1976 PLP 471 (SCMR)

MUHAMMAD AFZAL CHEEMA, J--Wazir Gul petitioner was tried by the Sessions Judge, Peshawar, for having stabbed to death one Sawal Masih on 20‑12‑1971 at 16‑30 a.m. On conviction under section 302, P. P. C., the petitioner was sentenced to death which was confirmed by a D: B. of the Peshawar High Court, vide order dated 19‑9‑1974, This order is the subject- matter of the petition for special leave to appeal.

2. According to the First Information Report lodged by none less than the deceased himself, who on receipt of two knife injuries at the hands of the petitioner walked up to the Police. Station at a distance of one mile from the shop, the petitioner armed with a knife and accompanied by an unknown person visited the shop of the deceased on 20‑12‑1571 at 10‑30 a.m. and tried to extract a loan from him. On the refusal of the deceased, the stran ger caught hold of him while the petitioner gave him two knife injuries and dragged him out of his shop. They then fled away. On the report of the deceased wherein he mentioned two eye‑witnesses Musa Khan (P. W. 6) and Khanaada Gul, who was given up as won‑over, the cast was initially register ed under section 324, P. P. C. Medical evidence of the deceased revealed tyro injuries, one a stab wound on the left lumbar region on the front side x and the other an incised wound on the left thigh x '. Sawal Masih succumbed to the injuries on 23‑12‑1971 at 2‑10 p.m. in the Hospital, whereupon the offence was converted to one under section 302, P. P. C. Before the trial was held, (Doctor Inayat who examined the deceased while alive, proceeded to the United Kingdom for higher studies. His medicolegal report was, however, proved by his colleague Sher Bahadur Khan, who was conversant with his handwriting. Another development which took place was that Maddad Khan, A. S. I., who had recorded the F. I. R. on the dictation of the deceased was killed on 13‑1‑1973 and accordingly his state ment before the Committing Magistrate had to be transferred to the sessions file. According to the post‑mortem examination report, death had occurred due to shock and peritonitis caused by stab injuries to the ilium and perfora tion of the intestines.

2. The petitioner absconded and was arrested on 4‑4‑1972 after lie was declared a proclaimed offender.

3. As stated earlier, Khanzada Gul one of the two eye‑witnesses mentioned in the F. I. R. was given up at the trial as having been won over while Musa Khan (P. W. 6) the other eye‑witness, turned hostile and was allowed to be cross‑examined on the request of the Public Prosecutor. His testimony was, however, not considered of much avail to the prosecution and was excluded from consideration. The petitioner denied the allegations and tried to explain away his abscondencs on the pretext of having gone to Jalalabad (Afghanistan) to visit his sister and attributed his false implication to his enemies In the locality. He led no evidence in defence.

4. The F. I. R. which was later treated as dying declaration supported by the medical evidence and the circumstance of the abscondence of the petitioner vas considered by the Sessions Judge to be good enough to bring home the guilt to the petitioner. The same view was upheld in appeal/refer once by the High Court.

5. In support of the petition for leave, learned counsel tried to argue on the basis of Hidayatullah v. The State (P L D 1970 S C 13) that the deceased not being under immediate apprehension of death at the time of lodging the report, the same could not be treated as dying declaration, and it was next contended on the basis of Muhammad Bashir v. The Crown (P L D 1950 Lah. 185) that in the absence of any previous bad blood between the petitioner and the deceased the intention to kill could not be spelt out from the circumstances of the case particularly when the case was initially registered under section 324, P. P. C. The contentions are devoid of substance. 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 a 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. It was a quite unembellished and straightforward statement having a ring of truth.

6. As regards the second point of the two knife injuries at least one was given on the vital part of the body causing perforation of intestines and leading development of peritonitis. From the nature and the seat of the injury the intention to kill could be clearly spelt out. It is common know ledge that murders have been committed for no motive worth the name and at any rate or more minor pretexts. No hard and fast rule could be laid down in regard to the determination of intention which can be spelt out from all the ambient circumstance taken together. A host of them including the highhandedness of the petitioner ; the choice of the weapon of offence by him, the seat of injury and the damage done by it unmistakably establish the intention to kill or at least the knowledge that death could in all probability follow In consequence hereof.

7. No fault can be found with the High Court's judgment which proceeds on a proper appreciation of the evidence and correct application of the relevant principles of Law to the facts and circumstances of the case leaving no room for the interference of this Court. The petition is, there‑t fore, dismissed. Petition dismissed.