1992 P Cr (PLP)

4. On the commencement of trial he was charged for the murder of Muhammad Nawaz and, on his pleading not guilty, the prosecution led evidence against him by producing as many as 14 witnesses.

5. To be a little more precise, Dr. Rizwan Ali (P.W.1) proved the post mortem report and. diagram (Exh.P.A./1) of Muhammad Nawaz (deceased) after giving the details of 14 injuries on his dead body. Out of them 12 were incised wounds, all of different dimension located on the head, face, neck and back chest, and two abraded contusions, one near scapula and the other near the right kidney. On dissection he found left parietal bone fractured under injury No.l and right parietal bone fractured under injury No.2. Vertebra stood fractured and all big vessels were cut under injury.No.3, while all major vessels stood cut under injury No.4, both of which were located on the neck under injury No.5. Left ear was cut and mandible fractured while under injuries Nos:6 and 7 head of humerus and scapula and left shoulder blade were cut. Similarly under injury No.10, the 10th vertebra stood cut and under injury No.12 right hip bone fractured. In his opinion, injuries Nos.8 and 15 were caused by a blunt weapon while the rest of the injuries were caused by a sharp‑edged weapon. Injuries Nos.l to 7 and 10 and 12 were grievous and dangerous to life and death occurred instantaneous due to shock and haemorrhage as a result of the aforesaid injuries.

6. Muhammad Siddiq (P.W.2), Muhammad Sharif (P.W.9) and' Bashir Ahmad (P.W.10) were the witness of various recoveries, Mushtaq Ahmad complainant (P.W.11) and Rehmat Ali (P.W.12) gave the eye‑witness account while Muhammad Anwar Mann Inspector (P.W.14) gave details of investigation. Rest of the witnesses were ‑formal. A.S.I. Manzoor Hussain (P.Wr7) had proved the absconsion of the appellant.

7. Nazir Ahmad Constable appeared as (C.W.1) but he too was a formal witness as he had proved his report regarding the death of Muhammad Ibrahim Draftsman and S.I. Abdul Majeed.

8. On the completion of the prosecution evidence the appellant was examined under section 342, Cr.P.C. He denied all the incriminating circumstances figuring against him in the prosecution evidence and‑alleging his false implication professed innocence. He denied the recovery of `Toka' at his instance. He, however, admitted that Mst. Kausar Bibi was his daughter, married to Mahmood alias Moda. He alleged that Sultan P.W. (not produced) had abducted Mst. Azra, the daughter of his brother Muhammad lqbal, and he had been helping his brother actively for the restoration of the girl but eventually they married each other. According to him, he was on inimical terms with Sultan P.W., who got him falsely implicated in this case by collaboration with Mushtaq complainant and other eye‑witnesses. He produced' no defence. On the conclusion of the trial the appellant was convicted and sentenced in the manner aforesaid and aggrieved by these findings he came up in appeal‑ to this Court.

9. It was argued on behalf of the appellant that both the eye‑witnesses, namely, Mushtaq complainant (P.W.1) and Rehmat Ali (P.W.2) were closely related to Muhammad Nawaz' (deceased) and they were interested witnesses because, besides being related to him, they were on inimical terms with the appellant. According to the learned counsel, both of them had deposed falsely because there could be no possibility of their being present at the time of occurrence. He submitted that had they been present near the spot at the time of occurrence, they must have intervened or at least could not have allowed him to inflict as many as 12 injuries with a `Toka' on different parts of his body so leisurely. He argued that there was no occasion for Mushtaq complainant to follow his brother while returning from their land to the house which was situated in another street.

10. There seems to be no substance in the above contention of the learned counsel. Mushtaq complainant was no doubt the brother of the deceased, but Rehmat Ali was only from his brotherhood and he could be termed as an independent witness. There was no previous enmity between them and the appellant. Sultan given up P.W. might have abducted the paternal‑niece of the appellant and had married her against their will, as claimed by him in his statement under section 342, Cr.P.C., but there is nothing on the record to show that the complainant party had any hand in this abduction. The motive alleged in the F.I.R. was the estrangement of appellant's daughter Mst. Kausar Bibi with her husband Mahmood alias Moda who using the good offices of the deceased and his father took back his wife from the house of her parents by persuading appellant's wife but without his consent. Besides, the appellant also suspected the deceased having illicit relations with his wife. These facts were deposed by Mushtaq complainant (P.W.11) and Muhammad Din (P.W.13) the brother and father, respectively, of the deceased. Certainly they could have knowledge about these facts and their testimony in this respect was rightly relied upon by the learned trial Judge. This being so, the appellant. had direct grouse with the deceased and these two witnesses could not be held inimical on account of affairs of Sultan the given up P.W.

11. In any case, Rehmat Ali P.W., who fully supported the prosecution version as an eye‑witness, was, by and large, an independent witness and his testimony did not suffer from any infirmity nor his presence at the time of occurrence was improbable.

12. The appellant was carrying a formidable weapon like `Toka' and in an extremely ferocious mood he was giving blows to the deceased on different parts of his body in order to wreak his vengeance on account of flirting with his wife and in a situation like this the eye‑witnesses who were empty‑handed, could never dare to come near him unless they risked their life and there are very few people who in a situation like this can go to that extent despite their anxiety to rescue the victim.

13. There is no force in the contention of the learned counsel for the appellant either that the house of Mushtaq complainant being situated in another street, there was no reason for him to follow the deceased at a short distance because if the deceased while returning from the field with a bundle of fodder on his head was passing through the street in front of the house of the appellant, Mushtaq complainant could also tread the same way while going to his house.

14. So far as the evidence of recovery was concerned, it was disbelieved by the trial Court and it could be of no avail to the prosecution particularly when the Toka was not blood‑stained.

15. Another contention of the learned counsel for the appellant in view of the presence of two injuries on the dead body caused by blunt weapon, was that the appellant could not use 'Toka' as well as blunt weapon simultaneously and possibly there could be two assailants of the deceased and as such the real Story was quite different than the one related by the prosecution. There is no substance in this argument as well. Besides the wounds there were two abraded contusions. They could be caused by a fall. On the receipt of injuries the deceased must be tossing and twisting on the ground and these injuries could be caused in that process.

16. In my opinion, the prosecution had fairly succeeded in proving the guilt of the appellant beyond any shadow of doubt by producing reliable ocular evidence, coupled with the medical evidence, further supported by the absconsion of the appellant for a number of years after the commission of offence and before he was arrested and sent up for trial. The manner in which he committed the murder of Muhammad Nawaz (deceased), ordinarily he should have been awarded the sentence of death but keeping in view the immoral conduct of the deceased concerning his illicit relations with latter's wife, he was.' rightly sentenced to imprisonment for life and fine. There is therefore, no ubstance in his appeal and the same is dismissed. N.H.Q./M‑219/L Appeal dismissed.