This is an appeal by Bagh Ali appellant against the judgment and order of the learned Additional Sessions Judge, Labs dated 28-7-1969, whereby he convicted him under section302,P. P. C. And sentenced him to transportation for life.
2. The facts of the prosecution case are that the acct, had a dispute over a parnala or a drain with Ghulam Haidar (P. W. 18), inasmuch as the accused wanted to let the drain through his house but Ghulam Haidar objected to the same Kaley Khan deceased who was a B. D. Member sided Ghulam Haidar (P. W. 18) and prohibited the accused f passing the drain from that place. Aggrieved by the interfer of Kaley Khan deceased, the accused nourished a grudge age him. Consequently, on 23- 10-1968, the accused attacked K Khan in Galli Gillanwali in front of the house of one Ghulam Qadir.
The accused was armed with a knife with whit inflicted various blows on Kaley Khan. The occurrence witnessed by Khurshid Ahmad (P. W. 19) and Chhor Khan (P. W. 20) who along with others brought Kaley Khan to a Dispensary in Lulliani. Doctor Miss Sureya Munir (P. W. 1) sent an information (Exh. P. A.) at about 10-30 a.m. To the police station indicating that an injured person has been admitted in the hospital. It was received by Hassan Akhtar Head Constable (P. W 21). He enquired from the doctor vide Exh. P. B. As to whether the injured person was in a position to make a statement. The Lady Doctor answered in the affirmative vide Exh. P. B./1. Thereupon Hassan Akhtar (P. W. 21) recorded the statement of Kaley Khan (Exh. P. C.). It bears the thumb-impression of Kaley Khan and the signatures of the Lady Doctor. On the basis of the aforesaid statement of Kaley Khan formal report in the form of Exh. P. C./3 was made out by Farman Ali Naib-Moharrir (P. W. 2) in Police Station Lulliani at 11-45 a.m. Kaley Khan, however, could not survive the injuries and died on 31-10- 1968, The accused who was a sepoy in the Army pleaded not guilty and took up the plea of alibi. In support of his defence, he produced Naib-Subedar Sardar Khan (D. W. 1) and Han Muhammad L.
Hawalldar (D. W. 2) who deposed that on the date and near about the time of occurrence, the accused was in Sialkot Cantonment inasmuch as he had taken bedding for his immediate boss, namely, Lt. Zaffar Ali in token whereof the accused had issued receipt (Exh. D. C.). The learned Additional Sessions Judge did not believe the defence version and after giving a find--ing that it was the accused who had killed the deceased convicted and sentenced him as hereinbefore mentioned.
3. From what has been stated above, it will be evident that the prosecution case consists of the following pieces of evidence :-
(a) Medical evidence ;
(b) evidence of motive ;
(c) ocular evidence of Khurshid Ahmad (P. W. 19) and Chhor Khan (P. W. 20) ; and
(d) dying declaration of the deceased (Exh. P. C.).
I shall deal each of these in the paragraphs hereinafter following :
4. Taking up the medical evidence, according to Dr. Nusrat--Ullah, who performed the post- mortem examination, the deceased had the following injuries on his person :-
(1) Healed wound, 1--" long, in left wrist anterior surface in the middle. The wound was bearing three stitches, which were removed.
(2) Operation wound (median incision) on upper half of abdomen, 5" long bearing 9 stitches. It was in healing process. The upper end of the wound turned on to the left side up to 1--". Peritonium was stitched. It was inflamed and contained pussy fluid. Liver was stitched at its anterior surface on left lobe.
(3) Stitched wound, 2--" long on left lumber region bearing four stitches situated vertically.
(4) Stitched wound on left buttock, lower part, situated transversely and bearing 3 stitches. It was 1" long.
(5) Stitched wound on left side chest, 3" long bearing 8 stitches.
(6) Left thoractomy incising, 9--" long, bearing 19 stitches at the level of 6th rib corresponding to injury Nos. 5 and 6. Pleura was stitched under the wounds. Upper lobe of lung (left) was repaired.
Pleural cavity contained 300 cc of pussy fluid. Lung was highly inflamed.
(7) Drainage incision on left side chest lateral aspect, lower part. It was 1" long and bearing two stitches.
Skull bones and brain were healthy. Heart was healthy. Its right side contained blood and left side was empty. Stomach was healthy and contained two ounces of fluid. Liver and kidneys were congested. Bladder contained two ounces of urine. The cause of death, in the opinion of the doctor was cardiores--piratory failure due to shock, caused by injuries Nos. 2 and 3 which were collectively sufficient to cause death in ordinary course of nature. All the injuries are ante-mortem and caused by sharp-edged weapon."
The above evidence would show that the deceased died as a result of assault on him. The medical evidence corroborates the ocular evidence that the deceased was attacked by a sharp-edged weapon and was given multiple blows.
5. As regards the motive, the same was deposed to by Khurshid Ahmad (P. W. 19) and Chhor Khan (P. W. 20). It is corroborated by the evidence of Rehmat Khan A. S. I. (P. W. 7) and Amanat Khan F. C.
(P. W. 8) who deposed that some days prior to the occurrence, Lt. Zaffar Ali, boss of the appellant, approached the Sub-Inspector in Police Station Lulliani protest--ing that Ghulam Haidar (P. W. 18) and deceased Kaley Khan were obstructing the opening of a drain by the accused. Lt. Zaffar Ali desired that the police should send for the aforesaid two persons and set the things right for the accused. These witnesses further deposed that they sent for Ghulam Haidar (P. W. 18) and Kaley Khan (deceased) but they were not available at that time and therefore, the accused and Lt. Zaffar Ali went back. The existence of such a dispute is supported by Ghulam Haider (P. W. 18) as well. At this place it is pertinent to mention that as a matter of fact, the accused in his statement, as given in answer to Question No. 2 in the Court of Session, admitted that he had a dispute with Ghulam Haidar regarding a drain, inasmuch as, he wanted to open the drain but Ghulam Haidar did not allow him to do so. From the aforesaid voluminous evidence I am satisfied that the accused did have a dispute with Ghulam Haidar (P. W. 18) on the matter of drain and as Kaley Khan deceased who was a B. D. Member sided with Ghulam Haidar (P. W. 18), therefore, the accused nourished a grudge against him as well.
6. As regards the ocular evidence the same is given by Khurshid Ahmad (P. W. 19) and Chhor Khan (P. W. 20). KhurshidAhmad (P. W. 19) has deposed that he went to Kaley Khan to get back the money which lie had loaned to him. Chhor Khan (P. W. 20) was also present at that place. Kaley Khan, who had a commission shop, stated that he would go to his house and pay the amount to the witnesses. The trio that is the deceased accompanied by Khurshid Ahmad (P. W. 19) and Chhor Khan (P. W. 20) then left towards his house. When they reached in the Gillanwali lane there is a turn at the house of Master Ghulam Qadir. When Kaley Khan crossed the turn he was attacked by the accused with a knife who after giving multiple blows decamped. I have been taken through the statements of these two witnesses. Their statements are quite coherent and I find no reason to disbelieve them. Learned counsel for the appellant argued that the deceased was paternal uncle's son of P. W. 19 and, therefore, the said witness was an interested witness and should not be believed. Mere remote relationship with the deceased, in my opinion, is no ground by itself to dub a witness as an interested witness when he has no grudge and enmity of A his own. Learned counsel argued that the occurrence had taken place in a public lane where independent witnesses could be available and since the prosecution had not produced any witness of that locality, therefore, the aforesaid two witnesses should not be believed. The occurrence has taken place in such a sudden manner that it may not have been possible to locate as to who were the passers-by at the relevant time. In these circumstances, the failure of a passerby to come and depose cannot be fatal to the prosecution case. Another argument raised was that story of loan as deposed to by Khurshid Ahmad (P. W. 19) did not figure in the F. I. R. Namely the dying declara--tion of the deceased and, therefore, the said witness should not be believed. The mere failure to mention this fact in the F. I. R.
In my opinion, cannot reflect upon the testimonies of Khurshid Ahmad (P. W. 19) and Chhor Khan (P.
W. 20). The learned Additional Sessions Judge has thoroughly discussed the various points with regard to the authenticity of the statements of these two witnesses and there is nothing before me to find any fault with the same. In these circumstances, I have no hesitation in accepting the depositions of these two witnesses which I hereby do.
7. As will be evident from what has been stated above, the deceased had, on 23-10-1968, on the very day of attack immediately after the occurrence, made a statement, the authenticity of which cannot, be doubted as it is proved by the Lady Doctor Miss Sureya Munir (P. W. 1) and Hassan Akhtar H. C. (P. W. 21) who are quite independent witnesses and have no motive to fabricate any evidence against the appellant. In this dying declaration the deceased had clearly stated that he was attacked by the appellant. Learned counsel for the appellant t argued that this statement could not be-considered as a dying declaration, inasmuch as, at the time when it was made, according to the Doctor, the accused was in no immediate apprehension of death within an hour or so. The learned Additional Sessions Judge accepted this plea and discarded this piece of evidence from consideration. In my opinion, this was not justified. Section 32 of the Evidence Act reads as follows :- ---32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. Is relevant--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases :- ---(1) When it relates to cause of death.---When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.--- Such statements are relevant whether the person who made them was or was not, at the tinge when they were made, under expectation of death, and whatever array be the nature of the proceeding in which the cause of his death comes into question."
A perusal of the above section would show that a statement of a person who later on dies is a relevant piece of evidence if it pertains to the cause of his death or the circumstances connected therewith. It is laid down in the section itself that it is not necessary that the maker of the statement should at that time be in an immediate danger of death. This is so enunciated in various cases as well. See Inayat Khan v. Emperor, (AIR 1935 Lah. 94), Pakala Narayana Swami v. Emperor (AIR 1939 P C 47), State v. Kanchan Singh and another (AIR 1954 All. 153), Emperor v. Pramananda Dutt (AIR 1925 Cal. 876), Emperor v. Karinbhai (AIR 1933 Bom. 479(2)) and Thakar Singh v. Emperor (AIR 1929 Lah. 64). At this stage, it is pertinent to point out that English Law admits as dying declaration only such statements of material facts concerning the cause and circum--stances of homicide as are made by the victim under the solemn belief that his death is inevitable and near at hard. The solemnity of the occasion at which the statements are made is deemed to supply the sanction of oath. The approach of death is deemed to produce a state of mind in which the statements of the dying person are to be taken free from all ordinary motive to mis-state. The law in Pakistan does not make the admissibility of a dying declaration dependent upon the person having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the cause and circumstances of his death would be admissible under section 32 of the Evidence Act. This distinction between English and 'Pakistani Law must always be maintained before referring to English cases on the subject.
8. For the reasons hereinbefore mentioned, the dying declaration which even otherwise constituted an E. t. R. Could. Not be ruled out of consideration in this case. At this stage, notice may be taken of the defence plea as given bar Naib-Subedar Sardar Khan (D. W. 1) and Jan Muhammad L.
Hawaldar (D. W. 2). The sum and substance of their evidence- was that on, the date and somewhere near the time of occurrence the accused was in Sialkot Cantt, inasmuch as, he had taken a bedding for his boss, namely, Lt. Zaffar Ali. In sport of this plea a writing of the accused in the form of a receipt of the bedding which is written on a plain piece of paper and is not attested by any official was produced in defence. Sutch, a document could be prepared at any time. No authentic documentary record from the cantonment has been produced to show the presence of the appellant in Sialkot. Rather it is in evidence that the Unit to-- which appellant belonged was during those days out on exercises. This would suggest that the accused instead o--- being in Sialkot should have been with his Unit outside Sialkot at places where:: they were doing exercises, and in that way, he had ample: opportunity to be away from Cantonment. Moreover, we have also the positive evidence of Muhammad Din (P. W. 11) and Shah Muhammad (P. W. 12) who deposed that on the day of occurrencethe accused was in Lulliani. Shah Muhammad (P. W. 12) is a commission agent on Bus-Truck Stand Lulliani. He deposed that on the day of occurrence, a bus came from the side of Lahore. Bagh Ali accused alighted from that bus. He was in Military Uniform.
He stayed for a minute or two at the-- shop of Mubarak Ali Shopkeeper and then went in Gillanwali Lane. Shortly thereafter, he heard that Kaley Khan was-- murdered. The witness deposed that he knew Bagh Ali from, childhood. Muhammad Din (P. W. 11) stated that on the same-- day, he and the accused travelled by one and the same bus and, went from Lulliani to Lahore. The witness alighted at that place Lahore but the accused continued his journey, in the bus. On return from Lahore the witness learnt about the murder of Kaley Khan. These two witnesses are quite independent. They have no enmity against the accused nor they have any interest in, the deceased. The defence counsel could not shake their credit in cross-examination in the trial Court or in any other manner before me. They have no justification or purpose to make false statements against the appellant.
Consequently, I believe these two witnesses who lend a further support to the prosecution case.
9. The upshot of the above discussion is that the prosecu--tion case stands fully proved against the accused. His appeal has no merit and the same is hereby rejected.