AMIR-UL-MULK MENGAL, J.--- Present appellant Jalaluddin was tried by learned Sessions Judge (Ad hoc), Quetta under section 302, Qisas and Diyat Ordinance and section 13(e) of the Arms Ordinance. The appellant was found guilty by the trial Court both under section 302, Qisas and Diyat Ordinance as well as under section 13(e) of the Arms Ordinance. Appellant was convicted and sentenced to death under section 302, Qisas and Diyat Ordinance, and he was also awarded a sentence of 2 years' R.I. Under section 13(e) of the Arms Ordinance, 1965. He was also fined Rs.10,000 and in default of payment of fine to suffer R.I for six months more.
2.The appellant preferred Criminal Appeal No.80 of 1995 against his conviction under section 302, Qisas and Diyat Ordinance. He also filed another Appeal No.88 of 1995 against his conviction and sentence under section 13(e) of Arms Ordinance. Besides Murder Reference No.9 of 1995 has been sent for confirmation of death sentence. We are, therefore, inclined to dispose of all these matters by this common judgment as the facts and law points involved are identical in all these cases.
3. If put succinctly, the prosecution story is that on 9-9-1993 at about 10-00 p.m. Dost Muhammad (deceased) reached near crossing of Meconghy Road and Khuda-i-Dad Road, he saw appellant Jalaluddin coming from opposite direction. As soon as appellant saw Dost Muhammad (deceased) he started laughing at him. When the deceased asked the appellant why he was laughing at him, the appellant got infuriated and at one started firing at him with a T.T. Pistol. As a result of firing the deceased got injuries on both of his legs and fell down thereupon the accused ran away from the place of incident. Injured Dost Muhammad was removed to the hospital by some passerby. It is further the case of prosecution that P.W.1 Zahid Hussain, who was S.H.O. Police Station Gowalmandi, Quetta, was on patrol duty, being accompanied by his official driver Abdul Sattar and Abdul Rahim Constable who was his gunman. They heard the firing report and immediately asked the traffic police who was on duty near Safir Mosque about direction from which firing had been made. They were told that firing was made towards Khuda-i-Dad Road. They reached there and saw injured Dost Muhammad as welt as 2/3 other persons present with him.
P.W.1 enquired from injured his name who disclosed that his name was Dost Muhammad. He was further asked about the firing and the injured stated that son of Moulvi Niaz Muhammad namely Jalal had made firing at him and injured him. The police was further 'informed that accused who had made firing had run towards eastern side of the road. He was chased by police and at some distance the police found a person running on the road side of Khuda-i-Dad Road towards east.
The police driver took the vehicle in front of him and tried to stop him but accused turned and went inside a lane on the left side of the road. The police continued chasing him but he succeeded in escaping by climbing the roofs of the houses.
4. P.W.5 Muhammad Akram after receiving information about the incident through Police Control, rushed to the hospital alongwith Constable Shahbaz Khan. They found injured Dost Muhammad in Casualty Department of Civil Hospital. After preparing injury report (Exh.P/5-A) he recorded statement of Dost Muhammad injured. This Fard-e-Bayan is Exh.P/5-B which was sent to City Police Station for registration of F.I.R. On the next morning the injured succumbed to the injuries and the F.I.R. Was accordingly converted from section 324, P.P.C. To section 302, P.P.C. The Fard-e-Bayan, therefore, was treated as dying declaration by the prosecution.
5. The accused was arrested and investigation started. According to P.W.5 accused Jalaluddin disclosed that the pistol with which the offence was committed has been concealed by him at a place in Sadiq Shaheed Park. He was accompanied by P.W.5 Muhammad Akram, Investigation Officer, Arif A.S.I., Muhammad Saleem and others who took him to Sadiq Shaheed Park where accused recovered a pistol from north eastern side of the park under a tree which was taken into possession vide recovery memo. Exh.P/5-C. On recovery of pistol two live cartridges were found in it. Besides, identification parade of accused Jalaluddin was conducted by Magistrate First Class Haider Khan on 20-9-1993, where according to prosecution P.W. Abdul Sattar identified the accused amongst 10 other dummies. During investigation the police had recovered shirt, Shalwar and underwear of the deceased through Exh.P/4-A. The pistol and other articles were sent to the expert whose reports were also brought on record. The statement of the accused was recorded under section 342, Cr.P.C. As well as under section 340(2), Cr.P.C. The accused produced defence witnesses namely D.W.1 Syed Abdul Rahim, D.W.2 Turab Khan and D.W.3 Abdul Malik.
6. Taking into consideration the aforementioned evidence the learned trial Court found the appellant guilty and passed sentence as mentioned in para. 1 of the judgment.
7. Heard Mr. Yahya Bukhtiar, Senior counsel for appellant assisted by Mr. Ehsanul Haq and Mr. Akhtar Zaman. Learned Additional Advocate --General was heard on behalf of the State assisted by Mr. W.N. Kohli, counsel for the complainant.
8. Before proceeding further it would be expedient to summarise the evidence brought on record by prosecution, as follows: -
(a) Dying declaration;
(b) Circumstantial evidence i.e. Recovery of pistol, live cartridges, empties, blood-stained earth;
(c) identification parade;
(d) medical evidence;
(e) motive.
9. The prosecution case mainly hinges on the dying declaration. Before dilating upon the questions raised in this regard by counsel for appellant it would be pertinent to point out that according to prosecution, soon after receiving the bullet injuries, P.W.1 Zahid Hussain who was on patrol duty reached the spot and found Dost Muhammad lying injured on the road. Upon query the injured told him that he has been fired at by son of Mulla Niaz Muhammad namely Jalal who had run away toward eastern direction of the road: Although this statement was not recorded by P.W.1 because he proceeded to find and arrest the accused but through police control he informed about the incident. According to learned Additional Advocate-- General this oral statement could be treated as dying declaration. Secondly that after when the injured was shifted by the passers by to hospital A.S.I. Muhammad Akram of City Police Station went to the hospital and found Dost Muhammad in the Casualty Ward in an injured condition. His statement was recorded and on the basis of this Fard-e-Bayan F.I.R. Was lodged. This in fact was the dying declaration, since the same has been reduced into writing and signed by Dost Muhammad deceased.
10. Mr. Yahya Bukhtiar, however, challenged that this statement in fact was not a dying declaration but at the most it can be treated as a statement recorded under section 161, Cr.P.C. By the police.
Another limb of the argument was that since there was no probable chance of victim's death, hence this statement could not be treated in law as a dying declaration. In order to further elucidate his view point learned counsel challenged the genuineness of the statement: In this regard it was firstly pointed out that despite presence of doctor in the casualty ward his signatures were not obtained by P.W.5 on this statement. It was secondly contended that at the end of the statement there is a cross (x) which is indicative of the fact that the statement has been prepared by P.W.5 A.S.I. Muhammad Akram and the injured was asked to put his signatures thereon. The third contention raised was that the language as used in the statement is in a chaste Urdu and not in the language of the deceased who was a Pathan and could not speak such a good Urdu.
11. In order to supplement his above contention reliance was placed on the case of Muhammad Yasin v. The State reported in 1978 SCMR 303. The Honourable Supreme Court on page 305 of the said judgment has made observations as under: -- "So far as the second dying declaration that is to say the statement of the deceased recorded under section 161 of the Code of Criminal Procedure is concerned its genuineness according to the learned counsel for the defence was very much doubtful. This statement was recorded in the hospital but neither the doctor nor any compounder was made a witness to it. Despite the fact that it was recorded in the hospital no certificate was obtained from the doctor to the effect that the deceased was in a fit condition to make a statement. Even in the statement of the doctor it has not been brought out from him as to whether the deceased was or could be in senses to give a coherent statement at past midnight. Furthermore, the relations of the deceased were present with the deceased all along when his statement was recorded. Relying on the authority reported in 1976 PCr.LJ 545 the learned counsel contended that this dying declaration could not be relied upon.
There is no doubt that there are these infirmities in this dying declaration but then it is not in any way different .From the one recorded earlier and it is thus to be seen as to whether the earlier dying declaration could be made the basis of conviction or not."
Similarly it was argued by the learned counsel that dying declaration is in fact a weaker type of evidence because it is not subjected to cross-examination. Furthermore, the statement could be treated as dying declaration if the same has been immediately made when there is a solemn and probable chance of victim's death. In the instant case since there was no chance of impending death therefore reliance cannot be placed.On the dying declaration. In order to fortify his aforementioned contention reliance was placed on Zarif Khan v. The State PLD 1977 SC 612. We have perused the said judgement which is very exhaustive and illuminating but simultaneously there was divergence of opinion. However, it was held that dying declaration was a question of fact and no hard and fast rules can be laid down as to its admissibility and extent to which reliance can be placed. Mr. Yahya Bukhtiar then relied on PLD 1978 Karachi 792 wherein dictum was followed that dying declaration is a weaker type of evidence than evidence subjected to cross-examination.
12. In view of the aforementioned arguments we embark upon to determine firstly whether statement given by the deceased which was reduced in writing as Fard-e-Bayan (Exh.P/5-B) can legitimately be treated as a dying declaration because according to doctor the injuries caused to the deceased were not sufficient in the ordinary course to cause death and voluntarily stated that it could result in the loss of left leg totally. Thus, there was no impending apprehension of death when the statement was recorded but the injured actually expired as a result of injuries on the next day, after recording of his statement. In law there is nothing to indicate that the maker of the statement should necessarily be under immediate apprehension of death in order to treat A his last statement as a dying declaration. In case of Wazir Gul v. The State (1976 SCMR 471) this aspect was discussed by the Supreme Court and it was held that last incriminating statement of deceased such as in F.I.R. Can be legitimately treated as dying declaration. There is no need that such a statement was made under immediate apprehension of death. The relevant portion of the said judgment is reproduced hereunder: -- "In the first instance, the law does not insist that for the purpose of being treated as a dying declaration, the statement should have been made under immediate apprehension of death. We cannot import into the statutory provision any such extraneous limitation. In the absence of statutory requirement in this regard, the last incriminating statement made by the deceased could be legitimately treated as dying declaration as was rightly done in the instant case."
Therefore, the argument that since there was no immediate apprehension of death, hence the statement of deceased could not be treated as a dying declaration, is totally devoid of any force.
13. We now dilate upon to the other aspects. According to P.W.1 Zahid Hussain the deceased told him that son of Moulvi Niaz Muhammad namely Jalal made firing on him and injured him. But P.W.9 Abdul Sattar who was accompanying P.W.1 Zahid Hussain deposed that injured person told them that the person who had injured him with T.T. Pistol had run away. Similarly P.W.10 Zahoor stated as under: --- "The police officials enquired from the injured person as to who had injured him. The injured replied that he could not identify the assailant."
It is pertinent to mention here that Syed Abdul Rahim who was a prosecution witness and was the gunman of S.H.O. Zahid Hussain was dropped but the appellant produced him in defence' as D.W.1.
He was accompanying P.W.1 Zahid Hussain and stated as under: -- "The S.H.O. Enquired about him whereupon the injured told him that the assailant was running on that side."
14. The upshot of the above discussion is that there are 4 witnesses namely P.W.1 Zahid Hussain, P.W.9 Abdul Sattar, P.W.10 Zahoor and D.W.1 Syed Abdul Rahim who were present when injured was asked about the incident. The abovementioned 4 witnesses have given three different versions about information disclosed by the injured on the spot. The first is narrated by P.W.1 Zahid Hussain (S.H.O., Gowalmandi) according to whom the injured told him that son of Moulvi Niaz Muhammad namely Jalal made firing at him and injured him. The second version which is in utter contravention of above statement, given by P.W.10 Zahoor who stated that when the police officials enquired from the injured person as to who has injured him, the injured replied that he could not identify the assailant. Third version comes from the mouth of remaining two witnesses namely P.W.9 Abdul Sattar (driver of the S.H.O.) and D.W.1 Syed Abdul Rahim (gunman of S.H.O.). Both of them stated that the injured told them that the person who has injured him with T.T. Pistol has run away or was running away on that side. The crucial point for determination, therefore, would be whether the injured disclosed name of Jalal or stated that he could not identify the assailant. On this point P.W.1 Zahid Hussain and P.W:10 Zahoor contradict each other materially. The genuineness of testimony of both becomes very doubtful because they are obviously not telling the truth.
15. At this juncture it is pertinent to mention that Mr. Yahya Bukhtiar strenuously urged that the Court should not believe P.W.1 because the remaining three witnesses present on the spot contradict him. We find force in this argument. However, the question remains whether we should believe P.W.10 who, apparently, is the only witness, to be called independent or impartial witness as he does not belong to police department. It is difficult to do so because there is no principle of law to necessarily believe the testimony of an independent witness even if he is not telling the truth and to disbelieve the testimony of a police witness on the sole ground that he belongs to the police department but whose statement is otherwise corroborated and confidence inspiring. Adjudging the testimony of P.W.10 in juxtaposition with the testimony of P.W.9 and D.W.1 (both police officials) we have to take great care and caution to find out the credibility and truthfulness of these two versions. We would have readily accepted the argument of Mr. Yahya Bukhtiar if the two police officials who corroborated each other were found interested witnesses by supporting their immediate boss S.H.O., Gowalmandi but both of them did not support the S.H.O. When he deposed that the injured disclosed the name of the assailant on the spot. So much so that being driver of S.H.O. And gunman of S.H.O. Both these police officials clearly stated that on enquiry the injured replied that the assailant was running on that side or that direction. As far as P.W.9 Abdul Sattar is concerned he supported the version of S.H.O., that they immediately went to eastern direction and found a person running and started chasing him. But due to darkness in the narrow streets he could not identify his face. He was also witness of the identification parade but he clearly stated that he was told about the accused person. We would reproduce his exact statement as under: --- "I was told that the accused is that person."
This shows that he did not support P.W.1 in toto---..But simultaneously this is a proof indicating credibility and genuineness of his statement. Although the District Attorney requested the Court to declare him hostile but the request was turned down. Thus he did not support the prosecution on two counts i.e. He did not say that the injured disclosed the name of assailant and secondly that he did not identify the accused because of darkness and therefore at the identification parade. The accused was pointed out to him. Had he been an interested witness, he would have supported the prosecution on all counts. It is to be further noted that his version was corroborated by D.W.1 Syed Abdul Rahim.
16. In such circumstances we cannot conveniently ignore the testimony of P.W.9 because of its intrinsic value and its impartiality. But he also contradicts P.W.10. Thus, the statement of P.W.10 cannot be accepted as a gospel truth on the sole ground that he was an independent witness.
17. Another important aspect of the matter is that D.W.1 also contradicts P.W.10. He was the gunman of S.H.O. But the prosecution dropped him. However, the defence produced him as D.W.1. He never stated that on enquiry the injured replied that he could not identify the assailant. Thus, on this material point even the defence contradicts the statement of P.W.10. This being so the question would arise whether the defence can safely avoid the consequences of this testimony of D.W.1 who stated that on enquiry of the police officials the injured told that the assailant was running on that direction. In our considered view and for the fact that the deposition of D.W.1 is supported/corroborated by the testimony of P.W.9 the injured on the spot made no dying declaration as it is but natural in the course of events that the police was in hurry to pursue and chase the accused in order to arrest him, therefore; there was no occasion that the police should wait and record the dying declaration or the statement of injured. It has come on record through testimony of P.W.1 Zahid Hussain, P.W.9 Abdul Sattar, and P.W.10 Zahoor that the police immediately went after the accused. However, the accused could not be arrested.
18. From the above discussion we have come to the conclusion that soon after the firing the witnesses including the police reached on the spot and on query the injured stated that the accused had run towards eastern direction and the police started chasing him. He made no detailed statement and was soon shifted to the hospital. In the meanwhile the police informed the concerned Thana through police wireless control about the incident and P.W.5 Muhammad Akram and P.W.7 Shahbaz Ali proceeded to hospital and recorded Fard-e-Bayan which in fact is the dying declaration. The only question would arise how, then P.W.1 Zahid Hussain knew about the name of present appellant? The answer is found in the circumstances. In cross-examination P.W.1 stated that his statement was recorded at about 9-45 or 10-00 p.m. When the Investigating Officer had reached the spot. But the dying declaration was recorded at 8-30.p.m. According to statement of P.W.5. It was sent to City Police Station for registration of the case and report was accordingly registered by Abdul Qadir S.I. In cross-examination P.W.1 stated that staff of police station city including D.S.P., S.H.O. Ghafoor Marri S.I. Qadir alongwith 2/3 police officials reached there at about 8-30 or 8-45 p.m. He remained with them till 10-00 p.m. And during this period his statement was recorded. Therefore, it is obvious that Abdul Qadir knew about the name of appellant as disclosed by the injured in the Fard-e-Bayan which was treated as F.I.R. And case registered accordingly by Abdul Qadir. P.W.1 remained with them and as police official he might have told that the deceased in his statement has disclosed the name of appellant Jalaluddin and the possibility cannot be ruled out that he might have included the name of Jalal in his statement which was recorded according to him at 9-45 or 10-00 p.m.
19. Be that as it may, the injured did not make any statement on the spot except to say that the accused had run on that direction and the police rushed after the accused. Thus, there was no occasion for him to give detailed statement particularly when prima facie the injuries were not sufficient to cause death as the bullets hit him on legs and not on any vital part of his body. The argument advanced by Mr. Yahya Bukhtiar was that there are two dying declarations one made on the sport where the injured did not name the assailant and the second one recorded in the hospital in which he specifically named the appellant cast doubt on the dying declaration and the one which favours accused should be taken into consideration and believed. We do not associate ourselves with this argument because in our view, keeping in view the surrounding circumstances, when the police reached it has no time to record the statement of the deceased as the accused was then running and could be arrested. Therefore, the injured told the police that accused was running on that side and the police chased him. It is thus concluded that there were no two dying declarations made by the deceased. The argument of Mr. Yahya Bukhtiar that out of two dying declarations, one which favours the accused must be believed becomes irrelevant and the authority PLD 1962 Dacca 418 is inapt to the circumstances of the present case.
20. We now proceed to scrutinize the veracity of dying declaration Exh.P/5-B. The said dying declaration is reproduced in Vernacular as under: --
21. The first objection raised by Mr. Yahya Bukhtiar was that the above statement was not a dying declaration but at the most it can be treated as a statement under section 161, Cr.P.C. Recorded by the police. The complete answer of this objection may be found again in the case of Wazir Gul v.
The State 1976 SCMR 474. The relevant portion of which has already been reproduced and where it was held that last incriminating statement of deceased such as in F.I.R. Could be legitimately treated as a dying declaration.
22. We now deal with the second objection raised by Mr. Yahya Bukhtiar that since there was a cross (x) where the injured has to sign in the Fard-e--Bayan (dying declaration), Therefore, the police has already prepared the statement and asked the injured to sign the same. This argument is equally devoid of force firstly because there is nothing on record that police already has knowledge or information about the name of assailant except to believe P.W.1, which we have already disbelieved. Secondly because the signatures of the injured has never been challenged by the defence and the injured in the ordinary course should not sign a paper, the contents whereof were wrong. Even otherwise it has no far-reaching effect to the correctness and truthfulness of the statement.
23. Third objection raised was that the statement has not been recorded in the language of the injured. He could not speak a chaste Urdu being a Pathan but the defence failed to produce any evidence that the injured could not speak a good Urdu.
24. Last but not the least objection raised was that the doctor was not asked by the police to put his signatures on the dying declaration. We have already held that dying declaration may be treated as any other evidence and that the opinion of the doctor would become necessary only in case where, it is alleged that the injured was rot in his senses while making the statement. Here the case of the defence is that there was no immediate apprehension of death of the injured hence in our view in the peculiar circumstances of this case the statement or signatures of the doctor was not necessary because it has never been challenged that the deceased has lost his senses and could not speak.
25. After saying this much about dying declaration it is to be seen whether the dying declaration finds support and is corroborated from other evidence on record or not. The prosecution produced P.W.2 Haideran Khan, the Magistrate who supervised identification parade held in City Police Station, Quetta. According to his statement P.W. Abdul Sattar identified the accused who was standing at S.No.6 from left to right. But P.W.9 Abdul Sattar, as discussed already, stated that he was told about the accused, therefore, no legal weight could be attached to the statement of P.W.2 and the identification does not provide any corroboration to the dying declaration, in the circumstances of the case.
26. Another piece of corroboration may be found in the medical evidence which fully corroborates that the deceased received bullet injuries which causes compound fracture of left femur. However, the most important corroboration E is the recovery of T.T. Pistol and empties. It is the case of the prosecution that two empties of T.T. Pistol were recovered from the place of occurrence. According to P.W.6 two empties were found and taken into possession. One empty was lying at the place of incident while the other was lying about 7 to 8 feet away towards eastern side of the place of incident. These were placed in a plastic bag and sealed it into a parcel. The said inventory is Exh.P/6-C. P.W.11 Abdul Ghafoor Marri also supported the recoveries of empties from the place of incident.
27. Mr. Yahya Bukhtiar challenged recovery of empties mainly on the ground that despite having an opportunity to associate public witnesses no one has been so associated, therefore, the recovery of empties become doubtful. Reliance was placed on 1993 MLD 2271, 1990 PCr.LJ 331 and 1987 SCMR 1177.
28. It may be pointed out at this juncture that as regards public witnesses to be associated with the recovery of empties P.W.6 Arif Ali stated that no civilian person was available at the place of incident. Although an attempt has been made by the defence that inmates of Janan house in front of which the incident has taken place were present in the house but simultaneously the fact that it was night time and persons at the sport has gone to hospital alongwith injured therefore, we find a ring of truth in the deposition of P.W.6. Besides no mala fide has been alleged against the Investigating Officer or the police witnesses, therefore, in the peculiar circumstances of the present case we are of the firm opinion that the police had recovered these empties from the place of incident.
29. Similarly as regards recovery of pistol at the pointation and instance of accused Jalaluddin from Sadiq Shaheed Park the authority 1987 SCMR 1177 is inapt because the recovery has not been made from the house of the appellant but from a public park at the pointation and instance of accused. In case of Aftab Ahmad v. The State 1992 MLD 1919 (Lahore) it was observed that section 103 is applicable to the recoveries only made under Chapter VII, Cr.P.C. Whereas a recovery to be effected on the instance of accused which is within his exclusive knowledge stands on a different footing. Likewise in case of Muhammad Ramzan v. The State 1992 PCr.LJ 1058 the Federal Shariat Court held that provisions of section 103, Cr.P.C. Are applicable where search of a house is made but not where a recovery-is effected from a cattle shed which was lying open.
30. Besides, no mala fide has been alleged against the recovery witnesses and in case of Kotan Khan v. The State 1992 MLD 1944 a Division Bench of this Court upheld the conviction and sentence when record did not indicate any dishonesty or mala fide on the part of prosecution against the accused particularly when the defence witnesses had failed to prove that prosecution has withheld the evidence of the civilian private witnesses who were available at the time of search.
31. In view of above discussion we find that the recoveries provide ample corroboration to the dying declaration.
32. The next important question would be whether dying declaration is confidence inspiring and is true or not. This brings us directly to the plea of, defence. D.W.1 Syed Abdul Rahim in fact corroborated the prosecution version to a large extent except the fact that the injured did not disclose the name of the assailant in reply to a question by P.W.1 D.W.2 Turab Khan and D.W.3 Abdul Malik deposed that they have formed an Anjuman with the name and style of "Itehad-e- Nawjawanan Abdul Wali Chowk, Pashtoon Darra.
D.W.2 is its patron-in-chief. According to him Jalaluddin, the appellant is its Vice-President. He deposed that on the night of incident, Jalaluddin remained with them in a meeting from 7-00 p.m.
To 9-00 p.m. When he heard about arrest of Jalaluddih he went to inform the police that Jalaluddin was with them from 7-00 p.m. To 9-00 p.m. This statement was corroborated by the statement of D.W.3. In cross-examination, however, both the witnesses failed to produce any documentary evidence as regards minutes of the meeting except the certificate Exh.D/3-B. Both stated that they had no record to show that in fact any meeting was held on the day of incident and Jalaluddin attended the same from 7-00 p.m. To 9-00 p.m. In other words the appellant took the plea of alibi but failed to substantiate the plea of alibi through any documentary evidence. D.Ws. Produced in this respect showed their ignorance about the police officer whom they had informed. So much so that D.W.3 stated that he did not remember the name of police officer with whom he has a talk. He even did not know his rank. Thus, the defence failed to substantiate the plea of alibi through reliable evidence.
33. However, the accused in his statement recorded under section 340(2), Cr.P.C. Candidly admitted that he had a quarrel with Dost Muhammad (deceased) a few days before the incident in front of MARS English Language Centre at double road, where he was studying. In this fight they had exchange of fists besides they has old enmity with the relatives of deceased. The main plea of the appellant thus was that he was not present on the place of incident and that he has been implicated on account of previous enmity.
34. The prosecution case on the other hand is that deceased was passing through Khuda-i-Dad Road when he saw Jalaluddin who started laughing at him. On query Jalaluddin got infuriated and started firing at him with T.T. Pistol. The dying declaration also contains the factum of previous enmity. No relatives of the deceased were present at the time of recording of dying declaration to instigate the deceased to falsely implicate the appellant. The appellant clearly stated that he had a quarrel with appellant. Thus, the factum of quarrel of the deceased with appellant is corroborated and we have no reason to disbelieve it. It is most probable that after the quarrel Jalaluddin got himself armed with T.T. Pistol, and when he saw the deceased he started firing at him with the pistol. The recovery of pistol at the pointation of accused has already been believed by us. Report of Ballistic, expert is that the empties had H been fired with the said pistol. Thus, the attending circumstances and the evidence brought on record lead us to an inescapable conclusion that it was appellant who had fired at the deceased.
35. We now proceed to determine what offence has been committed. It has come on record through evidence of P.W.8 Dr. Amin Mengal that the injuries caused to the deceased were not sufficient in the ordinary course to cause his death, at the most his left leg could be lost by amputation. Even otherwise P.W.10 Zahoor has stated that there was a scuffle between two persons and then there was a firing as a result whereof one was injured and the other ran away. It becomes more probable in the circumstances of the case, that after seeing each other the deceased and the appellant who had already a fight a few days back started fighting. However, the appellant took out his pistol and aimed at the legs of the deceased and fired at him. The deceased received bullet injuries on his legs and fell down. The accused did not make any fire on vital part of his body but ran away. He only intended to cause harm to the body of the deceased but he had no intention to kill him. Even otherwise I the injuries inflicted by him according to police surgeon were not sufficient in the ordinary course of events to cause death of deceased.
36. According to Mr. Yahya Bukh are the offence in no circumstances falls under section 302, P.P.C.
On the contrary the offence may fall under sections 335 to 337, P.P.C.
37. But learned Additional Advocate-General submitted that in fact as a result of injuries the injured died, although it may not be intention of the accused to cause his death; therefore, it will be section 315, P.P.C. i.e. Qatl Shibh-i-Amd which would be attracted in the circumstances of the case.
Section 335, P.P.C. Is reproduced hereunder:--- "335.Itlaf-e-Salahiyyat-i-Udw.---Whoever destroys or permanently impairs the functioning power of capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause Itlaf-i-Salahiyyat-i-Udw."
According to prosecution evidence the appellant injured the legs of the, deceased and Police Surgeon opined that these injuries could cause loss of left leg (but not death as stated hereinabove). But the factual position being that deceased died as a result of these injuries, and therefore, according to our calculated view section 335, P.P.C. Is not attracted. However, it would be section 315, P.P.C. i.e. Qatl Shibh-i-Amd which has been committed by the appellant. Section 315, P.P.C. Defines the same and is hereby reproduced:--- "315.Oatl Shibh-i-Amd.---Whoever, with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death, is said to commit Qatl Shibh-i--Amd."
38. From the circumstances and perusal of evidence we believe the case of the prosecution that after being confronted with each other, the appellant and deceased started a fight (as they had a fight some days earlier between each other) the appellant fired at the deceased but with no intention to cause his death because he fired at his legs. The circumstances show that the appellant could easily aim and fire at his vital organs like abdomen, chest, head etc. But it seems that he had no intention to kill him, therefore, he only fired at his legs and ran away.
39. From the above discussion the only inference which could safely be drawn is that appellant committed an offence under section 315, P.P.C. We are, therefore, not inclined to confirm his death sentence. Criminal Reference No.9 of 1995 is answered accordingly.
40. As to sentence vie are of the opinion that the appellant shall be liable to Diyat. Thus, we convert the sentence of death into a sentence of payment of Diyat. The appellant shall pay Diyat of Rs.1,75,000 (Rupees one lac seventy-- five thousand) to the father or Wall of the deceased. Besides he shall suffer imprisonment -for a term of 7 years' R:I. As Tazir.
41. Since we have believed that the pistol had been recovered at the instance of the appellant, therefore, his conviction under section 13(e) of the Arms Ordinance is also upheld. However, both the sentences shall run concurrently.
42. This disposes of Criminal Appeal No.80 of 1995, Murder Reference No.9 of 1995 and Criminal Appeal No.88 of 1995.
43. Resultantly death sentence is Not Confirmed. However, the appellant Jalaluddin shall pay Diyat i.e. a sum of Rs.1,75,000 (Rupees one lac seventy--five thousand) to the Wallis of the deceased.
Additionally he shall suffer R.I. For 7 years for an offence under section 315, P.P.C. And 2 years' R.I. And to pay fine of Rs.10,000 or in default of payment to suffer R.I. For 6 months more for an offence under section 13(e) of the Arms Ordinance. However, both the sentences shall run concurrently.
Furthermore, benefit of section 382-B, Cr.P.C. Is also extended to the appellant.