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause
(1) of the Evidence Act, 1872 or to af fect the provisions of section 27 of the Act."
It is manifest by reading these two sectio ns together that such a statement would be relevant even if the person who made it was not at the time of making it under expectation of death. It was in this context next submitted that C even if it is believed that the deceased was in a position to dictate his dying statement even then its truthfulness is open to serious doubts. It was pointed out that the detail of the injuries and their location in the dying statement would rather suggest that it was so stated at the behest of some other person. This argument would not prevail and there was nothing unusual for the deceased to have given the number of injuries and the seats of these injuries which would rather establish that he was in such a fit state of mind and alert that he could furnish all these requisite information. The perusal of the statement of P.W.8 Muhammad Anwar the Police Officer who recorded the report clearly proves that the deceased in injured condition was in his full senses and could make a statement. The correctness of the statement of this witness has not been discredited in cross-examination. Moreover , no malice on his part has either been proved or suggested which might have prompted him to go to the extent of involving the appellants in the case. The defence could also not bring any substantial thing on record to prove that the deceased had that much serious enmity with the appellants as to involve them falsely and had that much sympathy with those who inflicted the serious injuries on him so as to go scot free'. We are, therefore, of the view that the F.I.R. In this case which after the death of the deceas ed has assumed the character of dying statement is fully proved and is also truthful. This can, therefore, be made basis of conviction against the appellants regarding whom it finds corroboration from the other material on record. It has been laid down in 1981 SCMR 61 that "Nothing to suggest that deceased would have substituted an innocent man for real culprit--Statement of deceased in form of F.I.R., held, rightly treated as dying declaration and very strong piece of evidence against appellant--No further corroboration through any independent source in circumstances, necessary ." The same rule has also been enunciated in an Indian Judgment reported as AIR 1976 SC 1994 that "if it is found that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration". As the appellants Sabir and Juma have been attributed actual role of stabbing by the deceased, therefore, we agree with the conclusion E of the trial Court about the guilt of these two appellants. We are, however , not inclined to believe that P.W.6 Habib-ur-Rehman and P.W.7 Muhammad Iqbal were accompanying the deceased at the time of occurrence and had seen the occurrence. Their deposition in this respect is rather negative by the other facts on record and their conduct appears to be entirely unnatural and unreasonable. They both are young persons and one being the son and the other son-in-law could not be expected to stand by and watch the two accused holding the deceased and the other two inflicting the injuries. Keeping in view the normal human conduct in such an eventuality they must have interfered and tried to save the dece ased. Although Habib-ur-Rehman stated that he tried to rescue his father from accused but accused Mushtaq and Abdus Sattar gave him kicks and fist blows. There is no medical evidence to support him in this respect. Moreover , if they had been there then by lifting the deceased from the ground and helping him to the Suzuki and then taking him to the hospital their clothes must have been smeared with blood which is not the case. We, therefore, doub t their presence on the spot. Similarly , the recovery of the daggers at the instance of Sabir and Juma appellants also appears to be unnatural and fabricated. Moreover , the daggers so recovered had no blood stains and cannot benefit the prosecution. It is interesting to note that the witnesses have stated that after the occurrence the accused decamped in their presence but the site plan reveals that the recovery of these daggers were made from places at a distance of 18 and 21 paces from the actual sense of occurrence and in-between which nothing intervenes to block the vision. The prosecution case against Abdul Sattar and Mushtaq appellants has not been established by confidence inspiring evidence. We have already discarded the ocular account which involved them in the offence and would also not rely on the dying declaration regarding these two appellants as on this count it is not corroborated by any other evidence. We, therefore, accept the appeal of Abdus Sattar and Mushtaq appellants and rever se the judgment of the trial Court as against them and acquit them of the charge. We maintain the conviction of appellants Sabir and Juma as the prosecution has been able to prove their guilt. We, however , find that neither the actual and immediate cause of attack has been established nor it could be shown as to who inflicted how many injuries and on which part of the body and who caused the fatal injuries. The ends of justice will be fully served if their sentence is reduced from death to life imprisonment. We, therefore, while maintaining their conviction under section 302/34 P.P.C. Change their sentence into life imprisonment and with this modification reject their appeal. We, therefore, decline to confirm the death sentence of those two appellants anti answer the Murder Reference accordingly . Criminal Revision No,56/91 against the appellants Sabir and Juma is accepted to the extent that they are ordered to pay compensation of Rs,20,000 each in terms of section 544-A Cr.P.C. To the legal heirs of the deceased or to undergo six months' S.I. In default. The amount of fine imposed on each of them is also enhanced from Rs,10,000 to Rs,20,000 or in default to suffer three years' R.I. This Revision has become infructuous in case of the appellants whose appeal has been accepted.