1974 PLP 219 (SCMR)

MUHAMMAD GUL, J.‑‑This appeal by special leave is by Wahid Bakhsh, who was convicted by a learned Additional Sessions Judge for the murder of Sher Muhammad and sentenced to death which was latter confirmed by the High Court, dismissing his appeal.

2. Sher Muhammad deceased was married on 27th June 1938, to Mst. Rharawan, daughter of one Hassu Khan. At the time of marriage the deceased agreed that if any daughter were born out of wedlock, he would give her hand in marriage to Kaura, or any other son of Hassu Khan, failing which he would pay Rs. 300 (and not Rs. 200 as mentioned in the judgments of the Courts below), as tawan. A daughter named Mst. Wasso was born to the deceased, but he would not redeem his promise and instead was willing to pay the tawan. Kaura took the matter to the Conciliation Court. The council decided that Kaura could compel Slier Muhammad to marry his daughter to any of his brothers or any other person of his choice. Kaura in fact wanted Mst. Wasso to be married to his wife's brother Faiz Muhammad. On appeal by Sher Muhammad, the decision of the Concilia tion Court was set aside by the learned District Magistrate,

3. Thus freed from his undertaking, Slier Muhammad deceased married his daughter Mst. Wasso to his nephew on the morning of 31st March 1969. The same day at about 4‑45 p.m. Slier Muhammad was sitting at the shop of Muhammad Khalid (P. W. 10) in the main Bazar of Choti Zerin, when the appellant who is the brother of Faiz Muhammad to whom the deceased had refused to give his daughter in marriage, came out from the shop of Ghulam Madni with a chhurri Exh. P. 5, in his hand and attacked Sher Muhammad causing him injuries on the neck and the two flanks besides Muhammad Khalid, the occurrence was also witnessed be Muhammad Usman (P. W. 9) and one Ghulam Nabi. The appellant then tried to run away from the scene, flourishing the blood‑stained churri, threatening those present not to come near him. The deceased fell on tile ground but was taken in an injured. condition to the police station, Mhere ho himself lodged the first information, report Exh. P. O. From the police station, the deceased was sent to the hospital for treatment. In the mean time, the appellant as he was trying to escape was apprehended with blood‑stained churri by Bashir Ahmad (P. W. 8). The deceased died in the hospital on the morning of the 2nd April 1969, and the case which was originally registered under section 307, P. P. C. was then altered to section 302, P. P. C.

4. According to the medical evidence, the deceased had six injuries on his person, of which injury No. I over the right flank was dangerous and fatal to life, while injuries Nos. 2 and 3 on the left flank were dangerous to life. These were sufficient to cause death in the ordinary course of nature.

5. The appellant's conviction rests on the dying declaration and the evidence of the two eye‑witnesses, Muhammad Usman (P. W. 9), and Muhammad Khalid (P. W. 10) and the confirmatory evidence of Bashir Ahmad (P. W. 8) who apprehended the appellant with the blood‑stained chhurri Exh. P. 5 while he was making bid to escape. There is also the evidence of motive and the evidence of recovery of blood‑stained Pugri Exh. P. 1 and Lungi Exh. P. 2, from the person of the appellant at the time of his arrest by the police.

6. Learned counsel for the appellant frankly conceded and rightly so, that he was not in a position to question the veracity of the eye‑witnesses in the case or the evidence with regard to the motive. He, therefore, con fined his argument to two legal objections which according to him vitiated the trial. He submitted that in his statement recorded under section 342 Cr. P. C. the appellant was snot questioned about the dying declaration Exh. Y. O. and thus was denied the opportunity to offer any explanation that he might have had to offer. It was also submitted that the Medical Officer, who performed the autopsy on the deceased was not cross‑examined before the committing Magistrate and, therefore, was summoned in the Sessions Court, but was not cross‑examined, nor any opportunity allowed to him to cross‑examine the witness in the Sessions Court. This, according to the learned counsel, materially prejudiced the appellant in his defence.

7. As to the first objection, it is true that neither in the commitment proceedings, nor during the trial any specific question was put to the appel lant with regard to the dying declaration Exh. P. O., but in both the Courts he was represented by counsel who had the fullest opportunity to cross examine the witnesses. It is not suggested that the appellant had no notice of the first information report, which was exhibited on the record in his presence and which was read over in open Court. Therefore, it is not a case in which the accused was taken by surprise because of reliance by the Courts upon this evidence which incidentally is by no means the only, evidence upon which his conviction rested. However, may be, the omission was a men, irregularity which is curable under section 537, Cr. P. C. Not only that ; even if we were to omit the F. I. R. Exh. P. O., from considera tion, other evidence which includes the statements of the eye‑witnesses to the occurrence and the evidence of recoveries is overwhelming against the appellant.

8. As to the objection with regard to the medical evidence, it appears that the doctor was summoned in the Sessions Court but was not examined. In the commitment proceedings, however, the deposition of the Medical officer was recorded and attested in the presence of the appellant and he was allowed opportunity of cross‑examination but he did not avail of that. This satisfies the conditions laid down in subsection (1) of section 509 of the Code of Criminal Procedure, and lays the foundation for the statement of the Medical Officer before the committing Magistrate being treated as evidence at the trial. Furthermore, subsection (2) makes it discretionary with if the Court to summon a Medical Officer. It, however, nowhere lays down that once an order for summoning the Medical Officer has been made, recourse cannot be had to subsection (1). There is nothing on the record to show, that the appellant made a formal request for an opportunity to cross‑1 examine the Medical Officer which was refused. Ex facie, there was no defect in the statement of the Medical Officer before the committing Magistrate which needed any elucidation or else the appellant would have insisted for an opportunity to cross‑examine the witness.

9. For the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed. Appeal dismissed.