1985 P Cr (PLP)

(4) No bruises, lacerations or abrasion in or around anus was found. (5) General condition was satisfactory; his pulse was 84 per minute and blood‑pressure was 140/95 mm of Hg. Injury No.3 was kept under observation and vide X‑Ray report No.1707, dated 10‑7‑1984, it was declared as grievous.

6. After the death of Ghulam Murtaza deceased, autopsy on his dead body was also performed by Dr. Shehzad Rehan on 19‑7‑1584. On external examination four stitched operational wounds were noticed while after internal examination two stitched wounds were observed. It has been opined by Dr. Shehzad Rehan that the deceased died due to peritonitis and shock resulted from intestinal perforation due to air insufflation under pressure per rectum. This injury according to him was sufficient to cause death in the ordinary course of nature.

7. At the trial Sher Jan, P.W.1, the son of Ghulam Murtaza deceased was examined to furnish the ocular account, but he deposed that he did not see the occurrence. At the request of the learned District Attorney, the witness was declared hostile and subjected to cross-examination, but nothing favourable to the prosecution could be elicited from him. The other witnesses who have been examined by the prosecution before the learned trial Court are P.W.2 Muhammad Jan P.W.3 Allah Ditta, P.W.4 Muhammad Latif, P.W.5 Muhammad Hanif, P.W.6 Bashir Ahmad A.S.I. P.W.7 Faqir Muhammad, P.W.8 Qazi Habib‑ur‑Rehman Anjum, Magistrate First Class, P.W.9 Dr. Shehzad Rehan and P.W.10 Dr. Rehmat Elahi. Muhammad Jan P.W.2 identified the dead body of the deceased at the time of post‑mortem examination. P.W.3 Allah Ditta and P.W.4 Muhammad Rafiq stated that the rubber pipe Exh.P.I was taken into possession by the police vide memo. Exh.P.A. in their presence and that this pipe was produced before the police by P.W.4 Muhammad Latif. P.W.5 Muhammad Hanif is Draftsman, who prepared the site plan. P.W.6 Bashir Ahmad A.S.I. is the Investigating Officer. P.W.7 Faqir Muhammad F.C. escorted the dead body of the deceased to the mortuary. P.W.8 Qazi Habib‑ur‑Rehman Anjum, Magistrate 'First Class, as already stated above, recorded the dying declaration Exh.P.J. of the deceased in the hospital on 12‑7‑1984. P.W.9 Dr. Shehzad Rehan. Medical Officer, medically examined the deceased while he was alive and he also performed the post‑mortem examination. P.W.10 Dr. Rehmat Elahi intimated the police on 12‑7‑1984, about the deteriorating condition of the deceased in the hospital. He also certified vide report Exh.P.O. that the deceased was fit to make a statement. He remained present with the Magistrate at the time of recording the dying declaration Exh.P.J. He appended his certificate Exh.P.J./1 to the effect that the deceased remained in senses throughout when his statement was recorded by Qazi Habib‑ur- Rehman Anjum, Magistrate First Class (P.W.8).

8. The appellants raised the plea of total denial and claimed to be innocent. They maintained that there were two Labour Unions in the Lawrencepur Mills and that they had been falsely involved in the case by the members of the rival Unions. Mst. Zaitoon Bibi widow of Ghulam Murtaza deceased has beep examined by the appellants in their defence as D.W.1. She stated that on both the occasions when the statement of her husband were recorded by the police and the Magistrate, he was unconscious and the persons around the deceased stated the facts before Bashir Ahmad A.S.I. and Qazi Habib‑ur‑Rehman Anjum, Magistrate First Class. According to her the deceased had himself not given the names of the accused or any details of the occurrence. She admitted that she had since‑effected compromise with the accused and had pardoned them.

9. At the time of hearing of the under consideration appeal and the murder reference also Mst. Zaitoon Bibi and her two sons Sher Jan and Jan Muhammad submitted an application before us maintaining that they have since effected compromise with the appellants and that the deceased died per chance. They had no enmity with the appellants acid have thus pardoned them. It has been prayed that the appellants be acquitted.

10. In the light of the above resume of the facts of this case, we find that there is no ocular evidence of the occurrence against the appellants on the record. The prosecution case is based on the two dying declarations of the deceased. The first (Exh.P.C.) recorded by Bashir Ahmad A.S.I. on 10‑7‑1984 and the other Exh.P.J. recorded by Qazi Habib‑ur‑Rehman Anjum, Magistrate First Class (,P.W.8) on 12‑7‑1984. Corroboration is sought to be furnished to these dying declarations by the medical evidence based on the testimony of Dr. Shehzad Rehan (P.W.9), who medically examined the deceased on 10‑7‑1984 and also performed the autopsy on his dead body on 19‑7‑1984.

11. The learned State counsel has supported the trial Court's judgment maintaining that the dying declaration which contains a true and straightforward account of the occurrence rings true and warrants conviction particularly when it finds corroboration from the medical evidence. In Hazara etc. v. The State 1976 P Cr. L J 106 it was held that in the presence of positive evidence in the form of doctor's certificate that the deceased was fit to make statement, reliance could not be placed upon mere inference that the deceased was tutored by other persons around him. Reliance by the learned counsel for the State has also been placed on The State v. Nuran Shah and another P L D 1967 Pesh. 274, wherein it was held that dying declaration if found ‑genuine and true can by itself form satisfactory basis for conviction.

12. The learned counsel for the appellants has, however, contended:‑ (1) that the dying declarations are not reliable; (2) that the dying declarations could not be used as piece of evidence against the appellants; (3) that it has not been established that the death of the deceased is the direct result, of the alleged act of the appellants; (4) that even if the prosecution evidence is accepted, then the offence established does not fall under section 302, P.P.C. and (5) that the appellants deserve reduction in sentence.

13. In support of the first contention, the learned counsel has pleaded that admittedly many other persons were present around the deceased at the time of recording of his dying declarations by Bashir Ahmad A.S.I. and Qazi Habib‑ur‑Rehman Anjum, Magistrate First Class and that on both these occasions he was being prompted by said persons while making a statement. It has also been urged that the two dying declartions are self‑contradictory.

14. Regarding the dying declaration Exh.P.C. recorded by Bashir Ahmad A.S.I. on 10‑7‑1984, it has been urged that the A.S.I. has not stated that no person was around the deceased at the time of recording of the statement and that instead of the police officer, the statement should have been recorded by the Medical Officer or some other independent officer. Even if we take out of consideration the statement. Exh.P.C., the dying declaration Exh.P:J. recorded by the Magistrate, namely, Qazi Habib‑ur‑Rehman Anjum P.W.8 is available. In regard to this statement, Qazi Habib‑ur‑Rehman has disclosed that about 10/12 persons were present with the deceased when he went to the hospital to record his statement, He also stated that one of the persons tried to suggest something to the deceased during the recording of the statement but the Magistrate checked and did not record the suggestion given by him. The Magistrate could not give his name as he was not known to him. This forth‑right statement made by Qazi Habib‑ur‑Rehman indicates that although relatives and other persons were present around the deceased at the time of recording of his dying declaration but his statement Exh.P.J. cannot he considered as tutored or, prompted one, because the Magistrate did not allow any person present there to make suggestions to the deceased and the one who tried to do so was checked and that ,suggestion was not brought on the record. There is no legal provision to the effect that a dying declaration should be recorded in camera. Dr. Rehmat Elahi P.W.10, who was present alongwith the Magistrate at the time of recording of the dying declaration of the deceased has, however, disclosed that 7/8 persons were present with the deceased and during the course of recording of his statement someone whispered something to the injured and someone whispered off and on during the course of recording of the statement. He appears to have made a dishonest concession in favour of the appellants. His statement, however, cannot be given preference to that of the Magistrate. Moreover, we have minutely considered and analysed the contents of Exh.P.C. and Exh.P.J., the two dying declarations and we have come to the conclusion that in substance these two statements indicate the precise act committed by the appellants. The deceased did not allege any motive against them. He in a straightforward manner disclosed what had happened. We, therefore, conclude that there is no substance in the contention that the dying declarations are not reliable.

15. In regard to the second submission it has been pleaded that since the dying declarations were not put to the appellants in their statements recorded under section 342, Cr.P.C. and, therefore, the same could not be used ‑against them as a piece of evidence. This plea is certainly devoid of merit. The substance of the dying declarations had definitely been put to the accused during their examination under section 342, Cr.P.C. and they simply denied of having acted in the, manner as disclosed in the dying declarations.

16. The third plea is also without substance. The Medical Officer, namely, Dr. Shehzad Rehan P.W.7 who examined the deceased while he was alive and also performed, the autopsy on his dead‑body has categorically stated that the deceased died due to peritonitis and shock resulting from intestinal perforation due to air insufflation under pressure per rectum. There can, therefore, be no doubt about the fact that the death of the deceased resulted from the alleged act of the appellants whereby they inserted rubber air pipe in his rectum, opened valve resulting into insufflation of air in his abdomen.

17. In the light of the foregoing discussion we have come to the conclusion that the appellants had no motive or, intention to murder Ghulam Murtaza deceased. There is nothing on the record to suggest that they had any animosity against him whatsoever. It appears that they committed the act as a joke but while doing so acted recklessly and the manner in which they inserted the pipe in the rectum of the deceased and opened the valve of the air machine, the law burdens them with a knowledge that their act was likely to cause the death of the deceased. In this view of the matter, they cannot be held liable for the murder of the deceased punishable under section 302, P.P.C. but nevertheless they are found guilty of the offence of culpable homicide not amounting to murder punishable under Part II of section 304', P.P.C.

18. For the foregoing conclusion, the conviction of the appellants is altered from section 302/34, P.P.C. to one under section 304 Part II read with section 34, P.P.C.

19. On the question of sentence, we have noticed that the appellants initially intended to cut a joke, but acted in such an unusual and reckless manner that their act resulted into the death of an innocent person. We have, however, also considered that the wife and children of the deceased have since effected a compromise with the appellants and have pardoned them. In these circumstances a sentence of seven years' R.I. in case of each of the appellants and a fine of Rs.4,000 in each case, as already imposed by the learned trial Court or in default further R.I. for one year, in our view shall meet the ends of justice and we order accordingly. The entire fine, if recovered, shall be paid to the legal heirs of the deceased. The appellants shall be extended the benefit available to them under section 382‑B of the Code of Criminal Procedure, in regard to the period during which they remained in custody for this offence. Death sentence awarded to the appellants is not confirmed. , The appeal and the murder reference are disposed of accordingly. M. Y. H. Appeal partly allowed.