1994 P Cr (PLP)

"They have falsely deposed against me. P.Ws, are related to complainant." The appellant neither made statement on oath as envisaged under section 340(2), Cr.P.C. nor produced evidence in defence.

5. The prosecution case rests upon motive, dying declaration, ocular account, Wajtakker evidence, medical evidence and recovery.

6. I have heard the learned counsel for the parties and have perused the record. The motive behind the occurrence has been narrated by the deceased/complainant Ahmad Yar in his statement Exh.P.B., on the basis of which formal F.I.R. Exh.P.F. was recorded. He stated that he alongwith his brother and Ilahi Bakhsh, father of the appellant jointly purchased land and he had power of attorney on behalf of his brothers. The dispute arose often between them over the partition of the land and the said matter was settled by Malik Oadir Bakhsh, but Ilahi Bakhsh did not agree. A week earlier to the present occurrence, an altercation took place between Ilahi Bakhsh and nephews of the deceased and about 2/3 days earlier to the present occurrence appellant Jindwadda was called by Ilahi Bakhsh, who in reply; stated that he would take revenge for the insult. The motive was also stated by P.W.2 Mst. Sughran Bibi, daughter of the deceased, who corroborated the statement of the deceased. F.I.R. Exh.P:F. was recorded with promptitude on. the basis of statement Exh.P.B. and even motiveless murders are committed. An altercation took place between Ilahi Bakhsh, father of the accused and nephews of the deceased. The appellant had threatened that he would take revenge for the insult. The direct motive was against the nephews of the deceased. Exh.P.B., the statement of the deceased Ahmad Yar, on the basis of which formal F.I.R. Exh.P.F. was recorded, was treated as dying declaration by the trial Court. No doubt Ahmad Yar deceased was not expecting his imminent death, and had made statement Exh.P.B. in presence of witnesses before P.W.13 Ghulam Mustafa, Inspector/S.H.O. P.W.8 Dr. Sohail Ahmad Baloch, who medically examined the deceased in injured condition and had not stated that the deceased was under the apprehension of death, and moreover, he had also not stated that the deceased could not speak. The deceased died on the same day in the hospital. P.W.13 Ghulam Mustafa, S.H.O. stated that he had recorded Exh.P.B. on the statement of the deceased and had also obtained his thumb-impression on it. F.I.R. Exh.P.F. was promptly recorded. It contains the name of the appellant and also mentioned therein about another unknown accused who had accompanied the appellant on the fateful night for the commission of the offence. Exh.P.B. was the dying declaration of the deceased.

7. The eye-witness account has been furnished on record by the statements of P.W.1 Mst. Kausar Mai, who is daughter-in-law and P.W.2 Mst. Sughran, the daughter of the deceased respectively, who had furnished the ocular account of the occurrence. P.W.1 stated that at the relevant time she alongwith P.W.2 was sleeping in the courtyard and on the alarm by the deceased, she witnessed the appellant and Kalu (since acquitted). The appellant infected Sota blows to the deceased and P.W.2 Mst. Sughran Bibi had also got up and witnessed the occurrence. P.W.4 Nazar Hussain, P.W.6 Allah Bakhsh, Khuda Bakhsh (not produced) and Allah Yar P.W. (given up), reached and P.W.1 narrated the incident to them. P.W.2 Mst. Sughran Bibi was sleeping alongwith P.W.1(Mst. Kausar Mai) in the courtyard and on the hue and cry of the deceased, she woke up and witnessed the appellant and also mentioned that Muhammad Kalu in the moonlit night giving Sota blows to the deceased. The accused escaped and meanwhile Allah Bakhsh (P.W.6), Khuda Bakhsh (not produced), Muhammad Yar P.W. (given up) and Nazar Hussain (P.W.4) reached the place of occurrence, to whom they narrated the incident. P.Ws.l and 2 witnessed the appellant inflicting injuries to the deceased in the moonlit night i.e. 12 of Rabiul Awwal. P.Ws.l and 2 are natural witnesses as they are residents of the house where the occurrence took place.

8. P.W.4 Nazar Hussain on the relevant time and date after hearing hue and cry reached the place of occurrence. P.W.3 Iqbal Hussain; a witness of Wajtakker, was returning home alongwith P.W. Ghulam Sarwar (given up) from a Shabina and witnessed the appellant and the acquitted co-accused running with Sotas and on commotion they reached the house of the deceased, where P.Ws.1 and 2 were present, and P.W.6 Allah Bakhsh alongwith Muhammad Yar and Karim Bakhsh P.Ws. (not produced) reached and they inquired from P.Ws.1 and 2 about the incident, who stated that the appellant had given injuries to the deceased and at that time the deceased in injured condition was in senses. He also stated that the appellant and the acquitted co accused Muhammad Kalu were the assailants. P.W.6 Allah Bakhsh corroborated the statement of P.W.4 Nazar Hussain and stated that on the hue and cry he was attracted to the house of the deceased, rushed there alongwith P.W.4 Nazar Hussain where P.W.1 and P.W.2 informed them that the appellant and Muhammad Kalu (acquitted co-accused) had injured him. He alongwith Muhammad Yar P.W. (given up) went to Maqbool Ahmad (P.W.5), and brought a car and the deceased was removed in injured condition to the hospital.

9. P.W.8 Dr. Sohail Ahmad Baloch medically examined the deceased and also conducted his post-mortem examination and found the following injuries on his person:- (1) A lacerated wound 3 x 1/4 x bone deep on right parietal region of scalp. Underlying bone depressed. (2) A contusion 2 x 1 on ulner side of left forearm near wrist joint. (3) A contusion 2 x 1 on ulner side of left forearm above left nipple. All the injuries were ante-mortem. After thorough external and internal examination, he was of the opinion that head injury causing depressed fracture of skull and haemothorax of left side due to fracture of ribs are sufficient to cause death in the ordinary course of life. The injuries were caused by blunt weapon. The probable time that elapsed between injuries and death was three hours and between death and post-mortem eight hours. During cross-examination the doctor stated that due to severe nature of injuries to the skull, there was possibility that deceased might have gone in coma. It is pertinent to mention here that the P.Ws. had not specifically stated that the deceased had gone in coma after receipt of injuries. The deceased could not be medically examined in injured condition in the Rural Health Centre, Uch Sharif as no doctor was available there, which is evident from the injury statement Exh.P.J. The deceased succumbed to his injuries after 3 hours on the same day.

10. The F.I.R. Exh.P.F. recorded on the basis of statement Exh.P.B. of the deceased Ahmad Yar contains the name of the appellant, the weapon carried by him, the witnesses, the manner in which the occurrence took place, all are given therein. The occurrence took place at about mid-night time and on the same night statement of the deceased in injured condition Exh.P.B. was recorded by P.W.13 Ghulam Mustafa, S.H.O. at Rural Health Centre, Uch Sharif at 1-45 a.m. (mid-night) on 13-10-1989 and the F.I.R. was recorded on the same night at 2-00 a.m. The distance between the place of occurrence and the police station is 10 kilometres. The F.I.R. was registered with promptitude I without deliberations and preliminary investigation. Exh.P.B. is the dying declaration of the deceased which has been supported and corroborated by the statements of P.Ws.l and 2 whose statements cannot be thrown away or brushed aside on account of their relationship with the deceased. They were residents of his house where the occurrence took place and they are natural witnesses. The statements made by P. Ws.l and 2 are also corroborated by the statement of P.W.8 Dr. Sohail Ahmad Baloch, who conducted autopsy on the dead body of the deceased. P.Ws.l and 2 made their statements in a straightforward manner. They had no animus against the appellant. The appellant is son of P.W.1 Mst. Kausar Mai's father's maternal-uncle, whereas acquitted co-accused Muhammad Kalu is also maternal-cousin of appellant Jindwadda.

11. The learned counsel for the appellant has lastly argued that it was unseen occurrence and the co-accused has since been acquitted and the case of the appellant is at par with the acquitted co-accused. It is pertinent to mention here that the deceased in his statement Exh.P.B. on the basis of which formal F.I.R. Exh.P.F. was recorded had specifically stated that the appellant at about mid-night alongwith another person had caused injuries to him with the Soti and it was moonlit night. The acquitted co-accused Muhammad Kalu was also closely related to the deceased and the deceased could easily name him. P.Ws.l, 2 and 3 had named Muhammad Kalu (acquitted co-accused), but he was rightly acquitted by the trial Court on a principle of abundant caution.

12. The ocular testimony is corroborated by the medical evidence as well as by Wajtakker evidence.

13. In the circumstances, I am of the view that the appellant was rightly convicted and sentenced and no exception can be taken to the impugned judgment. Resultantly the appeal filed by the appellant fails and the same is dismissed. However, the appellant shall be extended the benefit of section 382-B, Cr.P.C. N.H.Q./J-64/L Appeal dismissed.