1981 PLP 1256 (SCMR)

ANWARUL HAQ, C. J.-Petitioner Waheed Khan was convicted by the learned Sessions Judge of Kohat for the murder of one Abdul Wahid, and sentenced to death, besides being ordered to pay a sum of Rs.5,000 as com pensation to the heirs of the deceased. A Division Bench of the Peshawar High Court has upheld his conviction and sentence in appeal and confirmation proceedings by its judgment dated the 15th of May 1970. He seeks leave to appeal.

2. The incident took place at 7-45 p.m. on the 24th of May, 1977, in village Bazadi Chakerkot, at a distance of only two furlongs from Police Station, Kohat Cantonment. It was reported at the police station by the deceased himself at 8-15 p.m. He stated that on the previous day he and the accused Waheed Khan had exchanged hot words, as a result of which the accused had attacked him with a knife when he was passing in front of the National Bank, and caused several injuries on the abdomen and other parts of the body. He further stated that one Usman Khan son of Ajab Khan and a Guard of the National Bank had witnessed the occurrence. The deceased expired in the hospital on the Ist of June, 1977.

3. Medical examination and the autopsy of the body of the deceased revealed that he had suffered a stab wound on the epigastrium cavity deep. a stab wound on the right side of the grain, and a stab wound on the left side of the chest on the 8th rib, and the injuries bad damaged his thoraz walls, abdominal wall and the peritoneum as well as the liver. According to Doctor Zafar Latif (P. W. 5) these injuries were sufficient in the ordinary course of nature to cause death.

4. At the trial the prosecution placed reliance on the dying statement of the deceased, as recorded by A. S.

1. Mir Imam Gul (P. W. 7), and sought corroboration thereof from the medical evidence, and the evidence of the chowkidar of the National Bank namely, Knalilur Rehman (P. W. 3), besides of the deceased. Abdul Wahab (P. W. 4). The other witness Usman Khan mentioned by the deceased as having witnessed the occurrence was given up by the prosecution. Both the Courts below as proving the guilt of the petitioner have accepted this evidence.

5. Leave to appeal is sought on the ground that the Courts below are in error in thinking that the dying statement of the deceased had been corro borated by the evidence of chowkidar Khalilur Rehman as to the identity of the assailant of the manner of the assault, as, in fact, the chowkidar had said nothing on this point, and the other witness mentioned by the deceased, namely. Usman Khan had been given up, with the result that the identity of the culprit was not established on the record beyond reasonable doubt. It is next contended that, in any case, the medical evidence does not show the presence of the ingredients of the offence of murder as defined under section 300 of the Pakistan Penal Code, as, in fact, death was due to peritoni ties and not because of the injuries alleged to have been infiicted on the deceased by the petitioner, and, therefore, the case fell within the ambit of the dictum of this Court in Muhammad Rahim v. Kafeerullah (1968 S C M R 1368).

6. We regret we see no merits in these submissions. As to the identity of the culprit, the dying statement of the deceased Abdul Wahid is quite clear, as he knew the accused, and he was attacked from close quarters, so as to rule out any question of mistaken identify. Both the Courts below have accepted the dying statement as being genuine and true, and nothing has been said at the Bar before us to cast any doubt on this finding of the Courts below. A As observed recently by this Court in Zarif Khan v. The State (P L D 1977 S C 612), a conviction can safely be based on the dying statement alone, if the Court is satisfied a to its genuineness and truth. In the present case the statement made by the deceased at the police station promptly after the incident amply meets both these requirement. Accordingly, ever. if no further corroboration was available, the petitioners conviction could be sustained.

7. However, the dying statement is fully supported by the medical evidence as well as the testimony of chowkidar Khalilur Rehman of the National Bank of Pakistan, who saw the assault being launched outside the Bank when be was preparing for Maghrib prayers. It is true that the chowkidar had said nothing about the identity of the culprit, but there is no indication that he knew the culprit, and, accordingly, it was clearly not possible for him to name the assailant. For the purpose we have to rely upon the statement of the deceased who had no motive whatsoever to name the petitioner falsely, if, indeed, he was not the man who had inflicted knife belows on him. The fact that Usman Khan, mentioned in the F.

1. R., was given up by the prosecution as having been won over, does not, in any manner, militate against the evidentiary value of the dying statement. We are, therefore, satisfied that the Courts below were right in coming to the conclusion that the deceased bad been assaulted by the present petitioner and by no one else.

8. Coming now to the question of the nature of the offence committed by the petitioner, we find that the case relied upon by Mr. Zahurul Haq has no application to the facts of this case. In that case the learned Judges found that there was a doubt as to whether peritonitis had been caused as a result of the injuries inflicted on the deceased, or by some other cause. In the instant case, there is no such doubt, as the autopsy of the body of the deceased clearly revealed that his vital organs including the liver and peritoneum had been injured by the blows given to him by the petitioner, and that the below, in themselves was sufficient, in the ordinary course of nature, to cause death. Such being the case, the offence committed by the petitioner fell fully within the purview of the definition of murder as given in section 300 of the Pakistan Penal Code.

9. For the foregoing reasons, the petition fails and is hereby dismissed. Petition dismissed.