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Criminal Appeal No. 77 of 1984, decided on 18th March, 1986.

(On appeal from the judgment and order of Lahore High Court, Rawalpindi Bench, dated 29th June, 1983 passed in Criminal Appeal No. 158/82 Criminal Revision No.112/82).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185 (3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Leave to appeal granted to consider that complainant had a motive to implicate accused/ appellants so much so that he had also introduced another person as an eye‑witness who was not examined and was given up by prosecution without assigning any reason; High Court did not attach due weight to the prevarications of witnesses in advancing time of occurrence from Peshi‑vela to Degar‑vela as it did not fit in with probable time of death of deceased whose stomach, on post‑mortem examination was found containing fully digested food; that all injuries on deceased could not be caused while deceased was sitting as alleged by eye‑witnesses; that complainant himself did not support F.I.R. at trial and had improved upon his earlier version and two eye‑witnesses supported him which rendered their testimony questionable; that two witnesses of recovery of blood‑stained hatchets were not independent witnesses as held by High Court that High Court wrongly accepted recoveries despite fact that evidence pertaining to it was not free from doubt; and that two accused /appellants had not initiated proceedings relating to abduction of a lady and in fact report was lodged by her husband.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302/34‑‑Appeal against conviction‑‑Contentions raised having been satisfactorily answered by Trial Court as well as High Court in elaborate and detailed manner‑‑Examination of some important factors of case showing that Courts below had made fair and impartial appraisal of evidence‑‑Appeal dismissed.

Sh. Shaukat Ali, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants.

M. Bilal for Advocate‑General (Punjab) and Rao M. Yusuf Khan, Advocate‑on‑Record for the State.

Dates of hearing: 16th and 18th March, 1986.

The accused /appellants, along with Abdur Rahman (acquitted accused), were tried under section 302, P.P.C. read with section 34, P.P.C. by the learned Additional Sessions Judge, Attock for committing the murder of Mumraiz Khan by inflicting hatchet blows, and all the three were convicted and sentenced to life imprisonment and a fine of Rs.5,000 each, in default to suffer R.I. for further two years each, and were also ordered to pay Rs.5,000 each to the heirs of the deceased or in default of the payment, each of them shall undergo further R.I. for two years. They challenged their conviction and sentence in the High Court but the learned High Court dismissed the appeal of the two accused /appellants, but accepted the appeal of Abdur Rahman and acquitted him, for the reasons recorded in the impugned judgment, dated 29‑6‑1983. After having discussed the ocular testimony of the witnesses; recovery of the blood‑stained hatchets and the medical evidence, the points raised before the High Court were decided by the learned Single Judge with the following observation

"The upshot of the above discussion is that the motive; the ocular account; the recoveries and the medical testimony conclusively establish the case of the prosecution to the hilt. However, without prejudice to the ocular account, but entirely by way of abundant caution and for the purposes of safe dispensation of justice, I would give the benefit of doubt to Abdur Rahman, appellant, as the incident does not appear to be pre‑planned, that the appellants coming across the deceased fortuitously attacked him there and then, that the hatchet recovered at the instance of Abdur Rahman, appellant, was not found to be stained with blood and it, therefore, appears doubtful that he joined in the common intention formed by his companions to kill the deceased. The case against Tariq Saleem and Muhammad Ramzan appellants stands clearly proved. They appear to have been properly convicted and sentenced. There is no merit in their appeal."

2. According to the prosecution on 25‑7‑1981 Mian Ahmad complainant (P.W.5) was present at his shop at about Peshivela when Mumraiz Khan, deceased, Nisar P.W.6 and Ejaz P.W.7 came to his shop; they had chaff for fretting out porcupines by burning the chaff near the holes in the field known as Landawar. The deceased, Ejaz and Nisar P.Ws. then left but some time later the same day Nisar P.W.6 came back to his shop and told him that he alongwith Mumraiz Khan and Ejaz P.W. went to the field of Allah Yar where there was a hole of porcupine near a bush Mumraiz Khan deceased put the chaff there near the hole and sat there and sent him (Nisar P.W.6) and Ejaz P.W.7 in order to collect firewood when at about 5‑30 p.m. Tariq Salim, Muhammad Ramzan and Abdur Rahman, the acquitted accused, came there duly armed with hatchets. Tariq Salim raised the Lalkara and attacked the deceased who was sitting on the ground, and started inflicting hatchet blows on his neck shoulders on other parts of his body. The deceased succumbed to the injures on the spot. Nisar P.W.6 and Ejaz P.W.7 raised alarm whereupon the accused ran away from the spot alongwith their hatchets; that Ghazan Khan (not produced) who was passing nearby, also witnessed the occurrence. Mian Ahmad P.W.5 then proceeded to the Police Station Pindigheb and lodged the F.I.R. at about 8 p.m. the same day, giving facts as mentioned in the foregoing lines.

3. Motive given by Mian Ahmad P.W.5 is that Mumraiz Khan deceased was charged for the abduction of Mst. Mehr Bhari sister of the accused/ appellants. A case was registered but the deceased was acquitted in that case and, therefore, the accused /appellants killed the deceased in order to avenge the insult regarding the abduction of their sister.

4. Ghulam Mehdi P.W.9, who was then S.H.O. Police Station Pindigheb, after recording the F. I. R., proceeded to the spot where he found the dead body lying in the field of Allah Yar; prepared the inquest report and sent the dead body to the mortuary for post‑mortem.

5. Dr. Abdur Razzaq P.W.1 performed the post‑mortem examination on the dead body of Mumraiz Khan and found as many as 16 incised wounds of various dimensions on the front and back side of neck; top and right side of head; right side of face; on left and right shoulders and outer parts of abdomen right thing and chest. On internal examination the stomach was found containing 200 grams of digested food and the urinary bladder containing 100 cc of urine. All the rest of the organs were found healthy. In the opinion of the doctor, death occurred due to shock and haemorrhage by injuries Nos. l to 6 and 14 which were sufficient to cause death individually as well as collectively in the ordinary course of nature.

6. At the trial the two eye‑witnesses Nisar P.W.6 and Ejaz P.W.7 gave ocular account of the occurrence. They charged the accused appellants for the attack on the deceased with hatchets. Muhammad Hayat P.W.8 is witness to the recovery of blood‑stained Shalwar P.6, shirt P.7 and hatchet P.8 of Tariq Salim accused /appellant which were taken into possession by the Investigating Officer and he attested the Memo. In his presence Tariq Salim accused /appellant, in police custody, had led to the recovery of the aforesaid blood‑stained hatchet P.8 from his residential house lying behind an iron box which sealed into a parcel vide Memo. Exh. P.J. Muhammad Ramzan, accused /appellant, in custody, led to the recovery of blood‑stained hatchet P.9 from his residential Kotha. Muhammad Hayat P.W.8 attested the recovery Memo. Exh. P.K. as marginal witness.

7. The aforesaid recoveries were effected by Ghulam Mehdi P.W. 9 S.I. who had arrested Tariq Salim accused on 27‑7‑1981 and had recovered the blood‑stained hatchet at his instance. He had also arrested Muhammad Ramzan accused and Abdur Rahman the acquitted‑accused. Muhammad Ramzan had also led to the recovery of blood‑stained hatchet P.9. Hatchets P.8 and P.9 were sent to the Chemical Examiner rind both were found to be Stained with human blood.

8. Leave was granted by this Court, per order, dated 8‑5‑1984 to consider that (i) Mian Ahmad had a motive to implicate the accused/ appellants so much so that he had also introduced Ghazan Khan as an eye‑witness who was not examined and was given up by the prosecution without assigning any reason, (ii) the learned High Court did not attach due weight to the prevarications of the witnesses in advancing the time of occurrence from Peshivela to Deegarvela as it did not fit in with the probable time of death of the deceased whose stomach, on post‑examination was found containing fully digested food, (iii) all the injuries on the accused could not be caused while the deceased was A sitting as alleged by the eye‑witnesses (iv) that Mian Ahmad himself did not support the F.I.R. at the trial and had improved upon his earlier version and the two eye‑witnesses supported him which rendered their testimony questionable; (v) Nisar and Hayat, witnesses to the recovery of blood‑stained hatchets are not independent witnesses as held by the High Court (vi) that the High Court wrongly accepted the recoveries despite the fact that the evidence pertaining to it was not free from doubt and (vii) the two accused /appellants had not initiated the proceedings relating to the abduction of Mst. Mehr Bhari. In fact the report was lodged by her husband.

9. Learned counsel for the accused /appellants Sheikh Shaukat Ali, Senior Advocate vehemently argued on the points enumerated above. These points have been satisfactorily answered by the trial Court ash well as by the High Court in very elaborate and detailed manner However, we may examine some of the important factors of the case. Ghazan Khan was given up as unnecessary witness but it does not, in' any was, affect the other evidence available on the record regarding the offence committed and the persons charged because the prosecution is not bound to produce and examine all the witnesses. Mian Ahmad himself has no motive whatsoever to rope in the accused /appellants for the crime which they have not committed. As regards the advancing of the time, it is very much clear in the F.I.R. as stated by Mian Ahmad:‑

"I run a shop in village Dhulian and I was present in my shop when my brother Mumtaz Khan, by nephew Ejaz and Nisar a resident of the village came there with a sack of chaff for ferreting the porcupines; that at about 7 p.m. Nisar came to my shop and informed that in the field of Allah Yar where they were trying to ferret the porcupines, and Ejaz was collecting firewood at some distance from the deceased and that at about 5‑30 p.m. Abdur Rahman, Muhammad Ramzan and Tariq Salim, sons

of Faqir Muhammad appeared, armed with hatchets and they attacked the deceased Mumraiz Khan, who was sitting, was dealt

hatchet blows on his neck repeatedly by the accused/ appellants who died on the spot; that he and Ejaz raised alarm which attracted Ghazan Khan."

From this narration of the incident it is evidence that the occurrence took place, according to the first informant Mian Ahmad, at about 5‑30 p.m. Therefore, there was no change of the time of occurrence either in the statement of this witness at the trial or in the statements of the two eye‑witnesses who actually saw the occurrence. Both the eye witnesses gave the tinge of occurrence as 5‑30 p.m. which is supported by the medical evidence as the deceased had fully digested food in his stomach. So if the deceased had taken his meals at about 12‑30 p.m. or at 1 p.m. that would stand digested at about 5‑30 p.m. As regards the injuries on

the person of the deceased, reference has been made to all the 16 injuries which are on the front and back side of neck; top and right side of the head; right side of face; left and right shoulders except injuries Nos.14

and 15 on the abdomen and thigh which could be sustained by the deceased when he must have fallen to the ground from his sitting posture. In fact Mian Ahmad has supported the FIR and lent support to the testimony of the eye‑witnesses.

We do not find any discrepancy in their statements at the trial. Learned High Court has already rightly accepted the recoveries of the blood‑stained hatchets and report of the Chemical Examiner was that the hatchets were stained with human blood. Muhammad Hayat and is recovery witness and there can be no doubt as regards the recoveries made in the presence of the witnesses by the Investigating Officer. To answer the question raised regarding the motive, honour of a family was involved in the case. The two accused/ appellants and the acquitted‑accused are equally honour bound to retrieve the prestige of the family as would be the husband and son of the abducted woman. Therefore, it is not unnatural or unheard of incident where any member of the family would take it upon himself to avenge the family honour. We find that the Courts below have made fair and impartial appraisal of the evidence. We find nothing to interfere with the impugned judgment Consequently, the appeal is' dismissed.

M.I. Appeal dismissed.

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