1994 P Cr (PLP)

6. P.W.10 Dr. Muhammad Rafi Shahid on 8-9-1989 at 8-00 a.m. conducted autopsy on the dead body of deceased Muhammad Arshad and found the following injuries on his person:-- (1)??????? A healed scar 4 c.m. in length on the forehead. (2)??????? Right forearm absent and cut at the level of elbow, gangrenous. (3)??????? Left forearm absent, arm cut at the level of elbow. Whole of the left upper arm blackish and gangrenous. (4)??????? An incised wound 7 c:m.-X 3.5 c.m. x bone deep on lateral aspect of left upper arm. Whole of the upper arm gangrenous and putrefacted. (5)??????? An incised wound 10 c.m. x 4 c.m. x . bone. -deep on medial anterior aspect of left knee. Blackening and gangrene present and another stitched wound 11 c.m. inverticle direction on the left knee (clean). (6)??????? An incised wound gangrenous wound 10 c.m. x 5 c.m. x bone cut in oblique direction on the upper part scapular region. Wide area around the wound was gangrenous. (7)??????? Stitched incised wound 2 c.m. in length above and medial to medial malleous of both sides (venesections). The doctor opined that the death. occurred due to gangrene of the injuries Nos.2 to 6 causing generalized gangrene, septicaemia; -shock and death. All the injuries were ante-mortem and. caused by sharp-edged weapon. Probable time, that elapsed between injuries and death was within 3 to 4 weeks and between death and post-mortem examination was within 24 hours.

7. The motive behind, the occurrence as narrated by P.W.2 Rafique Ahmad in the F.I.R. Exh.P.J. has that the accused suspected illicit relations between the deceased and Mst. Amna, i.e. sister of Mukhtar Ahmad appellant and brother's wife of Muhammad Akram appellant. P.W.2 Rafique Ahmed in his statement before the trial Court reiterated the motive which was supported by P.W.3 Muhammad Ahsan in the trial Court.

8. The ocular account has been furnished on record by the statement of P.W.2 Rafique Ahmad complainant and P.W.3 Muhammad Ahsan. P.W.2 is real brother of the deceased, whereas PN.3 is paternal-uncle of father of the deceased in relationship as stated by P.W.1. P.W.2 is the complainant and supported the contents of the F.I.R: Exh.P.J. P.W.3 Muhammad Ahsan, another eye-witness of the occurrence supported and corroborated the statement of P.W.2 and stated that after hearing the alarm he reached the spot and witnessed the occurrence. Appellants Mukhtar Ahmad, Muhammad Akram and Fida Hussain were armed with hatchets, whereas Mushtaq Ahmad was armed with a dagger and the acquitted co-accused were armed with Sods. They had all encircled the deceased. Habib Khan, Ata Muhammad and Shah Muhammad (acquitted co-accused) raised Lalkara that the deceased should be finished. whereupon Muhammad Akram gave a hatchet blow on the left leg of Muhammad Arshad, who fell down, Mukhtar Ahmad appellant gave him a hatchet blow on the wrist of right hand and the hand was cut. Mukhtar Ahmad appellant again gave hatchet blow near the right elbow of the deceased. Appellant Fida Hussain gave a hatchet blow on the front side of head of the deceased. Mushtaq Ahmad appellant gave dagger blow on the left arm of the deceased. He alongwith Abdul Rahim P.W. (given up) and P.W.2 Rafique Ahmad tried to intervene, but the accused threatened. Thereafter the accused escaped alongwith their respective weapons.

9. Mukhtar Ahmad and Muhammad Akram appellants were arrested by P.W.9 Muhammad Arshad, A.S.I. on 23-8-1989. Mukhtar Ahmad appellant on 26-8-1989 led to the recovery of Chadar P.9, shirt P.10 and hatchet P.11, all blood-stained from his house which were secured by P.W.9 Muhammad Arshad A.S.I. vide memo. Exh.P.L. attested by P.W.3 Muhammad Ahsan Muhammad Akram appellant on 26-8-1989 led to the recovery of Shalwar P.12, shirt P.13 and hatchet P.14 all blood-stained from his house which,were secured by P.W.9 Muhammad Arshad, A.S.I. vide memo. Exh.P.M. attested by P.W.3. Appellants Fida Hussain and Mushtaq Ahmad were arrested on 3-9-1989 by P.W.8 Muhammad Younis S.I. Fida Hussain on 13-9-1989 led to the recovery of blood-stained hatchet P.2 from his house which was secured by P.W.8 Muhammad Younis S.I. vide memo. Exh.P.B. attested lay P.W.1 Haji Ahmad Bakhsh. Mushtaq Ahmad on the same day i.e. on 33--9-1989 led to the recovery of dagger blood-stained P.1 from his house which was secured by P.W.8 Muhammad Younis S.I. vide memo. Exh.P.A. attested by P.W.1 Haji Ahmad Bakhsh, sister's husband of the deceased. The report of the Chemical Examiner Exh.P.V. and that of the Serologist Exh.P.W. are positive.

10. Appellant Mukhtar Ahmad when examined under section 342, Cr.P.C. denied the prosecution evidence against him and stated that he himself appeared before the police on the day of occurrence and produced blood?stained hatchet P.11, blood-stained Chadar P.9 and blood-stained shirt P.10 before the S.H.O. and he owned the same. In answer to the question, why this case against you and why the P.Ws. had deposed against you, he replied;-- "Mst. Amna is my real sister, who is aged about 17/18 years. On the day of occurrence. I alongwith my cousin Muhammad Akram co?accused was going to niv house. When we reached to the thickly grown Mango garden belonging to Mahmoodul Hassan situated in Killa No.16 of rectangle No.353/12, we heard whispering and went inside the garden where we found my sister Amna and Muhammad Arshad (deceased) embracing and kissing with each other. This highly provoked me. I lost my self-control and balance of mind and under the grave and sudden provocation, I caused injuries to Muhammad Arshad (deceased) with my hatchet which I was holding at that time. Muhammad Akram also caused injuries to Muhammad Arshad with his hatchet. My sister Mst. Amna ran away and hide herself somewhere and could not be traced by us. The complainant and P.Ws. were not present there at that time. None of the remaihing accused had taken any part in this occurrence and they have been falsely involved due to their close relationship with me and my co-accused, Muhammad Akram. Just after the occurrence, Muhammad Akram and myself went to the Police Station Zahir Peer and narrated the above facts and produced our hatchets and our blood-stained clothes before the police. The local police has twisted story in connivance with the complainant party. The P.Ws. have falsely deposed against me to support their concocted story." and further stated that he had caused injury to Muhammad Arshad deceased under grave and sudden provocation and having deprived him of his self?control of his balance of mind. He neither made statement on oath as envisaged under section 340(2), Cr.P.C. nor produced evidence in defence. Appellant Muhammad Akram in his statement under section 342, Cr.P.C. stated that he had produced blood-stained hatchet P.14, blood-stained Shalwar P.12 and blood-stained shirt P.13 before the S.H.O. and owned the same. He made similar statement as that of Mukhtar Ahmad appellant. Appellant Mushtaq Ahmad and Fida Hussain denied the prosecution evidence against them and also the recovery of dagger P.1 and blood-stained hatchet P.2, respectively. They stated that they had been falsely involved in the case due to their relationship with co-accused Mukhtar Ahmad and Muhammad Akram and they were not present at the spot. Mushtaq Ahmad neither produced evidence in defence nor made statement on oath. However, Fida Hussain appellant had produced Exhs.D.B., D.C. and D.D. (copy of the complaint, statement on oath and attested copy of order sheet of the Magistrate) in defence.

11. The learned trial Court after evaluating the evidence on record had passed the impugned judgment. 12. 1 have heard the learned counsel for the parties who took me through the entire record and the learned counsel for the appellant in his submissions at the Bar-criticised almost all the items of evidence of the prosecution.

13. This is a two versions case. The accused had raised a specific plea from the very start that appellant Mukhtar Ahmad and Muhammad Akram had done to death the deceased on account of "Ghairat " as they had witnessed Mst. Amna, sister of Mukhtar Ahmad and brother's wife of Muhammad Akram appellant who is also paternal-cousin, in the company of the deceased embracing and kissing each other and due to grave and sudden provocation they had killed the deceased, and the co-accused were neither present at the spot nor participated in the commission of the offence.

14. P.W.2 Rafique Ahmad complainant, eye-witness, brother of the deceased in F.I.R. Exh.P.J. had named 10 accused as assailants and 6 of them were acquitted by the trial Court as they,were alleged to be armed with Sotis, had encircled and in prosecution of their common object, had participated in the commission of the offence. The trial Court had acquitted 6 co-accused as their participation was found doubtful.

15. Mushtaq Ahmad and Fida Hussain appellant were allegedly armed with Khanjar and hatchet respectively and were also stated by P.W.2 Rafique Ahmad and P.W.3 Muhammad Ahsan, eye-witnesses that they had caused injuries to the deceased with their respective weapons. P.W.7 Dr. Muhammad Mansha who had medically examined the deceased-at first, had! iiot witnessed any stab wound on the injured Muhammad Arshad. It is pertinent to mention that appellant Mushtaq Ahmad and Fida Hussain remained on pre-arrest bail till 3-9-1989 when the same was dismissed and they were arrested and thereafter on 13-9-1989 they are alleged to have Ied to the recovery of Khanjar P.1 and hatchet P.2 from their houses respectively. It is surprising that the occurrence took place on 19-8-1989 and till 13-9-1989 they kept the alleged weapon of the offence concealed at their houses, only to produce the same before the police for their implication in the case, which does not sound to the reason. They had the opportunity to destroy the weapons of offence. No doubt P;Ws.2 and 3, eye-witnesses, specifically named Mushtaq Ahmad and Fida Hussain as the assailants, but in view of the statement of ,Dr. Muhammad Mansha (P.W.7) and the alleged recovery of crime weapons at their instance after such a long period proves otherwise, and I am of the view that their participation in the offence is doubtful, and giving them benefit of doubt, they are acquitted of the charge. They are in jail, they shall be released forthwith if not required in any other case.

16. No doubt appellants Mukhtar Ahmad and Muhammad Akram from the very beginning raised the plea that they had killed the deceased due to Ghairat as is evident from their statements which' they made before the A.S.I. at the time of their arrest. It is also pertinent to mention here that the complainant in F.I.R.. Exh.P.J. had narrated that they suspected the illicit liaison between the deceased and Mst. Amna sister of Mukhtar Ahmad appellant and brother's' wife and paternal-cousin of Muhammad Akram appellant. Neither Mst. Amna was produced nor Mukhtar Ahmad and Muhammad Akram appellants had succeeded in establishing and proving on record that Mst. Amna was present at or near the place of occurrence at the relevant time. Mukhtar Ahmad and Muhammad Akram appellants had admitted the prescncc of Mst. Amna at the place of occurrence at the relevant time, but her presence is not proved. Nothing has been brought on record by the defence to prove the presence of Mst. Amna at or near the place of occurrence at the relevant time. Mukhtar Ahmad and Muhammad Akram appellants were arrested on 23-8-1989 by Muhammad Arshad A.S.I. (P.W.9). On 26-8-1989 Muhammad Akram had led to the recovery of blood-stained hatchet P.14, blood-stained Shalwar P.12 and blood-stained shirt P.13 which were secured by P.W.9 Muhammad Arshad A.S.I. vide memo. Exh.P.M. attested by P.W.3 Muhammad Ahsan Mukhtar Ahmad appellant also led to the recovery of blood-stained hatchet P.11, blood-stained Chadar P.10 and blood-stained Chadar P.11 from his house, which were secured by P.W.9 Muhammad Arshad A.S.I. vide memo. Exh.P.L. attestedby P.W.3 Muhammad Ahsan. The reports of the Chemical Examiner and that of the Serologist Exhs.P.V. and P.W., respectively are positive.

17. I have given anxious consideration to the case of the prosecution and the case set up by the accused. I have also read the evidence on record and have considered the contentions of the learned defence counsel. The prosecution and the defence both have not come to the Court with clean hands and in the circumstances the Court has to draw its own conclusion.

18. There is nothing on record except oral allegations that the appellants killed the deceased under grave and sudden provocation and 'hit i.e. they had seen the deceased and Mst. Amna embracing, kissing each other in the mango garden, and Mst. Amna succeeded in running away from the scene of occurrence. There is no evidence that Mst. Amna was found even near the locale. The contention, raised by Mukhtar Ahmad and Muhammad Akram appellants was firmly repudiated by the witnesses. The appellants had not produced any evidence in support of their plea. There is no evidence on record to show that the occurrence took place in the manner as alleged by them. The plea raised by them is not satisfactorily established by the evidence and the circumstances appearing in the case. The circumstances rather falsify the stand taken by them and except for the statement of the appellants there is no evidence direct or indirect to the effect that Mst. Amna was present near the place of murder of the deceased. No one saw her near the place of occurrence. There was mere suspicion of illicit liaison between the deceased and Mst. Amna. The contentions raised by the learned counsel for the appellants do not hold any water.

19. Pursuant to the above discussion, I hold that Mukhtar Ahmad and Muhammad Akram appellants were rightly convicted and sentenced by the c trial Court and no exception can be taken to the impugnad judgment. The appeal to their extent is dismissed. Connected Criminal Revisions Nos.54 of 1992/BWP and 8 of 1993/BWP have no merits and are dismissed. N.H.O./M-1702/L?????????????????????????????????????????????????????????????????????????????? Order accordingly.