1990 PLP 632 (MLD)

(6) Incised wound 16 c.m. x 2 c.m. x trachea deep on front and right side of neck, under lying bone was fractured; (7) Incised wound 10 c.m. x 2 c.m. x 2 c.m. above injury No.6 on the right side of chin extending from right side of lower lip; (8) Incised wound 4 c.m. x 1/1‑2 c.m. x bone deep on the top of left shoulder underlying bone was fractured. (9) Incised wound 4 c.m. x 1 c.m. x muscle deep on outer side of left shoulder upper part. (10) Incised wound 7 c.m. x 2 c.m. x bone deep on medial side of left wrist. Underlying bone was cut and fractured. (11) Incised wound 5 c.m. x 1 c.m. x bone deep on the dorsum of left hand between distal end of second and third metacarpal bones and back of left index finger. Underlying bone was cut. (12) Contusion marks on front of left shoulder on and below the left clavicle. In the opinion of doctor, the death had occurred due to shock and haemorrhage caused by injuries 1, 2, 6, 8, 10 and 11 which were sufficient in the ordinary course of nature to cause death. Injuries 1, 2, 6, 8, 10 and 11 were grievous and the rest were simple but injury No.12 was inflicted with blunt weapon while the rest were caused with sharp‑edged weapon.

6. On 27th June, 1985 at 5‑15 p.m., the said doctor medically examined appellant Mansab Khan and found the following injuries on his person:‑‑ (1) A semi‑healed wound 1‑1/2 c.m. x 1 /4 c.m. on back of left index finger. (2) A semi‑healed wound 2‑1/4 c.m. x 1/4 c.m. on the back of left middle finger. (3) A semi‑healed wound 2 c.m. x 1/6 c.m. on the back of left ring finger. All the three injuries were simple in nature and the duration was about six days.

7. On 27th June, 1985, the investigating officer arrested the appellants. On 2nd July, 1985, the appellant Mansab Khan while in custody got recovered blood stained sword P.3 which was taken into possession vide recovery memo. Ex.P.F. attested by Muhammad Zaman PW 5 and Muhammad Hayat (not produced) besides the investigating officer. On the same day, appellant Sher Samand while custody got recovered blood‑stained hatched P.4 from his Kotha, which was taken into possession vide memo. Ex.P.G. attested by Muhammad Zaman, PW 5 and Muhammad Hayat (not produced) besides the investigating officer Abid Hussain Shah, S.I.PW

9. No recovery was effected from the acquitted co -accused. The sword and the hatchet were sent to the Chemical Examiner who vide his report Ex.PR/F opined the same to be stained with blood and vide report of the Serologist Ex.P.S. it was opined that these weapons were stained with human blood.

8. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Fateh Khan, PW 7, complainant, uncle of the deceased and Muhammad Yusuf, PW 8, husband of the sister of the deceased. The eye‑witnesses Sultan and Ghulam Farid cited in the FIR were not produced. Besides the ocular testimony, the prosecution placed reliance upon the medical evidence and the evidence as to the motive and the corroborative evidence in the form of the recovery of blood‑stained weapons at the instance of the appellants.

9. When examined under section 342 Cr.P.C. the appellant Sher Samand denied the charge while appellant Mansab Khan admitted the occurrence and made the following statement:‑‑ "I had sustained the said injuries at the hands of Ghulam Muhammad, deceased when he had attacked me with knife P.5, while passing near the baithak of my maternal‑uncle Khuda Yar at `khuftanwela' on 22nd June, 1985. I had seen my sister Mst. Sahibzadi and Ghulam Muhammad, deceased embracing each other in a room of the said `Baithak' and on my challenge Mst. Sahibzadi jumped out from the back window of the said room and ran away, while Ghulam Muhammad deceased came out of the said room to the `Thara' in front of it holding knife P.5 with which he attacked me and caused injuries to me. On grave and sudden provocation I caused some injuries to Ghulam Muhammad deceased with a hatchet, which 1 had picked up from the `baithak' of Khuda Yar and we started fighting with each other and in that process we reached a small street near the house of Muhammad Bakhsh, which leads to the house of Ghulam Muhammad, deceased, which is on the eastern side of the house of Muhammad Bakhsh. Ghulam Muhammad fell down there and died. My other co‑accused had not participated in this occurrence:'

10. With the assistance of the learned counsel for the appellants and the State, I have carefully gone through the entire record of the case. It was contended by the learned counsel for the appellants that the prosecution story is doubtful and is based upon the statements of related witnesses who deposed against the appellants on account of enmity. It was also argued that the prosecution case with regard to the calling out the deceased by appellant Mansab Khan was improbable. It was further contended that the defence plea as stated by appellant Mansab Khan was more probable and nearer the truth. It was next argued that there was no fun in carrying the deceased by the appellants to their own house and in fact, the deceased had been carried by the complainant side and the occurrence had taken place in the house of Muhammad Bakhsh from where the blood‑stained earth was also collected. It was next contended that according to the prosecution case, the complainant and four other persons were present when the occurrence took place and, therefore, it was improbable that the appellants would have carried the deceased because five persons would not allow two persons to commit such an act. It was further argued that the FIR was silent as to the knife P.5 recovered from the spot. It was thus argued that the said knife belonged to the deceased, with which, he had attacked Mansab Khan, appellant. It was urged that PW 8 Muhammad Yusuf, is a chance witness and was a resident of Noorpur situated 20 miles away from the place of occurrence. It was also contended that the prosecution case is not worthy of belief because the injuries on the person of appellant Mansab Khan have also been suppressed. The recovery evidence was also assailed on the ground that Muhammad Zaman, PW 5 was `Phuphizad` of the deceased and, therefore, no reliance could be placed upon his testimony.

11. After anxious consideration of all the facts and the circumstances of the case, I am of the view that the defence plea is devoid of truth. The statement on the face of it, does not at all inspire confidence. According to the appellant Mansab Khan, he had seen the deceased embracing his sister Mst. Sahibzadi, whereupon, Mst. Sahibzadi fled away while the deceased came out with a knife to attack the appellant, Mansab Khan. Such conduct is against the human nature because a paramour does not have such moral courage as to launch an attack on the brother of his fiance, particularly, when there is chance to escape. The defence plea is further belied by the nature of the injuries received by the A deceased. The dimensions of injuries suffered by the deceased prove beyond any shadow of doubt that two types of weapons were used and the use of sword cannot be ruled out. The other type of injuries received by the deceased clearly establish that not only sword but a hatchet was also used; one injury was received by the deceased with a blunt weapon which could be the result of a hatchet blow from its wrong side. In this view of the matter, I am not prepared to believe that Mansab Khan, appellant, under sudden and grave provocation and in exercise of right of self‑defence had caused injuries to the deceased.

12. As far as injuries received by the appellant Mansab Khan, are concerned, there are only three simple injuries and according to the medical evidence, the duration of these injuries was six days, if we calculate it from the day of his medical examination, that would show that the appellant Mansab Khan received these injuries on 21st of June, 1985, and not on the day of occurrence which is 21st of June 1985. Under these circumstances, the defence plea also loses its significance and cannot be relied upon.

13. The blood‑stained earth was recovered from two places which further lends strength to the prosecution version that after launching a brutal attack in which deceased received as many as 12 injuries, the appellants carried him and had taken to their house. In fact, such an attempt by the appellants was to show that during the investigation, the deceased could be proved as an aggressor but such attempt fails on account of the recovery of blood‑stained earth from two places. I am therefore, of the view that the prosecution version is probable. The presence of five persons on the complainant side to thwart the attempt by the appellants to carry the deceased to their own house is hardly relevant because according to the prosecution case, the appellants and the acquitted co‑accused had participated in the attack. In fact, this circumstance shows that the complainant side was under a shock and that's why, they did not intervene or take any step to foil the attempt of the appellants to carry the deceased to their own house, hence no weight can be attached to this circumstance.

14. During the investigation, the acquitted co-accused were found innocent and the learned Sessions .fudge acquitted them because no corroborative evidence was available against them, since no recovery was effected from them. In view of the relationship of the witnesses, the learned Sessions Judge rightly sought for the corroboration which was forthcoming only against the appellants. No doubt, Muhammad Zaman, PW 5 is a relative but the statement of the investigating officer, Abid Hussain Shah, PW 9, S.I. Police, cannot be ignored 'because he had no animus with the appellants so as to plant weapons on them. In this view of the matter, the recovery of sword and hatchet at the instance of Mansab Khan and Sher Samand, appellants, respectively stands proved on the record of the case. Thus, I am of the view that the prosecution case has proved its case beyond any shadow of doubt. Hence this appeal fails and is hereby I dismissed, the conviction and sentences of the appellants are maintained.

15. Adverting to the revision petition, preferred by complainant, the same has no substance, inasmuch as, according to the prosecution case, Mansab Khan, appellant, suspected the deceased of having illicit liaison with his sister and, therefore, the question of family honour in this case cannot be ignored. This circumstance also justifies the imposition of lesser penalty.

16. As far as the acquittal of Gola Khan and Abdur Rehman is concerned, both were found innocent during the investigation and no recovery was effected from them, therefore, their conviction in the absence of any corroborative evidence cannot be sustained. Resultantly, the revision petition fails and is hereby dismissed. N.H.Q./M‑1746/L Appeal dismissed.