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Criminal Appeal No.87 of 1985, decided on 13th April, 1987.-

---S.302--Ocular testimony free from doubt, not suffering from any infirmity whatsoever and inspiring confidence--Occurrence taking place in front of house of eye-witness, his presence at time of occurrence probable and natural--First Information Report lodged within an hour and a half wherein names of eye-witnesses mentioned--Fact that both eye-witnesses were present and saw occurrence established--Accused contending that he saw deceased in room of his sister in objectionable position and out of grave and sudden provocation killed him but this plea appearing to be an afterthought and was not suggested to any of eye witnesses--Contention of accused was also belied by fact that be gave solitary knife blow to deceased and did not repeat it in fit of sudden provocation nor did he cause slightest harm to his sister who was also available in same room lying on bed and did not even run away--Held, accused was guilty of commission of offence of murder--Conviction and sentence upheld in circumstances.

---S.302--Appreciation----Mere relationship of eye-witness with deceased is not sufficient to discard his evidence.

Asaf E.Wardaz for A ipellant.

Muhammad Aslam Malik for the State.

Dates of hearing: 12th and 13th April, 1987.

Muhammad Khurshid s/o Muhammad Din Rajput by caste, aged 25 years r/o Ward No.6, Gujarkhan, district Rawalpindi was tried and convicted by Sessions Judge, Rawalpindi for the murder of Arshad Mahmood aged 25/26 years and sentenced to imprisonment for life and a fine of Rs.1,000, in default whereof to suffer further R.I. for one year vide his judgment dated 30-7-1985. It was also directed that the convict shall pay a sum of Rs.4,000 as compensation to the legal heirs of the deceased or in default to undergo six months' R.I. The convict has challenged his conviction and sentence by filing this appeal.

2. The incident took place on 5-2-1985 at about 9 a.m. in Post Office Colony, Wah Cement Factory in front of the house of the deceased. Nusrat Mahmood complainant (P.W.7) reported the matter to Muhammad Yahya ASI at 10/20 a.m. the same day near factory "More" vide statement' Ex.PD on the basis of which formal F.I.R. Ex.PD/1 was drawn at Police Station Wah Cantt., District Rawalpindi by Muhammad Siddiq H.C. (P.W.6) at 11 a.m.

3. ... ... was employee of Wah Cement Factory and resided with his .family in quarter No.D-1, Post Office Colony Wah Cantt. vWhose son Arshad Mahmood (deceased) used to drive wagon No.5204 as Taxi while his other son Nusrat Mahmood complainant (PW.7) worked with him as conductor. Khurshid Ahmad appellant resided in same colony in front of their house. Arshad deceased had illicit relations with Mst.Gulnar alias Nasreen sister of appellant. On the fateful day, at about 9 a.m., Nusrat Mahmood (complainant) besides Mujahid Hussain (PW.10) and Maqsood P.W. (not produced) was present outside his quarter, when Arshad Mahmood (deceased) also came out of his house and sat in the wagon parked in garage for bringing it out of it. He got down to remove stones lying in front of the wagon and in the meanwhile Muhammad Khurshid (appellant) armed with a knife came there and inflicted a knife blow in the chest of the deceased and decamped. The deceased receiving the injury fell down and died then and there. Nusrat Mahmood complainant leaving dead body of deceased in the care of Mujahid Hussain and Maqsood P.Ws went to the police for making report. In the way he met ASI Muhammad Yahya at Wah Cement Factory "More" and dictated to him his statement

4. Muhammad Yahya ASI (PW.9) after recording statement Ex.PD of Nusrat Mahmood informant (PW.7) sent it to the police station for preparing formal FIR reached the spot where dead body was lying on a cot in the street. He prepared injury-statement Ex.PF and inquest report Ex.PF/1 of the deceased and sent the dead body for post-mortem examination under police escort. He arrested the appellant same evening who led to the recovery of blood-stained knife (P1) from his residential house on 7-2-1985 which was secured under memo. Ex.PC. It was found stained with human blood vide Serologist's report Ex.PH. Having completed the usual investigation, challan was put in Court for the trial of the appellant.

5. Dr. Nazir Mahmood, Medical Officer, DHQ Hospital, Rawalpindi (PWl), conducted the post-mortem examination and found an incised wound ' 1.5 cm x 1 cm on the left side of upper part of chest below the clavic and an abrasion at bridge of nose and another abrasion at the base of ring finger of right hand. Injury No.l was caused with sharp-edged weapon and under it pleaura, upper lobe of left lung and aorta were found perforated which had resulted in immediate death of the deceased. Remaining injuries were caused with blunt weapon and were simple in nature. Injury No.l according to the doctor, was sufficient to cause death in the ordinary course of nature. Post-mortem was conducted within about 8 hours of the death and semi-digested food was found in the stomach.

6. Prosecution in support of its case, besides the medical evidence examined Nusrat Mahmood (PW . 7) and Mujahid Hussain (P. W .10) as eye-witnesses of the occurrence while Shabbir Hussain Shah (PW.5) deposed about recovery of knife (P.1) from the appellant and Muhammad Yahya A S I (PW.9) stated about the investigations conducted by him.

7. Muhammad Khurshid appellant vide his statement under section 342 Cr.P.C. denied the allegation and put forth plea of grave and sudden provocation saying that 3 months ago his hip bone was fractured. He was admitted for treatment in hospital from where he was discharged a couple of days before the occurrence. During this period the deceased cultivated illicit relations with his sister Mst.Gulnar alias Nasreen. On the fateful day at 5 a.m. (Fajar Azan time) he heard whispering sound from the room of his sister. He forced open the door and entering the room saw her lying in objectionable position while the deceased was arranging his clothes standing near her cot. He was provoked at this sight and picking up a Chhuri from wall-shelf, injured the deceased. He then raised alarm which attracted Khadim Hussain and Sarwar Khan who removed dead body out of his house and placed it on a cot in the street and when Thanedar arrived they produced knife as well as chappel of the deceased before him. He claimed knife P.1 as his. This version was reiterated by the appellant on oath while appearing a/s. 340(2) Cr.P.C. He produced Khadim Hussain as DW 1 in his support.

8. Learned trial Court on a detailed examination of material on record held that- presence of both the eye-witnesses, namely, Nusrat Mahmood (PW.7),,and Mujahid Hussain (PW.10) on the spot was probable and natural and accepted "prosecution story told by them dismissing the defence plea on the ground that no injury had been caused by the appellant to his sister; that dead body of deceased was not found by the police lying in his house; that semi-digested food in stomach of the deceased showed that occurrence took place at 9 a.m. (as stated by prosecution) and not at 5 a.m. (as stated by the defence). Consequently the appellant was held guilty under section 302 P.P.C. and "awarded lesser penalty for the deceased had an affair with appellant's sister.

9. Learned' counsel appearing on behalf of the appellant argued that the prosecution story was not supported, by any independent reliable evidence. Testimony of eye-witnesses is discrepant and inconsistent and does not inspire confidence, therefore, the defence version deserves to be accepted in preference to the prosecution story. Contrarily, the learned counsel for the State has supported the conviction.

10. I have considered the contentions of the learned counsel for the parties and also perused the record.

11. The appellant has admitted to have killed the deceased with knife -(PI) under grave and sudden provocation. He, however, disputes the time and place of occurrence. His version is that he had attacked the deceased finding him in his house in the room of his sister in an objectionable position in the later part of the night whereas the case of prosecution is that at 9 a.m. he had stabbed the deceased in the presence of the witnesses in the street. It is to be seen if Nusrat Mahmood (PW.7) and Mujahid Hussain (PW.10) have seen the occurrence If, so, whether plea raised by the appellant can reasonably be spelled out from the material on record

12. Having reviewed the entire evidence on record, I find the ocular testimony furnished by Nusrat Mahmood (PW.7) and Mujahid Hussain (PW.10) as free from doubt. It does not suffer from any infirmity whatsoever and inspires confidence. No doubt Nusrat Mahmood is real brother of Arshad Mahmood (deceased) but mere relationshipll is not sufficient to discard his evidence. The occurrence in this case took place in front of his house, therefore, his presence at the time of occurrence was probable and natural. As for Mujahid Hussain P.W., he is also a resident of close by locality i.e., Wah-Cantt. Railway Station which is only 11 furlongs from the spot. He came to the house of the deceased to take his Wagon to Basti Karigar Wah Cantt. as it had been booked by him on the proceeding evening. Learned counsel for the appellant argued that Nusrat Mahmood P.W. has not supported him on this point and had rather contradicted him by saying that they were to take the Wagon "in the first instance to the stop of Wah Cantt. Factory". By making this statement Nusrat Mahmood PW.7. I afraid, did not contradict Mujahid Hussain (PW.10). The sentence quoted above rather suggests that after loading passengers from Wah Cement Factory, they were to take the Wagon somewhere, which might be with Mujahid Hussain P.W. to Basti Karigar. It is next contended that Mujahid Hussain P.W. stated that the place of occurrence was a paved lane while the Investigating Officer stated that it was a Kachha lane and that this contradiction indicates that Mujahid Hussain P.W. had not seen the place of occurrence so his claim that he saw the occurrence is false. The discrepancy, I would say is too minor to lead to the inference that Mujahid Hussain P.W. had not seen the occurrence. The F.I.R. was lodged within about one and a half hours of the occurrence wherein Mujahid Hussain's name is mentioned as an eye-witness. This fact sets all doubts aside that he was not present at the time of occurrence particularly when it is not shown that he was previous acquaintance of the complainant party. His mistake in describing the Kachha lane 'as' paved lane' appears to be due to his maiden visit to the complainant's house. His purpose for coming to complainant's house at the relevant time is neither improbable nor after thought. He had stated so during investigation as well. In the circumstances, I am satisfied that both the eye-witnesses were present and had seen the occurrence.

13. The plea of grave and sudden provocation raised by the appellant is belated and afterthought. It was not even suggested to any of the eye-witnesses. Khadim Hussain (DW.1) and Sarwar did not appear during investigation to support this plea. Khadim Hussain (DW.1) on his own showing is a resident of Takal 30/40 miles away from the place of occurrence. He is not an employee of Wah Cement Factory. He was not allotted any quarter in Post Office Colony for living there. He stated that he was a fruit vendor and was living in the quarter of one Wazir but that Wazir has not appeared to say that the witness ever lived with him in the days of occurrence. The reasons given by the learned trial Court (mentioned in para 8 of the judgment) for rejecting the defence are fairly weighty. In addition thereto I find that had the appellant spotted the deceased in his sister's room and attacked him with knife in a fit of grave and sudden provocation then he would have not stopped at inflicting solitary injury to him. Single injury on the person of the deceased suggests that the appellant had no opportunity to repeat the blow on the person of the deceased for he wanted to run away to avoid arrest by the witnesses present nearby. On top of it, he did not cause slightest harm to his own sister who was available in the same room lying on the bed. It is not his case that she had run away. She could not run away unhurt because the appellant was free to deal with her after giving one injury to the deceased. For all these reasons I find that the plea of the appellant is far from being reasonably probable and is rather fantastic and unreliable and rightly rejected by the learned trial Court.

14. For what has gone above I hold that the appellant is guilty of committing the offence of murder and has been rightly convicted under section 302 PPC by the learned trial Court and lesser penalty imposed on him in the circumstances of the case too is justified.

Resultantly this appeal having no merit is hereby dismissed.

M.Y.H./M-316/L Appeal dismissed.

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