Allah Ditta appellant was convicted by the learned Additional Sessions Judge, Mianwali, on 9th February, 1980, under section 302, P. P. C. And sentenced to imprisonment for life and a tine of rupees, three thousand or in default in payment of fine to undergo rigorous imprisonment for one year. Half of the fine, if recovered, was ordered to be paid to the heirs of the benefit of doubt and acquitted of the Muhammad saeed co-accused was given the benefit of doubt and acquitted of the charge.
2. Muhammad Saeed deceased and his brother Abdul Rehman went to their field on the night between 1st/2nd July, 1976, in order to irrigate it. Their turn of water was to start at mid-night. The deceased had a lantern and Kassi with him. He slept there for a while, whereas his brother Abdul Rehman went to the tube-well to enquire about the turn of water. Allah Ditta appellant and Muhammad Saeed acquitted accused came there at 10-00 p. m. Muhammad Saeed appellant held the deceased by the leg while Allah Ditta inflicted Kassi blow to the deceased on the neck.
Abdul Rehman, Shakoor and Ghulam Rasool were attracted to the spot. They witnessed the occurrence. The appellant and the acquitted accused away after the occurrence. The deceased was removed to Darya Khan Hospital, in an injured condition. Dr. Muhammad Aslam. Medical Officer Rural Health Centre, Darya Khan, recorded the din y g declaration of Muhammad Amir, on the night between 1st/2nd July, 1976, at 1.00 a. m. In the presence of Ghulam Sarwar Shah Lambardar, Angra. The Medical Officer added certificate at the bottom of the statement to the effect that Muhammad Amir remained in his senses throughout. He sent the dying declaration alongwith his memo to the S. H. O., Police Station Darya Khan. The case was originally registered under section 307/34, P. P. C. Muhammad Amir was shifted to District Hospital, Mianwali. Since he made little improvement in his condition, he was shifted to District Hospital, Sargodha for treatment. He expired, on 19th August, 1976. The offence was accordingly amended.
3. The motive for the present occurrence was a dispute between the deceased and the appellants over the turn of water.
4. Muhammad Aslam Shahab S. H. O. Police Station Darya Khan, recorded the formalF. I. R. On the basis of dying declaration. He reached Hospital and prepared injury statement of Muhammad Amir. On reaching the spot, he recovered blood-stained Chaddar and a lantern and took them into possession. Abdul Rehman P. W. Produced blood-stained Kassi which was taken into possession by the S. H. O. The S. H. O. Also recorded the statement of Muhammad Amir, on 7th July, 1976, under section 161, Cr. P. C.
Riaz Ahmad was posted as S. H. O. In August. 1976. He learnt about the death of Muhammad Amir.
He reached village Angra as the dead body had been brought to the said village from District Hospital, Sargodha. The S. H. O. Prepared injury statement and inquest report of the deceased and sent the dead body for post-mortem examination. He challaned the accused.
5. Dr. Muhammad Aslam medically examined Muhammad Amir, on tad July, 1976, at 2.15 a. m. And found an incised wound 3--" x 1" on the front of neck. It extended slightly towards left and right side of neck. The underlying wind-pipe was cut down. The injury was transverse in direction. The condition of the patient was serious. The injury was dangerous to life and caused with sharp- edged weapon within the duration of four hours.
Dr. Muhammad Aslam stated that he had correctly recorded the dying declaration of Muhammad Amir.
Dr. Asghar All conducted autopsy on the dead body of Muhammad Amir, on 21st August, 1976, at 9- 00 a. m. He found a healed scar on the front of neck. The right and left lungs were congested and had pneumonic patches.
In the opinion of doctor, the death was due to aspyxia due to pneumonia, due to stenosis of epiglottis by scarring on account of injury, which was sufficient to cause death in the ordinary course of store.
5. Besides the dying declaration, the prosecution examined only Abdul Rehman (P. W. 9) to prove the case.
6. It was a night time occurrence. The deceased had to take his turn of water at about midnight.
There was no occasion for Abdul Rehman have gone to the tube-well to ask about the turn of water. It was an excuse invented by Abdul Rehman complainant. The deceased was asleep at the time of occurrence. It was a case of single injury. There is no point in holding the deceased by the leg. The version given the deceased as well as Abdul Rehman that Saeed had held the ceased, was invented to rope in Muhammad Saeed, acquitted accused deceased had named Shakoor and Ghulam Rasool as eye-witnessesthey were not examined. It is strange that Allah Ditta appellant inflicted blow to the deceased when his brother Abdul Rehman came close to the spot. This version was introduced to make Abdul Rehman as an eye-witness in the case. Muhammad Aslam Shahab S. H. O. Deposed in Court that he found the accused innocent during the investigation. The defence brought on record copy of the report under section 173, Cr. P. C. It was mentioned in the said report that during investigation, the accused took up the plea that they were innocent and they were prepared to take oath about their innocence but the complainant party declined to accept their oath (Nian). It was further mentioned in the report that there was bad blood between the parties and, relations between the parties were not strained so as to provoke the accused to commit heinous offence like murder. Both the accused were left to the decision of the Court, in view of the dying declaration. The deceased was lying asleep before he was caused injury. After having received the injury, it was not possible for the deceased to identify his assailants. It was an unwitnessed occurrence. No reliance could be placed on the dying declaration. The prosecution failed to bring home the guilt of the appellants. The appeal is accepted and the appellant is acquitted of the charge. He is on bail and is discharged of the bail bond.