' Through this appeal appellant/convict Mumtaz Khan, has challenged the judgment, dated 30-3- 1992, passed by Additional Sessions Judge, Lahore whereby he has been convicted under section 302(c), P.P.C. And sentenced him to 20 years' R.I. With benefit of section 382-B, Cr.P.C.
2. The brief facts of the case are that Abdul Rasheed P.W.5, lodged report with the police of Police Station Tibbi City, Lahore to the effect that on 14-9-1991 while he was on duty on the main gate of Badshahi Mosque, Lahore at about 8-30 a.m., he saw a boy running out from the main gate of Badshahi Mosque's latrine. He was armed with knife and being chased by another boy whose name later on, he came to know as Zer Khan son of Gul Khan, caste Moman, Zarkhorangi, Police Station Madni, District Peshawar. Zar Khan when reached on the main road while chasing fell down there. Abdul Rasheed stated that he alongwith Muhammad Saleem Khan P.W., went to Zar Khan and saw that he had got sharp-edged weapon injury on his neck and the blood was oozing therefrom. On inquiry Zar Khan told them that Mumtaz Khan had been working together as neighbourer and at night they used to sleep on some ground etc. Near Data Darbar. He further told that he (Zar Khan) borrowed Rs,150 from Mumtaz Khan 2/3 weeks ago and many a time he demanded this amount but he failed to return the same to Mumtaz Khan on which he had some fight. Zar Khan told them that he repeated the demand, which he refused whereupon Mumtaz Khan took out knife from his pocket and injured him. After hearing the aforesaid version of Zar Khan, the complainant reported to A.S.I. Abdul Ghafoor, who arrived there at about 9-20 a.m. The A.S.I.
Prepared the complaint on the statement of Abdul Rasheed P.W., which is Exh.P.E. P.W. Muhammad Ashfaq, A.S.I. Recorded formal F.I.R. No,294/91 under section 302, P.P.C. On 14-9-1991, at about 9-30 a.m. Zar Khan injured was taken to hospital and admitted for treatment in Emergency Ward, Mayo Hospital, Lahore. He expired because of the injury, on the same day.
3. Investigation was carried out by Abdul Ghafoor, A.S.I., who arranged the autopsy of the deceased, got prepared site plan and recorded the statements of the prosecution witnesses. He also took into possession bloodstained earth vide memo. Exh.P.B. Mumtaz Khan was arrested on 16-9-1991. He made recovery of knife P.2 at the instance of the accused, which was taken into possession vide memo. Exh.P.C. Post-mortem report Exh.P.F., shows that the injured met death because of the said injury. Zar Khan was taken to hospital in injured condition and was medically examined. According to M.L.R. Exh.P.L., he received 1 c.m. x 0.5 c.m. Wound on the left side of neck just below the level of thyroid cartilage. According to the Doctor the injury was fresh.
4. During investigation the appellant/accused was found guilty and challaned to Court for trial.
5. The prosecution produced 12 P.Ws. In support of prosecution version. The statement of the appellant/convict was also recorded under section 342, Cr.P.C. By the learned trial Court, but he denied to produce defence.
6. I have heard the learned counsel for the appellant and also State Counsel on behalf of the prosecution. Record was also perused. In this case evidence of two witnesses namely Abdul Rasheed and Muhammad Saleem Khan is most important. The actual occurrence took place somewhere in Badshahi Mosque's latrine, where the deceased and the present appellant were found together. They had some controversy over the return of borrowed money, and the appellant inflicted fatal blow to the deceased. This portion of occurrence admittedly was not seen by any one. It is a case of circumstantial evidence and on that score the prosecution has produced these two witnesses. Both of them saw the accused running and being chased by Zar Khan in injured condition, when the appellant having knife in his hand. I find no reason to disbelieve these two witnesses. Both these witnesses have no enmity with either side nor any relationship.
Complainant's presence at the place of occurrence, and having heard the version of Zar Khan, when he fell down on the road is quite natural. Complainant Abdul Rasheed is an employee of Badshahi Mosque, where this unfortunate incident took place. The learned trial Court has rightly believed these witnesses and there is nothing to discredit them.
7. As far as, the other aspects of this case are concerned though minor discrepancies were pointed out by learned counsel for the appellant but those do not affect adversely the merits of the case.
The narration of incident by Zar Khan in injured condition on the road after receiving injury can be very well categorised as dying declaration. It is an important piece of evidence in the given circumstances. Both the prosecution witnesses Abdul Rasheed and Muhammad Saleem Khan have deposed all these facts quite fairly. The trial Court though disbelieved the recovery of blood- stained knife from the appellant/convict, but important factor is that the accused/appellant was arrested after the incident and the recovery of knife (crime weapon) was effected from him.
According to recovery memo. The recovery of knife was not witnessed by any public witness but the statement of A.S.I./Investigating Officer can be relied upon as he has no enmity or any other extraordinary interest, to depose against the appellant. Thus, the prosecution has proved its case.
8. In view of the above, I uphold the impugned judgment, dated 30-3-1992, dismiss the appeal and maintain the sentence awarded by the learned trial Court.