P L D 1966 (W (PLP)

(1) A stitched longitudinal operation wound on the left paramedian area 1" to the left of umbilicus extending from just above the umbilicus to the epigastrium. (2) A transverse cut measuring " x " to the right of No. 1 and 2" below the umbilicus. (3) An oblique stitched wound on the back of left lumber area measuring " x '', it was 3" to the left of mid‑line. On opening the abdomen, there was " x " puncture in the left flank, showing the impact of the weapon causing injury No.

2. In the opinion of doctor, death was due to anemia and shock as a result of plastic peritonitis, which was an indirect result of injury No. 2, caused by a sharp‑edged and pointed weapon. According to him, this injury was sufficient to cause death in the ordinary course of nature.

8. On receiving information about the death of the deceased, the section of law was altered from 307/34 to 302/34, P. P. C. In his dying declaration (Exh. P. F.) Murid Sultan stated that he along with Waris Khan had come to Ghaurghushi from village Jhamra and after purchasing four bags of khal from Sher Bahadur P. W. 9 at a.m. they loaded it on their she‑camel and were returning to their village. Ghulam Hussain and Nur Elahi, sons of Sultan, emerged from the heaps of sarkanda. Ghulam Hussain 1st dealt him a dagger blow in his abdomen and was wounded by Nur Elahi with a dagger on his left side back. Waris raised an alarm and the two culprits decamped. Many persons present in the mandi had witnessed the occurrence.

9. The motive for the offence as given by the deceased in the dying declaration is that on the death of the father of Ghulam Hussain and Nur Elahi appellants, the property belonging to Muhammad, maternal‑grandfather of the deceased, was inherited by his (deceased's) mother to the exclusion of the appellants, and on account of this they wounded him.

10. Muhammad Aslam A. S. I., then H. C. Police Station Hazro (P. W. 18) was present in village, Yaseen on 25‑11‑1965 at a distance of about 2' miles from the spot when a constable brought copy of the F. I. R. of this case to him from the Police Station, and so he left for the spot, reaching there at 4 p.m. He took into possession bloodstained earth from the spot and sealed it into a parcel vide Memo. P. W. A. He also took into possession a dachi and got emptied four bags of oil‑cakes (Exh. P. 9/1‑4) per recovery Memo. Exh. P. B. On the following day, Le, 26‑I1‑1964, he went to village Jhamra in search of the appellants, but was unable to trace them. He, however, arrested them on 27‑11‑1964 in the area of Ghaurghushti. After the arrest, he interrogated the appellants, and on 30‑I1‑1964 Ghulam Hussain appellant led him to a place, situate on the way to Jhamra at a distance of two furlongs from the spot, from where he got recovered chhuri Exh. P. 2 in its sheath Exh. P. 3, lying under a bush, and this he took into possession per recovery Memo. Exh. P. D. Thereafter, Nur Elahi appellant got recovered the chhuri (Exh. P. 4) in its sheath Exh. P. 5, at a distance of two yards from the place of recovery of chhuri (Exh. P. 2) and it was also taken into possession per recovery Memo. Exh. P. E.

11. The appellants, when examined, pleaded not guilty. They admitted that Muhammad whose property was in dispute, was their paternal‑grandfather and was maternal‑ grandfather of the deceased. On being asked as to whether the appellants and their brothers were in possession of the entire property, left behind by Muhammad, deceased, Ghulam Hussain made the following statements: "We are in possession of the entire estate left by Muhammad even since the time of our great grandfather. A part of it was mutated in the name of Murid Sultan's mother and her sister. The deceased was feeling aggrieved with us over it and wanted to get possession of the share of his mother." Explaining the charge against him, Ghulam Hussain stated: "On the date of occurrence Murid Sultan deceased passed near me in mandi Ghaurghushti, and started abusing me. He also tried to injure me with his stick. We grappled. I injured him with a small knife to defend myself. Noor Ilahi my co-accused was not present at that time. He was at his house. I alone injured him. I had gone to mandi to make purchases." The two appellants denied that their brother Ghulam Shah Ali was beaten by Murid Sultan deceased and Waris (P. W. 13) and stated that there was some dispute about consolidation of holdings but it was compromised. They concluded that Murid Sultan deceased had charged them in the dying declaration falsely due to the dispute over the possession of land.

12. The learned counsel for the appellants raised a preliminary objection urging that the mandatory provisions of section 342, Cr. P. Code have not been complied with in that the appellants were not afforded an opportunity to explain as to why the eye‑witnesses had deposed against them, and thus the conviction of the appellants was rendered illegal. In support of his contention he relied upon Criminal Appeal No. 214 of 1964 and Murder Reference No. 1 of 1965, decided by a Division Bench of this Court on the 15th of July 1965. In that case, the Additional Sessions Judge while examining the accused under section 342, Cr. P. Code, had failed to afford him an opportunity to explain the dying declaration of the deceased. The appeal was accepted, the conviction and sentences, of the appellant were set aside and the case was remanded to the Additional Sessions Judge, Mardan.

13. The learned Additional Advocate‑General, however, urged that the fact that the learned Sessions Judge had failed to afford an opportunity to the appellants to explain as to why the eye‑witnesses had deposed against them, does not vitiate the trial, because only those circumstances appearing in the evidence against the appellants are to be put .to them, which are likely to turn the scale in favour of the prosecution. In this context he referred to the examination of the two appellants by the Enquiry Magistrate, and one of the questions put to them was as under: "Have you anything else to say in explanation of the evi dence adduced against you, specially as to why this case against you? The learned Additional Advocate‑General urged that the Enquiry Magistrate had afforded an opportunity to the appellants, and thus the omission on the part of the Sessions Judge in not affording an opportunity to them as to why the eye‑witnesses had deposed against them, in the circumstances does not vitiate the trial. In a case reported as Bimbadhar Pradhan v. The State of Orissa (P L D 1957 S C (Ind.) 68) it was held:‑-- "Whether the provisions of section 342 of the Criminal Pro cedure Code has been complied must depend upon the facts and circumstances of each case. It is ordinarily necessary to put the evidence of each individual witness to the accused in his examination under section

342. Where the accused was put the question "Have you got anything to say on the evidence of the witnesses? it was sufficient in the circumstances of the case to show that his attention was called to the prosecution evidence and he was not prejudiced in any way." In another case reported as Chikkarango Gowda and others v. The State of Mysore (P L D 1957 S C (Ind.) 133), it was held that: "The compliance with the provisions of section 342 is not a mere idle formality. Still even where the examination of the accused to enable him to explain the circumstances appearing against him is neither full nor very satisfactory, it does not vitiate the whole trial if no serious prejudice has been caused to the accused." The learned Additional Advocate‑General also relied upon Bashir Ahmad and others v. The State (P L D 1960 Lah. 687). At page 701 it was observed: "This brings one to the question whether asking an accused person whether he had made before the committing Magistrate the statement read out to him and whether he wanted to add to that statement can be considered to be compliance with the provisions of section 342 of the Code of Criminal Procedure. Such an examination of the accused is not in accord with the provisions of section 342 of the Code of Criminal Procedure, but if the evidence at the trial is materially the same as that before the committing Magistrate, I should be reluctant to hold such an examination of the accused to be inadequate. I am not denying that the trial Judge should draw the attention of the accused to all the evidence which the Judge considers points towards the guilt of the accused but if all the material circumstances were put to the accused in the Court of the committing Magistrate, the Sessions Judge who does not question the accused about the circumstances is no doubt guilty of an omission, but the omission would not be of the type which could vitiate the trial." The appellants were afforded an opportunity by the Enquiry Magis trate to explain the evidence adduced against them. The statements recorded by the Enquiry Magistrate were tendered in evidence, and therefore, the omission on the part of the Sessions Judge in not affording an opportunity to the appellants as to why the eye‑witnesses had deposed against them, in our opinion, does not vitiate the trial, because there has been no illegality, or an irregularity of procedure, or a violation of the principles of natural justice, resulting in an absence of fair trial or a gross miscarriage of justice, and so in these circumstances we overrule the preliminary objection.

14. On merits the learned counsel for the appellants urged that the relations between the appellants and the deceased were strained since about a few years over the inheritance of the property left behind by Muhammad, and over the beating of Ghulam Shah Ali by the deceased and Waris P. W., and in these circumstances, the dying declaration of the deceased cannot be accepted as the conclusive proof of the guilt of the appellants without corroboration. He attacked the statement of Waris (P. W. 16) on the ground that his presence on the spot at the time of the occurrence has not been proved, and moreover, the father of the deceased was the maternal‑uncle of this P. W. and his sister Mst. Balqis, is the wife of Waris P. W., brother of the deceased, and so on account of his close relationship with the deceased, his statement also requires corroboration. He challenged the statement of Abdul Haq (P. W. 17) on the ground that he was not mentioned in the first information report as an eye‑witness.

15. It is true that there was enmity between the deceased and the appellants since about five years before the occurrence, arising out of a dispute over the property left behind by Muhammad. Moreover, as a result of the beating of Ghulam Shah Ali by the deceased and Waris P. W. the two parties were bound down in security proceedings, and therefore, the dying declaration of the deceased and the statement of Waris (P. W. 16) require corroboration. The statement of Sher Bahadur (P. W. 12) shows that on the day of occurrence the deceased who was accom panied by Waris (P. W. 16) had come to his shop and had purchased four bags of oil‑cakes from him. Sher Bahadur P. W. belongs to village Ghaurghushti, and no attempt was made by the appellants to show that he had an axe to grind against them. He is totally a disinterested witness and his statement establishes the presence of Waris (P. W. 16) on the spot at the time of the occurrence with the deceased. Furthermore, it was Waris (P. W. 16) who had taken the injured in a station wagon from the spot to the Civil Hospital at Hazro at a distance of six miles from the, spot, which further shows that he was present on the spot with the deceased and had witnessed the occurrence. The name of Abdul Haq (P. W. 17) was not mentioned by the deceased in the dying declaration as an eye‑witness, although he had stated that besides Waris P. W. ninny other persons who were present in the mandi had witnessed the occurrence. The omission of the name of Abdul Haq P. W. from the dying decla ration does not show that he is a false witness, because he was not known to the deceased and Waris P. W. before the occurrence. The fact that the deceased had stated in the dying declaration that many persons who were present in the mandi had witnessed the occurrence, shows that Abdul Haq, P. W. was one of those persons. The record shows that he is neither related to the deceased, nor has enmity with the appellant, and so being a totally disinterested witness, he had no motive for falsely impli cating the appellants. The deceased and the two eye‑witnesses have charged the two appellants for dealing him one blow each with daggers. The recoveries of dagger (Exh. P. 2) in its sheath (Exh. P. 3) at the instance of Ghulam Hussain appellant and of the dagger (Exh. P. 4) in its sheath (Exh. P. S) at the instance of Nur Ilahi appellant, are proved by Muhammad Aslam, A. S. I. (P. W. 18) scribe and Sikandar (P. W. 10), marginal witness of the recovery Memos. The recovery of these daggers at the instance of the appellants corro borates the dying declaration of the deceased and the state ments of the eye‑witnesses. Furthermore, the conduct of the two appellants regarding their absence from the village for two days also corroborates the prosecution story.

16. The occurrence had taken place in broad‑daylight, the deceased and the eye‑witnesses were in position to identify the culprits who have consistently charged the appellants for giving one dagger blow each to the deceased in the manner described above, and so we hold that the injuries resulted in the death‑. of the deceased were caused by the two appellants..

17. The learned counsel for the appellants, however, urged that it was Ghulam Hussain appellant who had caused the two injuries to the deceased and Nur Elahi appellant was falsely roped in on account of enmity. In support of his contention he referred to the statement of Ghulam Hussain appellant, recorded at the trial, stating that it was he who had caused the injuries to the deceased, because the letter after passing near him threatened him with a stick, and grappled with him, and so apprehending danger to his life at the hands of the deceased, he wounded him. Apart from the bare allegation of Ghulam Hussain appellant, there is no material on the record to show that the deceased had attempted to attack him and hit him kith a stick. The dying declaration of the deceased and the statements of the eye‑witnesses clearly show that the two appellants had wounded the deceased by dealing him one dagger blow each. The bare statement of Ghulam Hussain appellant which was made for the first time at the trial, in our opinion, is not enough to contradict the dying declaration of the deceased and the statements of the eye‑witnesses, and so we hold that the two appellants had caused one dagger blow each to the deceased, which resulted in his death.

18. The learned counsel for the appellants lastly urged the offence committed by the appellants does not fall under section 302, P. P. C., because the death of the deceased was not the result of the injuries, but it was caused by diarrhoea. In this context he referred to the statement of Doctor Abdul Khaliq (P. W. 14) who at page 7, lines 28 to 31 stated: "The immediate cause of death of Murid Sultan deceased was diarrhoea which bad caused shock due to dehydration. However, diarrhoea had been caused by peritonitis and peritonitis had been caused by the‑injury." Relying upon this statement, the learned counsel urged that since the immediate cause of death of the deceased was diarrhoea and not the injuries caused by the appellants, the offence falls under section 307, P. P. C. We do not find ourselves in agreement with the contention of the learned counsel. The doctor has deposed that although the immediate cause of the death of the deceased was diarrhoea, but he stated that the diarrhoea had been caused by peritonitis and the latter was caused by the injuries, and so it follows that peritonitis and diarrhoea were the result of the injuries, caused to the deceased by the appellants. In these circumstances, we hold that they have rightly been convicted under section 302, P. P. C.

19. In this case the normal penalty prescribed by the law under section 302, P. P. C. is not called for. The presence of the appellants in the mandi which was the scene of occurrence does not show that they had come to the spot to commit the murder of the deceased in furtherance of their common intention, because a mandi which is a business centre is not a proper place to be selected for the commission of a murder in broad‑daylight. It appears that on seeing each other in the mandi, an altercation ensued between the deceased and the appellants and in the course of it the deceased was dealt one dagger blow each by the two appellants and each of the two injuries was sufficient to cause death in the ordinary course of nature. In these circumstances, we maintain the conviction of the appellants under section 302/34, P. P. C. and commute their sentences to transportation for life. The death sentences are not confirmed. With this modification, the appeal is dismissed. K. B. A. Appeal dismissed. Sentence modified.