1976 P Cr (PLP)

4. Muhabbat, Liaqat Ali and Hakim Ali accused were arrested in the morning of the 18th February, 1972. On the pointing out of each of them, the blood‑stained lathis (P. 4, P. 5 and P. 6) were recovered from their Dhari vide Memo Exh. P. D., P. E. and P. F. These lathis were sent along with the blood‑stained earth picked up from the spot to the Chemical Examiner who in his report Exh. P. O. stated that they were stained with blood. According to the opinion of the Serologist (Exh. P. P.) they were stained with human blood. Mashooq Ali was arrested in the evening of 18th February 1972, and a hatchet P. 7 was taken into possession by the police after its recovery on his pointing out vide Memo Exh. P. G. Sajawal appellant was arrested on the 19th February 1972, and while in custody he got recovered a sofa (P. 8) which was not blood‑stained. It was taken into possession vide Memo Exh. P. H.

5. Since no injury had been received by the deceased by a sharp weapon, benefit of doubt was given to Mashooq Ali who was acquitted.

6. The prosecution case rests upon the ocular testimony of Faqir Muhammad (P. W. 8), Muhammad Shaft (P‑ W. 9) Khan (P. W. 10) and Ghulam (P. W. I1). Except Khan P. W. 10, all the other P. Ws. supported the prosecution story at the trial. Khan P. W. however, stated that he could not identify the assailants as it had become dark and they were at about 1 killas when he saw them. Since the statement was contradictory to the one made by him before the committing Magistrate. He was declared hostile and the Public Prosecutor was allowed to cross‑examine him. In cross‑examination, be was confronted with several material portions of his statement before the committing Magistrate in which he had admitted having identified all the accused persons. He further conceded in cross-examination that Muhammad Shafi was present at the spot. In his examination‑in‑chief he had established the presence of Faqir Muhammad (P. W. 8) and Ghulam (P. W. 11) also. His statement made before the committing Magistrate was transferred to the Sessions File under section 288, Cr. P. C. The learned Additional Sessions Judge had relied upon this state ment and in my view this was the correct procedure to be adopted since evidently Khan witness bad resiled from his statement made before the committing Magistrate and he denied having stated before the committing Magistrate that‑ (i) Mashooq Ali accused was armed with a hatchet and the remaining four accused present in Court were giving blows to Aziz deceased. (ii) The Sofa of Mohabbat accused had a sue fixed to it. (iii) He had seen the faces of the accused persons who had started running when the witnesses challenged them. The statement was actually made by him before the committing magistrate as is apparent from the above mentioned transferred statement. Although Faqir Muhammad and Muhammad Shafi are very closely related to the deceased but no discrepancy has been brought forward in cross‑examination in their statements about the actual occurrence there is no discrepancy even in the statement of Ghulam or the statement of Khan made before the committing Magistrate. The presence of the other three witnesses had been established from the statement of Khan also who apparently was all out to help the appellants while making the statement at the trial. The number of injuries on the body of Aziz also show that a number of persons must have assaulted him. The presence of these four persons is supported by this circumstance also.

7. According to the arguments in the written arguments given to me by Mr. Qasim Jafary, the evidence of motive is not believable since Faqir Muhammad in his first information report had given only one motive that about 3 to 4 years back the sheep of Mashooq Ali accused had entered into the land cultivated by the deceased and the deceased had given beating to Mashooq Ali since he had resisted the attempt of the deceased to take the sheep to the pound. In his statement at the trial, he gave evidence about three other circumstances, which are as follows: ‑ "(2) About a year ago, 15/20 days prior to the occurrence, we demanded the money from the accused persona which was due from them. The accused persons refused to pay us the money and on the other hand, abused us. (3) About a month prior to the occurrence, the sheep of the accused persons had entered into the lands of one Bhatti Kumhar by occupa tion. The aforesaid Bhatti had protested and the accused persons gave beating to him. Aziz deceased sided with Bhatti aforesaid and asked him to initiate legal proceedings against the accused persons and that he would appear as a witness against them. That matter was, however, compromised but the accused nursed a grudge against the deceased. (4) About 12 acres of land belonging to the maternal uncle of Mashooq and Muhabbat accused, was on lease with Aziz deceased. The accused persons wanted to get possession of that land. The deceased said that he would vacate the land only when the money which was due from the accused person, was paid to him. The accused persons, however, refused to pay money and also said that they would get possession of the land." He was confronted with his statement in the first information report as well as before the committing Magistrate where these three circumstances had not been detailed. On this basis it is urged that the evidence of motive should be discarded. It is not necessary to labour at this point since in their statements under section 342, Cr. P. C. two of the appellants, namely, Muhabbat and Liaqat Ali stated that they had been falsely involved due to enmity, The details of this enmity are that Aziz deceased suspected illicit intimacy between his daughter‑in‑law the wife of Muhammad Shaft P. W. and Liaqat Ali accused. The two other appellants also stated that they have been involved due to enmity, but no particulars of enmity have been given by them. No suggestion about the alleged relationship between the wife of Muhammad Shafi and Liaqat Ali has been made in cross -examination but admittedly the relations between the parties are inimical.

8. According to the written arguments which appear to have been prepared by the counsel for his own purpose attack has also been made on the testimony of the recovery witnesses. It is no doubt true that there are some discrepancies in the statements of Sultan (P. W. 7) and Ghulam (P. W. 11) in this respect but in my view the statement of the Sub‑Inspector (P. W. 12) is quite straightforward and he has not even been cross‑examined 4 on the question of recoveries made from the appellants. Even if the evidence of the recovery is discarded, it wilt not help the appellants in view1 of the fact that the ocular evidence of the P. Ws. has been believed 'by me and that is sufficient for maintaining the conviction of the appellants. In view of this, I do not find any merit in this appeal and dismiss it. Appeal dismissed.