ABDUL MAJID TIWANA, J: -- Muhammad Anwar appellant son of Bashir Ahmed, aged about 35 years, caste Rajput, resident of Ward No.2, Alipur Town, District Muzaffargarh, was tried by the Punjab Special Court for Speedy Trial No.11, D.G. Khan, on the charge of committing murder of Ihsan Elahi son of Muhammad Lukman, caste Pathan, aged 30-32, Excise Inspector at Alipur, District Muzaffargarh, and having been convicted under section 302, P.P.C. Was sentenced to death and a fine of Rs.50,000 or in default of its payment to undergo two years' R.I. He was also directed to pay a sum of Rs.50.000 as compensation to the heirs of the deceased. Against this conviction and sentence the appellant has come up in appeal to this Court.
2. The prosecution story is that on 1-10-1986, Ihsan Elahi (deceased), who was an Excise Inspector, accompanied by A.S.I. Muhammad Rafiq of C.I.A. Staff, Muzaffargarh, and other members of raid party in discharge of his official duty, raided the house of Muhammad Anwar appellant in Alipur Town pursuant to an information that he was storing narcotics therein. The raid proved abortive as the appellant, on the receipt of the news about the arrival of the raid party, slipped away after locking his house. The raid party broke open the lock of his house and searched it thoroughly but did not find anything incriminating or actionable.
3. On the following day i.e. On 2-10-1986 at 8-45 a.m. When Ihsan Elahi (deceased), coming from his house in Alipur Town, was proceedings towards his office, Muhammad Anwar appellant, annoyed by the incident of raid and search of his house taking place a day earlier, armed with a Chhuri came from the direction of Faisal Chowk and stealthily overtaking Ihsan Ellahi (deceased) near the shop of Hakim Qasim in Urdu Bazar, attacked him from behind and inflicted two Chhuri blows on his left flank. Ihsan Ellahi (deceased) on the receipt of the blows took a swift turn and tried to catch .His assailant but in that process the latter gave him another blow. As a result of these injuries Ihsan Ellahi (deceased) fell down on the ground. Muhammad Aslam and Haji Fazal Muhammad P.Ws. And some other persons, who were present nearby and were seeing the occurrence; tried to catch hold of the assailant but brandishing his blood-stained Chhuri, he ran away after threatening them. Muhammad Aslam P.W. With the help of some other persons removed the injured to Civil Hospital Alipur.
4. Hearing the news of the occurrence and the injured having been removed to Civil Hospital, Alipur, A.S.I. Abdul Hamid P.W. Reached there at about 9-30 a.m. And, after recording his statement (Exh.P.A.), sent the same to the police station for the registration of the case. Taking its investigation he prepared the injury statement (Exh.P.H.) of the injured and got him medically examined by Dr. Abdul Ghafoor. Soon after his medical examination, the doctor referred him to Nishtar Hospital, Multan, as an emergency case. The A.S.I. Then inspected the spot, prepared its rough sketch and recorded the statements of P.Ws. He went on searching for the appellant and eventually arrested him on 8-10-1986. While in custody, the appellant on 20-10-1986 led to the recovery of blood- stained Chhuri (Exh.P.F.) from his residential house which the A.S.I. Seized vide recovery memo.
(Exh.P.F.) after making it into a sealed parcel. He got prepared the site plan (Exh.P.B.) and its duplicate (Exh.P.B./1) from Syed Nayar Zaidi Draftsman and entered his notes in red ink thereon. On 17-10-1986 Ihsan Ellahi injured expired in the hospital and on the receipt of this information he went there and, after preparing the inquest report (Exh.P.M.), despatched the dead body to the mortuary for post-mortem under the escort of Mukhtar Ahmad Constable. The investigation of the case, which had almost completed, was then taken over by S.I. Mirza Abdul Baig, S.H.O. Police Station City, Alipur, who submitted the formal challan. .
5. On the commencement of trial, Sh. Ikram-ud-Din, the learned Additional Sessions Judge II, Muzaffargarh, charged the appellant under section 302. P.P.C. For committing murder of Ihsan Elahi (deceased) and on his pleading not guilty, the prosecution led evidence against him. The learned Additional Sessions Judge recorded the statements of three witnesses while the learned Judge, Special Court for Speedy Trial No.11, Dera Ghazi Khan, recorded the statement of remaining seven witnesses:
6. To be a little more precise, Syed Nayar Zaidi Draftsman (P.W.1) proved the site plan (Exh.P.B.), its duplicate (Exh.P.B./1) and its triplicate (Exh.P.B/2). H.C. Nazar Hussain (P.W.2) proved the recording of formal F.I.R. (Exh.P./1) on the statement (Exh.P.A.) of Ihsan Ellahi injured which was recorded by A.S.I.
Abdul Hamid and sent to the police station for the registration of the case. He also deposed about the receipt of a sealed parcel of the Chhuri deposited with him by the Investigating Officer on 20- 10-1986 and later transmitted by him to the office of Chemical Examiner, Lahore on 26-10-1986 through F.C. Mukhtar Ahmad (P.W.3), who, besides its safe transmission to the relevant office at Lahore, also explained as to how he escorted the dead body of Ihsan Ellahi (deceased) on 17-10- 1986 from Nishtar Hospital, Multan, to -the mortuary and how he delivered last worn clothes to A.S.I.
Abdul Hamid which had been given to him by the doctor after the post---mortem examination.
7. Muhammad Aslam (P.W.4), the sole eye-witness in the case, deposed that a year and a month ago at, 8-45 a.m. When he was present near the shop of Hakim Qasim in 'Urdu Bazar, Alipur Town, he saw Muhammad Anwar appellant causing Chhuri blows on the left flank of Ihsan Ellahi (deceased) after overtaking him and when the victim tried to catch hold of the assailant, the latter gave him another Chhuri blow on his neck. According to him, he, Haji Fazal Hahmood and some other persons, who all were present nearby, saw the occurrence and tried to catch hold of the assailant but he fled away, brandishing his blood-stained Chhuri after threatening them and he, with the help of certain other persons soon after removed Ihsan Elahi injured, who had fallen on the ground as a result of the injuries sustained by him, to the Civil Hospital. Alipur. He also testified about the motive by saying that Muhammad Anwar appellant had caused injuries to Ihsan Ellahi (deceased) as the latter had raided the house of the former a day prior to the occurrence. He further deposed that after the injured had been examined in the Civil Hospital, Alipur, he, under the advice of the doctor, took him to Nishtar Hospital, Multan, as his condition was precarious and he later died in that hospital on 17-10-1986 as a consequence of the above-mentioned injuries. He also proved the recovery memo. (Exh.P.E.) by which the Investigating Officer had seized the blood-- stained shirt (P.1) and Shalwar (P.2) of the deceased.
8. In cross-examination he stated that the deceased was not known to him prior to the day of occurrence but he knew the appellant previously. He signified lack of knowledge about the calling of appellant's father, the property owned by him and similar other particulars of his family members and deposed that he knew this much that his father resided in Alipur Town. With regard to whereabouts of Ihsan Ellahi (deceased) he stated that he used to reside outside the walled city of Alipur Town but his office was situated in the walled area. About his own calling, he testified that he dealt in cloth and his shop was situated at a distance of 40-50 yards away from the police station, Alipur, outside the walled town. In reply to a suggestion of the learned defence counsel he deposed that many people did not like the deceased and were annoyed with him due to raids on his house. Regarding the purpose of his being present near the place of occurrence, he explained that he had gone there to purchase some account books but due to the occurrence he could not and purchased those books on the following day. He, however, could not recollect the name of the shop from where he had purchased those books. About locale of occurrence, he testified that there were 20-30 shops around and 5-7 shops were lying open at the time of incident and the people were frequenting the bazar. According to him, the blood of the deceased did not fall at the place of occurrence nor did it stain his hands when he picked him up for removing him to the hospital. He gave some details in terms of distance regarding his own presence at the time of occurrence, the manner the appellant attacked the deceased and he received the injuries and the appellant left the spot after committing the crime. He also explained the way he and others removed the injured to the Alipur Hospital and later to Nishtar Hospital, Multan. Giving his own bio-data he stated he had joined Federal Security Force as an A.S.T. In 1973 and denied the suggestion that during the days of occurrence he was residing at Jatoi. He admitted that his brother Muhammad Azam was partner in Panjnad Cinema but denied the suggestion of the defence that his brother, in collaboration with the Excise officials and local police, was defrauding the Government to the tune of Rs.25,000 per month in respect of taxes of that cinema house. Finally, he denied the suggestion of the defence that he was deposing falsely.
9. Muhammad Luqman (P.W.5), who was father of Ihsan Ellahi (deceased), had identified the dead body of his son at the time of autopsy and had witnessed the delivery of his last-worn clothes by Constable Mukhtar Ahmad, given to him by the doctor after the post-mortem examination, to the Investigating Officer and proved the seizure memo. (Exh.P.D.) He also testified about the recovery of blood-stained Chhuri (P.4) on 20-10-1986 at the instance of Muhammad Anwar appellant which was seized by the Investigating Officer vide recovery memo. (Exh.P.F.) after making it into a sealed parcel. He was cross-examined by the learned defence counsel at some length. His testimony shall be subjected to appraisal in due course, where necessary.
10. S.I. Muhammad Rafiq (P.W.6) testified that on 1-10-1986, when he was posted as A.S.I., C.IA. Staff, Muzaffargarh, he alongwith Ihsan Ellahi (deceased). Who was then Excise Inspector, besides others, had raided the house of Muhammad Anwar appellant on the receipt of information that he was keeping some narcotics in his house but receiving an intimation about the arrival of the raid party, he locked his house and slipped away. He proved the raid report (Exh.P.G.). In the cross- examination he stated that the jurisdiction of C.IA Staff, Muzaffargarh, extended to the whole of the district and he had accompanied the raid party with the verbal permission of Inspector Incharge of C.I.A. Staff. He admitted the suggestion of the learned defence counsel that the lock of the house of the appellant was broken by the deceased. In reply to another question he stated that some members of the raid party had dug out the courtyard of the appellant's house at the time of raid to find out hidden narcotics but nothing incriminating was recovered and the articles of the household were left in disorderly manner. He denied the suggestion of the defence that the story of raid of the appellant's house had been concocted for supplying motive.
11. The next witness was doctor Abdul Ghafoor, Medical Officer, T.H.Q. Hospital, Alipur (P.W.7). He deposed that on 2-10-1986 at 10-30 a.m. He medically examined Ihsan Ellahi injured brought by A.S.I. Abdul Hamid to the Hospital and found the following injuries: --
(1) An incised wound -- c.m. x -- c.m. On the left side of face below left ramous of mandible.
(2) An incised wound of 2 c.m. x 1/2 c.m. x deep going on the left side of chest mid-lateral area.
(3) An incised wound of 3 c.m. x 1/2 c.m. x deep going on left lateral chest.
(4) Complaint of difficulty in respiration and severe pain in abdomen.
12. According to him, injury No.1 was declared simple while the rest of the injuries were kept under observation. In his opinion, all these injuries were caused by a sharp-edged weapon. The probable duration between injuries and medico-legal examination was within half to one hour. He stated that the injured was referred to Nishtar Hospital for treatment and investigation as a case of emergency and after conducting medical-legal examination he handed over the police papers and one carbon copy of medico-legal report (Exh.P.J.) to A.S.I. Abdul Hamid.
13. Dr. Iftikhar Hussain, Medical Officer, Civil Hospital, Multan (P.W.8) had carried out the post- mortem examination on the dead body of Ihsan Ellahi on 17-10-1986 at 4-15 p.m. The dead body was brought by Mukhtar Hussain Constable and identified by Sh. Tahir Ali and Muhammad Luqman P.Ws. On external examination he found the dead body as of a well-built male with rigor mortis present on its upper half and post-mortem staining covering whole of it. He found healed scars of injuries Nos.1. 2 and 3 on the dead body as follows:---
(1) Healed scar corresponding to injury No.1 of Exh.P.J. Was present below the left mandibular area.
(2) Healed scar corresponding to injury No.2 of Exh.P.J. Was present on the dead body on the outer side of left chest, at anterior axillary lines.
(3) Healed scar corresponding to injury No.3 of Exh.P.J. Was present on the dead body, on the outer side of left chest at mid-axillary lines lower pat.
14. He deposed that, according to the bed-head ticket of the deceased, on chest intubation 500 cc of blood was evacuated from his left chest cavity and both the chest injuries were found communicating with the pleura. Later the patient developed complications like uraemia, myocardial infarction and pulmonary embolism, he added.
15. Giving further details of the injuries, he testified that injury No.2 had entered the chest cavity through the left 5th inter-costal space by cutting 5th rib partially and healed scars of the cuts, were present on the pleura and the lungs while injury No.3 was an entry wound into the chest cavity through the 9th left inter-costal space leaving healed scars on the pleura and the lungs. He found small amount of clotted blood in the left chest cavity and myocardium showing infracted areas with both the chambers of the heart containing large fat emboli partially blocking the pulmonary vessels.
16. In his opinion, injuries Nos.2 and 3, as described in M.L. (Exh.P.J.), were sufficient to cause death in the ordinary course of life and the death occurred due to serious complications resulting from these injuries. According to him, all the injuries were ante-mortem caused by sharp-edged weapon within the probable duration of 15 days between the injuries and death, and 6 to 9 hours between the death and post-mortem examination. He proved the post-mortem report (Exh.P.L.) an diagram showing seats of injuries and operation wounds (Exh.P.L./1).
17. In reply to a question of the defence a stated that the possibility of the patient's not having died had there been no complications, could not bed ruled out. In reply to another question he deposed that myocardial infarction and uraemia were not the only causes of his death as there could be other causes as well. He, however, denied a general suggestion that deaths in Nishtar Hospital occurred due to the negligence of the doctors after operation. He accepted the suggestion of the learned defence counsel that had there been no complications complications in this case, injuries Nos.2 and 3 even otherwise would have been sufficient to cause death in the ordinary course of nature and he denied the suggestion that he had given a wrong opinion on, this point, Opining generally in reply to another question, he stated that if an injury penetrates in abdomen and the chest cavity, that is sufficient to cause death in the ordinary course of nature and if it does not cause the death of the injured immediately and he dies two months after the infliction of the injury even then technically that injury is sufficient to cause death in the ordinary course of nature. He admitted another suggestion of the defence that poisoning of the blood, development of peritonitis, lack of post operative care, use of substandard drugs, wrong diagnosis by the doctors- attending the patient and his own carelessness were a few causes of the complications of the deceased.
18. The next witness was A.S.I. Abdul Hamid (P.W.9). The role played by him as an Investigating Officer has already been outlined and there is no need to walk over the same ground again.
However, his statement as a whole shall be scrutinised in due course in the light of comments of the learned defence counsel. Another Investigating Officer was S.I. Abdul Baig, S.H.O. Police Station (Saddar) Muzaffargarh (P.W.10). He did nothing except to prepare the, challan on the investigation already completed by A.S.I.. Abdul Hamid and submitted the same to the Court concerned.
19. Allah Bakhsh Khan, Special Public Prosecutor, gave up Haji Fazal Mahmood P.W. As having been won over by the defence and gave up Sh. Tahir Ali, Muhammad Rafiq, Abdul Rahim and Khalid Mushtaq P.Ws. As unnecessary. He tendered in evidence the report of Chemical Examiner (Exh.P.Q.) and that of Serologist (Exh.P.R.) and closed the prosecution case.
20. Muhammad Anwar appellant, in his -statement recorded under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against him in the prosecution evidence and alleging his false implication, professed innocence. Describing himself as a scapegoat, he stated that he belonged to a respectable and educated family and never indulged in narcotics business but the local police compelled him to deal in contrabands and pay them monthly and since he refused to oblige them, they felt offended and got him first detained under M.L.O. For 3 months and on a writ petition filed by him when he came out of the, jail only two or three days prior to this occurrence, they involved him in this case. He further stated that he had no grudge or animus against the Excise Department, particularly against the deceased, and he never conducted any raid on him nor got any case, registered against him and the story of raid on 1-10-1986 had been concocted in order to provide motive. According to him, at the time of alleged raid the deceased was not aware of the fact that he had come out of the jail because ordinarily he was to be released on the expiry of his detention on 30-10-1980 but he was released earlier due to the writ petition filed by him. He alleged that the deceased had in fact been attacked by some unknown persons and later died in Nishtar Hospital, Multan, due to the negligence of the doctors. Asserting his alibi, he alleged that on his release from jail he went to Muzaffargarh to obtain money from his cousin Tariq Mahmood and then he went to Faisalabad to bring his family and on 2-10-1982 when he reached Alipur, he was taken to the police station by a constable where he was confined in a room for a few days and then he was detained in the police lock-up. According to him, he did not know Muhammad Aslam P.W. Who had become false witness at the instance of police and Excise Department. He produced evidence and examined four witnesses. He, however, declined to appear as his own witness under section 340(2), Cr.P.C.
21. Tariq Mahmood, S.D.O. Electricity (WAPDA), 2nd Sub-Division A, Muzaffargarh (D.W.1) deposed that the appellant was his maternal-cousin and belonged to a respectable and educated family,, having two specialists in medical profession and two engineers as his near relations. He gave details of his agricultural land, which he inherited after the death of his father in February, 1983. He further deposed that after termination of his detention under the M.P.O. About two or three days prior to the occurrence he came to him and after obtaining Rs.3110 went to Faisalabad to bring his family and on his way back to Alipur he broke his journey in the evening of 2nd October, 1980 and after staying for a while with him at Muzaffargarh, went to Alipur. According to him, on 3-10-1983 the wife of the appellant came and told him that he had been arrested by the police as an accused in a murder case. In the cross-examination, he admitted that he and other high placed relations of the appellant detailed above all belonged to Jamat-i-Ahmadia but denied the suggestion that he was deposing falsely on account of his relationship with the appellant and their religious and sectarial affinity.
22. Muhammad Idris, Senior Clerk of Excise and Taxation Department, Muzaffargarh (D.W.2) produced the service book (Exh.D.C.) of Ihsan Ellahi (deceased) and stated that at its serial No.9 there were signatures of the deceased. In the cross-examination he gave service particulars of the deceased with the help of the service book. In reply to a question he deposed that the complaint (Exh.P.A.) bore the signature of Ihsan. Ellahi (deceased) as he identified the same because he had remained posted at Muzaffargarh for about 4-1/2 years and on many occasions he saw the signatures of the deceased on different papers in his capacity as a Senior Clerk. In reply to another question he stated that he had been working with the deceased at Alipur for three years. The witness, on the request of the learned defence counsel, was declared hostile and with the permission of the Court cross-examined by him. He denied his suggestion that the signatures on the complaint (Exh.P.A) were not those of the deceased and he was making a wrong statement in order to support the prosecution case as the deceased belonged to his depart merit.
23. A.S.I. Mahboob Elahi of C.I.A. Staff, Muzaffargarh (D.W.3) produced Rozenamcha (Exh.D.D.) dated 1-1-986 of C.I.A. Staff, Muzaffargarh and deposing with the help of its entries, he stated that on 1-10- 1986 at 8-40 a.m. A.S.I. Muhammad Rafiq of C.I.A. Staff, Muzaffargarh entered his departure alongwith five constables. In reply to a question of cross-examination by the learned prosecutor he stated that, as per entry No.5 of the Rozenamcha, A.S.I. Muhammad Rafiq accompanied by Jafar Khan Inspector and constables left for Alipur in order to help Excise Inspector (deceased) at Alipur in response to a secret information that business of `Charas' and opium was going on there.
According to him, A.S.I. Muhammad Rafiq entered his arrival back on 2-10-1986 at 12-30 p.m. And as per entry in diary No.3 (Exh.D.W.3/A), A.S.I. Muhammad Rafiq alongwith Jafar Khan, Excise Inspector (deceased) and the constable had raided the house of Muhammad Anwar son of Bashir Ahmad on 1-10-1986 at Alipur but having come to know about the raid he had fled away after locking out his house.
The last witness was H.C. Manzoor Hussain of Police Station Saddar, Alipur (D.W.4). He produced the Roznamcha of the police station pertaining to the month of October, 1986, and with the help of its entries he deposed that, as per entry No.12, dated 2-10-1986, the statement of Ihsan Ellahi (deceased) had been received in the police station at 9-30 a.m. For the registration of a formal F.I.R. With no further details about the. Names of the accused, the weapon of offence, the witnesses and the place of occurrence. He gave some more details of the entries of the Roznamcha in the examination-in-chief as also in the cross-examination.
24. The appellant, after examining the above-mentioned four witnesses, tendered in evidence the death certificate (Exh.D.E.) of his father, a copy of the writ petition (Exh.D; F.), his written statement and closed his evidence.
25. Sardar Abdul Latif Khosa Advocate, the learned counsel for the appellant and Mr. Nafis Ahmad Ansari, learned A.A.-G. Have addressed arguments. Commenting on the prosecution case in general terms, the former submits that the local administration had made'-the life of the appellant miserable and went to the extent of even getting him detained under the Maintenance of Public Order Ordinance for a period of three months and had the High Court not come to his rescue in the exercise of its writ jurisdiction, he would have been languishing in jail for an indefinite period and when he came out of the' prison, the local administration within two or three days of his release, got him falsely implicated in this case.
26. Criticising the statement (Exh.PA.) of Ehsan Elahi (deceased) recorded by A.S.I. Abdul Hamid (P.W.9), the learned counsel submits that it was recorded by the A.S.I. Without obtaining opinion of the doctor, who was readily available in the hospital, about his fitness to make statement, and its authenticity is not above board because the doctor, who medically examined the injured in the hospital, was not aware of any such statement having been recorded. According to the learned counsel, it was a concocted piece of evidence which was manufactured by the A.S.I. After obtaining the signatures of Ehsan Elahi injured on blank paper.
27. Adverting to the motive alleged by the prosecution in this case, he contends that the prosecution has concocted the entire story of raid and search of the house of the appellant by a raid party organized by Ihsan Ellahi (deceased) but if this Court comes to the conclusion that the motive stands proved, then, the manner in which the appellant's house-hold effects were searched, scattered and damaged, the courtyard of his house was dug out and he was humiliated soon after his release from detention, all these events certainly provided grave and sudden provocation to him and in fit of fury on the following day when he came across the appellant at a short distance from his house, he lost his self-control and gave him two Chhuri blows, which hardly penetrated his flank, with sole object of teaching him a lesson not to repeat his excesses, with no intention to kill him because had he intended to take his life, nothing could prevent him from inflicting more blows and finish him on the spot but he did not do so and in these circumstances he is entitled to the mitigation of sentence if he is held to have committed the crime and his conviction can be altered to the one under section 304, Part II, P.P.C.
28. Commenting upon the medical evidence, he submits that there was no nexus between the injuries allegedly suffered by the deceased at the hands of the appellant and his death because, according to Iftikhar Hussain, Medical Officer, Civil Hospital, Multan (P.W.8), the deceased at the time of post---mortem examination was found to be suffering from certain complications like Uraemia -- a disease resulting from malfunctioning or failure of kidneys, myocardial infarction -- a heart disease indicating insufficient supply of blood to certain parts of the heart, and pulmonary embolism -- a disease of lungs indicating excess of fat contents in the system. He maintains that the chest injuries, which showed penetration of a sharp-edged weapon through the intercostal space at two points, slightly punctured pleura and lungs, resulting in oozing out of hardly 500 cc of blood and its accumulation in chest cavity which was drained out by chest intubation. In his opinion, these injuries were neither grievous nor dangerous or fatal to life nor they were so described by Dr. Abdul Ghafoor (P.W.7) who had conducted medico-legal examination of Ihsan Ellahi injured nor by Dr. Iftikhar Hussain (P.W.8) who carried out the post-mortem examination and the latter in fact expressed a wrong opinion that injuries Nos.2 and 3 were sufficient in the ordinary course of nature to cause death and the death occurred due to serious complications resulting from these injuries. He asserts that the above-mentioned three diseases had no connection whatsoever with these injuries and if the deceased expired as a result of these diseases, the appellant could not be saddled with the responsibility of causing his death because either these diseases were already present in his body when he was injured or they occurred later due to some other causes, including the lack of proper post-operative care, use of substandard drugs, wrong diagnosis by the doctors, and inept treatment given by them, coupled with the carelessness of the injured himself, and these causes have been admitted by Dr. Iftikhar Hussain (P W.8) who has even gone to the extent of saying that if the injured had not suffered from the above-mentioned complications, the possibility of his death not occurring could not be ruled out. In support of his hypothesis that the death of Ihsan Ellahi (deceased) was not the direct result of injuries caused to him by the appellant and it occurred due to intervening causes and as such the appellant can at the most be convicted for an offence under section 326, P.P.C., he has placed reliance on Division Bench ruling of this Court reported as Muhammad Anwar, etc. v. The State 1985 P Cr. L J 2655 which in turn is based on a Supreme Court authority known as Muhammad Rahim v. Kajeer Ullah and another 1968 SCMR 1368.
29. Subjecting the ocular evidence to criticism, the Darned counsel urges that the prosecution had cited two eye-witnesses in this case but after discarding Haji Fazal Mahmood as having been won' over by the defence, it produced only Muhammad Aslam P.W. Who was only a chance witness and had been set up by the police and the Excise Department due to his links with them through his brother having a share in the cinema business. According to him, the deposition of this witness neither inspires confidence nor he is otherwise worthy of reliance because he' has advanced no convincing reasons for his presence near the place of occurrence. He submits that had this fellow been present at the time of occurrence, as claimed by him, and shifted the injured from the spot to Civil Hospital, Alipur, his hands, while removing him from the place of occurrence and placing him in the Tonga, must have been stained with blood and in view of the nature of the injuries sufficient quantity of blood must have gushed out from his wounds and fallen on the ground but surprisingly enough he deposed that neither his hands were stained with blood nor the blood fell on the ground.
30. With regard to the recovery of blood-stained Chhuri, the learned counsel is of the view that it had been planted on the appellant by the police on the last day of expiry of his physical remand in order to strengthen the prosecution case and the so-called recovery was witnessed by a person no other than Muhammad Luqman (P.W.5), the father of the deceased himself, and A.S.I. Abdul Hamid who were obviously interested in the success of their case.
31. The learned Assistant Advocate-General, on the contrary, is of the view that the prosecution has succeeded in proving the guilt of the appellant by adducing evidence of, motive coupled with reliable ocular evidence, supported by the circumstantial evidence of recovery of weapon of offence and medical evidence, further corroborated by the dying declaration of the deceased, and the appellant was rightly convicted and sentenced under section 302, P.P.C. According to him, certain complications pointed out by Dr. Iftikhar Hussain (P.W.8) were the direct result of the injuries caused to the deceased by the appellant, ultimately resulting in his death, and there was no intervening cause whatsoever to support the plea of lesser penalty by altering his conviction from under section 302, P.P.C. To under section 304, Part II, P.P.C. Or to section 326, P.P.C. Because the Honourable Supreme Court in a subsequent ruling reported as Syed Tajjamal Hussain v. Nasar Mehdi PLD 1976 SC 377, which is an exhaustive authority on the subject, had taken a different view from the one expressed in the earlier ruling published as Muhammad Rahim v. Kajeer Ullah and another 1968 SCMR 1368 which forms the basis of Muhammad Anwar etc. v. The State 1985 P Cr. L J 2655, a Division Bench ruling of Multan Bench of Lahore High Court, Lahore, wherein the subsequent ruling of the Supreme Court was not considered.
32. We propose to deal with various contentions of the learned counsel for the appellant ad seriatim. His first contention is with regard to the evidentiary value of the statement (Exh.PA.) of Ehsan Ellahi (deceased) recorded by A.S.I. Abdul Hamid in AIi15ur Hospital where he was taken in an injured condition. The prosecution wants to use it as a dying declaration of the deceased, while the learned counsel for the appellant, describing it as a worthless piece of evidence fabricated by A.S.I.
Abdul Hamid after obtaining the signatures of the deceased on a blank paper, wants us to ignore it.
The learned counsel for the appellant had to admit the signatures of the deceased on this document because he could not avoid the effect of the statement of Muhammad Idress, Senior Clerk, Office of Excise and Taxation Officer, Muzaffargarh (D.W.2), whom the appellant summoned and examined in his defence with the help of entries of service book of the deceased. This witness in the cross-examination proved the signatures of Ehsan Ellahi (deceased) on (Exh.PA.) by deposing that he identified the same because they had been working in the same department for a number of years and he had been working with him (deceased) for 3 years at Alipur. No doubt, the learned defence counsel of this stage cross-examined the witness after getting him declared hostile but he could not shake his credibility. In the statement (Exh.P.A.), which is concise but very precise, the deceased not only described the manner the appellant had caused injuries to him but also the motive therefor. The learned counsel for the appellant has doubted this statement also on the ground that it makes no mention of the third injury located on the face of the deceased but his contention on this point does not cut much ice because due to the severity of injuries Nos.2 and 3 and the shock caused by them, the injured at the time of recording his statement could be more mindful and apprehensive about these injuries than the one located on his face or neck which was an insignificant one. Therefore, we consider this document as a genuine dying declaration of the deceased, having been made by him in a forthright manner without any pressure or pursuasion and accept it as a good piece. Of corroborative evidence.
33. On the question of motive the learned counsel has in fact not taken any firm stand and throughout his arguments on this point he did not appear to be sure as to whether he should, in consonance with the posture adopted by his client at the trial, altogether deny the existence of motive as alleged by the prosecution, or he should admit it and then develop the contention of grave and sudden provocation. Irrespective of the fact whether he denies the motive or admits its existence, in our-opinion, the prosecution has fairly succeeded in proving the motive by producing S.I. Muhammad Rafiq (P.W.6) who at the relevant time was A.S.I., C.I.A. Staff, Muzaffargarh. In his statement he gave details of the raid conducted by the raid party headed by Ehsan Ellahi (deceased) on the house of the appellant a day earlier to the day of occurrence. He proved the report of the raid proceedings (Exh.P.G.) and it is difficult to brush aside his statement by dubbing him as a false witness; particularly when the defence itself has further strengthened the prosecution case on this point by producing A.S.I. Mahboob Ellahi of C.I.A. Staff, Muzaffargarh (D.W.3) who, with the help of the entries of Roznamcha, further elaborated the role played by A.S.I.
Muhammad Rafiq (P.W.6) as a member of raid party headed by Ehsan Ellahi (deceased) which had conducted raid on the house of the appellant on 1-10-1986 on the receipt of information that he was storing narcotics therein. Thus we hold that the motive for the crime, as alleged by the prosecution, stood amply proved.
34. It may be pointed out that the learned counsel for the appellant, with reference to the incident of raid and search of the house of the appellant the main occurrence, has tried to make out a case of with a view to take it out of the ambit of section but we do not feel impressed by his contention for the reason that this incident of raid took place a day prior to the occurrence and it could not constitute a grave and sudden provocation. It might have caused an acute annoyance to him and his family, prompting him to take the life of the deceased but by no stretch of imagination it could be a sudden provocation attracting the application of section 304, Part I, P.P.C.
35. Now we take up medical evidence. The learned counsel for the appellant has laid much stress on it by contending that Ehsan Ellahi (deceased) had died not because of the injuries received by him at the hands of the appellant but he had expired due to certain complications such as uraemia, myocardial infarction and pulmonary embolism, which developed in his body either due to the negligence of the doctors or other similar causes, or these diseases were already present in his body. In support of his contention he has heavily relied upon the statement of Dr. Iftikhar Hussain (P.W.8) who had conducted the post-mortem examination. Dr. Iftikhar Hussain (P.W.8) in his examination-in-chief made a firm statement that injuries Nos.2 and 3, as described in. Medico- legal report (Exh.P.J.), were sufficient to cause death in the ordinary course of life and death occurred due t-- serious complications resulting from these injuries caused by a sharp-edged weapon, thereby stating in unambiguous terms that death occurred due to the complications such as uraemia, myocardial infarction and pulmonary embolism which were in turn caused by injuries Nos.2 and 3, but in the cross-examination he started vacillating, sometime not ruling out the possibility of the injured not having died if the aforesaid complications had not developed, sometime giving other factors such as peritonitis, lack of post-operative care, use of substandard drugs wrong diagnosis by the doctors as the cause of his death and sometime testifying that- injuries Nos.2 and 3 were even otherwise sufficient to cause death in the ordinary course of nature even if there would have been no complications. It may be mentioned here that a suggestion to this effect was made by the learned defence counsel himself and when the attention of the learned counsel for the appellant was invited to this part of the cross-examination, he, feeling exasperated, has tried to explain it as an inadvertent, out of context query of the learned defence counsel having no bearing on the case. This is a poor explanation. As regards the legal aspect of the medical evidence 'we are inclined to respectfully follow the subsequent view of the Supreme Court reported as Syed Tajjamal Hussain v. Nasar Mehdi PLD. 1976 SC 377 in preference to the one contained in Muhammad Rahim v. Kajeer Ullah and another 1968 SCMR 1368 and in Muhammad Anwar v. The State 1985 P Cr. L J 2655 and hold that the death of Ehsan Elahi (deceased) occurred due to serious complications such as uraemia, myocardial infarction and pulmonary embolism and these complications were result of injuries Nos.2 and 3 and even if he died due to some other causes such as lack of proper diagnosis or treatment, it did not mitigate the severity of the offence bringing it within the ambit of any other provisions of the Pakistan Penal Code other than section 302 thereof because the explanation to section 299, P.P.C. Took adequate care of this situation.
36. So far as the ocular evidence is concerned, the learned counsel for the appellant has tried to pick holes in it but without any success. Muhammad Aslam (P.W.4), who has given the eye-witness account of the occurrence from its start to finish, is an independent and truthful witness by all standards. He is neither related to the deceased nor he has any enmity, rancour or ill-will against the appellant. He has fairly explained the reason for his presence near the place of occurrence. The absence of stains of blood on his hands and on the spot, as deposed by him, does not render him a chance or false witness. He could, with the help of others, lift the injured from the spot and place him in a Tonga for removing him to the hospital without besmearing his hands. It appears that soon after the receipt of injuries the injured was picked up from the spot by him and others and in a situation like this the blood which was oozing out of his injuries might have been soaked by the clothes worn by him or if some quantity thereof had fallen on the ground the witness might have not noticed this fact. His alleged link with the Excise Department through his brother, who was partner in a cinema business and his interestedness on that account, as contended by the learned counsel, is a far-fetched idea, unacceptable to us. We are therefore, of the view that Muhammad.
Aslam P.W. Has given a true ocular account of the occurrence and it took place in the manner alleged by the prosecution, that is to say, the appellant on 2-10-1986 at 8-45 a.m. Inflicted three Chhuri blows, two on his left flank or chest and one on the left side of face below the left ramous of mandible, which can also be described as a part of the left side of his neck, after overtaking him in front of the shop of Hakim Qasim in Urdu Bazar, Alipur Town and fled away with blood-stained Chhuri. So far as the evidence of recovery of blood-stained Chhuri at the instance of the appellant is concerned, we are reluctant to give much credence to it because it was recovered quite a few days after his arrest and it was witnessed by a person no other than Muhammad Luqman P.W., the father of the deceased himself.
37. For various reasons stated above we are of the view that the prosecution fairly succeeded in proving the guilt of the accused beyond any shadow of doubt by producing reliable evidence of motive, ocular evidence, medical evidence, coupled with evidence of dying declaration and he was rightly convicted under section 302, P.P.C. As regards his sentence, he is neither entitled -to any concession on the ground of grave and sudden provocation, nor on account of any intervening cause between the injuries and the death of Ehsan Ellahi (deceased), nor for any other reason because he mercilessly took the life of a young public servant whose only fault was that he in the faithful discharge of his official duty had organized and conducted a raid on the house of the appellant with a view to recover narcotics from him, a nefarious business and a malady which has engulfed not only our whole nation but also is posing a serious threat to the health and morality of entire human race.
38. For the foregoing reasons, we find no substance in the appeal and the same is dismissed.
N.H.Q./M-369/L