ABDUL REHMAN Versus THE STATE

NAZIR AHMED BHATTI, J. -- Appellant. Abdur Rehman was convicted under section 302, P.P.C. by Sessions Judge, Mansehra by judgment, dated 19-7-1986 for the murder of Mohammad Saleem and sentenced to undergo life imprisonment and to pay a fine of Rs.8,000, in default of payment whereof to further undergo rigorous imprisonment for 2 years, also to pay Rs.5,000 as compensation to legal heirs of deceased Mohammad Saleem. The present appeal challenged the said conviction and sentence. Ali Akbar father of deceased Mohammad Saleem has also presented Criminal Revision No. 20 of 1986 on 27-8-1986 praying for enhancement of sentence of life imprisonment awarded to the appellant Abdur Rehman to that of death. Since the appeal in hand and the aforesaid criminal revision petition arise from the same judgment and from the same occurrence, the judgment in the appeal in hand shall also dispose of the aforesaid criminal revision petition.

2. On 16-3-1982 at 8-15 a.m. complainant Jehangir and his maternal-uncle Mohammad Saleem were standing outside the shop of Ghulam Sarwar in village Hado-Bandi when the appellant Abdur Rehman came and asked Mohammad Saleem as to why he was standing there. An altercation took place between the two and the appellant took out a Chhuri from the folds of his trouser and inflicted one blow on Mohammad Saleem which injured him on the left chest. There was no previous enmity between the appellant and Mohammad Saleem. Jehangeer reported the occurrence in Police Station Mansehra at 8-50 a.m. where F.I.R. No. 133 under section 307, P.P.C. was recorded. The injured Mohammad Saleem was first taken to police station Mansehra where a dying declaration is alleged to have been recorded. Thereafter the injured was being taken to Civil Hospital Mansehra but he succumbed to the injury on the way and the charge under section 307, P.P.C. was converted into 302, P.P.C. The appellant was arrested on 17-3-1982, one day after the occurrence and after investigation was sent up for trial under section 302, P.P.C. before the Sessions Judge, Mansehra. The learned trial Judge charged the appellant under section 302, P.P.C. on 22-12-1982 to which he pleaded not guilty and claimed trial. The State produced II witnesses in support of the prosecution case out of whom P.W.4 Jehangir complainant and P.W.5 Mohammad Ashfaq are eye-witnesses of the occurrence and have also been mentioned in the F.I.R. to have witnessed the same. P.W. 6 Maulvi Ghulam Sarwar was examined two days after the occurrence and he also alleged himself to have seen the occurrence.

3. P.W.4 Jehangir complainant appearing as a witness at the trial generally corroborated the contents of the F.I.R. upto the stage of grappling of the appellant with the deceased Mohammad Saleem. He further stated that then he noticed blood oozing from the chest of the deceased but he did not notice any weapon in the hand of the appellant. He further stated that the occurrence had also been seen by P.W.5 Mohammad Ashfaq and that Maulvi Ghulam Sarwar Imam Masjid reached the spot after Mohammad Saleem had fallen on the ground on receipt of injury at the hands of the appellant. He, however, contradicted the contents of the F.I.R. that the appellant after having whipped out a dagger from the fold of his trousers inflicted blows with the same on deceased Mohammad Saleem resulting in his death. In cross-examination he further stated that he went near the deceased who was then alive but was not in senses. He had also accompanied the deceased to the police station and then he lodged the report. The other eye-witness P.W.5 Mohammad Ashfaq has stated that he heard a noise and came out of his shop and saw the deceased lying on the ground and the appellant standing at a distance of about 20 yards from the deceased and that P.Ws. Jehangeer and Maulvi Sarwar were present with the deceased. This witness was declared hostile on the request of the Public Prosecutor and was cross-examined by the latter with regard to the contents of his statement recorded under section 164, Cr.P.C. The witness stated that it was incorrectly recorded in his Magisterial statement that Abdur Rehman accused came and in his view gave a Chhuri blow to Saleem in his abdomen. He further stated that it had been correctly recorded in his statement under section 161, Cr.P.C. that when he came out of the shop Saleem was already lying injured. He also stated that his statement under section 164, Cr.P.C. was dictated by the Investigating Officer and it was never read over to him. When P.W.6 Maulvi Ghulam Sarwar reached the spot he found that Mohammad Saleem was already injured and he saw the appellant standing near the deceased with a blood stained dagger in his hand. This witness put a hand on the wound of the deceased in order to stop the blood. When P.W.7 Mohammad Miskeen reached the spot on hearing noise he saw that Saleem was lying on the ground in injured condition and Maulvi Ghulam Sarwar had placed his hand on his chest injury. This witness and P.W.8 Aurangzeb F.C. are witnesses to the dying declaration alleged to have been made by Mohammad Saleem deceased. P.W.11 Dr. Shafiqur Rehman had carried out post-mortem examination on the dead body of Mohammad Saleem and he found one incised wound 3/4" x 1/3" cavity (stab) deep situated in the lower part of the left chest near apigastric area. The internal examination revealed that 5th left rib was cut at the site of external wound, pericardium was injured (left ventricle). The doctor also found semi clotted blood present .in the ventricle.

According to the opinion of the doctor death occurred due to haemorrhage and shock as a result of injury to heart with sharp weapon. The appellant denied the commission of the offence in his statement under section 342, Cr.P.C. Appearing as a witness on oath he also denied the commission of the offence but admitted that deceased Saleem was his relation.

4. We have heard learned counsel for the parties at length who also led us through the record of the case.

5. The evidence against the appellant consists of the alleged dying declaration and ocular testimony of P.W.4 Jehangeer complainant and P.W.5 Mohammad Ashfaq. In so far as the dying declaration is concerned that was not believed by the learned Sessions Judge and excluded out of evidence. We have also taken into consideration the dying declaration but we also agree with the learned Sessions Judge. He correctly excluded it from the evidence. According to the deposition of the doctor the death was instantaneous and although he stated that according to his opinion instantaneous death meant gradual death of a person which can be caused within an hour, but we cannot accept this contention of the doctor for the reason that injury was caused to the heart of the deceased. As such there was no possibility of the injured remaining alive for a period of time after receiving the injury. The doctor was, therefore, correct in his opinion that the death was instantaneous. Perhaps due to ignorance of the word 'instantaneous' or due to any lack of experience or for giving any undue advantage to any party he stated that it was a gradual death. But we exclude this opinion of the doctor from the evidence for the simple reason that no man can survive for even a shot period of time after receiving injury to the heart. We are very firm on this point that Mohammad Saleem died instantaneously after receiving the injury. As such there was no question of his making dying declaration about 45 minutes after the occurrence. There is one more aspect. Had he been alive for some time after receiving the injury he could himself report the occurrence in the police station. There is also one more factor. All the witnesses who saw Mohammad Saleem in injured condition are at one on the point that he became unconscious immediately after receiving the injury. It was, therefore, proved beyond any reasonable doubt that Mohammad Saleem could not have made the dying declaration and the same was actually fabricated. The learned trial Judge had discussed thoroughly the circumstance of dying declaration in his judgment and we perfectly agree with him in his conclusion about this document and we would also exclude it from consideration.

6. In so far as the ocular testimony is concerned, according to the F.I.R. the complainant P.W.4 Jehangeer and P.W.5 Mohammad Ashfaq were alleged to have seen the occurrence. P.W.4 Jehangeer had stated in the F.I.R. that the appellant had inflicted Chhuri blows on the left side chest of Mohammad Saleem but at the trial he stated only this much that the appellant and the deceased grappled and then he saw blood oozing out from the chest of the deceased.

7. P.W.5 Mohammad Ashfaq was examined under section 161, Cr.P.C. His statement was also recorded under section 164, Cr.P.C. and he also appeared as P.W.5 during the trial. Appearing as a witness at the trial he had stated that he heard a noise, came out of his shop and saw the deceased lying on the ground and the accused standing at a distance of about 20 yards away. He .vas then declared hostile and the public prosecutor was allowed to cross-examine him and this witness stated on cross-examination by the Public Prosecutor that it was incorrectly recorded in his Magisterial statement that Abdur Rehman came and in his view gave a Chhuri blow in his abdomen. In cross-examination by the defence this witness stated that he was examined by the police and his police statement was correct to the extent that when he came out of the shop Saleem was already lying injured. It shall he seen that when P.W.5 Mohammad Ashfaq was examined by the Investigating Officer he had stated that when he came out of the shop Saleem was already lying injured and to the same effect is his statement made during the trial. However, his statement recorded under section 164, Cr.P.C. shows that Abdur Rehman accused came and in his view gave a Chhuri blow to Saleem deceased in the abdomen. We have very anxiously considered the evidence of this witness. This witness was declared hostile most probably by the contents of his statement recorded under section 164, Cr.P.C. No doubt under Article 151 of the Qanun-e-Shahadat. 1984 (section 155 of the repealed Evidence Act, 1872), read with Article 140 (section 145 of the repealed Evidence act) the credit of this witness could be impeached by proof of formal statement made by him but it has to be kept in mind that the contents of this statement were not the actual and original evidence of this witness. In his statement recorded under section 161, Cr.P.C. he had never stated that he had actually seen the appellant inflicting Chhuri blow to Mohammad Saleem. He had stated only this much that on hearing the noise when he came out of the shop he saw Mohammad Saleem lying injured on the ground and the appellant standing at some distance from him. A hostile witness can be cross-examined with regard to the contents of his statement recorded under section 164, Cr.P.C. and such statement can be used to impeach his character by the party producing him and in this respect we draw strength from the, cases of Abdul Ghani v. State P L D 1963 (W.P.) Lah. 445 and Nadar Khan and another v. The State 1984 S C M R 979. However, as earlier stated, the statement under section 164, Cr.P.C. of this witness was not his original version of the occurrence as disclosed in his statement recorded under section 161, Cr.P.C. From the record we find that at the trial this witness stated only that much which had already been stated by him in his statement under section 161, Cr.P.C. and actually the version as disclosed in his statement under section 164, Cr.P.C. was either an improvement on his previous statement or perhaps made under duress. This witness had at the trial stated only that much which he had already disclosed to the Investigating Officer. We fail to understand as to on what material this witness was declared hostile. He had not deposed about the actual circumstance of the appellant's inflicting injury on the deceased in his first deposition made immediately after the occurrence and he stuck to the same evidence at the time of trial and what justification was there to declare him hostile. Obviously his statement under section 164, Cr.P.C. was an improvement of his earlier version which was` more authentic having been made immediately after the occurrence.

8. But the matter does not end here. Even the evidence of a hostile witness or such part of it as is considered to be true in relation to the circumstances of the case can be taken into consideration in arriving at a just and proper conclusion about the guilt or otherwise of the accused. P.W.5 had clearly stated that he had seen the deceased lying injured on the chest and the appellant was also present at the spot. This portion of his evidence finds ample support and corroboration from the testimony of P.W.4 Jehangir complainant who stated at the trial that after the exchange of hot words the appellant and deceased had grappled with each other and thereafter he saw blood coming out from the chest of the deceased. The doctor found the injury of the deceased to have been inflicted by a sharp-edged weapon. From the above evidence of all the aforesaid 3 witnesses there is left no doubt in the prosecution case in so far as the guilt of the appellant is concerned. It was he who after the exchange of hot words and grappling with each other inflicted a Chhuri blow to the deceased which caused his instantaneous death. No doubt P.W.5 was declared hostile but we find that this action was unjustified on the part of the prosecution and we also accept his testimony in so far as it relates to the sustaining of injury by the deceased as it is clearly and over whelming corroborated by the aforesaid evidence available on the record. In taking into consideration the evidence of the hostile witness we find support from the case of Kaloo and 2 others v. The State 1973 P Cr. L J 334.

9. Having discussed the evidence of the witnesses and the circumstances of the case we are of the confirmed opinion that Mohammad Saleem was done to death by the appellant. The latter gave him a Chhuri blow on the left chest which caused his instantaneous death. However, the question of sentence is agitating our minds. In that respect the following circumstances are to be kept in mind. Both the parties were related to each other. There was no previous enmity between the parties. There was also no motive for the appellant to commit the offence and the occurrence took place suddenly over some petty quarrel and without any premeditation. The appellant gave only one blow to the deceased which will show that his action was the result of a sudden quarrel and rise of temper. The appellant injured the deceased without any intention of causing his death as he gave only one blow. As such the action of the appellant was without any intention to cause the death of Mohammad Saleem, although he may be having the knowledge that the injury caused by him might result in death. We are, therefore, of the opinion that the offence committed by the appellant was not murder punishable under section 302, P.P.C. but culpable homicide not amounting to murder under Part II of section 304, P.P.C.

10. We will, therefore, partially accept this appeal to the extent that the conviction of the appellant shall be under section 304 Part II, P.P.C. and he shall undergo sentence of rigorous imprisonment for 10 years and also pay a fine of Rs.5,000. In default of payment of fine he shall further undergo rigorous imprisonment for one year. The appellant shall also pay an amount of Rs.5,000 as compensation to legal heirs of the deceased failing which he shall undergo simple imprisonment for 6 months. The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C.

11. Since we have partially accepted the appeal, the question of acceptance of the criminal revision petition does not arise and the same is dismissed.

M.Y.H./619/P Appeal partly allowed.