1989 P Cr (PLP)

In the opinion of the doctor, both injuries were caused by a sharp‑edged weapon. Injury No.1 was grievous and dangerous to life while the injury No.2 was simple. The death had occurred due to shock and haemorrhage on account of injury No.1, which was sufficient to cause death in the ordinary course of nature.

7. Dr. Arshad Ali, M.O., P.W.1, also examined Abdul Ghani deceased in the hospital when he was alive on 3rd of May, 1984 and noticed the following injuries on his person:‑ (1) Incised wound one 1‑1/4" x 1/4" depth not probed on left side of chest interiorly near midline 3‑1/2 medial and slightly below the left nipple. (2) Incised wound 1" x 1/4" x depth not probed on left lateral side of chest in its lower part. After the expiry of Abdul Ghani, on 20‑5‑1984 at 11‑30 a.m., P.W.2 Dr. Muhammad Saleem, M.O. Allama Iqbal Memorial Hospital, Sialkot conducted the post‑mortem examination on the dead body of Abdul Ghani and noticed the following injuries:‑ (1) An old incised wound 1‑1/2" x 1/4" x muscle deep anteriorly, near the midline three and half inches medial slightly below the level of left nipple. (2) An old incised wound 1" x 1/4" x chest and abdominal cavity, deep obliquely downwards on the left lateral side of chest in lower part. The doctor also found the internal injuries. (1) Under injury No.2, skin, muscles, fascia were cut then penetrating through the last and second last left rib entering the chest cavity passing through the lowermost part of left lung obliquely, further penetrated the diaphragm and entered into the spine which is cut in its upper half. In the opinion of the doctor, the death had occurred on account of excessive internal bleeding and injury to the peritonitis. The injury No.2 was grievous and dangerous to life and was sufficient to cause death in the ordinary course of nature. Both the injuries were opined to have been caused with a sharp -edged weapon.

8. The appellant Sabir was arrested by Zakir Hussian, A.S.I., P.W.19. On 14th of May, 1984, the appellant led the police to his residential house and got recovered blood‑stained Chhuri P.4 which was taken into possession vide memo. Exh. P.N. attested by' Muhammad Idrees, P.W.18, and Muhammad Yaseen (not produced) besides the Investigating Officer Zakir Hussain A.S.I., P.W.19. The Chhuri P.4 was sent to the Chemical Examiner and Serologist and was found to be stained with human blood.

9. To prove its case at the trial, the prosecution placed reliance upon the dying declaration Exh. P.J., the ocular testimony furnished by Abdul Haq, P.W.12, a brother of Abdul Ghani (deceased) and Iqbal Begum P.W.13 widow of Abdul Ghani (deceased) and Ehsan Khan P.W.14, a person from the brotherhood of the appellant. Reliance was also placed upon the recovery of Chhuri P.4 at the instance of the appellant.

10. When examined under section 342, Cr.P.C. the appellant pleaded the right of self‑defence and made the following statement:‑ "I am innocent: What actually happened was that at about 5‑00 or 5‑30 p.m. on the day of occurrence, my younger brother was falsely accused of the theft of pigeons and on this, an altercation took place between myself and the women-folks of the complainant side. Zafar was also slapped and abused by women-folks. I reacted sharply. Then at about 6‑30 or 7‑00 p.m. when I was present in my house and my father had not returned still from his work. Abdul Ghani deceased and his son Arif returned to their house and after learning of the previous incident started hurling abuses on me and my family members. I also replied. Both of them came out running from the house into the Gali in order to enter my house. Apprehending danger to me, I picked up Chhuri from my kitchen and came in the door of my house in the street. Arif deceased pounced upon me. I gave a single blow with the Chhuri in order to save my life. His father Abdul Ghani also tried to intervene and I inflicted injuries on his person as well just to save my life. I never intended to cause their deaths. Lots of persons from the Bazar and Gali had seen this occurrence. After the incident when I entered my house, my mother locked me in the room just to save me. Police came at night time and took me from that room. I handed over the Chhuri to the police at that time."

11. It was strenuously argued before us that the plea of self‑defence raised by the appellant was nearer the truth and the appellant had no other course of action to inflict blows on the person of Arif Mehmood and his father Abdul Ghani deceased. ‑It was further urged that the appellant had inflicted only one blow to Arif Mehmood deceased, although the medical evidence shows that the deceased Arif Mehmood had received two injuries. In this behalf, reliance was also placed upon the statement of the doctor, who in his cross‑examination stated that both the injuries on the person of Arif Mehmood could be the result of one blow.

12. We have carefully examined the plea of self‑defence raised by the appellant but we are unable to believe it; first of all this plea is belied by the site plan and the place of occurrence from where the blood‑stained earth was collected. According to the appellant, the occurrence had taken place inside his house when both the deceased rushed towards his house to attack him. If this statement is believed, then the occurrence would have taken place inside the house of the appellant and not in the street. Furthermore, the law would not allow the appellant to act in the manner in which he acted because both the deceased were empty‑handed and, therefore, apprehension of grievous injury or death to be suffered by the appellant had no bass. In this view of the matter, we reject the plea of self‑defence raised by the appellant.

13. It was next contended before us that the ocular testimony in this case consisted of the statements of close relatives and, therefore, the same could not be relied upon. It was further argued that even if the statements of Abdul Haq P.W.12 and lqbal Begum P.W.13 were believed even then, the same stand was belied by the statement of Ehsan Khan, P.W.14 who had been prefabricating and had not supported the prosecution case. We have considered this aspect very carefully and we are of the view that the statement of Ehsan Khan, P.W.14, does not in any manner damage the statements of Abdul Haq P.W.12 and Iqbal Begum P.W.13, the brother and the widow of the deceased Abdul Ghani respectively. As far as Abdul Haq, P.W.12 and Iqbal Begum P.W.13 are concerned, they are the inmates of the house are natural witnesses and on C hearing the hue and cry being raised in front of the house had come out of the house and seen the occurrence and their presence at the spot cannot be doubted. We are not prepared to believe that these witnesses would implicate the appellant falsely or would substitute him or would allow the real culprit to go scot‑free.

14. It may be stated here that the defence case from the beginning shows that the acquitted co‑accused Nazeer Ahmed had not participated in the occurrence. Ehsan Khan P.W.14 also deposed to the effect that some Punchayats were convened in which, an effort was made not to involve innocent person. To further substantiate such plea on behalf of the acquitted accused Nazeer Ahmed, two defence witnesses had also entered the witness‑box to state that only the appellant Sabir had committed the offence. This plea alongwith other circumstances found favour with the learned trial Judge who opined that the case of the prosecution against the acquitted co‑accused Nazeer Ahmad was not free from doubt and that is why, his acquittal was recorded.

15. The crucial question arising in this case is whether such defence plea raised and having found favour with the Additional Sessions Judge would affect the case qua the appellant. Our answer to this question is in negative. Ehsan Khan, P.W.14 was not declared hostile and is a relation of the appellant and thus, his testimony qua the appellant cannot be easily brushed aside coupled with the role assigned to the appellant by two other eye‑witnesses whose presence at the spot cannot be doubted. An effort was made by the learned defence counsel to ' show that these two eye‑witnesses are unworthy of credit because Iqbal Begum D P.W.13 denied the convening of Punchayat, whereas, Abdul Haq P.W.12 had affirmed this fact. As it has already been observed that efforts were going on before the trial on the part, of the Brathri to prevail upon the complainant side not to depose against the innocent person and thus, on this score alone, we are unable to agree with the learned defence counsel that these eye‑witnesses had deposed falsely. In the absence of any background of enmity, we are of the view, that these witnesses had no motive to implicate the appellant falsely and thus, by no stretch of imagination, these witnesses can be branded as interested witnesses.,

16. We would like to further add here that the dying declaration Exh. P.J. stands corroborated by the ocular testimony. As far as the dying declaration is concerned, we are of the view that it was properly recorded and the same cannot be brushed aside. We are, further of the view that like other pieces of evidence, the dying declaration is also to be scrutinized to find out its inherent worth. Since E the principle of falsus in uno, falsus in omnibus is not recognized principle in our Courts therefore, the grain has to be sifted from the chaff and even if the dying declaration to the extent of the acquitted accused is found to be unworthy of credit, the dying declaration cannot be brushed aside out of consideration. An effort was made before us to show that the dying declaration was not recorded properly, the time underneath Exh. P.J. had been interpolated but we have examined both the applications moved by Muhammad Idrees, P.W.18 to find out the state of patients and on both the applications, the time mentioned is 8‑30 p.m. No doubt, that on Exh. P.J. a correction has been made but when considered with other application, we are of the view, that there is nothing wrong with the dying declaration and the same cannot be considered to have been fabricated. Therefore, the plea raised by the defence with regard to the dying declaration is also hereby repelled.

17. After careful consideration of all the facts of the case, we are of the view that the appellant Sabir cannot be burdened with the liability for the murder of Abdul Ghani deceased, as even according to the prosecution, the appellant had not played any role, in causing his death. Abdul Ghani, himself, lodging F.I.R., during life time, had also assigned all the injuries suffered by him to Nazeer Ahmed co‑accused. In this view of the matter, we hold the appellant only guilty on a single charge for the murder of Arif Mehmood, deceased. Hence, we find that the prosecution has proved its case beyond any shadow of doubt against the appellant qua the murder of Arif Mehmood, deceased. Accordingly, we find no meats in this appeal and the same is hereby dismissed. Death sentence awarded i to the appellant is confirmed. Death sentence awarded to the appellant for the murder of Abdul Ghani deceased is set aside. Reference is disposed of accordingly. M.Y.H./S‑469/L Appeal dismissed.