1976 P Cr (PLP)

Dates of hearing : 20th and 21st September 1972. I. MAHMUD J.--‑The two appellants before us are Gulaar son of Ghulam Hussain Gorchani, aged 30 years and Soomar son of Sato Gorchani abed 35 years. They were tried by the Additional Sessions Judge, Nawabsbah alongwith Shafi Muhammad and Wali Mohammad. The appellants were convicted under section 302/34, P. P. C. for the murder of Ahmed Khan son of Kashmiri Jaral aged 35 years and sentenced to transportation for life and a fine of Rs. 100 or in default to suffer R. I. for one month. Shafi Mohammad and Wali Mohammad were however, acquitted.

2. The appellants Gulzar and Soomar are cousins. They as well as the two acquitted accused and the deceased's family live in village Allah Ditto Gorchani and are known to each other. The F. I. R. was lodged by Ghulam Mohammad (P. W. 2). The prosecution case is that on 26th June 1968, the complainant with his father Ahmed Khan, mother Tabu Begum and brother Ghulam Rasool left on foot in the morning for Dour, a distance of 3 miles away for marketing. On teaching Dour the complainant left for Nawabsbah by rail to attend lies typing class leaving the others behind to do the marketing. He returned to Dour by train at about 2‑00 p. m. and met his parents and brother. After resting for same time, all of them started at about 5 or 6 p.m, to return to their village on foot. When they reached the land of Hamid Hussain Shah in Deh 51 Nasrat they saw all of a sudden four persons coming out of Juwar cultivation towards them from the northern side namely (1) Gulzar (Appellant) (2) towards (appellant) (3) Shaft Mohammad (4) Wali Mohammad. Gulzar was armed with a sword while the latter three were armed with hatchets. They saw Gulzar attack Ahmed Khan, the complainant's father with his sword, while Soomar gave hatchet blows to him. Shaft Muhammad and Wali Mohammad did not attack but threatened there not to interfere. Com plainant and his mother raised cries of 'murder', 'murder'. The complainant took to his heels for fear and ran towards village Pathangot while his mother and brother ran away towards their village. On reaching Pathangot the complainant narrated the story of the murder to Umaid Ali (P. W. 6) and Chakar (who was not examined) and requested them for help. They agreed and accompanied the complainant to Dour police station where the complaint was lodged two hours later at 8 p. m. Abdul Ghafoor (P. W. 8) Incharge Dour police station recorded the F. I. R., He repaired to the wardat at about 10 p.m. and kept watch over dead body. The following morning he prepared a memo of the Wardat in the presence of mashirs Umaid Ali (P. W. 6) and Rustam (P. W. 7) on the pointation of the Complainant. After preparing the inquest report he sent the dead body to the Civil Hospital, Nawabshah, through constable Idris He recorded the statements of Umaid Ali and Chakar and handed over the papers to Mehmood Ali (P. W. 9) S. H. O. Dour police sty lion who arrived later at the wardat. Having verified the investigation, ire examined Ghulam Rasool, Dur Jan, Usman, Mst. Tabu and then went to the village where he arrested appellant Gulzar and prepared mashirnama of the arrest in the presence of Umaid Ali (P. W. 6) and Rustam Khan (P. W. 7). Appellant Gulzar led them to his house from where be produced a sword in a wooden sheath from under the bedding (Rilli) lying on a wooden rack of the room inside and also a blue shirt. Both were stained with blood. Tee sword had a 2 " wide blade with wooden handle. He then arrested Soomar appellant, who also led the Police Officer to his house. from where he also produced a hatchet from under the Rillis lying on the wooden rack by the Northern Western side walls of his house. The hatchet was blood stained. An almond coloured shirt was also seized which bad blood stains. All these articles were sealed separately and were sent to the Chemical Analyst for examination. The Police Officer then took the two appellants to Nawabshah and prepared a mashrirnama of foot print test of the appellants carried out through police puggi Baharo Khan (P. W. 4) of Police Station Dour in the presence of Mukhtiarkar and Third Class Magistrate Nawabshah.

3. The Chemical Examiner reported that the sword, hatchets and two shirts were all stained with human blood.

4. The medical evidence of Dr. Muhammad of Sharif (P.W.4) Medical Officer, Civil Hospital Nawabshah who performed autopsy on the dead body of the deceased, Ahmed Khan. He found in all, sixteen injuries of which thirteen were incise wounds of varying dimensions on skull, forearm and fingers, two contused on forearm and one punctured wound 2 x 1'' going deep into the upper left chest and puncturing the upper lobe of the left lung. He expressed the opinion that the death of the deceased was instantaneous and was due to shock and haemorrhage and the incised wounds were caused by sharp cutting weapon like hatchet, while the punctured injury appeared t o leave been caused by a sword and the contused injuries by some blunt substance like lathi or the back of a hatchet.

5. The motive for the crime put forward by the prosecution was that about a year ago Attur, brother of Appellant Soomar, along with others entered the house of the deceased at 1 a. m. and attacked the inmates in which Attur was killed. Proceedings under section 107/117, Cr. P. C., were started against Soomar and his relations in the Court of Mukhtiarkar, Nawabshah and the complainant and the deceased were witnesses in that case. There was however, a compromise of the matter on the Holy Qu'ran. That, Soomar and Gulzar who are related to Attur have taken revenge and have murdered the deceased.

6. The statement which appellant Gulzar made before the Trial Court was adopted by Soomar. They denied the murder and the alleged motive of revenge as well as the recoveries of the blood stained sword, hatchet and shirts and stated that they had been falsely implicated because of suspicions and enmity. The two acquitted accused, Wali Mohammad and Shafi Mohammad in their statements stated that they denied that they had anything to do with the alleged murder of Attur, brother of appellant Soomar, except that he was their caste fellow and that they had been falsely implicated in this case because of the complainant's suspicion that they were connected with the murder of Attur and also because they had driven away Sharif brother‑in‑law of the complainant from their 'Harap'.

7. The prosecution relied mainly in support of its case on three pieces of evidence, viz. firstly the eye‑witness‑account of the complainant Ghulam Mohammad (P. W. 2) and his mother Mst. Tabu (P. W. 3) ; secondly the corroborative evidence of Umaid Ali (P. W. 6) and thirdly the evidence of recoveries. The learned Trial Court believed the ocular witnesses whose evidence he stated he had no reason to disbelieve, as well as the evidence of recoveries and was satisfied that the appellants were guilty. However, he found no evidence against Shaft Muhammad and Wali Mohammad and therefore he acquitted them.

8. On behalf of the appellants, it was submitted by the learned counsel that since the trial Court disbelieved the ocular evidence of the: two witnesses as to the participation of Wali Mohammad and Shafi Mohammad in the crime, whom he had for that reason acquitted, they should also be believed as to the presence of the appellants and their participation in the crime. He further submitted that the ocular witnesses were interested persons and had a motive for false implication. The question, therefore is whether for these reasons the evidence of the two ocular witnesses should be discarded.

9. The direct evidence is furnished by the testimony of Ghulam Mohammad and Mst. Tabu, Both of them have supported the prosecution case as set out above. It is not possible for Ghulam Mohammad to give out a reason for the presence of Mst. Tabu and himself along with the deceased within such a short time; at the same time the deceased and Mst. Tabu and his younger brother could not have gone to Dour without a reason. It is, therefore, not possible to assess merely from the absence of the bundle containing the articles of daily use bought from Dour to exclude their presence. It is in evidence that as soon as the sword blow and the hatchet blow were caused, he, his mother and his younger brother bolted from there. It could not, therefore, be possible for him to say as to what had happened to the bundle and in this context the assertion of Mst. Tabu that it was taken away by acquitted accused, Shafi Mohammed, is nothing more than a speculation. There is no other feature either in his evidence or that of Mst. Tabu to make it in credible. It was suggested to Ghulam Mohammad that because his sister Mst. Jamal, was not married to Samandar, it may be Samandar, who may have killed the deceased. Even though her marriage took place: 40 days earlier still it is hypothetical to assume so, for there is nothing on record to lead to an inference of a kind to create reasonable doubt. As for Mst. Tabu, her name transpired in the F. I. R. and it was unlikely that a lady, who had not witnessed the occurrence, would be named as an eve‑witness. It is therefore not possible to accept that she had not witnessed the incident. She has denied the suggestion that her husband had gone alone to village Pathan and that it was Sharif Punjabi who in the first instance, disclosed about the murder of the deceased. There is nothing on record to support this suggestion. She has admitted that she was terribly afraid and it was for this reason that she may have kept quiet for the night. There is nothing unusual fn it. There is, therefore, no reason to discard her evidence. We would, however, like to point out that Umed Ali has not supported the version of Ghulam Mohammad that he had gone and informed him soon after the occurrence. He has given an impression that Ghulam Mohammad was not aware of the incident but he was it formed of it after Dur Jan and Usman had told him about the murder of the deceased. Though he has denied yet he was confronted with his 164 statement, where he has stated that Ghulam Mohammad had come and narrated the facts to him and Chakar. The variation on this aspect of the case cannot be for reason of truth. Accordingly, it cannot be said on this premise that Ghulam Mohammad had not witnessed the occurrence. The F. I. R. was lodged within two hours of the occurrence and in our view, without any loss of time. It could not be so if Ghulam Mohammad had not witnessed the occurrence, for in that event much more time would have been consumed before the report could be lodged. It was also not possible for Ghulam Mohammad to mention that appellant Gulzar was armed with a sword, which he produced subsequently. One punctured wound was also observed on the deceased which could be caused by a pointed weapon, such as sword. This lends assurance to his version that he had seen the incident. Next is the evidence of the recoveries at the instance of the appellant. Appellant Gulzar was arrested from his village, Haji Allahditto, on 27th June, 1968, and about the time he was arrested, he produced a blue shirt and a sword which were lying concealed in the bedding from his house. Both of them were stained with human blood. Similarly appellant Soomar produced a pink shirt and a hatchet from the bedding in his house. The articles were also stained with human blood. Although mashir. Rustam was declared hostile for the reason that he had not stated that the articles were blood‑stained, yet that feature by itself would not be sufficient to weigh against the presence of blood‑stains on the clothes in the absence of anything to suggest that the investigating officer was interested to smear them with blood to create evidence against the appellants. Even otherwise his lower Court statement was transferred to the Sessions file where he admitted that the articles were blood stained. There is no reason not to accept that statement in the face of the obliging admission and the circumstance that he had changed at the stage of the trial. These articles accordingly incriminate the appellants and go to corroborate the ocular testimony of Mst. Tabu Begum and Ghulam Mohammad.

11. The learned counsel for the appellants further submitted that the medical evidence does not support the prosecution case in that if Gulzar had a sword in his hand and only one punctured wound was found on the body of the deceased, all the other incised wounds must be attributed to Soomar who had hatchet ; it is improbable that so many injuries could he caused by one man. We are not impressed with this argument. Consider ing that the sword used by Gulzar had a blade 2 ' wide with a wooden handle, it is not improbable that some of the incised wounds may have been caused by the sword as well. The evidence of (P. W. 4) Baharo a police puggi who identified the foot prints of the appellants in a foot print test, was also criticised by the appellants learned counsel. We agree that this is a weak piece of evidence and suffers from technical, defect and we will therefore, leave it out of consideration. Finally, the motive put forward by the prosecution is a strong link. Although the murder of Attur the brother of Soomar which occurred in the deceased's house a year ago was compromised on Holy Quran, nevertheless it is hard to believe that Soomar and Gulzar had entirely forgotten the matter. Mst. Tabu has denied that Attur was at one time her servant, but this does not mean that the motive assigned is incorrect. For some reason she may have liked to conceal. Nevertheless, the fact remains that Attur was killed when he entered the house of the deceased.

12. The case of the acquitted accused is distinguishable, for there is no corroborative evidence against them. The Trial Court is therefore, justified in convicting the appellants on the evidence as it stands.

13. We therefore, uphold the conviction of the appellants and the sentence passed therefore. In the result, this appeal is accordingly dismissed. Appeal dismissed.