MUHAMMAD SALEEM Versus STATE Muhammad Zafar Pasha , Shabbir Lali
Appellant Muhammad Saleem son of Umar Din, caste Kamboh, aged 82 years was tried by the learned Sessions Judge, Gujranwala on a charge under section 302, P.P.C. for having caused the murder of Safdar son of Ismail. Vide judgment, dated 15-2-1984 the learned Sessions Judge found appellant guilty on the said charge. Accordingly, the learned trial Judge convicted the appellant and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000 or in default of the payment of fine to suffer further R.I. for a term of two years. Half of the fine if recovered was ordered to be paid to the heirs of the deceased.
2. The unfortunate occurrence resulting into the 'death of Safdar deceased took place at 2 p.m. on 31-3-1982 on the brick-kiln of Muhammad Ali complainant P.W. 5 situated in village Chiwanwali situated at a distance of four miles from Police Station Kamoke.
The occurrence was reported at the Police Station Kamoke by Muhammad Ali P. W .5. His statement as F. I . R . was recorded by Muhammad Ashraf S . I . /S . H . O. , Police Station Kamoke.
3. Briefly the prosecution version as unfolded by the complainant in the F.I.R. was that the complainant Muhammad Ali and his younger brother Safdar deceased had jointly installed a brick-kiln which is opposite village Chiwanwali. On 31-3-1982, the fateful day the complainant and the deceased father taking their meals reached their brick-kiln at about 2 p. m. At that time Abdur Rauf son of Muhammad Sadiq, Mushtaq son of Ilam Din and Rehmat son of Labha were also present at the brick-kiln. When the complainant and deceased brother reached near the office of the brick-kiln, they observed that the appellant was coming on a tractor bearing No. SA-8738 with a trolley which was loaded with Keri (Coal powder). The deceased stopped the tractor and stood in front of it and asked the appellant that as to how he was taking away the Keri without permission and that he would not allow the appellant to take away their property. The appellant asked the deceased to get aside otherwise he would kill him by running over the tractor upon him. The deceased refused to get aside and asked the complainant to come down. This altercation was being heard and noticed by Abdur Rauf, Mushtaq and Rehmat. The appellant flared up and ran over the deceased with his tractor and trolley thus crushing the deceased to cause his death.
The appellant Muhammad Saleem tried to run away but was captured by the complainant and others present at the spot and leaving them to guard the dead body, the complainant himself proceeded to the police station for lodging the F.I.R.
4. The autopsy on the dead body of Safdar deceased was performed by Dr. Anjum Javaid P.W.4, Medical Officer, D.H.Q. Hospital, Gujranwala and the following injuries were noticed on his person:-
"(1) A swelling 4 c.m. x 1 c.m. left side of head, about 11 c.m. from left ear.
(2) Both the eyes are black and swollen.
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(3) An abrasion 5 c.m. x 4 c.m. on left cheek.
(4)An abrasion 3 c.m. x 2 c. m. at bridge of nose.
(5) An abrasion 10 c.m. x 6 c.m. on front of left shoulder alongwith fracture of left clavical.
(6) An abrasion 10 c.m. x 6 c.m. outerside of left upper arm upper part .
(7) An abrasion 20 c.m. x 4 c.m. on back of left fore-arm.
(8) An abrasion 8 c.m. x 2 c.m. on outerside of left fore-arm lower part.
(9) Swelling 20 c.m. x 11 c.m. on front of left chest.
(10) A swelling 16 c.m. x 10 c.m. on front of right chest.
(11) An abrasion 21 c.m. x 1 c.m. on outerside of abdomen on left side 14 c.m. from umblicus.
(12) An abrasion 2 c. m. x 1 c. m. front of left leg upper part.
(13) An abrasion 5 c.m. x 2 c.m. front of left knee cap.
(14) An abrasion 6 c.m. x 4 c.m. front of right knee cap thorax.
3rd, 4th and 5th ribs were broken on the left side. 2nd, 3rd, 4th and 5th ribs were fractured on the right side. Right and left lungs were also injured. Right and left pleura were also injured.
In the opinion of the doctor the cause of death was due to shock and haemorrhage as a result of injuries Nos. 5, 9 and 10 which were sufficient to cause death in the ordinary course of nature.
5. At the trial the prosecution mainly relied upon the testimony of two eye-witnesses. The complainant Muhammad Ali P.W.5 the real brother of the deceased and Abdur Rauf P.W.6 who is a partner in the business of brick-kiln with the complainant. When examined under section 342, Cr.P.C. the appellant made the following statement:-
"Mushtaq P.W. met, me in the Soap Factory situated in village Chianwali and asked me to take the Keri from his brick-kiln. I loaded the Keri in my Trolley from the spot which was pointed out to me by said Mushtaq. I had not loaded the Trolley full when Safdar deceased reached there and stopped me to take the Keri from the spot. After that I started the tractor and wanted to go to the village. When I had reached at a distance of about one Kills. from the brick-kiln/Safdar deceased came there. He tried to ride over the tractor from the left side but he fell down and was run over by the tractor trolley. I am licence-holder and will produce it in the defence. The P.Ws. Muhammad Ali and Abdur Rauf were not present at the spot at the time of occurrence."
6. According to the appellant it was a sheer accident on account of which death of the deceased took place.
7. With the assistance of the learned counsel for the appellant and the State I have carefully gone through the evidence on the record and the defence plea raised by the appellant. Learned counsel for the appellant, firstly contended that despite the fact that other persons had collected and were present at the brick-kiln, none else except the brother of the complainant and his partner Abdur Rauf have only been produced and hence their testimony is not reliable because they are interested witnesses. It was further contended by the learned counsel for the appellant, that toe ocular account is belied by-,the medical evidence, inasmuch as, it was stated by the complainant in the F.I.R. that he and the deceased after taking their meals had reached the brick-kiln at 2 p.m. The post-mortem examination of the deceased reveals that his stomach was empty, therefore, the occurrence did not take place at 2 p.m. as alleged by the prosecution, but it took place at 4 p.m. as alleged by the appellant.
8. After careful consideration of these contentions and the evidence on the record I repel the defence plea. The defence plea stands belied by the place of occurrence identified by the collection of blood-stained earth The blood-stained earth was taken into possession near the office of the brick-kiln, therefore, the defence plea that the appellant had run alongwith the tractor-trolley in course of which he fell down and was run over by the, left side of the tractor-trolley is an afterthought.
9. As far as the ocular testimony is concerned I do not find that it suffers from any flaw. Mere relationship is hardly a ground to discard the testimony of eye-witness whose testimony even otherwise inspires confidence. If in fact it was an accident, the witnesses would not have gone to such an extreme, so as to involve the appellant on a false charge. It was the hot temper of both the appellant and the deceased which resulted into this sad incident. The testimony of both the eye-witnesses cannot be brush aside. As far as the conflict between the ocular testimony and medical evidence is concerned that would hardly affect the prosecution case. Similar situation had arisen in a case decided by the Supreme Court of Pakistan and reported as Usman Khan v. The State P L D 1969 SC 293 and Muhammad Rafiq v. The State P L D 1974 SC 65. It was observed by the Supreme Court of Pakistan in Usman Khan's case ibid, which is as under:-
"Of late, a tendency has grown to discard the testimony of seemingly reliable and natural witnesses to a crime on speculation as to the manner in which the deceased person in the case was injured or about the time of occurrence with reference to the contents of the stomach. While one could appreciate the anxiety shown by the Judges to test the credibility of the eye-witnesses with reference to the circumstances attending upon the commission of the crime, it falls to be said that Judges are not experts inmedical science to form a safe opinion on these matters. It is desirable, therefore, to summon the doctor who examined the injuries or performed the autopsy as a witness and investigate the reasons for his opinion. The same holds true of the opinion given by a Ballistic Expert."
10. Respectfully following the observations made by the Supreme Court of Pakistan, no weight can be attached to such conflict. Furthermore, on the basis of this conflict it was contended that the occurrence took place at 4 p.m. and not at 2 p.m. as alleged by the prosecution. I am afraid that the contention has no force because assuming the defence plea to be correct about the time of occurrence, even then semi-digested food should have been found in the stomach of the deceased. That being not so, the plea is devoid of force. There is yet another flaw in the defence version because according to the appellant the deceased had tried to run over the tractor when it had just started. That being so, the question of appellant's being run over by the tractor is far-fetched.
11. Considering the case from all the angles, I do not find any substance in this appeal and the same is hereby dismissed.
S. G.D ??????????????????????????????????????????????????????????????????????????????????? ? ?????????? Appeal dismissed.