' M. NAEEMULLAH KHAN SHERWANI, J.--- Rashid Ahmad son of Hafiz Ghulam Muhammad was tried by a learned Additional Session Judge at Mianwali for committing Qatl-e-Amd of one Muhammad Ramzan. By virtue of his judgment dated 27-2-1998, the learned trial Judge found him guilty of the said charge convicted him under section 302(a), P.P.C. And sentenced him to death with further direction to pay Rs,50,000 to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months.
2. Murder Reference No,85 of 1998 seeks confirmation of the said sentence of death awarded to Rashid Ahmad convict, whereas he has approached this Court by filing Criminal Appeal No,174 of 1998, to call in question conviction and sentence passed against him. We propose to dispose of both the matters together through this single judgment.
3. Occurrence of the alleged incident took place on 31-3-1996 at 8-00 p.m. Near the house of Sh.
Abdul Aziz, within the Revenue estate of village Jal situate at distance of three kilometres from Police Station Piplan, District Mianwali. The said occurrence was reported by Muhammad Ramzan deceased to Ghulam Shabbir, M.H.C. (P.W.3) at the police station who himself drew up formal F.I.R.
(Exh.P.C.) correctly as per dictation of the complainant on the same day at 5-00 p.m.
4. A bird's eye view of the contents of the F.I.R. Reveals that Muhammad Ramzan deceased alongwith his brother Muhammad Shabbir came to the police station and stated that he is resident of Jal Janubi. On the fateful night at about 8-00 p.m. He was going to his house from Piplan. When he reached near the house of Abdul Aziz Sheikh, all of a sudden Rashid Ahmad son of Hafiz Ghulam Muhammad armed with Chhuri came there and exhorted a Lalkara that he would teach him a lesson for his insult. He inflicted a Chhuri blow which hit below his umbilicus. He delivered second blow which hit his left thumb. On his hue and cry, Muhammad Amir, his brother and Amanullah who were passing nearby, were attracted to the spot.
' Motive behind the occurrence is that at 6-00 p.m. On the day of occurrence he disgraced Rashid Ahmad accused and slapped him. The accused injured him due to this reason. That is how the complainant set the police machinery into motion by getting the abovesaid case registered against the offender.
5. After regfstratior of the abovesaid crime report, Muhammad Muqarrab Khan S.-I. (P.W.11) immediately took the uphill task of investigation. On 1-4-1996 he came to know that Muhammad Ramzan had died in D.H.Q. Hospital, Mianwali. He went to D.H.Q. Hospital, Mianwali where he prepared injury statement (Exh.P.H.), inquest report (Exh.P.J.) of the deceased and dispatched the dead body to the mortuary under the escort of Muhammad Nawaz and Saifullah for the purpose of autopsy. On 2-4-1996 he got prepared site plans (Exhs.P.A. And P.A./1) from Muhammad Shafique (P.W.1). On 8-4-1996 he arrested Rashid Ahmad accused. On his pointation, he effected recovery of crime weapon i,e, dagger (P.5) and prepared seizure memo. (Exh.P.F.) which was duly attested by Ghulam Shabbir (P.*.3) and Muhammad Nawaz (not produced). He examined all the relevant witnesses under section 161, Cr.P.C. Prepared challan against the appellant, and submitted the same before the Court for his trial in accordance with law.
6. The trial Court after completing all the legal formalities proceeded to frame charge against the accused, which was explained and read over to him. He pleaded not guilty to the same and claimed to be tried as such
7. It was in these circumstances that the 'prosecution was called upon to adduce evidence to establish charge against the appellant. In compliance of the said direction, the prosecution ventured to produce as many as twelve witnesses.
8. Most prominent of all these witnesses are Dr. Jjaz Ahmad (P.W.5), Dr. Sher Ali Khan (P.W.9), Ghulam Shabbir (P.W.7) and Muhammad Amir (P.W.10).
' P.W.5 Dr. Ijaz Ahmad medically examined Muhammad Ramzan and found two injuries on his person. These injuries were caused by sharp-edged weapon. He prepared his report (Exh.P.E.) and proctorial diagram (Exh.P.E./1). Dr. Sher Ali Khan (P.W.9) had conducted postmortem examination on dead body of Muhammad Ramzan and observed three injuries on his body: According to him, these injuries led to damage of interim iliac artery and common iliac vein which led to severe haemorrhage. These injuries were sufficient to cause death in the ordinary course of nature. He prepared post-mortem examination report (Exh.P.C.) and pictorial diagram (Exh.P.C./1).
' Ghulam Shabbir (P.W.7) testified to the factum of recovery of dagger (P.5) at the instance of the appellant. Muhammad Amir (P.W.10) appeared as eye-witness of the occurrence. He in a nutshell reiterated the contents of the F.I.R. He implicated fully the accused and confirmed the parts played by him during the course of incident. P.W.12 Mark Michael Shaw tendered in evidence certified copy of original report of Serologist (Exh.P.M.). Evidence of remaining witnesses is of formal nature, so their statements do not require to be brought under discussion.
9. Learned Prosecutor gave up Muhammad Nawaz as being unnecessary and after tendering in evidence report of the Chemical Examiner (Exh.P.N.) declared the prosecution case closed.
10. The appellant was then examined under section 342, Cr.P.C. To enable him to offer handsome explanation with regard to his, involvement in the cast. He denied correctness of the allegation and alleged that he lodged complaint against the deceasec: who indulged in Narcotics. The deceased was murdered by some unknown person but due to abovementioned grudge he was falsely involved in this case. He opted not to make statement on oath as envisaged by the relevant provisions of section 340(2), Cr.P.C. In disproof of accusation brought against him. He produced no evidence in defence.
11. After fullest evaluation of facts and circumstances revolving around the matter, the learned trial Judge pronounced verdict of guilt against the appellant as aforementioned.
12. Learned counsel for the appellant while canvassing acquittal in favor of the appellant puts the matter like this:--
(i) That the prosecution produced only one eye-witness Muhammad Amir, who is brother of Muhammad Ramzan deceased. No other independent witness was produced. His statement is hardly sufficient to maintain conviction and sentence of the appellant.
(ii) That as a matter of fact it was an unseen incident. The complainant engineered false story subsequently after due deliberations and consultations with others. There was no motive with the appellant to commit the crime in question.
(iii) That recovery of Chhuri (P.5) at the instance of the appellant from an open place can hardly be treated as a corroborative piece of evidence.
13. On the contrary, learned counsel for the State submits that there was a definite motive as a quarrel took place at about 6-00 p.m. On the day of occurrence between the deceased and the appellant which caused annoyance to the appellant; that deceased himself set the criminal law into motion by reporting the matter at the police station in an injured condition. There was no reason with the complainant to implicate the appellant falsely in this case.
14. We have courteously heard learned counsel for the parties and gone through the evidence in its entirety for reappraisal of evidence. We have taken everything into our full consideration in the light of arguments advanced by both the sides. In this case occurrence took place on 31-3-1996 at 8-00 p.m. In the Revenue estate of village Jal situate at a distance of three kilometres from the police station. Muhammad Ramzan, victim of assault himself lodged information with the police station on the same night at 10-00 p.m. Through Report No,18 (Exh.P.C./1) of even date. Consequent upon death of Muhammad Ramzan F.I.R. (Exh.P.C.) was drawn up on the basis of same report on 1-4-1996 at 5-00 p.m. Muhammad Ramzan deceased was on his way to his house from Piplan. No sooner did he reach near the house of Abdul Aziz Sheikh at 8-00 p.m. Than appellant appeared at the spot while carrying a Chhuri. He addressed a Lalkara to the complainant that he would teach a lesson for having offered him insult on that day. Lalkara was followed by a forceful Chhuri blow landing below umbilicus of the complainant. Yet he inflicted another injury on thumb of his left hand.
Muhammad Ramzan raised commotion which attracted Muhammad Amir, his brother and Amanullah Arain, his co-villager. Reason behind outbreak of this incident was that on the day of occurrence at about 6-00 p.m. Deceased had insulted the appellant and delivered slaps which infuriated him a lot and he caused felonious injuries underneath umbilicus.
15. We would like to give comments on his statement. It was made by the deceased himself when he was fully conscious. He met his death in the hospital on the following day of the occurrence in the evening. Appellant was fully known to him. Just on that day at about 6-00 p.m. A appellant and the deceased had fallen out with each other. Deceased gave him some slaps. He felt aggrieved of this conduct of the deceased. He left the spot immediately and then came down to the place of occurrence at 8-00 p.m. Shouted a Lalkara and pounced upon the deceased saying that he would avenge his insult today. Thereafter he plunged his Chhuri in the abdominal region of the deceased.
This injury caused internal damage to vital organs. He sustained first effects of the injuries and breathed his last on the following day in the evening. Deceased has not only given full particulars of the appellant but also described the event fully well. He dictated his statement about the incident, the way in which it happened and the part played by the appellant. He also furnished reasons behind the occurrence. In our view this statement is not only relevant but also admissible in evidence by dint of application of Article 46 of the Qanun-e-Shahadat Order, 1984, which is reproduced as under:-- "Cases in which statement of relevant fact by persons who is dead or cannot be found etc. Is relevant.--- Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant in the following cases:--
(i) When it relates to cause of death.--- When the statement is made', by a person 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 in 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 proceedings in which the cause of his death comes into question."
16. This statement is free from outside prompting. There was no previous enmity in between the two. No reason is forthcoming as to why the appellant should have been falsely and maliciously implicated by the deceased. Story narrated in this statement is legitimate. We do not have small speck of doubt with regard to genuineness and correctness of this statement. Muhammad Amir brother of the deceased appeared as (P.W.10) as an eye-witness of the occurrence. He also did not have the slightest reason to depose falsely against the appellant in order to wish him maximum harm. His presence at the spot cannot be doubted by any stretch of imagination. He has offered handsome explanations as to how he was available at the spot. He is a wholly reliable witness.
Appellant could be arrested by the Investigating Officer during course of investigation on 8-4-1996.
He was interrogated by him with regard to crime imputed to him. Appellant while in police custody voluntarily led to the recovery of blood-stained Chhuri (P.5) lying concealed in a date palm tree. It was dispatched to the office of Chemical Examiner who found it stained with blood. Serologist came to the conclusion that Chhuri was stained with human blood. This atrocious crime was committed by the appellant out of an elaborate planning and for a definite motive. It cannot be designated as motiveless crime. We are of the considered view that prosecution has fully established charge against the appellant by the production of highly reliable evidence.
17. Conviction of appellant under section 302(a), P.P.C. Is against law because in order to convict a person by dint of application of section 302(a), P.P.C. Following essential elements have to be proved:--
(i) That the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(ii) by the evidence as provided in Article 17 of the Qanun-e-Shahadat P.O. No,10 of 1984).
So, his conviction is altered from section 302(a) to section 302(b), P.P.C. With no alteration in quantum of sentence.
18. For all these reasons we dismiss this appeal. Death sentence awarded to Rashid Ahmad appellant is confirmed and murder reference is answered in the affirmative.