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Criminal Appeal No.6 of 1979, decided on 6th February, 1985.

(On Appeal from the judgment of the Peshawar High Court, dated 13‑12‑1978, passed in Criminal Appeal No.54 of 1975).

‑‑‑S.302/307/149/148‑‑Identification‑‑Time of occurrence being 5‑45 p.m. in month of October could not be said to be sufficiently dark so as to make identification difficult‑‑Place of occurrence being a hotel premises could be presumed to be lighted at relevant time‑‑Fight between parties supported by injuries on both sides‑‑Presence of stab and incised injuries on person of deceased and injured witnesses showed that accused had used sharp‑edged weapon‑‑Acquittal of accused persons, held, rightly set aside in circumstances.‑‑

Ghulam Dastgir, Advocate‑on‑Record for Appellant.

Bashirullah Khan, Asstt. A.‑G. N.‑W.F.P. instructed by M. Qasim Imam, Advocate‑or.‑Record (absent) for the State.

Date of hearing: 6th February, 1985.

‑ This is a direct appeal filed against the judgment of the Peshawar High Court, dated 13‑12‑1978, whereby on appeal by the State, the acquittal of the appellant in a murder case was set aside and he was convicted under section 302, P.P.C. and sentenced to imprisonment for life and to pay Rs.2,000 to the heirs of Sher Afzal deceased under section 544‑A, Cr.P.C.

2. The case which involved the murder of Sher Afzal and attempted ipurder of Muhammad Nawaz and Farid Khan had proceeded under sections 302/307/149 and 148, P.P.C. against Gohar Rehman appellant, his two brothers, namely Munsif Khan and Aslam Khan, his sister's husband Sarwar and the husband of the daughter of his sister, Munsif Khan son of Mian Khan. It was alleged that on 29‑10‑1973 at Namashanvaila, Sher Afzal deceased alongwith Farid Khan and Muhammad Nawaz P.Ws. was sitting in the hotel of Dost Muhammad at the Tonga‑stand Kot Najibullah, three furlongs from the Police Station, Kot Najibullah when the appellant and his co‑accused came. The appellant asked them as to why they were after mischief. This led to altercation followed by fight with chairs, in the course of which the appellant inflicted two dagger blows at the abdomen of the deceased at which he fell down. Munsif Khan and Aslam Khan inflicted knife blows on the right and the left thigh, respectively, of Farid Khan. Aslam Khan also injured Muhammad Nawaz on his head with a dagger. Munsif Khan son of Mian Khan had, in the meantime, been exhorting his companions. After the accused fled the scene, the injured were taken to the Police Station where the first report was lodged by Sher Afzal deceased at 5‑45 p.m. Dost Muhammad, owner of the hotel, who had managed to snatch blood‑stained dagger (Exh.P.1) from Munsif Khan and Ghulam Ilahi who was present at the scene and who had also been successful in snatching blood‑stained dagger (Exh.P.2) from the appellant, produced the respective weapons at the Police Station. The injured were then removed to Civil Hospital, Haripur, from where the deceased was later removed to District Head quarters Hospital, Abbottabad, where Dr. Muhammad Yaqoob Khan recorded his dying declaration at 11‑15 p.m. The deceased died the next morning at 5‑45 a.m. The motive for the attack was land dispute between the father of the deceased and the appellant.

3. At the time of his admission in the Civil Hospital, Haripur at 7‑10 p.m. the deceased was found to have sustained the following injuries:‑

"(1) Stab wound 2" x " over left side of abdomen 2" above and lateral to umbilicus. Omentum was coming out.

(2) Stab wound 1" x " over right costal margin 31" to the right of mid external line.

(3) Lacerated wound 1" x 1/6" muscle deep over left side of frontal area just above the hair margin."

His shirt and Banyan bore cuts corresponding to the stab wounds. The presence of the injuries was confirmed, by the post‑mortem report. The death was due to shock and haemorrhage from injury to the spleen, lung, diaphragm, large Intestine, mesentery and abdominal wall.

4. Farid Khan had two stab and two incised wounds and two bruises on various parts of his body. The injuries were simple. Muhammad Nawaz had suffered one incised wound on the right parietal area and one bruise on the right shoulder which were simple.

5. Aslam Khan, Sarwar and Munsif Khan son of Mian Khan were arrested the next day, i.e. 30‑10‑1973. The other two absconded but appeared at the police station on 7‑11‑1973. All of them had injuries on their person. Aslam Khan had a bruise on the left side of the chest. Sarwar had a superficial laceration skin deep behind the left ear, an abrasion and a bruise. Munsif Khan son of Mian Khan had one bruise. Munisf Khan had three abrasions while the appellant had three small abrasions over right elbow and one abrasion over front of the right leg. All the injuries sustained by the accused persons were simple in nature and caused by blunt weapon.

6. The prosecution had based its case upon the ocular testimony of the two injured, namely, Muhammad Nawaz (P.W.10) and Farid Khan (P.W.11), and Ghulam Ilahi (P.W.12). Dost Muhammad was given up as having been won over. According to the ocular evidence, the fight had first been with chairs which had been picked up from the hotel but in the meantime Munsif Khan son of Mian Khan had gone to his hotel which was adjacent to that of Dost Muhammad and brought four daggers, of which he kept one and passed on the remaining to Gohar Rehman and his brothers Munsif Khan and Aslam Khan, with which they inflicted the injuries.

7. The appellant in his statement under section 342, Cr.P.C. denied his involvement in the case. He explained that the injuries on his person were due to Zamindara work. Munsif Khan son of Mian Khan also denied his involvement and gave similar explanation for the injuries on his person. But the other three stated that the complainant party had attacked them and that there had been an open fight.

8. The trial Court rejected the testimony of the ocular witnesses for the reason that none of them was independent or truthful. The snatching of the weapon by Ghulam Ilahi was disbelieved for the reason that the accused "would never let go the weapon of offence when his wrist is just being caught hold of, and his other companions are also armed with Chhuris". Ghulam Ilahi was disbelieved also because in the absence of any injury received by him, his presence was doubtful and although the scene was a public place and hotel premises, he was held to be a chance witness. The trial Court also rejected the story of the distribution of the daggers with the observation that "This story does not appeal to the mind very clearly. The accused were not at rest and ease that they should have distributed the knives so uninterruptedly". The dying declaration was disbelieved because of the omission to mention therein the fight with chairs and snatching of the daggers. In regard to the presence of injuries on the accused persons, the trial Court held that:‑

"This shows that a free fight had taken place, but it is very difficult to pin‑point any of the accused injuring any of the particular complainant or deceased, because the fight was sudden and each person would be responsible for his own acts."

and further that "none of the accused can be pin‑pointed or has been pin‑pointed by the prosecution". It thus found "a lot of lacuna to be filled in before the accused can be convicted for the serious offences with which they have been charged". It went on to add "Had they been charged for minor offence, then such lacuna could have been presumed to have been filled". On this view of the matter, the trial Court acquitted all the accused.

9. The High Court in the State's appeal disagreed with the conclusion reached by the trial Court in respect of three of the accused, namely, the appellant and his two brothers Munsif Khan and Aslam Khan. The High Court found Ghulam Ilahi to be a disinterested witness. The dying declaration which was recorded at the hospital at Abbottabad was held to be without prompting and was found to be fully supported by Ghlam Ilahi. The High Court, however, held that the story of introducing the daggers during the occurrence as stated by the witnesses was an improvement and as such ruled out the existence of any common intention to kill. The appellant and his two brothers, viz. Munsif Khan and Aslam Khan, were accordingly held responsible for their own individual acts. The acquittal of the appellant was, therefore, set aside and he was convicted and sentenced as aforesaid while his brothers were convicted and sentenced under section 324, P.P.C.

10. The only points urged in support of the appeal are that the identification of the accused was not free from doubt as it must be dark when the occurrence took place and that the ocular witnesses had made improvement in their evidence by introducing the story of Munsif Khan son of Mian Khan having fetched the daggers which fact they had not mentioned in their statements under section 161, Cr.P.C. Our attention was also invited to the absence in the F.I.R. of any mention about the fight with chairs which had preceded the inflicting dagger injuries or of snatching of daggers by Ghulam Ilahi and Dost Muhammad. Since the F.I.R. was lodged at 5‑45 p.m. in the month of October, iti cannot be said that it had become sufficiently dark at the time of the occurrence so as to make identification difficult. Moreover, the scene, was hotel premises at Tonga‑stand and as such it can be presumed that the place was lighted. In any case there is nothing to show the contrary. Then the fact that the fight had initially been with chairs is supported by the presence of blunt weapon injuries on both sides. As regards the fetching of knives during the fight, the High Court had no doubt considered it to be an improvement. Nevertheless, the presence I of stab and incised injuries on the person of the deceased and they injured witnesses would show that the accused had used sharp‑edged weapon during the occurrence.

11. In the circumstance we find no substance in this appeal which we accordingly dismiss.

M.Z.M Appeal dismissed

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