1987 PLP 1878 (MLD)

7. Dr. Nasir Mahmood (PW. 3) who conducted post-mortem examination on the dead body of Noor Muhammad on 11-12-1984 at 10 a.m., found the following injuries on it:-- (1) Abraded contusion right side of head on parietal region 2 cm x 2 cm. (2) Contused swelling in the occipital region. (3) Abraded contusion on the right side of forehead. (4) Abraded contusion and swelling of nose. (5) Abrasion on right cheek. (6) Incised wound on the right upper arm 1.5 c. m. x 0.5 c. m. (7) Incised wound on the right forearm 11 c. m. x 0.5 c. m (8) Abrasion on the left upper arm. (9) Abrasion on front of chest. According to `the doctor, under injuries Nos.l and 2 skin tissues and muscles were bruised and the scalp was contused. On opening the skull the meninges were found contused and bruised under injuries Nos.l and

2. The brain cavity was containing frank blood. Blood vessels were ruptured. Excepting injuries Nos.6 and 7 which were caused with sharp-edged weapon the rest were the result of blunt weapon. Under injuries Nos.3 to 8 nothing was significant while under injury No.9 skin, tissues and muscles were bruised. The rest of the organs were found healthy. In the opinion of the doctor, the death had occurred due to shock and haemorrhage caused by injuries Nos.l and 2 which were sufficient in the ordinary course of nature to cause the death. Duration between injuries and death was 24 hours and between death and post-mortem within 18 hours. The doctor admitted that except injuries Nos.l, 6 and 7 he had not noted the dimension of any other injury. He admitted that even slightest injury to meninges would cause severe shock to the injured. In the instant case meninges were seriously injured resulting in immediate unconsciouness, loss of memory and loss of power of speech. He also admitted that the possibility of the injuries by the deceased having been suffered as a result of headlong fall on the ground could not be ruled out.

8. At the trial, prosecution in support of its case produced as many as 14 witnesses. Of them Mst. Matloob Begum (PW.9) and Tariq (PW. 10) stated about the motive as well as about Yousaf, appellant's having taken away the deceased with him saying that the deceased was wanted by Maula Bakhsh appellant at his Baithak. Razik (PW. 11) stated about the second part of the occurrence that when the deceased was being taken next morning to the hospital for treatment. Maula Bakhsh appellant having stopped them in the way gave fist and kick blows to the deceased. Mst. Matloob Begum and Tariq PWs further deposed that the deceased had told them that he was beaten by Maula Bakhsh and Yousaf appellants with sticks and then pushed out of their house. Sadiq (PW. 7) who is the son of sister of the deceased stated about the recovery of blood-stained pillow P.4 and some drops blood from the floor of Baithak of Maula Bakhsh appellant and also about the recovery of blood-stained Danda P.5 from the appellant's 'Baithak. The evidence of remaining witnesses is of formal nature.

9. The appellants when examined under section 342 Cr.P.C., denied the allegations. Maula Bakhsh specifically denied the motive as well as the recoveries. Maula Bakhsh while replying the question, why this case against you, stated that the instant case was concocted against him by Aslam and Muslim, big Zamindars of the Ilaqa who are his staunch enemies. According to him the deceased was found lying dead and thereafter these PWs who are their tenants were put up against him. He also produced certified copies of certain documents, namely, F.I.R. dated 9-10-1-977 Ex. DJ, F.I.R. No.27, dated 8-9-1983 Ex.DK, F.I.R. No.28, dated 9-9-1983 Ex.DL, F.I.R. No.70 dated 23-7-1980 Ex. D. M., besides his written statement Ex. DN and affidavit of Gulab Ex. DO to show his party faction with aforesaid Muslim and Aslam and that he had to appear against them on 11-12-1984 as witness in the Court of Session. Muhammad Yousaf appellant stated that his uncle Muhammad Din appeared as witness in an Arms Act case against said Aslam and, therefore, he has been falsely involved in this case. He produced copy of challan Ex. DB and statement of his uncle Muhammad Din made in the said case as Ex. DH . Both of them declined to make statement on oath and also did not examine any witness in defence.

10. Learned trial Court on consideration of the material on record accepted the prosecution case as narrated by Mst. Matloob Begum (PW. 9), Tariq (PW. 10) and Razik (PW.11) and held the appellants responsible for causing injuries to the deceased. However, the trial Court held that from the circumstances the intention to kill on the part of appellants or that they had knowledge that by giving this beating the deceased shall be killed was negatived in view of the injuries found on the person of the deceased because if the appellants wanted to kill him there was no hurdle in the their way to do so in the Baithak of Maula Bakhslf appellant and consequently the learned trial Court convicted them under section 325/34, P.P.C. instead of 302/34, P.P.C. and sentenced them as indicated above.

11. I have heard learned counsel for. the appellants as well as for the State and also perused the record. 12: About the motive part of the story, it is observed that Maula Bakhsh appellant is Gujjar by cast while the deceased was swan. The appellant had no relationship whatsoever with Mst. Pukhraj or for that matter with Shafiq son of the deceased. There is nothing on record that Karam Elahi real father of Pukhraj was not alive. It is therefore not understood as to why should Maula Bakhsh worry for the marriage of Pukhraj, a lady of a different tribe and whose father was also alive, therefore, the question of proposing Pukhraj's marriage by him with Shafiq or for that matter denial on the part of Shafiq's father Noor Muhammad would not arise. It is pertinent to note that none of the witnesses have stated that this offer was made by Maula Bakhsh or declined by the deceased in their presence. So, there is not an iota of admissible evidence on record to prove the motive. I am, therefore, constrained to reject the motive part of story in the circumstances narrated above.

13. Admittedly, there is no eye-witness of the occurrence that the two appellants gave Danda blows to the deceased in the Baithak of Maula Bakhsh appellant and then pushed him out. Khalil Musalli from whose house the deceased being injured state was recovered and removed to his house by Tariq (PW. 10) and his father Dadoo who has not entered the witness-box also has not appeared. So, there is no evidence to prove that the two appellants had beaten the deceased with sticks in the Baithak of the appellant except the statement of the appellant himself which he allegedly made before Mst. Matloob Begum, complainant, -by way of extra-judicial confession which is hard to believe. However, the prosecution has tried to fill in this gap by providing the evidence of dying declaration of the deceased and the removal of blood-stained pillow and a few stains of blood from the floor of Baithak of Maula Bakhsh appellant. As for the recovery of blood-stained pillow and stains of blood from the floor of Baithak is concerned, they have been got proved through Sadiq (PW.7) son of sister of the deceased. According to the investigating officer, a few stains of blood were found there whereas the other witnesses state that when the deceased was taken by them on shoulder to their house from the house of Khalil Musalli their clothes were also got stained with blood. This means that there had been profused bleeding from tile wounds of the deceased but it does not appear to be so as only a few drops of blood were found in the Baithak of Maula Bakhsh appellant which can be managed. Again, I would not believe that the deceased was beaten by placing him on the cot and a pillow P.4 under his head. So, this evidence is a clear concoction. Regarding recovery of Danda P.5, it may be stated that according to the investigating officer at the time of its recovery the Baithak was locked and it was unlocked with a key by the wife of Maula Bakhsh appellant whereas Sadiq P.W. stated that the room was not locked. This glaring discrepancy in the evidence of the two witnesses makes the recovery doubtful, which is also belated one.

14. Coming now to the oral dying declaration allegedly made by the deceased before the complainant and Tariq (PW. 10) and his father Dadoo (not produced) when brought home from the place of Khalil Musalli. According to them the deceased told them on their enquiry that Maula Bakhsh and Yousaf appellants had given him beating with Dandas in the Baithak of Maula Bakhsh and then threw him outside the Baithak through the window because he had refused to marry his son Shafiq with Mst. Pukhraj but strangely enough this fact does not find mention in the F.I.R. lodged by Mst. Matloob Begum. The record shows that this part of the statement was extracted from the witness by the Public Prosecutor by reminding her to state this fact by dropping a clear hint to her. Therefore, this dying statement is not believable being afterthought and further its being against the medical evidence which shows that possibility could not be ruled out that as a result of the injury to the brain the deceased became unconscious and also lost his memory as well as power of speech.

15. The story that the deceased was taken from his house at 9 p.m., on the fateful night by Muhammad Yousaf appellant on the pretext that he was being called by Maula Bakhsh appellant does not inspire confidence. The witnesses on this point also have contradicted each other. The complainant says that the deceased had refused to go but Muhammad Yousaf appellant had taken him forcibly whereas Tariq PW does not say that any force was used. Furthermore, this part of story is conspicuously missing from F.I.R. Ex.PG.

16. Above all the delay in this case has rendered the case highly doubtful. The doctor says that the deceased died within 24 hours of the receipt of injuries. The deceased according to the complainant and also Shafiq P.W.12, (the son of the deceased) had died at Peshiwela, at Chur Harpal while on their way to hospital. I think, nobody was around the deceased when he was alive at mid-night immediately after the occurrence. Had it beep so then there would not have been so much delay in transporting him to the hospital. It appears to me that prosecution in order to cover this delay has introduced the story that while the deceased was being taken to the hospital in the morning they were stopped by the appellant and, therefore, they took him at Peshiwela, but he died in the way.

17. For all these reasons the evidence on record is not sufficient and safe to sustain the conviction and sentence awarded to the appellants. In the result, I would accept this appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith if not wanted in any other case. S.A./M-257/L Appeal accepted.