1984 P Cr (PLP)

4. A tractor of Muhammad Hanif was thereupon brought from Blandi Hathar. The deceased was placed in the trolly and taken to the hospital at Kasur. When the tractor and trolly reached near pacca road of Athelpur, the condition of Muhammad Riaz, deceased, became serious. At about 2.00 p. m., the deceased died in the Civil Hospital, Kasur.

5. Leaving the dead body in the hospital, Muhammad Nawaz P. W. 4 reached the Police Station Saddar, Kasur, where he lodged F.

1. R. Exh. P. G. on 31st January, 1975 at 4.00 a.m., which was recorded by Muhammad Yaqoob S. I. P. W.

11. The Police Officer then went to the Civil Hospital where, after preparing the necessary papers, he sent the dead body for post-mortem examination.

6. The investigation was then taken over by Muhammad Nazir S. I. P. W. 9, who reached the spot and took into possession blood-stained earth, vide memo P. A. and a card board wad P. 1, vide memo P. B., from the place of occurrence.

7. On 31st January, 1975 at 10-00 a. m. Dr. Zafar Iqbal P. W. 5 conducted the post-mortem examination on the dead body of Muhammad Riaz, deceased, and found eight firearm wounds of entry " x " in an area of 2" x 1 " on the back of the chest, 1 " left of the midline and 11" below the top. The wounds had entered the left chest cavity after fracturing 10th and 11th left posterior ribs intercostal spaces it. Left pleura and left lung lower lobe were injured through and through. Pericardium and left ventricle of heart were injured. Left diaphragm, spleen and stomach were injured through and through. Pellets had travelled through the chest cavity, 7th left anterior rib and intercostal spaces around it. One pellet was removed from the left chest cavity. Five pellets were removed from under the skin on the front of the left chest and two pellets from interior wall of the stomach. Pericardial cavity and left chest cavity contained 3 lbs. blood. Peritoneal cavity was littered with churned food from injured stomach. Corresponding holes were present on clothes. Heart and stomach were injured and empty. Bladder contained 4 oz. urine. Death was due to haemorrhage and shock from injury No. 1, which was sufficient in the ordinary course of nature to cause death. Death occurred immediately and post-mortem was conducted between 12 and 18 hours after death.

8. On 17th February, 1975 Muhammad Sadiq, accused, was arrested by Muhammad Nazir S. I. P. W. 9.

9. On 19th February, 1975 Muhammad Sadiq, accused, led to the recovery from a sugarcane field of a single barrel gun P. 2, which was taken into possession vide memo P. F., in the presence of Muhammad Nawaz P. W. 4, Muhammad Nazir S. I. P. W, 9 and Hakam Ali (given up P. W). After completing the necessary investigation, the challan against the accused was sent up.

10. The accused denied all the allegations that were levelled against him, including the recovery of a-gun P. 2 at his instance. He imputed his false involvement to enmity. He took up the plea that he was not in the village on the day of occurrence, but was in the Qurban Lines Police Hospital, where he had been admitted on 27th January, 1975 and discharged on 10th February, 1975. He further stated the Muhammad Nawaz P. W. 4 had initiated the instant case against him falsely.

11. The learned trial Judge, relying upon the motive, the ocular account furnished by Mst. Sardaran Bibi P. W. 1 and Muhammad Nawaz P. W. 4, the recovery of the gun P. 2 at the accused's instance and the medical testimony, convicted and sentenced Muhammad Sadiq, accused, as stated above.

12. I have heard the arguments of the learned counsel for the appel lant, complainant and the State and have also perused the record. The evidence as regards the motive and the recovery of the gun P. 3 have not been challenged by the learned counsel for the appellant. The evidence as regards the appellant's plea of alibi has also not been urged by the learned counsel for the appellant in his client's defence. The ocular account and the medical testimony alone have been challenged and I will therefore, deal with these two items alone.

13. The ocular account in this case is furnished by Mst. Sardaran Bibi P. W. 1, Muhammad Hassan P. W. 2 and Muhammad Nawaz P. W.

4. Muhammad Hassan P. W. 2 was not relied upon by the learned trial Judge and no effort has been made by the learned counsel for the State to challenge the said findings. Accordingly, the only two eve-witnesses left in the field are Mst. Sardaran Bibi P. W. 1 and Muhammad Nawaz P.W.4. The account of their testimony already stands recorded in para. 2 above and need not be repeated. As regards Mst. Sardaran P. W. 1, it is urged that she was a chance witness, as she had no earthly reason to be accompanying the deceased at the relevant time and that being the putative mother and the real maternal-aunt of the deceased, her testimony is interested and should be disbelieved. As regards Muhammad Nawaz P. W. 4, it is submitted that since he had died by the time the case came up for trial, his statement recorded before the Committing Magistrate was brought on the record and read as evidence under section 33 of the Evidence Act, 1872 and that as he was not subjected to any cross-examina tion by the learned counsel for the accused during commitment proceedings, his testimony cannot be legally taken into account. It is true that Mst. Sardaran P. W. 1 is related to the deceased and had also adopted him and that the deceased was also residing with her, but she has even an explana tion for her presence, namely, that Muhammad Riaz, deceased, was going to the house of the village Lambardar to pay land revenue and as he was short of money by Rs. 20, she was carrying the said Rs. 20 and pursuing hurt to give the same to him, when, in the meantime, the occurrence occurred. The house of Muhammad Riaz, deceased, as shown in the north-west corner of the site plan Exh. PA, is the very same house of Mst. Sardaran Bibi P. W.

1. Her house is not more than 40 Karams from the place of occurrence. She is, therefore, a natural witness. Nothing has been brought out on record to show that she was either inimical to the appellant or had any animosity against him as to falsely involve him on so grave a capital charge a murder. No suggestion was put to her even to show that she was not present at the spot or had not seen the occurrence. She was only cross-examined as regards distances and places from where the witnesses saw the occurrence. Taking all circumstances into consideration, the evidence of Mst. Sardaran P. W. 1 appears to be natural, straightforward and convincing and has the ring of truth in it. As regards the testimony of Muhammad Nawaz P. W. 4, also supports the account furnished by Mst. Sardaran Bibi P. W. 1, it is true that he died before the trial and his statement Exh CW/2-A recorded by the Committing Magistrate was transferred as P. W. 4 under section 33 of the Evidence Act, 1872. Unfortunately, the learned counsel for the appellant during inquiry proceedings did not care to cross-examine Muhammad Nawaz. His testimony Exh. CW/ 2-A. therefore, is without the stamp of cross -examination. Muhammad Nawaz P. W. 4 has given his explanation for being present at the spot. He was coming from the Darbar towards his house, when the occurrence occurred outside the house of the appellant, which he saw. Admittedly, he is a real brother of Muhammad Riaz, deceased, and resides in the very same village where the deceased and the appellant resided and the occurrence took place. The narrative of the occurrence given by him in his F. I. R. Exh. P.G. also does not seriously conflict with the account as given by him before the committing Magistrate. The fact that though an opportunity was granted to the learned counsel for the appellant to cross-examine this witness before the committing Magistrate, which was not availed, does not affect the admissibility of his evidence. The trend of cross-examination of the witnesses discloses that the place of occurrence is not disputed. What was only suggested to Mst. Sardaran Bibi P. W. 1 was that the occurrence did not take place at 5.00 p.m., which was denied. The evidence of Muhammad Nawaz P. W. 4, therefore, cannot be brushed aside. The ocular account clearly established the prosecution case.

14. On the basis of the medical testimony furnished by the prosecu tion, it is submitted by the learned counsel for the appellant that whereas the doctor's testimony suggests that the deceased died instantaneously on receipt of the firearm injuries, all the eye-witnesses have attempted to show that he was alive for another nine hours until 2-00 a.m. on 31st January, 1975 when he breathed his last at the Civil Hospital, Kasur. It is further stated that the stomach of the deceased was found to contain churned food, which would show that the deceased died after 8-00 p.m., after taking his evening meal just after sunset. It is true that the doctor's testimony furnishes strong basis to believe that the deceased should have died instantaneously, but sometimes truth is stranger than fiction. Had the deceased died immediately, there was no reason for any of the witnesses to pretend that he was alive for another nine hours. Very likely, he may have been alive for some short time, whereafter he breathed his last, but the witnesses assumed he was in a coma or lying senseless. Taking all circumstances into consideration, I hold, even assuming that the medical testimony is correct, that the eye-witnesses were in error in holding that the-deceased was alive right uptil 2-00 a.m. on 31st January, 1975 and that this error does not destroy their ocular account. As regards the suggestion that the deceased died sometime after 8-00 p.m., there is nothing on the record to show that the deceased took his last meals after sunset. In these circumstances, no inference, as the one attempted to be suggested, can be drawn.

15. No further matter was argued by the learned counsel for the appellant in the case.

16. The upshot of the above discussion is that the motive, the ocular account and the medical testimony conclusively prove the case of the prosecution against the appellant. The recovery of the single barrel gun P. 2 at the instance of the appellant is also not without significance. The appellant appears to have been properly convicted and sentenced.

17. There being no merit in this appeal, the same is dismissed. It appears that the benefit of section 382-B, Cr. P. C. has not been given to appellant. The benefit of this provision shall be given to him.

18. There being no merit in the revision petition (Crl. R. 631 of 1,981) filed by Muhammad Hayat, petitioner, the same is dismissed in limine. M. Y. H. Appeal dismissed.