1985 PLP 1041 (MLD)

7. Dr. Muhammad Ramzan Khalid examined Zahoor Ahmad in his injured condition on 9-4-1981 at 5 p.m. He found ten injuries on his person caused by sharp-edged and blunt weapon. Zahoor was in shock and his condition was dangerous. On the same day, the doctor examined Iftikhar Hussain P.W. He found six injuries on his person caused by sharp-edged and blunt weapons. The patient was restless, vomitting, in shock and in serious condition with weak rapid pulse. Dr. Altaf Hussain P.W. 2 had X-rayed the skull of Iftikhar Hussain which revealed fracture of right parietal and temporal bone. Out of the six injuries found on his person, two were declared grievous. Dr. Abdur Rehman P.W. 3 conducted post-mortem examination on the dead body of Zahoor on 10-4-1981 at 8 a.m. He found following injuries on his person:- "(1) A stitched incised wound 8. c.m. on the right side of head 10 c.m. from the right ear; (2) A stitched incised wound 6 c.m. on the left side of neck 4 c.m. above the inner end of left clavical. The side of the seventh cervical vertebra was cut; (3) A stitched incised wound 8 c. m. on the left side of head, 10 c.m. from left ear. The underline temporal bone and parietal bones were cut. The meniges were cut. There was bleeding inside the brain and formation of a clot; (4) Two incised wounds 13 c.m, and 2.5 c.m. on the right knee joint. The lateral condial of the feamur was cut; the wounds were stitched; (5) Two stitched incised wounds 7 c.m. and 4 c.m. on the left knee joint. The cartileges were cut; (6) A stitched incised wound 8 c.m. on the left upper arm; (7) A stitched incised wound 9 c.m. on the right wrist. The radial bone was cut; (8) Multiple contusion marks and abrasions in an area of 12 c.m. x 20 c.m. on the back of left shoulder and back of chest on left side; (9) An incised wound 2 c.m. x 1/4 c.m. at the base of right thumb; and (10) An incised wound 2 c.m. x 1/4 c.m. on the inner side of upper lip. The left upper inciser tooth was fractured." In his opinion, the death was due to shock and haemorrhage and injuries to the vital organs i.e. brain caused by injury No.

3. Injuries Nos. 2, 4, 7 and 10 were grievous in nature individually and rest of the injuries were simple. Collectively all the injuries were dangerous to live. The injuries Nos. 8 and 10 were caused by blunt weapons and the rest of the injuries were caused by sharp-edged weapons. Injury No. 3 was also dangerous to life. The injuries were ante-mortem. The time between injuries and death was 2 to 5 hours and between death and post-mortem was about 12 to 16 hours.

8. Muhammad Amir, Ghulam Abbas, Altaf and Idrees appellants were arrested on 11-4-1981 but Gul Jahan S.H.O. At the time of their arrest, Muhammad Amir, Idrees Altaf and Ghulam Abbas appellants produced blood-stained Lathi P. 1, hatchets P. 2 to P. 4 which were taken into possession vide memoranda P.L., P.M., P.N. and P.O. respectively attested by Khan Muhammad P.W. 10 and Fateh Muhammad (not pro duced). Muhammad Sharif appellant was arrested on 19-4-1981. He produced blood-stained hatchet P. 6 which was taken into possession vide Memo. P.R. attested by the same witnesses. The Serologist Report Exh. P.A.A. shows that the aforesaid weapons. were stained with human blood. It may be noted here that these recoveries have not been relied on by the learned trial Court. To prove its case, the prosecution examined 13 witnesses, The three doctors namely Muhammad Ramzan, Khalid, Muhammad Altaf Hussain and Muhammad Abirur Rehman had medically examined the deceased and Iftikhar Hussain .P,W . taken X-ray of the skull of Iftikhar Hussain and conducted post-mortem examination on the dead body of Zahoor. Nasarullah P.W. 11 and Iftikhar P.W. 12 have given the ocular account of the occurrence. They claim to 'have seen the appellants and the acquitted co-accused opening murderous assault upon Iftikhar and Zahoor and thereby causing the death of Zahoor and injuries to Iftikhar Hussain P.W. Khan Muhammad P.W. 10 and Gul Jahan P.W. 13 have deposed about the recoveries of the weapons of offence from the appellants. The rest of the evidence is more or less of formal nature.

10. When examined under section 342, Cr. P.C. the appellants denied all the incriminating circumstances. They raised the plea of false implication. It may be noted that in the cross-examination, it was suggested that at the time of occurrence Amir and Abbas appellants were planting sugarcane in Killa No. 7, Square No. 21 and that ldrees appellant was bringing water for them from the village Abadi and that their sister Mst. Shamim was standing in front of the door of her house when Zahoor deceased, Iftikhar, Muhammad Khan P.Ws. and Muhammad Nawaz came in front of her house. They while pointing towards Mst. Shamim exclaimed that Muhammad Nawaz was his (Idrees accused) brother-in-law and he was passing in front of his house in spite of warnings. It was further suggested that ldrees appellant was entreating them, when Muhammad Amir and Abbas appellant came there from the sugarcane field with Tokas with which they had been working. It was also suggested that at that time Zahoor deceased was armed with a pistol and Iftikhar and Muhammad Khan were carrying Lathis and that they shouted that Mst. Shamim should be lifted and that when Amir and Abbas came near, they were attacked at by Zahoor, Iftikhar and Muhammad Khan. It was also suggested that the shot fired from the pistol of Zahoor had missed and that the deceased and Iftikhar Hussain P.W. were injured by Amir and Abbas in their self-defence. The appellants did not produce any witness in defence. 1L. The learned counsel for the appellants contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the F.I.R. was lodged after preliminary investigation; that the two ,eye-witnesses are closely related to the deceased; that although there are inhabitated houses near the place of occurrence yet tip independent witness has been produced by the prosecution; that the presence of Nasarullah complainant on the spot at the time of occurrence is highly doubtful; that Iftikhar Hussain P.W. is not trustworthy although he was present at the spot; that his statement was recorded after about a month of the occurrence; that the statement was in fact tutored to him; that the investigation was conducted dishonestly and that there is a reasonable possibility of the suggestions of grave and sudden provocation and self-defence given to Nasarullah and Iftikhar Hussain P.Ws. in the cross-examination being true. Converseley the learned counsel for the State assisted by the learned counsel for the petitioner in the connected revision have not only supported the judgment of the trial Court but also requested for the re-trial of Muhammad Amir and Mushtaq acquitted accused and for the enhancement of the sentence of the appellant.

12. I have considered the arguments advanced by the learned counsel for the parties with care. 1 have not, been able to persuade myself to agree with the learned counsel for the appellants. I find that in the occurrence, Zahoor Ahmad lost his life and Iftikhar Hussain was seriously injured. There were 16 injuries on their persons caused by sharp-edged and blunt weapons. Nasarullah Khan P.W. 11 and Iftikhar Hussain P.W. 12 claim to have seen the appellants and Muhammad Amir acquitted co-accused causing injuries to Zahoor Ahmed deceased. Iftikhar Hussain states that he was injured by Muhammad Sharif, Muhammad Idrees, Muhammad Amir appellants and Muhammad Amir acquitted accused. The first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. I find Nasarullah Khan has given plausible cause of his presence on the spot at the time of occurrence and by the fact of injuries on his person the presence of Iftikhar Hussain is very much established. His presence has not been challenged by the learned counsel for the appellants. It was a daylight occurrence. The weapon used in the occurrence and the location of the injuries on the person of Iftikhar Hussain P.W. also indicate that the appellants were close to him, he was in a position cu identify them. The appellants were previously known to Nasarullah Khan and Iftikhar Hussain, therefore, there is no reason to doubt that Nasarullah` Khan and Iftikhar Hussain P.Ws. in fact saw the occurrence and identified the offenders. The further question arises as to whether they can be relied upon for sustaining the conviction of the appellants. The, greater engine invented for the discovery of the truth occur not elicit anything advantageously to the defence. The statement of these tyro witnesses do not suffer from infirmities such as material contradictions, major, discrepancies and dishonest improvements. There statement are in consonance with the probability and fit in with the other evidence and surrounding circumstances and are confidence inspiring. The number of the persons named by them does not exceed that which appears from circumstances not open to doubt to be the true number of the culprits. Number of persons named as culprits l- the- two eye-witnesses is quite consistent with the kind of crime committed and the person:: named as accused are such as were expected to join in attack. The number of the injuries and the number of the accused named by them do commensurate. It was suggested to Nasarullah Khan P.W. 11 as to whether it was correct that about three days before the present occurrence the accused persons had told Iftikhar Hussain P.W. and others that they should not pass from the path on which the occurrence took place because the said path belongs to their and there has arisen enmity between the accused party and the complainant party. The occurrence having admittedly taken place on the same path, the accused/ appellant are the persons expected to have joined attack on Iftikhar Hussain and Zahoor Ahmad. For all these reasons I am of the view that their words can safely be made the basis of conviction and I may not look for more circumstances to corroborate their testimony. The above stated circumstance do point to the inference that the appellants did; participate in the attack regulating in the death of Zahoor-Ahmad and) injuries to Iftikhar Hussain. It appears that Zaffar Hayat P.W. 7 has; inadvertently stated that the Sub-Inspector recorded the statement of Nasarullah Khan P.W. in Radhan Dispensary and got his signatures thereon because the suggestions given by the learned counsel for the appellants to Nasrullah Khan P.W. 11 and Gul Jahan S.I. P.W, 13 were to the effect that the F.I.R. was recorded on the spot after preliminary investigation. Admittedly the statement of Iftikhar Hussain was recorded after about a month of the occurrence. This delay has reasonably been explained. Iftikhar Hussain remained unconscious for about 19/20 days and thereafter his statement was recorded on the day when the Police approached him for recording his statement. In cross-examination he has clearly stated that although his statement was recorded after about 8 days of his regaining senses but none of his relatives met as during those 8 days and 'that he had not inquired from any one as, to against whom the case had been registered. I do not see any reason to disbelieve him in this respect.

13. This brings me to the, plea of self-defence and grave and sudden provocation raised by the learned counsel before me. He argued that in the circumstances of the case, there was a reasonable possibility that Mst. Sheeman, the sister of Ameer and Abbas appellants was standing in front of the door; that Zahoor deceased, Iftikhar P. W. and Muhammad Khan P.W. and one Muhammad Nawaz Muslim Sheikh passed nearby and in a taunting way had shouted to ldrees appellant who was present nearby that Nawaz Muslim Sheikh was his brother-in-law and he was passing in front of her house and that Zahoor, Iftikhar and Muhammad Khan had declared there that Mst. Sheeman should be lifted; that Zahoor Ahmad was armed with pistol and Iftikhar and Khan Muhammad were carrying Lathis at that time; that they opened attack on Ameer and Abbas and that Iftikhar and Zahoor Ahmad received' injuries in self-defence, No doubt this plea was suggested to the witnesses but surprisingly it was not specifically raised or owned by the appellants in their statements recorded under section 342, Cr. P. C . The appellants did not care to produce Mst. Sheemar in evidence who was fully available to them. Muhammad ldrees appellant did not state so; in his statement recorded under section 342, Cr.P.C. The aforesaid plea even otherwise appears to be false. Had the occurrence taken place in the manner as suggested in the cross-examination and argued before me, then the accused persons or anyone of them should have received some injuries. The absence of injuries on their persons ands on the other hand the deceased and Iftikhar Hussain receiving as many as 15 injuries, exclude the possibility of any re-action on prosecution) case. The learned, trial Court has applied its conscious mind and given sound reasons in support of its decision. The trial Court has rightly distinguished the case of Muhammad Amir and Mushtaq accused and l) given them the benefit of doubt. For all these reasons, I am convinced that the trial Court has rightly convicted the appellants. The sentence awarded to them is a legal as well as balanced one. The learned trial Court has given reasons for not awarding capital punishments to the appellants and I do not see any reasons to disagree with it.

14. The upshot of the above discussion is that the appeal as well a the connected revision are dismissed. M . Y . H . Appeal dismissed.