1989 P Cr (PLP)

Date of hearing: 27th February, 1989 . Appellant Gulzar Ahmad was tried by learned 1st Additional Sessions Judge (Central) Karachi, for the offence under section 302, P.P.C. for having committed the murder of Zaheer Ahmad by means of a Chhuri. He was, however, convicted for the offence under section 304, P.P.C., and sentenced to suffer R.I. for ten years and to pay a fine of Rs.2,000 or in default to suffer R.I. for one year. The appellant was further directed to pay a sum of Rs.5,000 as compensation to be paid to the legal heirs of deceased Zaheer Ahmad or in default to suffer R.I. for six months. The benefit of section 382‑B, Cr.P.C. was also denied to the appellant. Appellant Gulzar Ahmed has challenged his conviction and sentence recorded on 8‑8‑1988, by filing this appeal under section 410, Cr.P.C

2. On 21‑10‑1978 at about 9‑30 a.m. P.W. Hashimuddin took deceased Zaheer Ahmed to Abbasi Shaheed Hospital, Karachi in injured condition. He was examined by the Medical Officer on duty who informed Incharge P.S. Liaquatabad about injured Zaheer Ahmed on telephone. Hafeezullah A.S.I., received this information on telephone and after having entered the same in station diary proceeded to the hospital. After obtaining the permission from Medical Officer, the A.S.I. recorded the statement of injured Zaheer Ahmed under section 154, Cr.P.C. who put his signature on it. This statement was then sent to Liaquatabad P.S., which was incorporated in 154, Cr.P.C. book and a case under section 324, P.P.C. was registered against the appellant. The case as disclosed by deceased Zaheer Ahmed in his 154, Cr.P.C. statement is as follows:‑ "I live at the above‑mentioned address and am employed as `Crane Operator' with Ship‑breaker Shaikh Miran Bux Karam Bux on Plot Na. 32/31 at Gadani. One Gulzar, a Mohalla boy also works with me as `helper' and resides at 4/1092, Liaquatabad. On 17‑10‑1978, I had gone o my job. Gulzar too was with me on duty. I asked him to do the work. He replied that he did not obey his father then how he could obey me. Thereafter Gulzar told me that he would not work and that he was going. He left from there. `I continued working. In the evening of 19‑10‑1978, I returned home after getting free from the job. There was nothing. On 21‑10‑1978 in the morning at 9‑30 a.m. when I left the house for bus stop No.4 Liaquatabad and was waiting for the rickshaw, Gulzar appeared from the back side and gave two Chhuri blows to me which hit on both of my buttocks. One Chhuri blow hit me under ray hand. Thereafter Shameem and Races brought me to Abbasi Shahee.3 Hospital from the bus stop. My complaint against Gulzar is of causing injury to me by Chhuri blows Many persons at the bus stop have witnessed the incident, whose names I do not know and shall submit later on."

3. Hafeez Ullah A.S.I. then proceeded to the scene of occurrence and prepared such memo. in presence of Mashirs Muhammad Siddique and Sharafat Hussain. He then recorded the statements of witnesses. On 4‑11‑1978 injured Zaheer Ahmad died in hospital. Necessary substitution was, therefore, made in F.I.R. On 6‑11‑1978 the appellant was arrested. On 19‑11‑1978 the appellant produced the blood‑stained Chhuri from his house in presence of Mashirs Pryarey Khan and Juma Khan which was secured by Muhammad Rafique S.H.O. After completing the investigation the appellant was sent up to stand has trial.

4. At the trial the prosecution examined Munawwar Ali Khan (P.W.1), Muhammad Siddique (P.W.2), Hashimmuddin (P.W.3), Sharafat Hussain (PW.4), Syed Athar Ali (P.W.5), Muhammad Banaras A.S.I. (P.W.6), Juma Khan (P.W.7), Dr. Abdul Majeed (P.W.8), Muhammad Rafiq D.S.P. (P.W.9), and Hafeez Ullah S.I.P. (P.W.10). Dr. Nasim Ismail was examined as Court‑witness.

5. The appellant has met the charge professing innocence. According to him the deceased had implicated him m 154, Cr.P.C. statement because of suspicion. He also examined himself on oath (D.W.1).

6. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under section 304, P.P.C. and convicted him accordingly.

7. I have heard Mrs. Salima Nasiruddin, learned counsel for the appellant and Mr. Shaikh Aziz‑ur‑Rehman, learned counsel for the State.

8. The learned counsel for the appellant has seriously questioned the admissibility of medical evidence on record. She has also submitted that the death of Zaheer Ahmed was not the result of injuries sustained by him on 21‑10‑1978. who died due to post operation complications in relation to some other disease. The record shows that Dr. Abdul Majeed (P.W.8) was examined on 11‑2‑1987. His examination‑in‑chief was not concluded on that day for want of case‑sheet of deceased Zaheer Ahmed. The said Medical Officer thereafter appeared before the Court on 10‑3‑1987 and 25‑3‑1987, but his evidence could not be concluded. There is also indication on record that Dr. Abdul Majeed died before he could be put to cross‑examination, There is, therefore., good deal of force in the contention of Mrs. Salima Nasiruddin, learned counsel for the appellant when she says that the evidence of Dr. Abdul Majeed (P.W.8) is to be expunged from the record, and should not have been relied upon by the trial Court. After discarding the evidence of Dr. Abdul Majeed (P.W.8) there remains no evidence to prove that the death of deceased Zaheer Ahmad was the direct result of the injuries sustained by him on 21‑10‑1978. The evidence of Dr. Nasim Ismail (C.W.2) leads us nowhere. The case sheet (Exh.43) is no evidence by itself.

9. The case of the prosecution solely rests upon the F.I.R. (Exh.20) which is now dying declaration which stands corroborated by Munawwar Ali Khan (P.W.1) who is a cousin of deceased Zaheer Ahmad.

10. The F.I.R. lodged by deceased himself could be used as dying declaration and the law in this respect is well‑settled. The Qanun‑e‑Shadat does not make the admissibility of a dying declaration dependent upon the person's having consciousness of, the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Article 46 of Qanun‑e‑Shahadat, 1984. Hafeez Ullah A.S.I. (P.W.10) has stated in clear terms that he recorded the statement of Zaheer Ahmed (Exh.20) after obtaining permission from M.O. concerned. The statement was then signed by deceased Zaheer Ahmed. In this statement deceased Zaheer Ahmed has implicated the appellant in clear terms for causing B him Chhuri blows. Munawwar Ali Khan (P.W.1) appears to be a truthful witness. He confined his evidence only to what deceased Zaheer Ahmed had stated to him. His evidence to this effect that deceased Zaheer Ahmed had informed him that appellant Gulzar Ahmad was responsible for causing injuries to him by Chhuri remains unshattered. It will not be out of place to mention here that appellant was a neighbour of deceased Zaheed Ahmed and there was absolutely no enmity between the parties prior to this incident. Cases do arise, no doubt, where false additions are made, but implication of a person who is innocent in place of guilty is a very rare thing.

11. The recovery of Chhuri from the house of appellant is not proved satisfactorily. Juma Khan (P.W.7) who has acted as Mashir has turned hostile. The alleged recovery was again made after 13 days of the arrest of appellant, why? Nobody knows. At any rate it is highly risky to rely upon the solitary testimony of Muhammad Rafique S.H.O. (P.W.9) on this point.

12. The above discussion of evidence brings me to this conclusion that appellant is guilty for causing hurt to deceased Zaheer Ahmed by means of Chhuri. He is, therefore, liable for the offence under section 324, P.P.C. His conviction is, therefore, altered from 304, P.P.C. to 324, P.P.C. The appellant is sentenced to suffer R.I. for three years and to pay a fine of Rs.25,000 or in default to suffer R.I. for nine months. The fine if recovered, be paid to the legal heirs of deceased Zaheer Ahmed as compensation. The appellant is also entitled to the benefit of section 382‑B, Cr.P.C. in respect of substantive sentence of imprisonment.

13. With this modification, the appeal is otherwise dismissed. S.A./G‑108/K Sentence altered.