1977 PLP 179 (SCMR)

WAHEEDUDDIN AHMED, J.‑This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, dated the 2nd March 1970. By this judgment, the appeal of the appellant Nazar Hussain was dismissed. Nazar Hussain appellant, his brother Inayat and his two uncles, namely, Shera and Hussain Muhammad and co‑villager Siraj Din, were tried for the murder of Farzand Ali, by the Sessions Judge, Gujranwala under section 302, P. P. C. Siraj Din was acquitted, Shera was sentenced to death and the' other three persons, namely, Nazar Hussain appellant, Inayat and Hussain Muhammad were awarded sentence of transportation for life. The convicted persons challenged their conviction in Criminal Appeal No. 7 of 1969/Murder Reference No. 3 of 1969. A Division Bench of the former High Court of West Pakistan, Lahore, by judgment dated the 2nd March 1970, maintained the sentence of Nazwr Hussain appellant. The appeal of Shera, Inayat and Hussain Muhammad was accepted. The prosecution case is that the occurrence took place in village Noon Pur within the jurisdiction of Police Station, Qila Didar Singh in District Gujranwala on the 11th November 1966 at about peshiwela. It is alleged that Farzand Ali deceased was a Rajput and a Zamindar of the village. The appellant and the other co‑accused persons were Kumhars and worked as carrier for the Zamindar who wanted to transport their crops to the market. It is alleged that Farzand Ali deceased accompanied by Ghulam Hussain P. W. 13, was going to the house of Shera accused to ask him to lift his paddy from the field and take it to Qila Didar Singh. Shera expressed his inability to do so but Farzand Ali insisted him. Shera refused to oblige. Upon this, Farzand Ali abused Shera and pushed him. Shera retaliated by saying that since he was being abused and pushed he would not take the paddy belonging to Farzand Ali and he should ask someone else to do the job. Thereafter, Shera went to his house. Ghulam Hussain P. W. 13 and Farzand Ali proceeded to their house via lane. Mauj Dm and Latif P. W. 12 were present in the lane when hot words were exchanged between Shera and Farzand Ali. It is alleged that later on Farzand Ali and Ghulam Hussain were sitting opposite the shop of Siddiq and had been stroking huqqa for a half an hour, when the accused party including the appellant armed with knives and chhurri appeared on the scene. Siraj Din was empty‑handed. He was raising lalkara and was inciting them to kill Farzand Ali. Hussain Muhammad attacked the deceased with chhurri in the back of Farzand Ali. Shera gave a chhurri blow in the back of Farzand Ali between the shoulders. Inayat gave a blow on the neck of the deceased and Nazar Hussain appellant gave a knife blow on his chest. Thereafter, the accused persons continued giving him blows with their respective weapons. The occurrence was seen by Ghulam Hussain P. W. 13, Yaqub P. W. 14, Nasir Din P. W. 15 and Sulaiman. It is alleged that appellant and the other accused persons fled away from the scene of occurrence. Later on, the accused persons were arrested and put to trial. The deceased was admitted in Civil Hospital, Gujranwala at 8‑00 p.m. The doctor sent a ruqqa to the S. H. O. Police Station, Qila Didar Singh through the Incharge Police Post. Civil Lines, Gujranwala and forward alongwith the medical report of Ferzand Ali for necessary action. Akhtar Ali P. W. 17, head‑constable of Police Post, Civil Lines, Gujranwala went to the hospital and enquired from the Medical Officer by Exh. P. L., whether the injured person was in a fit condition to make statement. The doctor gave the opinion that he was not fit to make a statement but a few pertinent questions are allowed. The Head‑constable, thereupon, proceeded to record the statement of Farzand Ali which was used as dying declaration after his death. It is a brief four lines statement. Farzand Ali stated that he was smoking huqqa in front of the shop of Siddiq when he was attacked by the four accused persons with knives. This statement was thumb marked by Farzand Ali as well as by Chhajju Khan. The doctor also made an endorsement on the statement to the effect that the statement was made in his presence when the deceased was fully conscious. Farzand Ali died in Gujranwala Hospital on the same night at 2‑25 p.m. Inayat accused denied the recovery of blood‑stained chaddar and blood‑ stained knife from him. Inayat and Hussain Muhammad denied the charge and ascribed the case to the enmity of prosecution witnesses. The prosecution produced P. W. 13 Ghulam Hussain, Yaqub P. W. 14, and Nasir Din P. W.

15. The recovery witnesses are P. W. 19 Mansab Ali and P. W. 10 Yamin. Out of them, Mansab Ali was disbelieved by the High Court. Chaddar Exh. P. 3 and knife, Exh. P. 4 were recovered at the instance of the appellant. The prosecution has also relied on the dying declaration of the deceased, Exh. P. M. The learned Sessions Judge has believed the statement of the eye‑witnesses and the recovery witnesses. He has disbelieved the dying declaration. On the other hand, the High Court has disbelieved the eye‑witnesses and has relied on the dying declaration corroborated by the injuries on the appellant. At the trial, the appellant admitted his presence and also admitted that the blood‑stained cheddar had been recovered from him. He made the following statement before the Sessions Judge :‑

"It is a fact that I was examined for my injuries: The fact is that on the 11th November 1966, at digarwela, I was present at the shop of Muhammad Ali my relative where my uncle 9hera co‑accused came and told me that Farzand Ali had insulted hits and abused him, but we are " Moeens of the village and he is a Rajput therefore we have no comparison. Shera thereafter left. After sometime Muhammad Ali went to offer his digar prayer. I was alone at the shop of Muhammad Ali. Farzand Ali `Lamburdar' deceased came there and abused me. He insulted me. He said that he would take away our womenfolk to the police station because he was insulted by Shera. I stopped him front insulting him upon which Farzand Alt deceased attacked me with the knife. I resisted it and received injuries on my left hand. I realised that Farzand Ali was out to kill me. He attacked me for the second time. I received an injury on my left hand. In the meanwhile, I had picked up a pen-knife lying in the shop of Muhammad Ali. Farzand Ali was about to attack me for the third time but in my self-defence, I might have inflicted 2 or 3 injuries upon him. I cannot give the exact number of the injuries, inflicted by me. I, thereafter, went home." Thus it will be seen that the appellant's plea is of self-defence. Mian Muzaffar Ahmad, learned counsel for the appellant, has contended that the High Court has come to the following conclusions:

(1) That there was unexplained delay in lodging the First Information Report; (2) That the conduct of the Sub-Inspector shows that the First Information Report had not been recorded at the time alleged by the prosecution; (3) That the ocular testimony of the witnesses cannot be taken at its face value because- (a) they appeared to be chance witnesses; (b) they had malacious motive to falsely implicate one of the accused Siraj, who was acquitted by trial Court, and (c) they were all even otherwise unreliable witnesses; and (4) That the recoveries were not made in the manner alleged by the prosecution. It was next contended by the learned counsel that on the above finding, the appellant should not have been convicted on the basis of the dying declaration made by the deceased, as according to the medical evidence, the deceased could not have made a statement after his trachea had been cut. The only question, therefore, for determination is whether the appellant could be convicted on the dying declaration of the deceased. The learned counsel for the appellant has taken us through the statement of P. W. 3 Dr. Sajid-ul-Qayyum and P. W. 1 Dr. Z. A. Kaukab. He contended that the evidence of Dr. Kaukab shows in unmistakeable terms that the trachea of the deceased was cut. The learned counsel referred us to Modi's Medical Jurisprudence, 1963 Edition, page 279, in which it is stated as under:

"In the case of a wound of the larynx, speech is possible, if the wound is above the vocal cords, even if it gaping. But in a wound of the larynx below the vocal cords, and in that of the trachea, no speech is possible. In such a case one may be able to speak in a whisper, if the wound is not gaping sufficiently to allow air to pass into the mouth." The learned counsel also contended that Dr. Sajid-ul-Qayyum was not put the dying declaration before the Committing Magistrate and his evidence transferred under section 509, Cr. P. C. makes no mention about the dying declaration. He further contended that even Dr. Sajid-ul-Qayyum in Exh. P. L., at P. L./1 had stated that Farzand Ali was not fit to make statement and a few pertinent questions be allowed. According to him, the certificate of the doctor clearly shows that the deceased as not fit to make a statement. We have considered all these arguments and in our opinion, though Dr. Z. A. Kaukab has stated that the trachea was cut but the report of the post-mortem examination shows the following injuries on the neck of the deceased:- "An incised wound on front of neck 2 " x " trachea deep, slightly t the left of mid-line. It was at the level of pomum Adami." It will thus be seen that in the post-mortem examination, Dr. Z. A. Kaukab P. W. 1 has not stated that the trachea was cut. It was only in his statement in Court that he stated that the trachea was cut. In our opinion, even if the trachea was cut, the deceased would be able to speak in a whispering voice. His dying declaration is a brief one and that was due to the fact that the injury was trachea deep. In these circumstances, the High Court. was justified in relying on the dying declaration. The objection that the dying declaration was not put to Dr. Sajid-ul-Qayyum is not of much consequence, because P. W. 17 Akhtar Ali, Head-constable, has proved the dying declaration and the medical certificate, Exh. P. M./1 and has stated that Farzand Ali was conscious while making the statement. Apart from this, the appellant has accepted in his statement before the trial Court his participation in the crime although he pleaded that it was is self-defence. For this purpose, he relied on the injuries on his person. In our opinion, the injuries on his hand were caused by the attack he made on the deceased. They may be even self-inflicted. The High Court has gone into this question and in our opinion, it was rightly held that the appellant had no right of self-defence. After carefully considering the evidence produced by the prosecution, we are satisfied that the dying declaration was rightly relied upon by the High Court. It is corroborated by the injuries on the hand of the appellant. The appellant has also admitted that he participated in the crime and the circumstances of the case show that his plea of self-defence is not supported by any reliable evidence. We, therefore, find no ground to interfere in the matter. In the result, the appeal is dismissed. Appeal dismissed.