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Criminal Appeal No. 625 of 1965, decided on 4th October 1968.
S. 32‑Uving declaration recorded by police officer and witnessed by two independent witnesses‑‑Deposition supported by evidence of eye witnesses and medical evidence‑‑‑‑‑Exclusion of such during declaration front consideration by trial Court‑‑‑Held, wrong, in circumstances of case.
‑‑ Relations‑cum‑hostile witnesses ‑ Evidence, if such witnesses corroborated by medical evidence and other circumstances of case ‑Held, rightly believed.
S. 302‑Murder‑Eye‑witness Deceased, in horror of injuries and safety for life not noticing presence of certain eye‑witness at place of occurrence‑‑Omission of such witness's name in during declaration‑‑Held, nor of much importance in circumstances of case.
Ghulam Hassan Zainulluh P L D 1961 S C 230 and, Siraj Din v. Kola P L D 1964 S C 26 ref.
Ss. 302 & 304, Part II Prosecution proving guilt of accused with regard to murder of deceased‑Trial Court, held, wrong in converting charge framed under‑ S. 302 to that under S. 304, Part II.
Barkat Ali Saleemi for Appellants.
Abdulluh Bajwa for the State.
The five appellants, namely, Muhammad Sadiq, his brother Rehmat, their nephew, Yousuf and their cousin, Yaqub, along with Bashir a co‑tenant of Rehmat accused, were tried under sections 148/149 and 302, P. P. C. fur the murder of their co‑villager, Piran Ditta. The learned trial Court convicted all the accused under section 30‑t, Part 11 read with 149, P. P. C. and sentenced. Muhammad Sadiq, Rehmat, Yaqub and Bashir to seven years' R. I. each and Yousuf, being aged fifteen year to four years R. I. Rehmat and Muhammad Sadiq. respectively, were also convicted under section 148, P. P. C. and sentenced to one year', R. I. each. The retraining three accused, Yaqub, Bashir and Yousuf were convicted under section 147, P. P. C. and each was sentenced to undergo six months' R. I. The sentence were ordered to run concur gently.
2. It may be mentioned here that the State appeal under section 4.17, Cr. P. C. against the judgment of the learned Additional Sessions Judge, Lahore dated the 22nd of June 1965, was dismissed by the High Court in limine as being time barred.
3. In the year 1954, Hussain, a brother of Muhammad Sadiq and Rehmat appellants and father of Yousuf appellant, was murdered. Maula Bakhsh, rather of Piran Ditty, deceased in the present case and Allah Ditta, the brother of the deceased were tried for the same. Maula Bakhsh was sentenced it, transportation for life while Allah Ditty was awarded the capital punishment. On appeal Maula Bakhsh was acquitted while the capital sentence awarded to Allah Ditty was confirmed and later on executed. Again, in the year 1961, Farmaish son of Maula Bakhsh was charged by Rehmat appellant in a case under section 307, P. P. C. Farmaish was discharged in that case.
4. On the 2nd of May 1964, the deceased Piran Ditfa alongwith P. Ws. Manzoor and Inayat were thrashing winnowing their wheat crop in their field at about noon time. Mst. Siddiqan, mother of the deceased was also taking part in the thrashing. Boota P. W., who was then a joint cultivator with the deceased, was sitting under a shisham tree and smoking huqqa. The fields of the accused are nearby the field where the deceased and the other P. Ws. were working. All the five accused rushed towards the deceased from their field. Rehmat accused was armed with a barchhi, Muhammad Sadiq had a hatchet and the other three accused were armed with dangs. While running towards the canal for safety Piran Ditta received a hatchet blow delivered by Muhammad Sadiq and a barehhi blow given by Rehmat. All the accused then attacked the deceased with their respective weapons and felled him down, Chiragh Din, a lambardar of village Khairary, who was standing on the opposite bank of canal, also saw the occurrence. The accused ran away. On the way, they came across P. W. Yaqub, brother of the deceased, who had earlier left the thrashing flour and had arrived there shortly before the occurrence and had seen the belabouring of the deceased by the accused. Muhammad Shafi and Chaman Masih had also reached the spot immediately after the occur rence. Muhammad Tufail, A. S. I. had received the information about this occurrence from a boy. He reached the scene of the occurrence and recorded the dying declaration (Exh. P. B.) of Piran Ditta deceased, which had been witnessed by P. Ws. Muhammad Shafi and Chaman Masih. On the basis of this dying declaration a case was registered at Police Station Manawan. During investigation, Sadiq and Bashir accused were arrested on the 6th of May 1964, and the remaining three accused were arrested on the 7th of May 1964. On the 9th of May 1964, Sadiq produced the hatchet (Exh. P. 6) from his cattle‑pen jointly owned by him and his co‑accused Rehmat. Bashir and Yousuf accused produced dangs (Exhs. P. 4 and P. 5), respectively, which were lying in the cut wheat plants.
5. Doctor Musharraf Hussain, Incharge, Rural Dispensary Halla (Pattoki) examined Piran Ditta on the 2nd of May 1964; at 3‑10 p.m. Piran Ditta had died in the hospital on the 2nd of May 1965, at 5‑00 p.m. Doctor Nasib R. Awan, Police Surgeon, Lahore, performed the post‑mortem examination on the dead body of Piran Ditta on the 2nd of May 1964. Doctor Musharaff Hussain had found the following injuries on the person of Piran Ditta:-
(1) An incised wound with clean cut margin measuring, " x " x ", situated below the left knee joint.
(2) A Punctured wound with clean cut margin measuring, " x " x ", situated 1" literal to injury No. 1.
(3) A bruise measuring, 2" x ", situated on the lateral aspect of the left leg (upper third) with swelling and suspected of fracture.
(4) A punctured wound with clean cut margin measuring, " x " x ", situated 2 " below from the right patalle.
(5) An incised wound with clean cut margin measuring, " x " x ", situated on the right patalle.
(6) An incised wound with clean cut margin measuring, 2" x " x ", situated on the front of the right leg with swelling (middle part).
(7) A punctured wound with clean cut margin measuring, " x " x ", situated on the right leg 1 " below the injury No. 6.
(8) A punctured wound with clean cut margin measuring, " x " x ", situated on the front of the right leg " below the injury No. 7.
(9) A bruise measuring, 1" x ", situated on the front of the right ankle joint with swelling.
(10) An incised wound with clean cut margin measuring, " x " x 1/8", situated in between the right ring and middle fingers.
(11) A bruise, 1" x ", situated on the dorsum of the right hand middle part with swelling.
(12) Scattered bruises of different sizes situated on the lateral aspect of the right arm.
(13) An abrasion measuring, 1 " x ", situated on the right elbow‑joint.
(14) A bruise, 1" x ", situated on the back of right wrist joint.
(15) An incised wound with clean cut margin measuring, " x 1/8" x ", situated on the chin (right side).
(16) A punctured wound with clean cut margin measuring, " x " x ", situated on the back of the left forearm near wrist joint, with swelling and suspected of fracture.
(17) A bruise, 1 " x ", on the dorsum of left hand middle part with swelling.
(18) A bruise, " x ", on the back of the right hip joint.
(19) A bruise measuring, 2" x ", situated one inch below the right scapula.
Injuries Nos. 3, 4, 5, 6, 7, 8, 9, 11, 14, 16 and 17 were kept under observation and the rest were simple in nature. Injuries Nos. 1, 5, 6, 10 and 15 were caused by sharp‑edged weapon. Injuries Nos. 2, 4, 7, 8 and 16 were caused by sharp‑edged pointed weapon and the rest were caused by blunt weapon.
Doctor Nasib R. Awan performed the post‑mortem examina tion on the body of Piran Ditta and found the following:--
(1) A lacerated wound, 1" x ", x skin deep on the left leg just below the left knee.
(2) A lacerated wound " x " x ", lateral to injury No. 1
(3) A contusion, 2" x ", on the left leg.
(4) A contused wound, " x " x skin deep on the right patalle.
(5) An incised wound, 3" x " skin deep on the right patalle.
(6) An incised wound, " x " x skin deep just below injury No. 5.
(7) An incised wound, 2" x " x skin deep on the right leg.
(8) A lacerated wound, " x " x skin deep on the right leg.
(9) An abrasion, 1" x ", on the right ankle.
(10) An incised wound " x ", skin deep on the right ring finger.
(11) An abrasion, 1" x ", on the right hand.
(12) An abrasion, 2" x 1", on the right arm.
(13) An abrasion, 1 " x ", on the right wrist.
(14) An abrasion, 1" x ", on the right wrist.
(15) An incised wound, " x ", skin deep on the chin.
(16) An lacerated wound, " x " x skin deep on left forearm.
(17) An abrasion, 1 " x ", on the left hand.
(18) An abrasion, " x ", on the back of the right hip.
(19) An abrasion, 2" x ", on the right scapula.
On internal examination the doctor found both the bones of left leg fractured. Both the bones of left forearm were also found to be fractured. The cause of death, in the opinion of the doctor, was shock and haemorrhage.
6. At the trial, Chiragh Din (P. W. 1), Boota (P. W. 2), Inayat (P. W. 3) and Manzoor (P. W. 4), gave ocular evidence of the occurrence. Doctor Musharraf Hussain (P. W. 5) supported his examination of the deceased. He stated that the incised wounds on the dead body could be caused by hatchet (Exh P. 6). Punctured wounds could be caused by any pointed instrument. The deceased was given proper medical aid when he was brought to the dispensary. The deceased, when alive, was bleeding and the doctor stitched his wounds. Doctor Nasib R. Awan (P. W. 13), had also held the post‑mortem examination of the deceased. This doctor stated in Court as follows:‑
"In the absence of proper medical aid to the deceased all the 19 injuries on his person were collectively sufficient in the ordinary course of nature to cause death. I had the report P. B. with me at the time of post‑mortem examination. Injury No. 2 in P. B. has been mentioned by me as injury No. 5 in my report P. C. Injuries Nos. 4, 7, 8 and 16 in report P. B. have been mentioned as Nos. 6, 7, 8 and 11 respectively in my post‑mortem report Exh. P. C. I had used an instrument known as Probe to measure the depth of the injuries. I did not notice any wounds stitched. I must have mentioned this fact in my post‑mortem report if any of the wounds of dead body had been stitched. Injuries Nos. 5 to 7 in my report can never be described as punctured wounds. These injuries had clean cut margins. I have, therefore, described them as incised wounds. I have inadvertantly stated above that injury No. 16 in report P. B. has been shown as injury No. 11. In fact this injury bears the same number in my report too. I do not agree that a punctured wound under which a bone has also been fractured can resemble a lacerated wound."
7. Sardar Muhammad Patwari (P. W. 12) prepared the site -plan (Exh. P. A.) at the instance of the witnesses mentioned there under the supervision of the investigating officer. Yaqub son of Din Muhammad (P. W. 15) deposed that he had seen all the five accused near the bridge of the distributory. Muhammad Sadiq had hatchet (Exh. P. 6), Rehmat had a barchhi and the other three accused had Bangs in their hands. Muhammad Shall (P. W. 17) and Chaman Masih (P. W. 18) supported the dying declaration as its marginal witnesses and their thumb -impressions have been taken by A. S. I. Muhammad Tufail (P. W. 19), who investigated the case.
8. As a result of the trial the five accused were convicted and sentenced as mentioned above. The learned Additional Sessions Judge had excluded the dying declaration (Exh. P. D.) from consideration for the main reason given in paras. 6 and 7 of his judgment. The reasons given by the learned trial Court for the exclusion of the dying declaration from consideration are very flimsy and of no legal consequence. This dying declaration was recorded by A. S. I. Muhammad Tufail (P: W. 19) and had been witnessed by the two independent witnesses, namely; Muhammad Shafi (P. W. 17) and Chaman Masih (P. W. 18). After a very careful scrutiny of all the physical circumstances appearing from the evidence and considering the surrounding circumstances in the case, I am of the view that the dying declaration (Exh. P. D.) is a genuine document. The evidence of the eye‑witnesses supports the deposition made in. Exh. P. D. Doctor. Musharraf Hussain found incised wounds, punctured wounds and other wounds caused with blunt weapon which support the prosecution case that hatchet, barchhi and dangs were allegedly used by the appellants. Judging from the nature of the injuries as described by Doctor Musharraf Hussain, I agree with his examination of the injuries. Doctor Nasib R. Awan, had examined the dead body of Piran Ditta deceased in the hospital on the third day of the death. The punctured wounds, so described by Doctor Musharraf Hussain might have contracted after the death and lost their depth and. therefore, Dr. Nasib A. Awan described these injuries as he observed them on such a late examination. I am, therefore, of the opinion that the dying declaration is also supported by the medical evidence. The learned trial Court was, therefore, wrong in excluding the dying declara tion (Exh. P. D.) out of consideration.
9. As regards the ocular evidence Inayat (P. W. 3) and Manzoor (P. W. 4) are indeed very close relations of the deceased and also have enmity with the accused. The presence of these two witnesses, however, on a joint thrashing flour at the time of the occurrence is only natural and, in my opinion, they have witnessed the occurrence. The evidence of these two relations‑B cum‑hostile witnesses is corroborated by the medical evidence and other circumstances of the case and I am of the view that the evidence of these two witnesses has been rightly believed by the trial Court. Boota (P. W. 2) was a joint tenant with the deceased during the days of the occurrence and was present at the scene of the occurrence. He left the joint cultivation after the occurrence and, therefore, has no reason to give false evidence in the case. This witness has also been rightly believed by the trial Court. The trial Court had also believed the evidence of Chiragh Din (P. W. 1) as being an independent witness and that there was the possibility of his presence at the time of the occurrence. Of course, his presence is not mentioned in the dying declaration (Exh. P. D.). But, this can be explained by the reason that at the time of the occurrence the deceased was running towards the canal side after having sustained a hatchet and a barchhi wounds and having been felled at the bridge of the canal and again belaboured by all the five accused with their respective weapons. The deceased was in a horror of injuries and safety for life and in this frame of mind it was possible that he had not noticed the presence of Chiragh Din on the canal bank in between the two canals at the place of the occurrence. So, the omission of Chiragh Din's name in the dying declaration is not of much importance. Ghulam Hassan v. Zainullah (P L D 1961 S C 230) supports this view. It has also been held in Siraj Din v. Kala (P L D 1964 S C 26) that mere non -mention of the name in the F. I. R. is not always sufficient reason for discarding the evidence of a person claiming to be eye witness. Thus, I agree with the trial Court in accepting the evidence of Chiragh Din (P. W. 1).
10. On the overall consideration of the prosecution evidence in the case I am of the view that the prosecution has proved the guilt of the appellants with regard to the murder of Piran Ditta in furtherance of their common object by forming an unlawful assembly. The learned trial Court, in my opinion, was wrong in converting the charge framed against the appellants from section 302, P. P. C. to that of section 304, Part II. His reasons are:‑
"They have been cautiously avoiding injuries on the vital part of the body of the deceased. The weapons were not used by them with much violence. Their object as disclosed by Manzoor P. W. 4 was to give a good thrashing to the deceased. The deceased had fractured his forearms and legs which could not invariably cause death. The injuries have been declared as collectively sufficient to cause death in the ordinary course of nature if not treated properly. Absence of proper medical treatment does not in law affect the nature of offence respon sible for the death of a person. All the above facts would bring the offence under Part II of the section 304 as it is somewhat doubtful whether the accused intended the death of the deceased."
The conclusion of the trial Court reducing the offence of the appellants is betrayed by his own reasons as given by him. However, the State appeal against the judgment of the learned trial Judge has been dismissed in limine by the High Court for being time‑barred.
11. For the reasons given above, I see no merit in this appeal which is hereby dismissed.
Appeal dismissed.
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