This is an appeal by Shaukat (16/17) against his conviction under section 302, P.P.C. By learned Sessions Judge, Muzaffargarh who vide judgment, dated 2-6-1984, sentenced him to imprisonment for life and fine of Rs.15,000 or in default three years' R.I. It was directed that the fine, if recovered, be paid as compensation to the heirs of the deceased. He was also allowed benefit of section 382-B, Cr.P.C.
2. Ghulam Qasim father of the deceased filed Criminal Revision No. 187 of 1984 for enhancement of sentence. This revision was ordered to be heard alongwith the appeal. I propose to dispose of both these matters by this judgment.
3. The occurrence in this case took place at 3.00 p.m. On 6-10-1981, in a street in front of the house of Shaukat alias Shafqat in Kot Addu town, about three furlongs from Police Station Kot Addu. The formal F.I.R. Exh. P.E./1 was recorded at 4.10 p.m. On 6-10-1981 on the statement of Mulazam Hussain deceased Exh. P.E. Which was recorded in the hospital at 4.00 p.m. By S.I. Raja Fide Hussain P.W. 5, which also contained an endorsement Exh. P.E.12 by the Medical Officer who recorded that he was present when the statement was recorded and Mulazam Hussain remained in senses.
4. The prosecution case as disclosed in the statement of Mulazam Hussain deceased Exh. P.E. Is that on 6-10-1981, at about 3.00 p.m., he alongwith Kaloo and Ghulam Shabbir was returning to his house after seeing cattle-fair: When they reached Chah Langeywala near the house of Shauket accused, they saw him coming armed with a Chhura. Shaukat accused challenged by saying that he would teach him a lesson for passing from that street and coughing mischievously (Khangoora). It was further stated by Mulazam Hussain that thereafter the accused caused him injuries with Chhura, He fell down. The accused gave more blows to him on his back and buttocks.
The alarm attracted Kaloo and Ghulam Shabbir and other persons as well. The accused managed to run away. Kaloo and Ghulam Shabbir took him to hospital. It was further stated by him that Shaukat had injured him on account of his illicit relations with a Khata of the accused. Mulazam Hussain was initially examined by Dr. Abdul Hameed Chughtai P.W. 9 on 6-10-1981, at 3.30 P.M. The Medical Officer noted five injuries on his person. Injury No. 1 was a punctured wound on the left side of chest 2 -- cm lateral to nipple at 5th inter-costal space 3 cm x 2 cm. Injury No. 2 was a punctured wound at dorsal spine area middle part 3 -- cm x 1 -- cm with emphysema at right side of back and above the wound. Injury No. 3 was a punctured wound 3 cm x. 1 cm at the left side of back of lumbar region. Injury No. 4 was an incised wound 11 cm x 2 cm starting from left buttock coming to middle of thigh. Injury No. 5 was a punctured wound 3 cm x 1 -- cm x muscle deep on left thigh. Injuries Nos. 1 and 2 were declared dangerous to life and the other injuries were kept under observation. The injuries has been caused by a sharp-edged and pointed weapon and were of within one hour duration. Mulazam Hussain (22) was immediately referred to Nishtar Hospital where he died on the same day at about 10.00 p.m. The post-mortem on his dead body was conducted by Dr. Akbar Saeed P.W.
7. He noted the same injuries on the dead body as given in detail above. On internal examination, injury No. 1 after piercing the 5th inter-costal space, had punctured pleurae and left upper lobe of lung. Chest cavity was full of blood under injury No. 2 which has pierced in the chest cavity through 9th inter-costal space close to the spine and had ruptured the right pleura and lower lobe of right lung. The death was due to shock and haemorrhage as a result of injuries Nos. 1 and 2, which were sufficient individually and collectively to cause death in the ordinary course of nature. The probable time between injuries and death was about eight hours and post-mortem was conducted about 14 hours of death.
5. The accused Shaukat alias Shafqat was got examined by police from Dr. Muzaffar Hussain who was not available for evidence. Kaleem Ullah D.W. 1, Operation Theatre Assistant, Civil Hospital, Kot Addu was examined to prove the injuries on the person of the accused. The medico-legal certificate is Exh. D.B. Which indicates that accused had three incised wounds by sharp-edged weapon on his right hand.
6. The accused was arrested on 7-3-1981. At that time he was found wearing shirt P. 1, Shalwar P. 2 both blood-stained. These were taken in possession vide memo Exh. P.B. By S.I. Fida Hussain in presence of Khadim Hussain P.W. 3 and Allah Wasaya (not examined). On-10-10-1981, the accused while in police custody led to the recovery of blood-stained Chhura P. 3 from beneath Sarkanda bushes which was taken in possession by S.I. Fida Hussain P.W. 5 vide memo. Exh. P.C. In presence of Ahmed Bakhsh P.W. 4 and Ghulam Hussain (not examined). Chhura P. 3 and clothes of accused were found stained with human blood vide report of Chemical Examiner Exh. P.M. And that of Serologist Exh. P.L. The accused was challaned after completion of the investigation.
7. The prosecution during the trial examined nine witnesses in all. Kaloo P.W.1 was examined as the only eye-witness. Ghulam Shabbir, another eye-witness, was given up as unnecessary. Dr. Akbar Screed P.W. 7, Dr. Abdul Hameed P.W. 9 and Kaleem Ullah D.W. 1 furnished medical evidence in this case which was investigated by S.1. Fida Hussain P.W.
5. Ahmed Bakhsh P.W. 4 supported the recovery of Chhura P. 3 from the accused. The evidence of the rest of witnesses was of formal nature.
8. The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. He denied the recovery of Chhura and blood-stained clothes from him. He pleaded that he acted under the impulse of grave and sudden provocation and also to save his life.
It was stated by him that on the day of occurrence he returned home at 3.00 p.m. And found his Khale. Mst. Ghafooran Kausar sitting with Mulazam Hussain deceased in suspicious circumstances.
As he entered the house, he was attacked by Mulazam Hussain deceased. Both grappled and in that scuffle, both went out in the street. He snatched knife from the deceased who thereafter took out another knife. It was further stated by him that he caused injuries to the deceased in self- defence as well as under grave and sudden provocation.
The learned trial Judge placed reliance on the evidence of eye-witness, the dying declaration Exh.
P.E., motive, recoveries of Chhura and blood-stained clothes from the accused. He disbelieved the defence version and convicted the accused as stated above.
9. I have gone through the record of this case and have also heard the learned counsel for the appellant as well as the learned counsel appearing on behalf of the complainant and the State.
The prosecution case mainly rests on the evidence of Kaloo P.W.1 and the dying declaration. The place of occurrence and the time of occurrence is not disputed by the defence. It is contended on behalf of the appellant that no reliance should be placed on the crying declaration Exh. P.E. And the statement of Kaloo P.W.
1. I have considered this contention on behalf of the appellant. It was stated by Mulazam Hussain deceased that he was taken to the hospital by Kaloo, Ghulam Shabbir and other persons but a perusal of the medico-legal certificate prepared by Dr. Abdul Hameed P.W. 9 would show that Mulazam Hussain was A taken to the hospital by his father Ghulam Qasim. When S.I. Fida Hussain P.W. 5 reached the hospital, he did not find or note the presence of Kaloo P.W. 1 there. The statement of Kaloo P.W. Was also not recorded in the hospital. I am, therefore, of the view that Kaloo P.W. 1, did not take Mulazam Hussain deceased to the hospital nor was he present there when S.1. Fida Hussain reached there. It is in the statement of Dr. Abdul Hameed P.W.9 that- neither he nor the Sub-Inspector attempted to call a Magistrate for recording the statement of Mulazem Hussain. The Investigating Officer S.I. Fida Hussain P.W.5 stated in cross-examination that two other persons were present besides doctor when he recorded the dying declaration of Mulazam Hussain but he did not obtain their signatures under the said statement. He further stated that when he recorded the statement of injured, his brother Khadim Hussain P.W. And his father Ghulam Qasim P.W. Remained present there. He expressed ignorance as to who had brought the injured to the hospital who was lying there alone. He stated that when he recorded the statement of injured, Kaloo and Shabbir eye-witnesses were not with him. He did not see them in the hospital and that he recorded their statements at the spot. It is, therefore, clear from the evidence of the Investigating Officer that at the time of recording of the dying declaration, the relatives of Mulazam Hussain deceased were present E and the possibility cannot be excluded that a story was fabricated and put in the month of the deceased before recording of his statement Exh.P.E. There is another point which requires consideration in this behalf. S.I. Fida Hussain P.W.5 in his examination- in-chief during the trial stated that on 6-10-1981, he was present in the Police Station when Moharrir of Police Station told him about a telephonic message from Civil Hospital that a person in injured condition was present there. However, in the Karwai Police under the statement Exh .P.F. It was recorded by him that he alongwith A.S.I. Muhammad Ramzan and F.C. Ata Ullah was present at Adds Larian on patrol duty when he learnt about the admission of an injured in the Civil Hospital, Kot Addu in precarious condition. He was fully confronted with this writing. He explained that Bus Stand was quite close to the Police Station and may be 10/15 paces. This explanation is not convincing because he very clearly stated that he was present in the Police Station. This was an unambiguous statement and contradictory to the one recorded in the Karwai Police. In view of these circumstances, I am of the view that no reliance could be placed on the dying declaration Exh.P.E. Of Mulazam Hussain deceased.
Kaloo P.W.1 is the only eye-witness examined during the trial. As stated above, the Medical Officer did not note his presence in .The medico-legal certificate of Mulazam Hussain. He was not seen by the investigating Officer in the hospital and his statement was recorded at the place of occurrence.
He was a neighbour of Mulazam Hussain deceased residing at o distance of half furlong from the place of occurrence. It was admitted by him that cattle market is held in Kot Addu on every Friday.
The prosecution case, as stated in the dying declaration Exh.P.E. As well as according to this witness was that they had gone to the cattle market and were returning home when the present occurrence tool; place near the house of the accused. The occurrence took place not on Friday but on Tuesday which was not the cattle market day. It was stated by Kaloo P.W. That villagers bring their cattle at the said market for sale; that Shabbir and Mulazam Hussain deceased were together in the market and that he met them there; that they remained in the market till 2-30 P.M. When they all started for their house from the market. He further stated that he had gone to the castle market to purchase a lamb for Bakar Eid. The statement of this witness as well as the dying declaration Exh.
P.E. Clearly indicate that there was a cattle market on the day of occurrence and that they had gone to make purchases from the said market. It being not a Friday, there was no cattle market on the day of occurrence and as such, the prosecution story that the witnesses alongwith the deceased had gone to make purchases from the market falls down. It was stated by this witness that as he was not concerned, therefore, he did not interfere when the accused raised lalkara. He expressed ignorance whether deceased Mulazam Hussain was a personal servant in the house of the accused sometimes before the present occurrence. He admitted that the accused Shaukat got his hand injured with his own Chhuri at the time of occurrence. Kaloo P.W being a resident of a place about half furlong from the spot of occurrence besides a chance witness; secondly, it being not a Firday, there was no cattle market and as such, there was no occasion for him to pass from in front of the house of the accused at the time of occurrence and thirdly, he did not try to intervene when the accused raised lalkara and attacked the deceased. I am, therefore, of the opinion that Kaloo P.W. 1 was not present at the spot at the time of occurrence.
The dying declaration Exh. P.E. And the evidence of Kaloo P.W. Having been discarded, we are left with the statement of Shaukat alias Shafqat accused recorded under section 342, Cr.P.C. It is in evidence of Khadim Hussain P.W. 3 that the deceased Mulazam Hussain remained a personal servant in this house of the father of Shaukat accused for about 2/3 years. He further admitted that the Khata of accused lived in the house of the father of the accused at that time.
Mst. Ghafooran Kausar D.W.2, Khata of Shaukat accused appeared a defence witness in this case.
She supported the accused by deposing that Mulazam deceased who was their previous servant entered the --house and sat on a cot. He was carrying a knife with him. Shaukat accused came back in the house at 3.00 p.m. Mulazam deceased attacked him with a knife which resulted in the scuffle. I am, therefore, of the view that the accused killed Mulazam Hussain deceased finding him present in the house, where Mst. Ghafooran Kausar, his Khata was alone present. He, therefore, cannot be held guilty of en offence under section 302, P.P.C. 1, accordingly set aside his conviction and sentence under section 302, P.P.C. And instead convict him under section 304 (I), P.P.C. And sentence him to seven years' R.I. In the circumstances of this case, I do not propose to impose a sentence of fine upon him. The appellant will to given benefit of section 382-B, Cr.P.C.
10. With the above modification, this appeal is dismissed.
11. In view of the above, Criminal Rivision No. 187 of 1984 which was ordered to be heard alongwith this appeal, is dismissed in limine.