1986 P Cr (PLP)

Against injury No.1 right temporal bone was cut, the cut portion internally communicated with petrous bone. Memberance and brain surface on right side were congested, Injury No.1 was caused with sharp‑edged weapon and the rest with blunt weapon, Injury No.1 was sufficient to cause death in the ordinary course of nature through coma by brain contusion. Probable time between injuries and death was about 10 days and between death and post‑mortem few hours.

6. On 21st April, 1981 at 9‑40 p.m. the same doctor examined Muhammad Sadiq complainant and found the following injuries on his person:‑ "(1) Lacerated wound 2.5 x '5 c.m. over left front part of head. (2) Abrasion 1 x '5 c.m. mid front right pinna. (3) Contusion abrasion 4 x 6 c.m. lower right side of neck. (4) Contusion 8 x 2 c.m. back left shoulder. (5) Contusion 11 x 1 c.m. mid lower back part of chest. (6) Lacerated wound 6 x 5 c.m. lower front left arm. (7) Contused swelling 7 x 5 c.m. back upper left arm". All the injuries were simple, caused by blunt weapon. 7, On the same day at 10‑30 p.m. the same doctor examined Muhammad Din alias Manhu appellant and found the following injuries on his person:‑‑ "(1) Cut incised wound 5 c.m. long chopping off upper and middle parts of right pinna in half of its width, most of the cut part was missing but small portion cut through and through the depth of pinna and hanging distally by a skin tag. (2) Cut incised wound 9 x 1 c.m. bone deep over left parietal region. (3) Cut incised wound 4 + 1 c.m, through and through upper part of left pinna chopping off the cut portion. , (4) Contused swelling 10 x 7 c.m. left temperomandibular region. (5) Cut incised wound 6 x 2 c.m. bone deep inner mid‑back left forearm. (6) Stab 3 x 1.5 c.m. left epigastrium with superficial cut 3 c.m. long at its upper end. (7) Contusion 8 x 5 c.m right back lower chest. (8) Multiple intermingled contusion in area 38 x 9 c.m. back left chest and lumber region. (9) Lacerated wound 2 x 1 c.m., back upper left buttock. (10) Contusion back right shoulder 12 x 8 c.m." Injuries Nos. 1, 2, 3, 5 and 6 were caused by sharp‑edged weapon and the rest with blunt weapon about six hours prior to examination. Injuries Nos. 1, 2 and 5 were grievous and rest were simple in nature.

8. On the same day at 10‑15 p.m. the same doctor examined Mst. Naziran, wife of Muhammad Din appellant, and found a lacerated wound 1 x 3 c. m. scalp deep over middle left parieto‑temporal region. The injury was simple, caused by a blunt weapon.

9. In support of its case the prosecution examined two eye‑witnesses, namely. Muhammad Sadiq complainant and Muhammad Ibrahim P.W. It also relied on the evidence relating to motive and recovery of blood stained Datar at the instance of Muhammad Amin appellant.

10. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Muhammad Din appellant when asked to explain his injuries, made the following statement:‑‑ "The allegations are incorrect. In fact on the day of occurrence, I was present in my residential house in village Hadiyara about 5 p.m. alongwith my two guests. At that time, Muhammad Hanif P.W. alongwith 7 other persons of the complainant party while armed with Datar, hatchet, Chhuris, etc., criminally tres‑passed into my house and made a concerted attack by the respective weapons and caused serious and grievous injuries to me. My guests intervened to save my life and caused some injuries to my assailants. I became unconscious on receipt of the injuries and re‑gained consciousness in the Mayo Hospital where I was admitted. Then I came to know that Abdul Rashid father of Muhammad Amin my co‑accused had got the case about my injuries registered at P. S. Barki against Muhammad Hanif P. W, and his co‑accused. The police after the investigation had challaned all these accused in that case which is now pending in Court. On this account they have falsely involved me in this case with the assistance of the local police." Muhammad Amin appellant stated that since his father had reported against the complainant party, therefore, he was falsely implicated. No evidence was led in defence.

11. After examining the evidence on the record the learned trial Judge came to the conclusion that both the eye‑witnesses, namely, Muhammad Sadiq and Ibrahim had seen the occurrence and although they had made certain improvements with regard to the injury of Muhammad Din appellant, their statements could not be discarded as a whole. He further observed that the ocular evidence was corroborated by medical evidence, motive and recovery of blood‑stained Datar at the instance of Muhammad Din appellant. While considering the case of Muhammad Din appellant he further observed that the fact that he was attacked in his house by the relatives of Barkat Ali deceased soon after the present occurrence "proves his participation in this occurrence...." Learned trial Judge was of the view that if Muhammad Din accused had not participated in the occurrence the relatives of Barkat Ali would not have chosen him as their target for taking revenge of the assault on Barkat Ali deceased. He therefore, convicted and sentenced the appellant as mentioned above.

12. Learned counsel for the appellants contended that the evidence relating to motive and recovery of blood‑stained Datar at the instance of Muhammad Amin accused is highly unsatisfactory; the occurrence had not taken place at Rohi Nalla as alleged by the prosecution; the presence of both the eye‑witnesses at the spot is not established and in any case their evidence cannot be accepted because they have made false statement particularly with regard to the injuries of Muhammad Din appellant.

13. The motive alleged in the F.I.R. and narrated by the complainant at the trial was that on the day of occurrence at 7 a.m. Barkat Ali deceased was present in his Haveli. Muhammad Amin accused stopped the flow of dirty water by throwing some tree bushes in the drain flowing between his Haveli and the Haveli of the deceased. The deceased took exception to it resulting in a quarrel, in which both of them exchanged hot words and came to fist blows. They were separated by Mehr Ashiq and Akbar P.Ws. Muhammad Sadiq P.W. is not an eye‑witness of this incident. In cross‑examination, he stated that he was informed about it by Barkat Ali deceased. Mehr Ashiq who allegedly separated Muhammad Amin appellant and Barkat Ali deceased gave a different version. Appearing as P.W.5 he stated that the quarrel was between Abdul Rashid (father of Muhammad Amin accused) and Barkat All deceased. He saw them grappling and abusing each other. Ibrahim P.W., however, denied the suggestion as incorrect that there was any quarrel between aforementioned Abdul Rashid and Barkat Ali deceased. The evidence relating to motive is, thus, unsatisfactory and does not prove the motive alleged by the prosecution.

14. According to the prosecution, the occurrence took place at Rohi Nullah situated at a distance of half a mile from the village Abadi. Manzur Ahmad P.W.4 and Sub‑Inspector Fazal Ahmad P.W.10 stated that blood‑stained earth was taken into possession from the spot and made into a sealed parcel. Both of them were cross‑examined at length but no question disputing the recovery of blood‑stained earth from the alleged place of occurrence was put to them. Even no suggestion was put to the eye‑witnesses that Barkat Ali deceased had suffered injuries elsewhere. In the circumstances, the contention of the learned counsel regarding the place of occurrence has no force.

15. At the trial Muhammad Sadiq complainant and Ibrahim P.Ws. supported the prosecution version of the occurrence. Muhammad Sadiq P.W. had the stamp of injuries on his person and his presence at the spot is not open to any doubt. He is nephew (brother's son) of the deceased while Ibrahim P.W. is the brother of the deceased. Though closely related to the deceased, they have no enmity with the accused persons. However, neither their relationship with the deceased would be enough to label them as interested witnesses nor the absence of enmity with the accused would make them reliable witnesses. It is the intrinsic worth of their evidence which has to be considered for coming to a correct conclusion.

16. Muhammad Din had ten injuries on his person. Injury No.8 consisted of multiple intermingled contusion in an area of 38 c. m x 8 c. m. Five injuries had been caused by a sharp‑edged weapon and three were declared grievous. One grievous injury was over the left parietal region. Moreover, in the F.I.R. the complainant had stated that during, the scuffle Muhammad Din accused also suffered minor injuries and after the occurrence both the accused had run away. At the trial, the eye‑witne3azs faced great difficulty in explaining these injuries and for the first time they came up with the version that Muhammad Sadiq was having a Danda and Barkat Ali deceased had a small hatchet and they caused injuries to Muhammad Din with these weapons in self‑defence. Muhammad Sadiq was confronted with F.I.R. Exh. P.E. and Muhammad Ibrahim with his statement Exh.D.B. where it was not so recorded. Despite this material improvement, they could not explain all the injuries on the person of Muhammad Din accused. Ibrahim P.W. stated that within his view Barkat Ali deceased gave only one blow to Muhammad Din with a hatchet whereas medical examination of Muhammad Din revealed five sharp‑edged weapon injuries. He further stated that Barkat Ali himself had received the first blow when he caused injury to Muhammad Din. It need be mentioned that according to the eye‑witnesses first blow on Barkat Ali was by Datar and it landed on his neck and ear on the right side. The post‑mortem report revealed that against this injury temporal bone was cut and this injury was sufficient to cause death in the ordinary course of nature. It is unbelievable that after receiving this injury Barkat Ali was in a position to weild a hatchet blow on Muhammad Din accused. Strangely enough, both the eye‑witnesses stated that after the occurrence both the accused ran away from the spot. Muhammad Din accused had three grievous injuries out of which one was over left parietal region. It is unbelievable that Muhammad Din accused could have run away after receiving these injuries. In the circumstances of the case, the statement of Muhammad Din accused appears to be correct that he was attacked in his house. It also finds support from the fact that his wife Mst. Naziran was also injured. She had a lacerated wound scalp deep over mid left perietotemporal region. The eye‑witnesses have not explained her injury. Another circumstance which lends support to this view is that a case in respect of the murderous assault on Muhammad Din was registered on 21‑9‑1981 vide F.I.R. No.57 at the instance of Abdur Rashid, father of Muhammad Amin accused, against Inayat Ali, Ghulam Muhammad alias Gaman. Hanif and three sons of Barkat Ali deceased namely, Muhammad Shaft, Muhammad Ashiq and Muhammad Arif. If Muhammad Din accused had suffered injuries during the same occurrence in which Barkat Ali and Sadiq P.W. were injured, then their names must have figured as accused in the said F.I.R. No.57. There was no reason for Abdur Rashid, father of Muhammad Amin, to spare Barkat Ali deceased and Muhammad Sadiq P.W. It is, thus, established that both the eye‑witnesses have made incorrect statements regarding the circumstances in which Muhammad Din accused suffered injuries. However, for that reason their evidence cannot be rejected in toto because the rule that the veracity of a witness is indivisible has not been endorsed by the superior Courts. Since both the eye‑witnesses have made incorrect statements regarding the injuries of Muhammad Din accused, their evidence, in order to be accepted, would require corroboration from an unimpeachable source.

17. Now I proceed to consider the case of Muhammad Din appellant. According to the eye‑witnesses, he was armed with a hatchet. Muhammad Sadiq P.W. stated. "I intervened to save my uncle and also raised a noise. Muhammad Din accused gave a hatchet blow on my head. He repeated the same which fell on my shoulder. He further repeated the blows falling on my shoulder. He gave me two more blows with his weapon on my back". It will be noted that Muhammad Sadiq had seven injuries, all caused by blunt weapon he did not state that Muhammad Din accused had used the hatchet from wrong side as he did while narrating the hatchet injury to Barkat Ali deceased. According to Muhammad Sadiq P.W. the larger number of blows fell on his shoulder but according to the medical evidence he had only one injury on the back of left shoulder. Ibrahim P.W. stated that when Sadiq P.W. intervened to rescue his uncle, Muhammad Din accused gave him hatchet blows on his shoulder and back. He, too, like Muhammad Sadiq P.W., did not state that hatchet was used from wrong side although while narrating the assault on Barkat Ali he had stated that Muhammad Din gave him a hatchet blow from the wrong side. According to this witness. Muhammad Din accused caused injuries to Sadiq P.W. only on shoulder and back while the medical evidence shows that Sadiq P.W. had injuries on front part of head, right pinna, right side of neck, left shoulder, back part of chest, lower front left arm and back upper left arm. So far as Muhammad Din accused is concerned, the medical evidence does not support the ocular evidence. There is no recovery of any incriminating article from him. The observation of the learned trial Judge regarding participation of Muhammad Din accused in the occurrence is just conjectural. The mere fact that the sons and relatives of the deceased chose to take revenge from this accused, was hardly a ground for holding that his participation in the occurrence was proved. It is matter of common observation that the relatives of the victim of the crime very often take revenge from the innocent relatives of the wrong doer if he himself is not available. The uncorroborated evidence of the aforementioned eye‑witnesses is not sufficient to warrant the conviction of Muhammad Din accused. His appeal is, therefore, allowed and he is acquitted of the charges. He shall be set at liberty forthwith if not required to be detained in any other case.

18. The case of Muhammad Amin accused, however, stands on a different footing. The ocular evidence as against him finds corroboration from the evidence relating to the recovery of blood‑stained Datar at his instance. This recovery is supported by Muhammad Tufail P.W.6 and Fazal Ahmad, S.H.O. P.W.10. Muhammad Tufail P.W. was cross examined at length but nothing useful to the defence could be elicited from his statement. He is not shown to have any motive to falsely implicate Muhammad Amin accused. The statement of S.H.O., regarding this recovery almost goes unchallenged. No question touching the recovery of Datar was put to him. The recovery of Datar from a reed‑growth on the pointation of Muhammad Amin accused stands folly established. According to the report of the Serologist. Datar was stained with human blood. In the circumstances, Muhammad Amin appellant has been rightly convicted under sections 302 and 323, P.P.C.

19. At the time of occurrence, he was a boy aged 16/17 years. It has already been mentioned that the motive alleged by the prosecution has not been substantiated. It is shrouded in mystery. In the circumstances, the sentence of imprisonment for life and a fine of Rs.5,000 for the murder of Barkat Ali deceased awarded by the trial Court is appropriate. In default of payment of fine he will undergo further R.I. for two years as ordered by the trial Court. The fine, if realised, shall be paid to the heirs of the deceased as compensation. B His sentence of rigorous imprisonment for one year and a fine of Rs.5,000 for causing hurt to Muhammad Sadiq P.W. is also maintained. In default of payment of fine, he will undergo further R.I. for three months. The fine, if realised, shall be paid to Muhammad Sadiq P.W. as compensation. Both the sentences shall run concurrently. The result is that the appeal of Muhammad Amin appellant and Criminal Revision filed by the complainant fail and are dismissed. S.G.D. Order accordingly.