P L D 1953 Lahore 10 (PLP)

The occurrence took place on 1st June 1951 at namazwela and the report was made by the victim of the crime, namely; Allah Yar, son of Yar Muhammad, aged 25 years, resident of Dhokri, at Police Station Gunjial on 4th June 1951 at p.m. He died in the hospital on 23rd June 1951 and the report made by him relating to the cause of his death is evidence in the case under section 32, Evidence Act. The gist of the report is that; on 1st June 1951; Allah Yar had gone early in the morning with his mother Mst. Bhagbhari for diverting the rain water to his land Situated at tire foot of the hills in the area of Malyari. The land belonging to the appellant, Muhammad Hayat, is situated below the land of Allah Yar, and Muhammad Hayat had already diverted the water to his own land. Allah Yar told him that it was his turn to take the water and proceeded to divert the water to his own field. As he was doing so, the appellant struahim with a kassi on the back. Allah Yar pulled himself up and faced the appellant who then gave him another blow with the kassi on the head and felled him to the ground. His mother Mst. Bhagbhari cried for help but there was nobody nearby to come and help them. Allah Yar was supported by his mother and brought back home. They had no near relative to send to the police station and, therefore, Allah Yar came himself on a camel accompanied by his mother to inform the police on 4th June. Mst. Bhagbuari (P. W. 3), the only eye‑witness in the cafe, has deposed that their land is irrigated by rain water that comes from the hills through Malyari Nala. The land belonging to them is at a higher level than that of the appellant and the rain water passes through their land to that of that appellant. They have therefore, the right to irrigate their land before allowing the water to flow into the appellant's land. The appellant is related to Mst. Bhaghbhari inasmuch as a daughter of her's is married to an uncle of the appellant and her son Khuda Yar is betrothed to the daughter of the appellant's maternal uncle. There was no previous enmity between the parties. It had rained on the day of the occurrence at about sehriweta and at about namazwela Mst. Bhagbhari and her son Allah Yar went to irrigate their land with the rain water which was expected to reach there by namazwela through the Malyari Nala, when they reach the land, they found that Muhammad Hayat appellant had diverted the water to his own field by placing some stones in the watercourse leading to Yar's land. Allah Yar objected to this and started removing the stones. Whilst he was doing this, he was struck by the appellant on the back with a kassi. Allah Yar stood up and turned towards the appellant who struck him again with the kassi on the head. Bhagbhari raised an alarm and the appellant left the place. No one came to their help because there was no one nearby and Bhagbhari had to take her son to the house by supporting him. Later on, the appellant came to the Bhagbhari's house accompanied by her brother Nur Khan and cousin Ghulam Muhammad. They said that the appellant was asking for forgiveness. Then the appellant himself implored Bhagbhari in the name of God to forgive him but she kept quiet. They, however, made no report because the appellant was related to them and the brother and cousin of Mst. Bhagbhari had interceded on his behalf. They tried the village methods of treatment for a couple of days but they did not avail and the condition of Allah Yar begin to deteriorate, Then Bhagbhari got a camel and took her son to Police Station Gunjial, situated at a distance of 13 miles from village Dhokri, where Allah Yar made the report above mentioned. After the report, he was sent to the. Hospital at Khushab where he died after 19 days. On admission to the Hospital, he was found to have (1) an incised wound 1 " x ", deep to the bone, on the left side of the forehead and (2) an incised wound, 3" x 1/8", skin deep, on the right side of the back. The duration of the injuries was stated to he four or five days and they appeared to have been caused with a heavy sharp‑edged weapon. Dr. Nazir Hussain (P. W. 1), who examined Allah Yar on admission to the hospital wrote a letter (Exh. P. H.) to the S. H. O., Gunjial, on 22nd June l951, informing him that the condition of Allah Yar had taken a serious turn and complained that his request, contained in his letter No. 274 dated the 13th Jun,, 1951, for having the injury on the head of Allah Yar X‑rayed has not been complied with. The doctor said that the patient was not likely to live now though he might have survived if he had been given facilities of X‑ray a animation and surgical operation. The patient died on 23rd June 1951, and Dr. Muhammad Sharif (P. W. 2) performed the post‑mortem examination. He found:‑ (1) A wound, 1-3/5" x ", healing by granulations at the base and scarring at the margin. It was situated on the front of the middle of the skull about 3f above the root of the nose. (2) A wound, 2 " x ", at the level of the 11th rib on the right side of the chest beginning from the middle line and extending laterally. Both the injuries were ante‑mortem and caused by some sharp‑edged weapon. On dissection, it was found that injury No. (1) had cut both the tables of the skull and a piece of bone, 1 " x " from the inner table was dislodged anti had become adherent to the duramater. Death, in the opinion of the doctor, was due to the first injury which had caused fracture of the skull and dislocation of a piece of bone from the inner table of the skull. The injury was stated to be sufficient in the ordinary course of nature to cause death. It had also resulted in septicaemia, in cross‑examination. Dr. Muhammad Sharif stated that the injury was not necessarily fatal, that septic aemia had hastened the death and if the patient had been operated upon at the proper time, he might have been saved. On the basis of this statement it was argued that the appellant was not responsible for the death of the deceased. The argument has no force. Explanation 2 of section 299, Pakistan P. C. shows that where death 9s caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Another point raised by the counsel for the appellant is that in the report (Exh. P. G.) it was stated by Allah Yar that when be and his mother reached the spot Muhammad Hayat son of Nur Muhammad had diverted the water to his land and, when Allah Yar started removing the stones from the watercourse, the "said Nur Muhammad" (not Muhammad Hayat son of Nur Muhammad gave him a kassi blow on the back and then on the head. It is urged that it was not the appellant, Muhammad Hayat son of Nur Muhammad, who was stated to have caused the injury but some other person called Nur Muhammad. This was too obviously a clerical mistake and hardly a fit point to be argued seriously. That the reference was to the appellant, Muhammad Itayat son of Nur Muhammad is clear from the fact that Nur Muhammad was qualified by the word "aforesaid"; and the name aforesaid was Hayat son of Nur Muhammad. Muhammad Akbar, foot constable (;'. W. 9) has deposed that he was the, Muharrir at Police Station Gunjial on 4th June 193 1 and recorded the report made by Allah Yar who named Hayat son of Nur Muhammad as the culprit and he, by mistake wrote only Nur Muhammad at a latter stage of the report. He had started by writing the name correctly but where he made the mistake, there too he wrote "Nun Muhammad rnazkur" which really meant "Hayat son of Nun Muhammad". Besides the direct evidence of Mst. Bhagbhari, there is also the evidence of Ghulam Muhammad (P. W. 4) and Nur Khan (P. W. 5), the cousin and brother of Mst. Bhagbhari, respectively. They have deposed that the appellant expressed regret to them for striking the deceased and asked them to intercede on his behalf. They accordingly went with him to the house of Mst. Bhagbhari and the appellant asked for forgiveness in their presence. They have definitely stated that the appellant told them that he had given the kassi blows to Allah Yar. They are related not only to the deceased but to the appellant also and it was quite natural for the appellant to ask them to intercede and for the witnesses to comply with the request. The delay in the F. I. R., which has been adversely commented upon by the counsel for the appellant, is understandable in view of this intercession and in view of the fact that the injury on the head of Allah Yar did not appear to be very serious. Even when his condition had deteriorated and he went to make the report, the case was registered under section 324, Pakistan P. C. and it was only after the death of Allah Yar that the offence was altered to one under section

302. Pakistan P. C. On being questioned by the Committing Magistrate, the appellant denied that he had diverted the rain-water to his field or that he had struck Allah Yar with the kassi. He claimed to be innocent and said that he had been implicated on account of enmity. In the Court of Session, he was merely asked whether he had made the statement, which was read out to him, in the Court of the Committing Magistrate and whether it was correct. He said he had made the statement and admitted it to be correct. He was then asked whether he had hit the deceased with the kassi. He denied that and said that he knew nothing about the occurrence. He, however, admitted that the deceased's sister was married to one of his uncles and the deceased's brother was betroth ed to one of the daughters of his maternal uncle. He himself was betrothed to the other daughter of that maternal uncle. No evidence was produced in defence nor was any counter version of the incident given by the appellant. On the side of the prosecution, there is the dying declara tion of the deceased and the direct evidence of Mst. Bhagbhari who is related to the appellant. We would have attached a great deal of importance to extra-judicial confession made by the appellant to Ghulam Muhammad and Nur Khan P. Ws, but, unfortunately, neither the Committing Magistrate nor the Court of Session made confession in their examination of the appellant. The any reference to this confession was al very important circumstance appearing in evidence against the, appellant and it was the duty of the Committing Magistrate and more particularly of the Sessions Court to question the appellant about it in order to enable him to give any explanation that he might have had for it. This was not done by the Committing Court or the Court of Session and the attention of the appellant was not directed towards this incriminating circumstance. In such cases, the appellate Court may ignore the incriminating circum stance which the accused was not given the opportunity to explain in the Committing Court or in the Court of Session; or, it may remand the case for retrial from the stage of the defective examination of the accused. In this case, we consider the direct evidence of Mst. Bhagbhari, and the dying declaration for the deceased to be sufficient for the conviction of the appellant. According to section 167, Evidence Act, the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. We hold that there is sufficient evidence to justify the decision arrived at by the trial Court, independently of the evidence relating to the confession, and regrettable as the omission of the trial Court to question the appellant about this confession is, it is not a ground of itself for a new trial or for the reversal of the decision arrived at by the trial Court. In the course of the investigation the appellant produced a kassi (Exh. P. 1) but he was not questioned about that too by the Courts below. We exclude from consideration the evidence relating to the kassi also, and relying upon the evidence of Mst. Bhagbhari and the dying declaration of the deceased we hold that the offence with which the appellant was charged was duly proved against him and he was properly convicted and sentenced. The appeal is dismissed. A. H. Appeal dismissed.