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Criminal Appeal No. 1 of 1979, decided on 10th December, 1983.

(From the judgment dated 4th January. 1979 of the Baluchistan High Court passed in Sessions Case No. 814 of 1976).

-----Art. 185(2)(6)‑Penal Code (XLV of 1860), S. 302/34 ‑ Murder Evidence‑No animus for falsely implicating accused‑appellants by ocular witnesses‑Ocular witnesses not related to deceased but indepen dent persons‑Incident occurring on a public road where ocular witnesses were present and pursuit of their trade‑Such witnesses cannot be regarded as chance witnesses No discrepancy between evidence of ocular witnesses in that of medical officer regarding number of injuries on body of deceased Defence plea elaborately dealt with by High Court and rightly rejected‑Conviction and sentence upheld.

Sh. Naveed Shaharyar, Advocate Supreme Court instructed by Sh. Masud Akhtar, Advocate‑on‑Record (absent) for Appellants.

Mirza Munawar Ahmad, A: G. (Baluchistan) for the State.

Date of hearing 10th December, 1983.

This is a direct appeal filed under Article 185(2)(6) of the Constitution against the judgment of the Baluchistan High Court, dated 4‑1‑1979, convicting Abdul Razzaq and Abdul Zahir appellants under section 302/34 of the murder of Habib Ullah deceased and sentencing them each to imprisonment for life.

2. The murder, according to the prosecution, had taken place on 3‑6‑1976 at 7 a. m. on the crossing of Pir Abdul Khair Road and Archer Road in Quetta City. Habib Ullah deceased, who owned a bicycle shop on Archer Road, was going when he was attacked by the two appellants and Abdul Jhani (absconder) all brothers inter se. Abdul Zahir was armed with a hatchet while the other two had sticks. Abdul Zahir dealt two blows with leis hatchet on the deceased's head, where after the other two gave stick blows, at which the deceased fell down on the road. The assailants then escaped towards Prince Road. Muhammad Ayub and Abdul Ghani P. Ws. who were rickshaw‑drivers and happened to be present, took the deceased in injured condition in a rickshaw to Civil Hospital but he succumbed to his injuries within half an hour's time. On receipt of the information the S. H. O. City Police Station, Quetta, went to the hospital, where he recorded the statement of Muhammad Ayub, on the basis of which the formal F. I. R. was entered at 8 a. m.

3. The motive for the occurrence given by Muhammad Ayub was that the deceased had suspected the appellants of theft in his house which had taken place some 20‑23 days before the occurrence, for which the appellants bad been arrested by the police but later released.

4. The appellants were promptly arrested and a blood‑stained hatchet was recovered on 8‑6‑1976 at the pointing of Abdul Zahir from his house and a stick was recovered on 15‑6‑1976 at the pointing of Abdul Razzaq from his house. As Abdul Ghani remained absconding, the trial proceeded against the appellants.

5. The autopsy revealed the presence of (1) "Compound fracture of the left parietal bone 3 x 1 x ". The wound is about 4" from the left ear on the left parietal bone. The wound is covered by multiple bruises and that part of the skull is fractured" and (2) "Incised wound on the occipital bone 3" x x . Entering the occipital bone. The bruises on the left buttock". The injuries were found by the Medical Officer to be sufficient to cause death in the ordinary course of nature.

6. Muhammad Ayub (P. W. 3) and Abdul Ghani (P. W. 4), the two eye‑witnesses, fully supported the prosecution case. Both were coming in their rickshaws when they happened to arrive at the scene. They were corroborated by Kalander Shah (P. W. 1) who was at the relevant time going to his shop at Prince Road and when he reached the junction of Archer Road and Pir Abdul Khair Road, he saw the three accused running away, Abdul Zahir appellant with a blood‑stained hatchet and the others with lathis in their hands. All the three witnesses as also the, deceased and the appellants are all Kaker by caste and belong to the same locality, i e., Gari Ahata Quetta, and as such there was no difficulty in their identifying the deceased or the appellants.

7. The appellants had denied the allegations as being false and asserted that they had been involved because they had intervened when the deceased had assaulted one Barkat and his wife on the allegation that they had committed theft in his house and because of a dispute between the said Barkat and the deceased over a piece of land. They produced Abdul Manan (D. W. 1) to support their this assertion. They also produced Abdullah Jan (D. W. 2) and Noor Ali (D. W. 3) to establish their alibi respectively.

8. The High Court rejected their plea and believing the eye‑witness account as supported by the recoveries, which in its view suffered from no infirmity in spite of non‑production of the weapons in Court, held the appellants guilty of the murder as being premeditated and preplanned and in furtherance of their common intention but as the prosecution had failed to probe and establish the motive, awarded them the lesser penalty.

9. No animus for falsely implicating the appellants by the ocular witnesses was pointed before us. Nevertheless their evidence was assailed on the ground that they were chance witnesses and that there was discrepancy between their, evidence and that of the Medical Officer regarding the number of hatchet injuries. The ocular witnesses are not shown to be related to the deceased. They are without doubt independent persons. The incident had occurred on a public road and they were present therein pursuit of their trade. There is thus no force in. the contention that they were to be regarded as chance witnesses. Muhammad Ayub had is the F. I. R. attributed two hatchet blows to Abdul Zahir but only one in his evidence. The Medical Officer had expressed the opinion that "the weapon of offence could be heavy sharp‑edged weapon". Hut nothing turns on this discrepancy, if any. Injury No. 1 is a compound fracture covered by multiple bruises and there is no definite finding that the same could not have been caused by a weapon other than the hatchet. The defence plea was elaborately dealt with by the High Court and rightly rejected.

10. We thus find no merit in this appeal which we accordingly dismiss.

S. Q Appeal dismissed.

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