1987 PLP 462 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑ Leave was granted by this Court vide order dated 2‑6‑1980 to appeal against the judgment and order of the Lahore High Court dated 1‑4‑1979 passed in Criminal Appeal No.910 of 1975 whereby respondent Ahmad Khan was acquitted in a case of murder.

2. Accused /respondent Ahmad Khan was tried by the learned Additional Sessions Judge, Multan under section 302, P.P.C. for the murder of Mst. Noor Sain. He was convicted and sentenced to life imprisonment and a fine of Rs.2,000 under the said section or in default, to undergo further R.I. for two years, vide judgment dated 28‑7‑1975. On appeal before the Lahore High Court his conviction and sentence was set aside and he was acquitted of the charge.

3. The prosecution case against the accused/ respondent briefly stated is that on the night between 1st and 2nd May, 1974. Mst. Noor Sain, along with her two sons namely Muhabbat Ali P.W.7 and Akbar Ali P.W.8 and her minor son Ghulam Ali were sleeping at her Behak. Mohabbat Ali and Akbar Ali were sleeping on separate cots while Ghulam Ali minor was sleeping along with the deceased Mst. Noor Sain on one cot. All of them were lying on their cots when at about 9/10 p.m. Ahmad Khan accused /respondent came, armed with a Kulhari and started giving blows to the deceased. Muhabbat Ali and Akbar Ali P.Ws. got up from their cots and overpowered the accused and snatched his hatchet. After receiving the injuries Mst. Noor Sain died instantaneously on the spot.

4. Immediately after the occurrence Muhabbat Ali P.W.7 went to village Sargana, situate near the scene of occurrence, and informed Allah Yar Chowkidar and Haji Mahmood Khan Kicchi about the incident. He returned to the spot and from there he proceeded to Police Station Mitru leaving behind the other witnesses to guard the dead body and to keep the accused in custody. At the Police Station Shaukat Mahmood S.H.O. (P.W.9) recorded the F.I.R. Exh.P.C. and then proceeded to the spot where he prepared the injury statement and the inquest report of the deceased, and sent the dead body to the mortuary guarded by F.Cs. Ali Akbar and Ghulam Rasul P.Ws. He formally arrested the accused, took into possession the blood‑stained Kulhari P.1 and sealed it into a parcel vide memo. Exh. P.D. Blood‑stained clothes of the accused/ respondent i.e. shirt P.2 and Chaddar P.3 were got removed from the person of the accused and were also made into sealed parcel vide memo. Exh.P.E.

5. Motive for the offence as stated in the F.I.R. is that during the preceding day at about 4/5 p.m. cattle of Ahmad Khan accused/ respondent trespassed into the sugar‑cane field of the complainant party whereupon the deceased Mst. Noor Sain abused the accused respondent Ahmad Khan who got annoyed. Hence, the present occurrence.

6. On 2‑5‑1974 Dr. Muhammad Aslam, Medical Officer Civil Hospital, Mailsi performed the post‑mortem examination on the dead body of Mst. Noor Sain and found 5 incised wounds of different dimensions on different parts of the body of the deceased and observed under Injury No.1 on frontal bone that left nassil and the left maxillary bone had been cut and membranes of the brain and the brain itself had also been cut. He found injuries Nos.l and 3 to be fatal individually and was sufficient to cause death in the ordinary course of nature.

7. The prosecution examined nine witnesses, in all, at the trial. Muhabbat Ali P.W.7 deposed that the accused/ respondent is his paternal cousin; that in the night of occurrence he, alongwith the deceased and Akbar Ali were lying on their cots in their Bahak in Kila No.6 when the accused/ respondent came armed with Kulhari P.1 and attacked the deceased Mst.Noor Sain causing numerous injuries; that he and Akbar Ali got up and snatched the Kulhari from the accused and apprehended him and later on the Kulhari and the accused were produced before the police when the S.H.O. came to the spot.

8. Akbar Ali P.W.8 also gave ocular account of the occurrence stating that he was half asleep when the accused /respondent attacked the deceased; he got up immediately and with the help of Muhabbat A1: P.W.7 captured the accused and snatched the hatchet P.1 from him; that on arrival of Thanedar at 7 a.m. on the following morning, he handed over the accused and the hatchet to him.

9. Learned counsel for the appellant contended that the prosecution has brought the charge home to Ahmad Khan accused/ respondent on the unimpeachable testimony of Muhabbat Ali P.W.7 and Akbar Ali P.W.8; that the recovery of the blood‑stained hatchet and blood‑stained clothes of the accused and his arrest on the spot cannot be disputed in the circumstances of the present case; that the blood‑stained articles were sent to the Serologist whose opinion is in the positive; that the accused/ respondent is the first cousin of complainant Muhabbat Ali and there was no enmity whatsoever between the parties prior to the incident; that the occurrence took place in the earlier part of the moonlit night and the witnesses are the "natural' witnesses whose presence on the spot cannot be doubted; this is borne out by the fact that Muhabbat Ali ,lodged the report of the occurrence very promptly. The learned counsel further contended that the reasoning adopted by the learned High Court Judge is based on surmises and conjectures; that no grounds of acquittal have been mentioned while in paragraph 11 the learned High Court Judge writes "For the foregoing reasons I accept this appeal, set aside the conviction and sentence and acquit the appellant"; that in this case hardly any substitution could be made because the accused/ respondent was the only person who was charged with the offence, and no one else had been implicated in this case.

10. According to the learned counsel motive has also been amply proved. On a day prior to the occurrence there had been some altercation between the deceased and the accused on the ground that the cattle of the accused /respondent had trespassed into the fields of the deceased.

11. We have gone through the evidence and the judgment of the two Courts below, and find that the learned trial Judge has made very correct appraisal of the evidence. The accused/ respondent being a relative of the complainant party, would be the last person to be charged falsely in the case without any rhyme and reason. His presence on the spot is established by the fact that he was there and was handed over to the Police later on along with his blood‑stained hatchet' and clothes which he was allegedly wearing at the time of assault. The eye‑witnesses are sons of the deceased Mst. Noor Sain, and nothing has been brought in their cross‑examination to show that their presence on the spot was doubtful, or they had any personal motive to involve the accused/ respondent for the murder of their mother. In paragraph 13 of his judgment dated 28‑7‑1975 the learned Additional Sessions Judge observed as follows: "It is well‑settled law that mere relationship of eye‑witnesses with two deceased is not enough to discredit their testimony especially when there is absence of any animus on their part against the accused. In order to get the evidence of such witnesses brushed aside, the accused has to prove before the Court that they are actuated with a particular motive to implicate him falsely in the case. The deceased was undeniably done to death during the night when she was sleeping outside at her Bahak alongwith her three sons including the complainant. Neither it has been suggested nor otherwise proved by the accused that both Mohabbat Ali complainant and Akbar Ali P.W. were not sleeping on their Charpoys close to the Charpoy of the deceased at the time of occurrence. In this view of the matter these two persons sleeping close to her, would be the most natural witnesses of the occurrence and their presence at the scene of the incident cannot be doubted simply on the ground that they are the real sons of the deceased." The medical evidence also supports the prosecution case. The deceased had as many as five incised wounds on her body which were caused by sharp‑edged weapon. The dimensions and locations of these injuries apparently establish that these were caused with a Kulhari. According to the doctor, injuries Nos.1 and 3 were fatal individually and were sufficient to cause the death in the ordinary course of nature. Both Mohabbat Ali and Akbar Ali P:Ws. have consistently stated that the accused gave Kulhari blows to the deceased in their presence. The accused/ respondent could not give any convincing reply to the question regarding his arrest at the spot; recovery of blood‑stained Kulhari and his blood‑stained clothes. He also did not furnish any reason for a false charge being made by Muhabbat Ali complainant against him. Nor he produced any evidence in defence to show that his presence on the spot was unlikely or impossible that he was present somewhere else far away from the spot to establish alibi.

12. For the foregoing reasons we allow this appeal, restore the conviction and sentence passed by the learned trial Judge. He shall undergo life imprisonment and pay a fine of rupees two thousand, in default, further two years' R.I as ordered by the learned Additional Sessions Judge. Appeal allowed. S.Q./4411/S Appeal allowed.