1984 P Cr (PLP)

5. The F.I.R. account of the prosecution version briefly stated,is that on the day of occurrence at about 2.00 p.m., Muhammad Bashir deceased who was a Tonga-driver brought some passengers in his Tonga at Adda Kohloowala, where the appellant was already present. The deceased parked his Tonga and proceeded to bring grain for his horse from a nearby shop of Ismail. He had hardly covered a distance of few paces that the appellant challenged him and declared that he would teach him lesson for abusing him (the appellant) a day earlier. Simultaneously, he took out dagger from the fold of his loin-cloth and inflicted repeated dagger blows on the body of the deceased, who sustained injuries on his chest and shoulder and fell down. The occurrence was witnessed by Imam Ali (P.W.6), Muhammad Sharif (P.W.7). Muhammad Nazir (P.W.9) and Abdur Razzaq (not produced given up as won over). As regards motive, it is alleged that a day earlier, an altercation had taken place between the appellant and the deceased over some money matter. On that occasion, the deceased had abused the appellant who thus harboured grudge that how-a petty Tonga driver abused a person of the status of the appellant who happened to be.son of a big Zamindar of the village.

6. The appellant was arrested on 1st September, 1979. While in custody, he led to the recovery of blood-stained dagger P.3, from his cattle-shed vide memo. Exh.P.D. which has been attested by Imam Ali (P.W.6) Muhammad Sadiq, inspector (P.W.10) and Abdur Razzaq (given up).

7. The autopsy on the dead body of the deceased was performed by Dr.Abid Nasim on 29th August, 1979 vide post-mortem report Exh.P.E. Dr. Abid Nasim has since gone abroad. The post mortem report Exh.P.E. has been got formally proved by examining P.W.8 Muhammad Ahmad Haqqani, Dispenser, Police Hospital, Gujranwala, who served under Dr. Abid Nasim for quite some time and is fully conversant with his handwriting and,' signatures.

8. According to the contents of post-mortem report Exh.P.E., the following injuries were noticed at the time of post-mortem examination on the dead body of the deceased:- (1) Incised wound 3 c.m. x 1 c.m. going deep oblique, just above the left nipple. (2) Incised wound 3 c.m. x 2 c.m. on the outer aspect of left shoulder close to left axilla. On dissection injury No.2 is muscle deep. The doctor opined that both the injuries were ante-mortem and were caused by sharp-edged weapon. In his opinion the death occurred due to shock and haemorrhage as an result of injury No.1 which was sufficient to cause death in the ordinary course of nature.

9. Imam Ali (P.W.6.), Muhammad Sharif (P.W.7.) and Muhammad Nazir (P.W.9.) testified at the trial as eye-witnesses to furnish ocular account of the prosecution version. These P.Ws. have by and large supported the prosecution case as transpires from the contents of the F.I.R. Exh.P.A.

10. In regard to these eye-witnesses, it has been contended on behalf of the appellant that Imam Ali was first cousin and brother-in-law of the deceased while P.W.2. Muhammad Nazir was also his cousin about Muhammad Sharif, it has been stated that he was also from the brotherhood of the deceased. Imam Ali, no doubt is a close relation of the deceased being his first cousin and brother-in-law, but there is nothing on the record to suggest that he had deep-rooted enmity against the appellant or had any motive for his false involvement. His testimony finds support from those of Muhammad Sharif and Muhammad Nazir. Muhammad Sharif is not a relative of the deceased or of Imam Ali. He cannot be disbelieved simply for the reason that he happened to be Kashmiri and so was the deceased.

11. It has been argued on behalf of the appellant that Muhammad Sharif being an employee of a factory at Gujranwala, he was not supposed to be present at the place of occurrence at the time the occurrence took place. This witness has explained in his cross-examination that he was enjoying a few days leave when the occurrence took place.

12. Prosecution has also tried to seek corroboration from the factum of recovery of blood-stained dagger P.3. at the instance of the appellant. This recovery has not been believed by the learned trial Court mainly on the ground that the Court which tried the appellant for the offence under the Arms Ordinance had also not believed the factum of recovery from the appellant. The finding of the said Court was obviously not binding on the learned trial Court. It has, however, been noticed that the alleged recovery of the blood-stained dagger P.3 from the appellant has been attested by Imam Ali complainant and Muhammad Sadiq Inspector. Imam Ali is not the resident of the locality from where the recovery took place. The Investigating Officer has failed to associate respectable residents of the locality with this recovery in disregard of the provisions of section F 103, Cr.P.C. It is, therefore, not safe in the circumstances to place any implicit reliance on this recovery.

13. The learned counsel for the appellant has argued that according to the allegations contained in the F.I.R. the appellant had caused repeated dagger blows on the body of the deceased but at the time of post-mortem examination only two injuries were noticed on the dead body and in this manner the medical evidence contradicts the prosecution case. This argument has little force because the appellant might have caused repeated attacks with dagger on the deceased but on account of movement of the body of the deceased only two could be effective.

14. The motive in this case as alleged in the F.I.R. has not been substantiated. Imam Ali (P.W.6), the complainant, deposed about the motive but admitted that he was not present a day earlier when altercation had taken place between the appellant and the deceased over money matter and the deceased had abused the appellant.

15. In the above circumstances, it may be safely concluded that in the case, we have testimonies of three eye-witnesses to substantiate the charge of murder against the appellant. Their testimonies of course do not find corroboration from any circumstantial evidence because the recovery of the alleged weapon of offence is not believable. The motive as alleged in the F.I.R. has not been substantiated. The medical evidence furnishes support to the statements of the eye-witnesses to the extent that two injuries caused by sharp-edged weapon have been found or the dead body of the deceased. Out of the three eye-witnesses examined at the trial one is a close relative of the deceased, the other is also his cousin but the third one has no relationship with the deceased or the complainant. The witnesses have no animosity against the appellant and had no motive for his false involvement.

16. It is a day time occurrence involving a single accused. The chances of substitution are therefore, highly remote. There is no material on the record to give an indication that Imam Ali and other P.Ws. had any motive to falsely substitute the appellant for the real culprit.

17. In the circumstances of this case, the appellant while claiming himself to be innocent also advanced plea of alibi. In order to substantiate this plea he examined D.W.1. Haji Muhammad Mushtaq and D.W.2. Muhammad Ismail Lambardar. Haji Muhammad Mushtaq stated that on the day of occurrence, the appellant remained with him from 10.00 a.m. to 7.00 p.m. at his Cold Storage. This witness also claimed that he had told the Investigating Officer that on the day of occurrence the appellant had remained with him at Gujranwala, from 10.00 a.m. to 7.00 p.m. but he simply told him that he (the witness) could appear as defence witness at the trial. He admitted that he did not protest before any higher officer of the Police that the Investigating Officer failed to take notice of the fact that on the day of occurrence the appellant remained in the company of this witness from 10.00 a.m. to 7.00 p.m. He admitted of having good relations with the father of the accused who had sold land to him. D.W.2 Muhammad Ismail simply stated that on the day of occurrence, Abid accused had met him while going on bicycle from the village to Gujranwala City. No documentary evidence whatsoever about the plea of alibi has been produced. The oral statements of Haji Muhammad Mushtaq and Muhammad Ismail cannot be believed as against the testimonies of three eye-witnesses witnessed the occurrence and in whose presence during broad day-light the appellant caused fatal injuries to the deceased.

18. In the light of these conclusions, there can be no justification to dis-credit the testimonies of the eye-witnesses even if there is no circum stantial evidence to support their statements. In Kauro v. The State 1981 P Cr. L J 872 it was held that in the case of the single accused, substitution can hardly be conceived particularly when the deceased, the j accused and the eye-witnesses belong to same village and are very well known to each other. In Zar Bahadur v. The State 1978 S C M R 136 it was ruled that the witnesses who are related to the deceased would not normally allow the real murderer to escape by implicating innocent persons and evidence of such witnesses is required only to be scrutinized carefully; but relationship would be no ground whatever for rejecting it altogether.

19. The upshot of the above discussion is that the prosecution has been successful in establishing the charge against the appellant beyond a reasonable doubt.

20. In this view of the matter, the conviction and sentence of the appellant is upheld and his appeal is, therefore, dismissed.

21. Since the motive in this case has remained shrouded in mystry therefore, the learned trial Judge has justifiably not awarded sentence of death to the appellant. There is thus no ground to enhance the sentence awarded to him. The Revision Petition, therefore, also fails and is dismissed. G.D. Appeal dismissed.