1986 P Cr (PLP)

3. The motive for crime as stated in the F.I.R. is that one and a half month before the present occurrence a relative of Yore, namely, Salehy, had abducted Met. Phaphi, niece of the deceased. The deceased had demanded the restoration of the girl. Two days prior to the present occurrence he again demanded the restoration of the girl accompanied by other men on Baradri basis but the accused side is stated to have refused to hand over the girl. This led to exchange of abuses between them but the people of the village intervened. It is stated that it was in this background that the deceased was attacked by the accused side.

4. There are three eye‑witnesses of the occurrence produced by the prosecution and these are Dadu (P.W.14) who is related to both the deceased as well as Yore, Gullu (P.W.15) who has also the same relationship with both the sides; and Mughli (P.W.16), father of the deceased. The trial Court has disbelieved the ocular testimony in the present case.

5. In the F.I.R. the occurrence is reported to have taken place in the following manner While Nazir Ahmed alias Nazira deceased was cutting the cotton crop in his land on the fateful day, Yore armed as described above alongwith the co‑accused, armed as described above, appeared there and attacked him. Yarn raised a Lalkara to the effect that he would not be spared. On this he ran towards the village raising alarm. While he reached near the house of one Yore Musaili, Rehman co‑accused held him in a Japha and felled him down on the ground. Thereafter Yore is stated to have given a spear blow to him which fell on the left side of abdomen in the front. On his alarm Gullu (P.W.15) and Dadu (P.W.14) as well as Mughli (P.W.16) were attracted to the scene of crime and witnessed the same. They rescued him from the clutches of the accused party and the accused party left hurling abuses. Thereafter his father namely, Mughli P.W. placed him on a cot and took him with the help of the other men to the hospital.

6. Yore was arrested on 9‑1‑1966 by Muhammad Amir Khan A.S.I. (P.W. 12). At his instance was recovered blood‑stained spear (Exh.P.5) which was taken into possession vide Memo. Exh.P.K. on the same date i.e. 9‑1‑1966. The attesting witnesses of this recovery are Muhammad Amir Khan A.S.I. (P.W.12). Shan Muhammad (P.W.11) and Muhammad Khan (P.W.13). The report of the Serologist is Exh.P.T. at page 11 of the printed paper‑book and it is to the effect that the said article was stained with human blood. However, the trial Court has disbelieved this recovery for the reasons stated in pares 19/20 of the judgment at page 64 of the printed paper‑book.

7. Yore in his statement first before the committing Magistrate had stated that Mughli etc. P.Ws. came to take away the daughter of Shera forcibly where a fight took place in which Shera was injured. Due to his relations with Shera he had been falsely implicated in this case. He stated that he would produce his defence in the Court of Sessions if necessary. However, at the Sessions stage in his statement he denied having participated in the occurrence, disowned the recovery and stated that he had been falsely implicated due to enmity He did not produce any defence.

8. Dr. Muhammad Aslam (P.W.2) medically examined the deceased on 7‑1‑1966 at 1.15 p.m. and found the following injuries on his person:‑ (1) Swelling 2" x 2" on the inner back of right hand (on the little finger side). (2) Punctured wound 2" x 1" open to abdominal cavity deep, on the left side of the abdomen anteriorly lower to the castal margin about 3 " left to the middle line. There was protusion of fat and some portion of intestine, blood and faecal matter coming out from the intestine (that portion). (3) Swelling 3 " x 2 " on the left side of back lumber, region along the vertebral column. (4) Abrasion about 1 " round on the back media" of left elbow‑joint. (5) Contused swelling on the left side of the head, 2" x 5" above the left ear. (6) Abrasion about 1/4" on the upper part of pinna of left ear. Injury No.2 had been caused by sharp‑pointed weapon and was dangerous, while the other injuries were caused with blunt weapon and were simple in nature within the duration of about four hours. On the same date a query was made from him by the Police Officer about the fitness of Nazir Ahmed alias Nazira deceased to make a statement to which he replied in the affirmative. On the same day Muhammad Hanif M.H.C. (P.W.19) recorded the statement (Exh.P.B.) of Nazir Ahmed alias Nazeera in the presence of the Doctor. According to him, Nazir Ahmed alias Nazeera remained conscious throughout his statement and had thumb marked his statement. The doctor also signed the statement made by the deceased. Dr. Ghulam Ahmed (P.W.1) conducted the post‑mortem examination on the dead‑body of the deceased on 8‑1‑1966 at 2.00 p.m. and found almost the same injuries on his person. According to him, the cause of death was shock and haemorrhage as a result of injury to colon, left kidney and omentum. It had been caused by sharp‑painted weapon and proved fatal. The rest of the injuries were caused with blunt weapon.

9. The learned trial Court disbelieved the motive on the ground that the names of Muhammad P.W.17 and Karam Ali P.W.16 were not mentioned in the F.I.R. as having accompanied the deceased and Mughli P.W.16 to the house of Yara and Moonda accused where hot words were exchanged between the parties and further that Yare accuse respondent had nothing to do with the abduction of Mst Phaphi. The eye‑witnesses were held to be the chance witnesses and their conduct of not physically intervening to rescue the deceased was considers highly unnatural. Furthermore, the ocular testimony was not found be in conformity with the medical evidence. The F.I.R was also considered delayed. The dying declaration was ruled out of consideration because the time of recording the same was not certain and the decease was found surrounded by his close relatives at the time of recording it. The recovery of spear Exh.P.5 was disbelieved on the ground that it was highly improbable that he would have carried it with him till it, recovery which took place three days after the occurrence.

10. Learned counsel appearing on behalf of the State submits that Yara accused‑respondent had strong motive to commit the crime. Dadu, Gulla and Mughli were natural witnesses of the occurrence. And weight of the dying declaration made by Nazeera deceased which from the F.I.R. in the case was not properly considered and appreciated.

11. No doubt, all the three eye‑witnesses are closely related to the deceased but in the absence of any enmity or motive to falsely implicate the accused‑respondent their evidence could not be discarded on that score only. Dadu P.W.14 is equally related to Yara accuses‑respondent. According to him the deceased was son of his mother's sister and so was Yara accused‑respondent. Mughli P.W. is a natural witness because he was working in a nearby field. Dadu and Ghulla P.Ws. are also the residents of the same village where the occurrence had taken place and were proceeding towards the field of one Shana when they witnessed the occurrence. All of them have unanimously stated that it was Yara accused‑respondent who inflicted the fatal spear blow on the abdomen of the deceased. There is nothing on the record to indicate that any of the eye‑witnesses had any motive to falsely implicate Yara accused -respondent. They stand fully corroborated by the medical evidence. There had been no significant delay in reporting the matter to the police. The occurrence took place at 8‑9 a.m. whereas the F.I.R. (the dying declaration) was recorded on the same day in the afternoon. The distance between the spot and the police station, being 5 miles. The occurrence had taken place in the field. The deceased must have been carried first to his house and then to the hospital. It was from the hospital that an intimation was sent to the police about arrival of the deceased in a serious injured condition. The police must have taken some time to reach the hospital. A query in writing was made by the police from the doctor about the fitness of the deceased for make a statement and on finding a reply in affirmative Muhammad Hanif, Moharrir Head Constable proceeded to record his statement. 4/5 hours must have been consumed in the completion of the above‑noted formalities and thus no adverse inference can be drawn against the prosecution in this behalf. The dying declaration Exh.P.B. was recorded by Muhammad Hanif, Moharrir Head Constable in the presence of Dr. Muhammad Aslam P.W.2, who also signed it. Though it appears in evidence that Mughli, father of the deceased and some of his relatives were present near the deceased when it was recorded but there is nothing to indicate that they had tutored or prompted the deceased at that time. No such suggestion was made to the doctor or the author of the dying declaration. A suggestion was made to Muhammad Hanif M .H.C.P.W.19 that the deceased was not in a fit condition to make the statement and that he had recorded it at the instance of his father Mughli P.W. but he categorically denied it. The presence of the parents of the deceased or his other close relations near him in the hospital soon after the occurrence is quite natural. In our society particularly in rural areas people consider it highly improper and immoral to leave a dying man unattended. In such a situation the scribe of the dying declaration is required to ensure that nobody should prompt or tutor him while his statement is being recorded and see that he makes the statement freely without any extraneous influence. It will certainly add to the value of the dying declaration if it is recorded in the absence of the relatives of the deceased or the eye‑witnesses to rule out any chance of prompting him but it cannot be made a rule of general application that even if it satisfies all the essential requirements of its genuineness it must be discarded simply for the reason that at the time of its recording some of the relatives of the deceased were present near him without there being any slightest indication that any of those persons had persuaded or induced him in any manner and without there any doubt being created in the mind of the Court to that effect. In the instant case there is nothing about the veracity of the author of the dying declaration or of the doctor who had given evidence about it. The nature of the statement itself and the circumstances under which it was made makes probable the truth of the statement. Law only emphasis on the necessity of corroboration as a matter of prudence and not as an absolute rule of law. Weight to be attached to a dying declaration must depend on the circumstances surrounding the maker of the statement and authenticity of record. No suggestion of any ill‑will or grouse was made to the scribe of the dying declaration against the respondent nor has any reason been shown as to why he should create a false dying declaration to implicate the accused‑respondent. It was recorded without any loss of time and stands corroborated by the unimpeachable evidence of Dadu P.W.14, Ghulla P.W.15 and Mughli P.W.16. It was a broad‑daylight occurrence and the deceased and the eye‑witnesses were well‑acquainted with the accused‑respondent and as such there was no chance of any mistaken identity. In the above circumstances there was no legal justification to discard the ocular testimony and the dying declaration. No reason has been brought on record for substitution of the accused‑respondent for the real assailant. There was no serious background of enmity with him so as to falsely involve him in a case involving capital punishment. The solitary fatal blow to the deceased is attributed to him. He may not be happy with the deceased over his being pestered for the return of Mst. Phaphi in whose abduction he had no direct hand. It is in H evidence that the situation became tense and the parties exchanged abuses with each other. In all probability, it was in the background of this situation that the deceased, an uncle of Mst. Phaphi and Yara accused‑respondent a relative of Salehy who was charged with the abduction of Mst. Phaphi on coming face to face with each other exchanged some provocative remarks leading to the present occurrence.

12. In the circumstances discussed above the prosecution case stands fully established against Yara accused‑respondent and his acquittal has resulted in grave miscarriage of justice. Consequently, we accept the State Appeal, set aside the acquittal of Yara accused‑respondent and convict him under section 302, P.P.C. Since a considerable delay has taken place in the disposal of this appeal and having regard to feelings of the accused‑respondent for being unnecessarily held responsible for the abduction of Mst. Phaphi and having been abused by the deceased for not helping in her restoration we consider him entitled to leniency J in the matter of sentence. We think that the ends of justice will be met if a lesser penalty provided for the offence of murder is awarded to him. Accordingly, we sentence him to imprisonment for life and a fine of Rs.2,000 (Two thousand) or in default to undergo two months' R.I. He is on bail. Non‑bailable warrants of arrest be issued against him and sent to the District Magistrate, Gujrat for causing his arrest to serve out the sentence. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. At the close of the hearing it was brought to our notice by the learned counsel for the accused‑respondent that the parties have entered into a compromise and the complainant party has forgiven Yara accused. Since this is not a compoundable offence and we have already awarded K him the lesser sentence provided for the offence of murder we are not in a position to help him any further. The parties may in these circumstances approach the Executive Authorities for necessary action in this behalf. M. Y. H. Appeal accepted.