NASARULLAH Versus THE STATE

SALEEM AKHTAR, J.--- The appellants with the leave of this Court have challenged the judgment of the learned Judges of the High Court by which death sentence awarded to them by the learned trial Court was not confirmed and they were convicted and sentenced to imprisonment for life under section 302/34, P.P.C. The fine imposed by the learned trial Court was maintained. The benefit of section 382-B Cr.PC was also granted.

2. Muhammad Bux complainant reported that on 31st May, 1981 while he was present in the house at about 3/4 p.m. his younger son Bahawal Bux P.W.4 came running and informed him that the appellants were beating Lal Khan deceased in forest (jungle) near their house where the deceased had gone to graze the cattle. He further stated that in the meantime he also heard the alarm raised by Lal Khan and he rushed towards the spot with some other persons and found the appellants beating him. Nasarullah was armed with an iron rod and Muhammad Anwar, Ashiq Hussain and Lal Khan son of Wahid Bux were armed with Dangs. On receiving injuries complainant's son Lal Khan fell down on the ground and the appellants lifted Lal Khan and threw him in the creek of the river. As the complainant had reached there immediately he with the help of others brought out Lal Khan from the water but he died on his way to hospital. About the motive it was alleged that on account of dispute over the Banna intervening the land of the appellants and the deceased the appellants killed him. All the appellants denied the charge. Nasarullah, however, stated that Lal Khan deceased was not murdered but in fact while going on a trolly loaded with wheat the same overturned and the deceased died due to injuries received by him.

3. The learned counsel for the appellants contended that there has been a delay of about 7 and 8 hours in lodging the report which clearly suggests that the occurrence was not seen by the witnesses and they were not present at the site. It was after consultation and manipulation that the appellants have been involved. According to the F.I.R. the incident occurred on 31st May, 1987 at about 3/4 p.m. and the report was lodged at 1-15 a.m. on 1-6-1987. P.W.1 Muhammad Nawaz has stated that the Police Station is about 22 miles away from the place of occurrence. The complainant had arranged tractor-trolly for taking deceased LAI Khan in injured condition to the hospital. When they reached the hospital at Maghrib time the deceased had already died. The complainant leaving the dead body in the hospital went to Khan Garh to lodge the report with the Police. There is convincing explanation for the alleged delay as in the facts and circumstances stated by P.W.1 there was no undue delay in lodging the report and the question of consultation and deliberation is completely ruled out.

4. The learned counsel contended that there is conflict in the statement of P.Ws. with regard to the place of incident. In this regard the learned counsel has referred to the statement of P.W.5 in which it is stated that there were two courses of the river at the spot and his house was situated on the eastern side of the said course running towards west and further that the occurrence took place by the side of the first course from his home and it was on the side of the course where occurrence had taken place. However P. Ws. 3 and 4 have made statement in this regard which supports the site plan. The statement made by P.W.5. is not a material contradiction which may discredit the testimony of other P. Ws. namely P. Ws.-3 and 4 who are the eye-witnesses of the incident.

5. The learned counsel then contended that as there is a conflict in ocular and medical evidence, benefit should be given to the appellants. He contended that according to the prosecution the deceased was thrown in the water and he was drowning but in the post-mortem report it has been stated that no water was found in lungs of the deceased nor any water was noticed in the mouth, nose and ear and there was no sign of drowning. The learned counsel for the State has referred to the statement of P.Ws. 4 and 5 in which P.W.4 stated that deceased had not drowned in the water and P.W.5 stated that deceased was unconscious and was drowning after he was thrown but he was brought out immediately. From this evidence it is clear that although the deceased was thrown in the water he had not drowned and the body was taken out immediately by the P. Ws. In such circumstances when the post-mortem was conducted at 9-50 a.m. on 1-6-1987, water could not have been found in the nose, ear or mouth.

We, therefore, find no reason to interfere with the impugned judgment and the appeal is dismissed.

N.H.Q./N-443/S Appeal dismissed.