' Haneef alias Kaka son of Qaim Din, aged 25 years has been convicted under section 304, P. P. C.
For causing the death of Qaim Din, aged 55 years and was sentenced to five years' R. I. Plus fine of Rs, 1,000 or in default to undergo six months' R. I. And if the fine was realised from him, one half out of the same was ordered to be paid to the legal heirs of the deceased vide judgment dated 7-4-75 by the Magistrate, Section 30, Sahiwal. His appeal is being disposed of by this judgment.
2. The prosecution case is that at 8-00 a.m. On 19-8-73 within Chak No, 86/6-R at a distance of two miles from Police Station, Sadar, Sahiwal, the deceased and the appellant brought some wood on their Gaddahs. An altercation took place between the two of them about the wages for carrying the wood which were to be paid by the appellant to the deceased. The deceased demanded wages at the rate of 9 annas per maund of wood whereas the appellant paid him 8 annas per maund. The altercation led to the exchange of abuses between the two of them. Thereafter it is stated that they grappled and in the course of the same the appellant bodily lifted the deceased and threw him on the side of his neck on the pukka road. The occurrence was witnessed by Ismail P. W. 3, and Ghulam Hassan P. W.
2. The deceased while he was still alive was brought to the Civil Hospital, Sahiwal. He made statement Exh. P. D. At the hospital at 9-00/10-00 p.m. On the following day i,e,, 20-8-73 and it was recorded by Syed Mushtaq Hussain Shah, A. S. I , P. W.
10. On the basis of the aforesaid statement formal F. I. R. Exh. P. D./ I was registered at the Police Station at 10-20 p.m. On the same day by Abdul Wahid, M. H. C. P. W.
8. Initially a case was registered against the appellant under section 308, P. P. C. But on the death of the deceased at 1-00 a.m. On 22-8-73, the offence was altered to section 304, P. P. C. Anyway after the registration of the F. I. R., the dying statement of the deceased while he was still alive was also recorded at 8-45 a.m. On 21-8-73 by Manzoor Ahmad Bajwa, Magistrate P. W.
6. This document is Exh. P. B. According to Exh. P. F., Dr. Muhammad Afzal P. W. 9 medically examined the deceased while he was still alive at the Hospital at 4-30 p.m. On 19-8-73 and found on his person a diffuse swelling on the back of neck in an area of 4" x 3". The injury had affected the nervous system of the patient. It was kept under observation. On X-Ray of the injury it was declared grievous and dangerous to life. On 21-8-73 at 8-45 a.m. The dying declaration of the injured was recorded in the presence of this Medical Officer and he issued a certificate to the effect that the patient was fit to make the dying statement. After the death of the deceased, at 11-00 a.m. On 22- 8-73, the same Medical Officer conducted post-mortem examination on the dead body and noticed the same injury on his person. In this opinion the death was due to shock and compression of spinal cord in the neck on account of fracture and dislocation of cervical vertebra under injury No,
1. This injury had been caused by blunt weapon and was sufficient to cause death in the ordinary course of nature. The appellant was arrested on 23-8-73 by Mushtaq Hussain Shah, A. S. T.
P. W.
10. Nothing was recovered from him. In his statement before the trial Court he denied having participated in the occurrence and stated that he had been falsely implicated due to enmity of the deceased. He produced D. Ws. In order to depose that the deceased had himself fallen on the wood while unloading the same and thus got broken his neck. The defence evidence has not been accepted by the trial Court.
3. I have heard learned counsel for both the sides and carefully perused the record. The prosecution has produced 3 eye-witnesses of the occurrence, namely, Ismail P. W. 3, a disinterested person, Ghulam Hassan P. W. 2 who turned hostile at the trial and Kaloo P. W. 4 whose name did not appear in the F. I. R. But was mentioned in the dying statement. Then apart from this ocular testimony there is the statement of the deceased while he was still alive on the basis of which the F.
1. R. Was registered and subsequently the dying declaration of the deceased while he was still alive was also recorded by a Magistrate. I have perused the statement of the deceased made on 20-8- 73 (Exh. P. D.) and the dying statement of the deceased recorded on 21-8-73 (Exh. P. B.). There is no inconsistency in the two statements except that in Exh. P. D., he had stated that the occurrence was witnessed by Ismail P. W. 3 and Ghulam Hussain P. W. 2 whereas in his dying declaration he had stated that the occurrence was witnessed by a weaver whose name he could not recollect and that Kaloo P. W. 4 and others helped him after he had sustained that injury. In any case, the two statements of the deceased made by him while he was still alive are being corroborated by the testimony of Ismail P. W. 3 and are further supported by the medical evidence. There was no enmity between the deceased and the appellant. The occurrence was the result of a sudden flare up on a small amount of money which the appellant was to pay to the deceased. The abuses were exchanged' between the parties followed by grappling. The appellant is stated to have bodily lifted the deceased and threw him on the ground by the side of neck. As a result his spinal cord was damaged and he died after about three days. I have heard the arguments of learned counsel for the appellant to the effect that the defence version was the correct version and that the deceased had sustained a fatal injury due to his own negligence but I do not find any substance in them. In my view the prosecution has succeeded in establishing its case as against the appellant beyond reasonable doubt and in the circumstances his conviction and sentence were quite proper and are accordingly maintained. This appeal is dismissed.