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Criminal Appeal No. 511 of 1980, decided on 19th March, 1983.

‑‑‑S. 302/34‑‑Motive‑‑Sister of two of accused married to brother of deceased who was not keeping her with him‑‑Deceased suspected to be responsible for this‑‑Accused after gouging out eyes of their brother‑in- law, later injuring and causing death of deceased‑‑Witnesses consistently supporting version of prosecution‑‑Deceased's brother found injured and medically examined by doctor‑‑Investigating Officer recording his statement in hospital and registering case on his statement‑‑Evidence of witnesses corroborated by statement of Investigating Officer and medical evidence, held, had clearly established motive beyond any shadow of doubt.

‑‑‑S. 302/34‑‑Ocular account‑‑Complainant, father‑in‑law of deceased explaining his presence at spot‑‑Other witness resident of same locality, working in his field, adjacent to field of deceased‑‑Witnesses having no enmity or animosity against accused‑‑Evidence of witnesses found natural and convincing‑‑Delay in lodging F.I.R., fully explained‑Clothes of accused and weapons of offence recovered from accused found stained with human blood‑‑Medical evidence corroborating ocular account‑‑Presence of witnesses at spot, therefore, was fully accounted for and could not be doubted‑‑Witnesses were natural and disinterested‑‑ Ocular account corroborated by motive, recoveries and medical evidence clearly proved case of prosecution beyond any shadow of doubt‑ Conviction maintained in circumstances.

Kh. Muhammad Sharif for Appellants.

Muhammad Ali Naqvi for A.A.‑G. for the State.

Date of hearing: 28th February, 1983.

Muhammad Ali, Yaqub and Waliya sons of Karim and Hayat, son of Shahbaz, were tried by an Additional Sessions Judge of Sahiwal under section 302/34, P.P.C. for the murder of Bashir, deceased. The learned trial Judge, by his judgment, dated 8‑4‑1980, convicted Yaqub, Waliya and Hayat under the said section and sentenced them to life imprisonment each with a fine of Rupees two thousand (Rs. 2,000) each or in default thereof to further rigorous imprisonment for one year each. The fine, if realized, was ordered to be paid to the legal heirs of Bashir deceased as compensation under section 544‑A, Cr.P.C. Muhammad Ali, accused was given the benefit of doubt and acquitted of the charge. The appeal of the convicts is now before me for disposal.

2. The prosecution case in brief is that Din Muhammad P.W. 9, five days before the occurrence, had gone to the house of his daughter Mst. Sughran Bibi, who was the wife of Bashir deceased, to give her Eidi. On the day of occurrence i.e. 30‑8‑1979 at about 9‑30 a.m., he was sitting on a Banna of a field smoking Huqqa, whilst his son‑in‑law Bashir, deceased, was levelling his field. Hayat, accused, armed with a Dang, Muhammad Ali, accused, armed with a Dang affixed with a Sua, Yaqub, accused armed with a hatchet, and Waliya, accused, armed with a Taqwa, came there from the eastern side raising Lalkara that they had finished Aslam and that they would not spare Bashir, deceased. They launched an attack on Bashir, deceased, with their respective weapons and started assaulting him. On the alarm raised by Din Muhammad, complainant P.W. 9, Nazar Muhammad P.W. 10 and Bashir Ahmad (given up P.W.) were attracted to the spot. They intervened and entreated the accused to spare the deceased, but Muhammad Ali, accused, threatened that if anybody came near, he would also be treated in the same way. Bashir, deceased, fell down on the ground, on account of the injuries, and all the four accused picked him up and took him away to their residence. They left the deceased near the gate of their Ihata/Dhari and then entered their house. Bashir, deceased, who had received blows on his head, right and left legs had become unconscious at the spot. The deceased was brought to the Civil Hospital, Okara. The motive alleged is that Aslam, the brother of the deceased, did not keep Mst. Nooran, his wife, who was the sister of Muhammad Ali, Waliya and Yaqub, accused, with him and Bashir was assaulted because the accused believed that the deceased supported his brother. Previously, the case was registered under section 307/326/324/34, P.P.C. Bashir, deceased, breathed his last on 4‑9‑1979 at 11‑40 p.m. and, therefore, the offence was converted into section 302/34, P.P.C. The same day at 1‑20 p.m. Dr. Safdar Ali P.W. 7 medically examined Bashir injured and found the following injuries on his person:‑‑--

(1) An incised wound 1‑1/2" x 1/4" cutting the right ear, on the upper part of the rest of right ear. The ear was cut and absent in his upper part. In its upper part an incised wound 2" x 1/4" x bone deep on the head behind the ear was present. Wound was bleeding.

(2) A lacerated wound 1/2" x 1/4" x bone deep with swelling 2" x 2" on the right side of forehead 1/2" about the outer end of the right ear.

(3) A contused swelling 4" x 3" on the right side of head about the right ear. Bleeding from both the ears were present. Both the eye‑lids were swollen and blue.

(4) An incised wound 1/2" x 1/4" x skin deep on the outer and lower part of the right thigh with a contusion mark 2" x 1" on it.

(5) Two contusion marks 2" x 1" each on the outer and lower part of the right thigh 1‑1/2" below injury No. 4.

(6) A contusion mark 5" x 1" on the outer and middle of right thigh with swelling 6" x 4".

Injury No. 1 was grievous whilst injuries Nos. 2 and 3 were kept under observation. Injuries Nos. 4 to 6 were simple. Injuries Nos. 1 and 4 were held to have been caused by sharp‑edged weapon and the rest by blunt weapon within a duration of six hours.

3. Farooq Ahmad S.I. P.W. 11 having received a Rukka Exh. P.D. from Dr. Safdar Ali, P.W. 7, informing him of the arrival of Bashir, deceased, and Aslam inured in his hospital, immediately proceeded to the Civil Hospital, Okara. With the Rukka Exh.P.D., the copies of the medico‑legal reports of Bashir, deceased, and Aslam, injured were also sent. Farooq Ahmad S.I. P.W.11 could not record the statement of Bashir, deceased, as he was not fit to make a statement. He accordingly recorded the statement Exh.P.B. of Din Muhammad P.W. 9, who was in the hospital, at 3‑15 p.m. On the basis of the said statement, formal F.I.R. Exh. P.B./1 was recorded at Police Station Saddar, Okara, by Ghulam Qadir M.H.C. P.W. 5 at 3‑30 P.M.

4. On 3‑9‑1979 Yaqub, accused, was arrested by Farooq Ahmad S.I. P.W. 11.

5. On 4‑9‑1979, Muhammad Ali, Waliya and Hayat, accused, were arrested by the Investigating Officer. The blood‑stained Kurta P.2 from the person of Hayat, accused, and blood‑stained shirt P.3 from the person of Muhammad, Ali, accused, were removed and taken into possession vide memos. P.K. and P.L. respectively. Yaqub, accused, led to the recovery of a blood‑stained hatchet P.4 from his house, which was taken into possession vide memo. P.M. All the recoveries were witnessed by Din Muhammad P.W. 9, Nazar Muhammad P.W. 10, Farooq Ahmad S.I. P.W.11 and Bashir (given up P.W.).

6. On 4‑9‑1979 at 11‑40 p.m. Bashir, deceased, breathed his last in the hospital. On 5‑9‑1979 at 10‑00 a.m. Dr. Gulzar Muhammad Dogar P.W.6 conducted the post‑mortem examination on the dead body of the deceased and found the following injuries on it:‑ ---

(1) 1‑1/2" x 1/2" cartilage wound (healing stage) on the upper part of right pinna upper 1/4th of pinna is removed.

(2) 1‑1/2" wound stitched on the right side of head behind the right pinna (healing stage). Post‑mortem staining was present.

(3) A stitched wound with one stitch (healing stage) on the right thigh lateral aspect.

(4) A healed wound 1/4" on the right temple oblique, with one stitch in it.

Injuries Nos. 2 and 4 were collectively and individually held to be sufficient to cause death in the ordinary course of nature. Cause of death was inter‑cranial haemorrhage. Probable duration between injuries and death was approximately six days and that between death and post‑ mortem examination approximately twelve hours.

7. On 10‑9‑1979 Yaqub, accused, led to the recovery of his blood stained shirt P. 7 from his residential house, which was taken into possession vide memo. Exh.P.P. The said recovery was witnessed by the same four witnesses who had witnessed the earlier recoveries on 4‑9‑1979.

8. On 18‑9‑1979 Muhammad Ali, Hayat and Waliya, accused, led to the recovery of blood‑stained Dangs P.S and P.6 and blood‑stained Taqwa P.8, respectively, which were taken into possession vide memos. P.N., P.O. P.S. respectively in the presence of the same witnesses aforesaid.

9. The blood‑stained earth recovered from the spot, all the blood stained clothes recovered from the person of the accused and all the blood‑stained weapons of offence recovered at their instance, were found to be stained with human blood. After completing the necessary investigation, the challan against all the accused was sent up.

10. At the trial, the prosecution produced Din Muhammad D.W.9 and Nazar Muhammad P.W.10 in proof of the motive and the ocular account, the said two witnesses and Farooq Ahmad S.I.P.W.11 in support of the recoveries and Dr. Gulzar Muhammad Dogar P.W. 6 and Dr. Safdar Ali P.W. 7 to corroborate the medical testimony.

11. All the accused denied the accusations that were levelled against them, including the recoveries affected at their instance. They denied that Muhammad Aslam, brother of Bashir, deceased, was not keeping his wife Mst. Nooran, the real sister of Yaqub, accused, etc. and that Bashir, deceased, was instrumental in keeping her back from living with Muhammad Aslam. In fact they stated that Mst. Nooran was still living with Aslam, brother of the deceased. They stated that they had been falsely implicated in the case, that Muhammad Aslam was a bad character and notorious dacoit, that persons whose houses had been looted by Muhammad Aslam may have attacked him and in that process injured Bashir, deceased, that as the unknown assailants could not be located, they were involved in the case, that Din Muhammad P.W. 9 and Bashir Ahmad (given up P.W.) did not belong to Chak No. 49/3‑R and that Nazar Muhammad P.W. 10 was inimically deposed against them.

12. The learned trial Judge rejected the motive, but relying upon the ocular account, the recoveries and the medical testimony, convicted and sentenced the three accused and acquitted one, as stated in para. 1 above.

13. I have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards motive is furnished by Din Muhammad P.W.9 and Nazar Muhammad P.W. 10. According to their testimony, Muhammad Aslam, who was an elder brother of Bashir, deceased, was married to Mst. Nooran, the sister of Yaqub and Waliya, appellants, and Muhammad Ali, acquitted accused, and the maternal‑aunt of Hayat, appellant. According to their testimony, Muhammad Aslam was not keeping his wife Mst. Nooran with him and the appellants and the acquitted accused suspected the Bashir, a deceased, was responsible for this attitude. On account of this grudge, the three appellants and the acquitted accused first gouged out the eyes of Muhammad Aslam and then came to the Dhari of Bashir, deceased, where they injured him and caused his death. The learned trial Judge rejected the motive, in view of the statement made by Nazar Muhammad P.W.10 in cross‑examination that Mst. Nooran aforesaid was still living with her husband, Muhammad Aslam. It appears that the learned trial Judge was too quick in arriving at the conclusion, which he did. According to the consistent testimony of the above two witnesses, when the appellants and the acquitted accused came to the spot, they blatantly declared that they had dealt with Muhammad Aslam and would now deal with Bashir, deceased. Both the witnesses also stated that when they were taking Bashir, deceased, to the hospital, near the Dhari of one Barkat, they saw Muhammad Aslam lying injured on the ground with his eyes gouged out, whereupon they also took the said Muhammad Aslam to the hospital. It is true that this part of their statement is not to be found in the statements Exh. P.B. and Exh.D.A. of Din Muhammad and Nazar Muhammad P.Ws. recorded by the police, but the fact remains that Dr. Safdar Ali P.W. 7 medically examined Bashir, deceased, and the said Muhammad Aslam at about 1‑00 p.m. on 30‑8‑1979 and that he sent a Rukka Exh.P.D. at 2‑30 p.m. to Police Station Saddar, Okara, with the medico‑legal reports of the said Bashir, deceased, and Muhammad Aslam injured. Farooq Ahmad S.I. P.W. 11 also admitted in his cross‑examination that he had recorded the statement of the said Muhammad Aslam injured, on the basis of which formal F.I.R. No. 73 of 1979 was registered at Police Station Gogera the same day on 30‑8‑1979. It is, therefore, clear that on the day of occurrence, Muhammad Aslam had his eyes gouged out by the present three appellants and the acquitted accused and that they thereafter came and dealt with Bashir, deceased. As regards the statement of Nazar Muhammad P.W. 10 that the said Muhammad Aslam was still living with his wife Mst. Nooran, the same also could be true. Finding that his brother Muhammad Bashir had died and none of his real relatives were prepared to look after him, he may have succumbed to the offer of the appellants to live with Mst. Nooran, on the assurance that they would look after him and protect him. The evidence of Din Muhammad P.W.9, Nazar Muhammad P.W.10, Dr. Safdar Ali P.W.7 and Farooq Ahmad S.I. P.W.11, together with the Rukka Exh.P.D. and the 'Police Karwai' recorded under the F.I.R. Exh. P.B./ 1, clearly establish the motive beyond any shadow of doubt. The finding of the learned trial Judge in this respect is, therefore, rejected.

14. Din Muhammad P.W.9 and Nazar Muhammad P.W. 10 furnish the ocular account. The former had gone to the residence of his daughter Mst. Sughran five days before the occurrence in order to give Eidi to her. Being an old man of 80 years of age, he had over‑stayed after Eid. Though there is no clear evidence in this respect, it appears that his son Muhammad Latif was also with him, as the medico‑legal report Exh.P.F. of Bashir, deceased, shows his name as the relative who had brought the deceased to the hospital. On the date and time of incident, he was smoking Huqqa, whilst Bashir, deceased was levelling his land. He is, therefore, a natural witness. Nazar Muhammad P.W. 10 on the relevant date and time was cutting grass in his land, which was adjacent to that of Bashir, deceased. In cross‑examination he stated that he resided at a distance of 48 Karams from the place of occurrence. Later he corrected himself to state it was 2‑1/2 Kanals from the place of occurrence. He is also, therefore, a natural witness. Though Din Muhammad P.W. 9 happens to be the father‑in‑law of Bashir, deceased, and Nazar Muhammad P.W. 10 is a cousin of Bashir Ahmad (given up P.W.), who in turns claims to be the maternal‑cousin of Bashir, deceased, none have any enmity or animosity against the appellants to falsely involve them on so grave a charge of murder. Their evidence is natural and convincing. They have, however, not given the details of the specific injuries given by each of the appellants to Bashir, deceased, but since the occurrence was sudden and took about 2/3 minutes, they were caught unawareness and may not have clearly noticed or remembered the injuries specifically given by each of the appellants to the deceased. This, however, does not destroy their testimony. The following submissions have been made by the learned counsel for the appellants with regard to the ocular testimony. First, that the F.I.R, was lodged after a delay of six hours and consultation had proceeded the same In this connection it is submitted that nobody was sent to the Police Station to report the occurrence and it was not until Farooq Ahmad S.I. P W.11, received Rukka Exh.P.D. from the doctor that he went to the hospital and recorded the statement Exh.P.B. of Din Muhammad P.W. 9. Second that none of the three eye‑witnesses was present at the spot or saw the occurrence. In this connection, the earlier arguments advanced namely that none of them went and reported the matter to the police was pressed It was also submitted that the names of none of the three eye‑witnesses was mentioned in the medico‑legal report Exh. P.F. of Bashir, deceased. It was further submitted that Din Muhammad P.W.9 and Bashir Ahmad (given up P.W.) resided in Chak No. 36/13, which was 8 miles from the place of occurrence. It was also submitted that Iftikhar Ahmad Patwarl P.W.2 had not mentioned the names of the witnesses in the Site Plan Exh. P.A., at whose pointation the same was prepared. Third and last that the eye‑witnesses were related and inimical to the appellants. I have given ms anxious consideration and attention to the submissions made by the learned counsel for the appellants. As regards the first submission. It is true that the statement Exh. P.B. was recorded at 3‑15 p.m., but the delay is explainable. The place of occurrence from the Police Station Saddar. Okara, is about nine miles. According to the testimony of Din Muhammad P.W. 9, Nazar Muhammad P.W.10 had arranged for a trolly from one Rashid in order to carry the deceased to the hospital. This would have taken some time. On the way they picked up Muhammad Aslam, injured and must have been detained there also for some period. The witnesses reached the hospital at about 1‑00 p.m. alongwith Bashir, deceased, and Muhammad Aslam injured. After the medical examination of Bashir, deceased and Muhammad Aslam injured was over, Dr. Safdar Ali P.W. 7 sent a Rukka Exh. P.D. to the Police Station at 2‑30 p.m. It is true that from, this epoch of time onwards, somebody could have gone and lodged the report at the Police Station. However, the Investigating Officer did come and record the statement of Din Muhammad P.W. 9 at 3‑15 p.m, At best, there is a delay of about 45 minutes which does not appear to be appreciable. The first submission, therefore, is rejected. With regard to the second submission, Din Muhammad P.W. 9 has explained his presence in Chak No. 49/3‑R. Eid‑ul‑Fitr had been celebrated six days before the occurrence and he had come to Chak No. 49/3‑R on the day following Eid and had stayed over for 4/5 days. He is an aged man of 80 years of age and there is no reason to doubt that he would not have been held over by his daughter. Nazar Muhammad P.W. 10 was cutting grass in his land adjacent to that of Bashir, deceased. He had obtained the land on lease from one Mian Muhammad Havat sometime before the occurrence. According to his admission, he also resided 2‑1/2 Killas away from the place of occurrence. Both the witnesses have, therefore, accounted for their presence in the village. According to their testimony, they have also accounted for their presence at the spot at the time of the occurrence. It cannot, therefore, be stated that they were not present at the time of occurrence. The suggestion that since none of the names of the three eye‑witnesses stands recorded in M.L.R. Exh. P.F., their presence should be discarded, cannot be accepted. M.L.R. Exh. P.F. of Bashir, deceased, shows that Muhammad Latif son of Din Muhammad, as relative or friend had brought the deceased to the hospital. Though the prosecution had not clarified that the said Latif is the son of Din Muhammad P.W.9 there is no cross‑examination either on behalf of the appellants to exclude such a relationship. Very likely, the said Muhammad Latif was the son of Din Muhammad P.W.9 and had accompanied his father to Chak No. 49/3‑R, but even assuming for a matter of argument that he is not so, the fact that the name of none of the eye‑witnesses stands recorded in M.L.R. Exh.P.F. cannot unequivocally displace the presence of the eye‑witnesses at the spot. The suggestion that Iftikhar Ahmad Patwari P.W.2 in his cross‑examination admitted that he had not mentioned the names of the witnesses in the site plan at whose pointation the same was prepared, cannot be accepted. as the said Patwari in his examination‑in‑chief clearly stated that he had prepared the same after spot inspection on the pointation of the witnesses. The site plan Exh. P.A. also gives the names of the witnesses and the place from where they saw the occurrence. In these circumstances, the second submission made by the learned counsel for the appellants has no force and must be rejected. As regards Nazar Muhammad P.W.10, it was suggested to him that Waliya, appellant, did not allow him to remove his wheat from the threshold, unless the lease amount was paid to Mian Muhammad Hayat in respect of land held by him on lease and that the wheat belonging to him was sold by Walyia, appellant, but the said suggestions were categorically denied by Nazar Muhammad. However, some questions were put to Din Muhammad P.W. 9 to show that Muhammad Aslam injured was involved in cases under section 307/326/393/498, P.P.C., in some of cases his son Sadiq was co‑accused with the said Muhammad Aslam, but no enmity stands established between the eye‑witnesses and the appellants from these questions. The third submission raised on behalf of the appellants, therefore, has no merit. Both the eye‑witnesses are natural witnesses and were present at the spot and their evidence appears to be natural and convincing. They are disinterested witnesses as they have no motive to falsely implicate the appellants. The ocular account, therefore, clearly establishes the case against the appellants.

15. Strictly, corroboration in this case is not required. However, the recoveries of the blood‑stained clothes at the instance of Yaqoob and Hayat, appellants, and the recoveries of the blood‑stained weapons at the instance of the said two appellants and Waliya, appellant all of which clothes and weapons of offence were found to be stained with human blood, act as strong incriminatory evidence against the appellants. It is true that Din Muhammad P.W. 9 and Nazar Muhammad P.W. 10, who are the eye‑witnesses, are two of the recovery witnesses regarding all these recoveries, but the testimony of Farooq Ahmad S.I. P.W. 11 alone is also sufficient to accept these recoveries. The medical testimony in this case also shows that Bashir, deceased, suffered no less than six injuries on his person, two by sharp‑edged weapon (of which one was on the head) and four by blunt weapon (of which two were on the head). The blunt weapon injury on the right temple and the incised wound cutting the upper part of the ear were held to be fatal by Dr. Gulzar Muhammad Dogar P.W. 6. The incised wound cutting the upper part of the ear was found to be grievous by Dr. Safdar Ali P.W. 7. Gulzar Muhammad Dogar P.W. 6 found the right side of head and right temporal and right occipital bones of Bashir, deceased, fractured. The medical testimony, therefore, clearly shows that a blunt weapon, such as a Dang, and sharp‑edged weapons, such as a hatchet or a Takwa, were used in the occurrence. It is strange that Dr. Gulzar Muhammad Dogar P.W. 6 did not notice the three contusion marks, described as injuries Nos. 5 and 6 by Dr. Safdar Ali P.W. 7, when he conducted the post‑mortem examination, but I have no reason to doubt that they were so found by Dr. Safdar Ali P.W. 7 at the time of first medical examination. The medical testimony, therefore, clearly corroborates the ocular account.

16. The upshot of the above discussion is that the motive, the ocular account, the recoveries and the medical evidence, clearly prove the case of the prosecution beyond any shadow of doubt. The three appellants appear to have been properly convicted and sentenced. There being no merit in this appeal, the same is dismissed.

S.A./Y‑3/L Appeal dismissed.

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