' QAZI MUHAMMAD FAROOQ, J.--- This criminal appeal is directed against the judgment, dated 21-6- 1995 of the learned Sessions Judge, Charsadda whereby the appellant Sardaraz, aged about 40 years, was convicted under section 302, P.P.C. And sentenced to imprisonment for life, with benefit under section 382-B, Cr.P.C., and a fine of rupees two lacs, payable on recovery to the extent of Rs,1,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, or five years further R.I. In default. We have also before us a Criminal Revision Petition No,87 of 1995 for enhancement of the sentence of imprisonment for life to that of death.
2. The accusation against the appellant was that on 25-5-1992 at about 4-00 p.m. He had murdered a school teacher named Inamullah in village Geedar Killi. The report about the occurrence was made by the deceased himself in an injured condition at about 5-30 p.m. In the District Headquarter Hospital, Charsadda where he was medically examined at 6-10 p.m. By Doctor Mansoorullah Jan (P.W.9) who found the following:-- ' Fire-arm injury 1" x 1" two inches below the left side anterior and superior iliac spine.
' The nature of the injury was grievous. The patient was referred to the Lady Reading Hospital, Peshawar for further treatment at the behest of his relatives.
3. The deceased had expired in the Lady Reading Hospital, Peshawar on 26-5-1992 and autopsy on his dead body was conducted at 5-45 p.m. By Doctor Faizullah who was not available at the trial of the appellant and the post-mortem examination report was proved through secondary evidence furnished by Doctor Sahibzada Taimour (P.W.10).
4. According to the F.I.R.-cum-dying declaration, on the eventful day the deceased, who was a teacher in the Primary School, Afghan Colony No,2, Peshawar, had gone to village Geedar Killi to see his maternal-uncle Jehanzeb Khan. When he came out of the house of his maternal-uncle he found the appellant standing near the Transformer duly armed with a shotgun. He asked the appellant to listen to him. In the meantime the appellant fired a shot at him as a result of which he sustained an injury on his left side below the ribs. The occurrence was motivated by an altercation between the appellant and the maternal-uncle of the deceased which had taken place a day prior to the occurrence.
5. At the trial, the prosecution examined as many as eleven witnesses including Doctor Mansoorullah Jan (P.W.9), Dr. Sahibzada Taimour (P.W.10), Khan Zeb (P.W.7) and Amir Zeb (P.W.8), who furnished ocular evidence and Fazal Dad, S.-I. (P.W.11) who had recorded the F.I.R.-cum-dying declaration in the District Headquarter Hospital, Charsadda.
6. When examined under section 342, Cr.P.C. The appellant denied the allegations leveled against him by the prosecution, professed innocence and made the following statement:-- "I am innocent and falsely charged. In fact on 25-5-1992 at 5-00 p.m. I alongwith Fazli Subhan and Wajid and some other people were present in our Baithak when in the meanwhile Inam son of Muhammad Nazeer resident of Afghan Colony, Peshawar, deceased of this case Shahabuddin, Subhanuddin, Amirzeb and Khanzeb P.Ws. Except Subhanuddin came duly armed with fire-arms and attempted at my life by firing at me. I received injury on my leg, thereafter, the abovementioned persons decamped from the spot. Motive for that occurrence was that my wheat crop was lying in the threshing floor situated near the house of Shahabuddin etc. On which they were annoyed. I was taken to D.H.Q. Hospital, Charsadda where I lodged a report to Muhammad Islam Khan, A.S.-I. Who recorded the same. Later on I was medically examined and the case vide F.I.R. No,373, dated 25-5-1992 under section 324/148/149, P.P.C. Of Police Station Charade was registered. I have not committed any offence."
' He also examined four witnesses in defence. The first witness produced by him was Dr. Muhammad Izhar (D.W.1) who stated that he had medically examined him on 25-5-1992 at 10-15 p.m. And found the following:--
(1) About 3/4 c.m. Wound, circular in shape on right thigh about at the junction of upper 1/3rd and lower 2/3rd of thigh, antero-medically.
(2) About 3/4 c.m. Wound of the same shape and at the same level,. 4/5 c.m. From wound No,1 and antero-laterally.
' The injury was caused by fire-arm and its duration was 4 to 6 hours. The second witness, namely Hazrat Ali M.H.C. No,9 (D.W.2) deposed about the recovery memo. In respect of the blood-stained garments of the appellant and Muhammad Islam, S.-I. (D.W.3) stated that he had recorded the report, copy Exh.D.W.3/1, made by the appellant in the Casualty Ward of District Headquarter Hospital, Charsadda. The last witness Fazal Dad, S.-I. (D.W.4) deposed about the investigation conducted by him in connection with the report made by the appellant.
7. The conviction and sentence of the appellant were assailed by the learned counsel for the appellant on the following grounds:--
(i) The appellant had absolutely no motive to commit the murder of the deceased. The motive set up in the F.I.R. Pertained to an altercation between the appellant and the maternal-uncle of the deceased but at the trial it was substituted by another motive to the effect that an altercation had taken place between the maternal-uncle of the deceased and uncle of the appellant. In any case none of the motives was established.
(ii) The F.I.R.-cum-dying declaration was a fabricated document. It was recorded in presence of the relatives of the deceased and the Police Officer who had recorded it had not obtained a certificate from the doctor with regard to the physical condition and fitness of the deceased then injured. There was also nothing on the record from which it could be gathered that the deceased was in enjoyment of his senses at the crucial time.
(iii) The ocular evidence had been furnished by chance witnesses who both being sons of Jehanzeb Khan, maternal-uncle of the deceased, were closely related to the deceased and highly interested in conviction of the appellant.
(iv) The dying declaration and the ocular evidence were not corroborated by independent evidence.
(v) The deceased and the eye-witnesses Khanzeb and Amirzeb had attacked the appellant as a result of which he had sustained injuries which were no self-inflicted as stated by doctor Muhammad Izhar (D.W.1). The appellant had made a report in the District Headquarter Hospital, Charsadda on the basis whereof a case under section 324/148/149, P.P.C. Was registered vide F.I.R.
No,373, dated 25-5-1992 but the learned trial Court had not taken the counter-version into consideration.
8. The learned counsel appearing for the State and the learned counsel for the complainant, on the other hand, supported the impugned judgment by reiterating the grounds of conviction contained therein and adding that at the time of making his report the deceased was in full enjoyment of his senses and there was no immediate apprehension of his death, therefore, the police had not deemed it necessary to obtain a certificate from the doctor with regard to his capability to make a report.
9. Before dealing with the contentions raised by the learned counsel for the appellant we would like to observe that the appellant has neither taken the plea A of self-defence nor the same is spelt out by the prosecution evidence.
10. It is true that dying declaration is a weak kind of evidence but in the present case we are convinced that sanctity of the dying declaration of the deceased is inviolable and the learned trial Judge was fully justified in placing implicit reliance on it. The dying declaration not only rings true intrinsically but also meets the requirements of other principles governing the genuineness of a dying declaration. The time of occurrence excludes the chance of mistake in identifying and naming the assailant. The element of prompting is also missing because there is nothing in the record to show that the relatives of the deceased were talking to the deceased when his report was being recorded. Rather it is in the cross-examination of Khanzeb (P.W.7) that at the time of recording of the F.I.R. The Investigating Officer had asked the relatives of the deceased to get aside.
It is evident from the statement of the scribe of the dying declaration, namely, Fazal Dad, S.-I.
(P.W.11) that the deceased was in his full senses at the time of making the report. The medical evidence also suggests the same because the main vital organs as also the larynx and trachea of the deceased were not injured. It would have indeed been in the fitness of things if the police had obtained a certificate from the doctor regarding physical condition of the deceased but the omission is not fatal because the F.I.R.-cum-dying declaration bears the signature of Dr. Mansoorullah Jan (P.W.9). We tend to agree with the view that the Police may not have deemed it necessary to obtain the requisite certificate owing to lack of apprehension of death of the deceased. In so far as the principle of corroboration is concerned it will be enough to say that the dying declaration is amply corroborated by the medical and the ocular evidence.
11. Coming to the ocular evidence we would hold at the outset that in - relationship of the eye- witnesses with the deceased is not sufficient to discredit them because in the absence of a strong and established motive and enmity they cannot be labelled as interested witnesses. Their testimony does not suffer from any noteworthy infirmity and is also corroborated by the medical evidence. They are natural and not chance witnesses because the deceased had come to their house from Peshawar and being his cousins and hosts they were supposed to accompany him.
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12. As regards the motive it will suffice to say that weakness or absence of motive cannot destroy the prosecution case as it is by now firmly settled that motive is not an essential component of murder.
13. This brings us to the so-called cross-case or counter-version of the occurrence. The deceased was fired at in an open place near a Transformer at about 4-00 p.m. Whereas the appellant was allegedly fired at in his Baithak at about 5-00 p.m. And he had made the report in D.H.Q. Hospital at 10-15 p.m. The disparity between the time and venue of the two incidents makes it manifest that the so-called cross-case had not arisen from the incident involving the murder of the deceased.
The appellant thus, cannot make any mileage either from his statement under section 342, Cr.P.C.
Or the case registered on his report which was subsequently cancelled.
14. The criminal revision for enhancement of sentence was not pressed by the learned counsel for the complainant and rightly so because the normal penalty was withheld by the learned trial Court on correct premises. However, the sentence of fine having not been prescribed by section 302, P.P.C. Is liable to be set aside and substituted by a simple order for payment of compensation under section 544-A, Cr.P.C.
15. In the result, the sentence of fine is set aside and the appellant is directed to pay a sum of Rs,1,00,000 as compensation under section 544-A,I , Cr.P.C. To the legal heirs of the deceased or suffer six months' S.I. In default. u With this slight modification the appeal is dismissed.