1989 PLP 793 (MLD)

SARDAR MUHAMMAD‑ DOGAR, J.‑‑ Muhammad Aslam, aged 45 years, was tried by Additional Sessions Judge, Gujrat, for having murdered Muhammad Khan at 6 a.m. on 10‑4‑1983, in his house in village Jhandewal, at a distance of five miles from Police Station Khunjah, District Gujrat. The learned trial Judge vide judgment dated 11‑3‑1985, convicted him under section 302, P.P.C. and sentenced him to‑ death, plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. for six months. Whole of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased. 2.The convict has filed appeal. Learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.

3. F.I.R. (Exh.P.A./1) was registered at the police station by Muhammad Inayat, M.H.C. (P.W.11) at 10 a.m. on 10‑4‑1983, on receipt of statement (F‑xh.PA.) of Fazal Dad (P.W.1), recorded by Muhammad Arif, A.S.I. (P.W.10), at 9‑30 a.m., at Canal Bridge Saroki. According to the F.I.R., the complainant was putting fodder to his buffalo. Bahadur Khan P.W., his nephew, was washing his face on the handpump while his wife Mst. Surriya Begum was also present in the house. At about 6 a.m., the appellant armed with a Kulhari entered the house of the deceased. The deceased was sleeping in the Veranda of his house Muhammad Aslam accused gave a Kulhari blow on his left temporal region from its right side. He, thereafter, gave two more Kulhari blows to him on the left side of temporal region and mandible. The complainant, his wife, Mst. Surriya Begum and his nephew Bahadur Khan, raised noise, whereupon the appellant ran away towards his house alongwith the Kulhari. Many villagers reached the spot. The deceased was lifted on a Charpoy for being taken to hospital at Gujrat, but he died at village Chichian while on way His dead body was brought back to the village. Whereafter, the complainant went to report the matter. Motive for the occurrence was that two days prior to the occurrence, a dispute had taken place between the deceased and the appellant where abuses were exchanged. 4.Muhammad Arif, A.S.I. (P.W.10), after recording the statement (Exh.P.A.), reached the spot. He prepared necessary papers, i.e. inquest report and injury statement, and despatched the dead body for post‑mortem examination to Gujrat: He collected blood‑stained earth from the spot and recorded the statements of the P.Ws. The appellant was arrested by him on 15‑4‑1983, on being produced by Khan Muhammad Lambardar and Khan Muhammad, Member, Union Council. On the following day, he led to the recovery of blood‑stained hatchet (P.1) from his house, which was taken into possession vide memo. Exh.P.C. Challan was submitted to Court after completion of necessary investigation.

5. Statements of eleven P.W. were recorded at the trial. Positive reports from the offices of the Chemical Examiner (Exh.P.E.), and that of the Serologist (Exh.P.1.) with regard to the stains of blood on the blood‑stained earth and on Kulhari, were also tendered in evidence.

6. Dr. Muhammad Safdar Hussain, who .had performed autopsy at 4‑30 p.m. on 10‑4‑1983 appeared as P.W.S. He had noted following injuries' on the body of the deceased:‑ (1)??????? Incised penetrated wound, 10 c.m. x 1‑1/2 c.m. oblique on left temporal region of scalp, cutting the upper part of left pinna and underline bone. Brain matter was visible through the wound. (2)??????? Incised wound, 10 c.m. x 2 c.m., on left pinna, cutting the pinna into two pieces, wound extending from back of,left side .of neck to upper part of mandible, cutting the muscles and major vessels on the left side of neck. (3)??????? Incised wound 1 c.m. x 1/2 c.m. skin deep on angle of left mandible. On internal examination, he noted that injury No.1 had entered the crannial cavity and had partially cut the cerebral hemisevere (brain). The injuries were opined to have been caused by sharp‑edged weapon. Death was opined to have resulted from injuries Nos. 1 and 2, which had caused shock and haemorrhage. Both the injuries were opined to be sufficient to cause death collectively as well as individually. Probable time between death and injuries was opined to be a few minutes to 45 minutes while duration between death and post‑mortem was opined to be 8 to 12 hours. During cross‑examination the doctor stated that the possibility of deceased having died at 4‑30 a.m. cannot be ruled out. 7.The ocular account has been deposed to by Fazal Dad (P.W.1) Bahadur (P.W.2) and Mst. Surriya (P.W.3). Fazal Dad renarrated the facts given by him in the F.I.R. During cross?examination, he admitted that the mother of the deceased was living with him and was present in the house at the time of occurrence. He stated that sister of the deceased had married one Azam, a co‑villager, of her own choice and that Azam never visited the house of the deceased. In answer to another question, he stated that the deceased had returned from Behrain (State) five days prior to the occurrence. He admitted that there was a wall between his house and the house of the deceased. He added that courtyard of the deceased and Bahadur was common and there was no wall between their houses. He admitted that when he had met the Police Officer at Canal Bridge Saroki, he had asked him to go to the police station and that from the police station he had come to the spot and that his statement was recorded at the place of occurrence by the police when he had returned from the police station. He admitted that father of Bahadur was his cousin. In answer to another question, he stated that the appellant during absence abroad of the deceased had attempted to steal his buffalo and they had made a complaint to the police on that account. According to him, the deceased, on return, had warned the appellant. Bahadur (P.W.2) and Mst. Surriya (P.W.3) corroborated the statement made by Fazal Dad. Bahadur also stated about having witnessed the recovery of hatchet at the instance of the appellant. During cross‑examination, he stated that his wife and mother of the deceased were also in the house of the deceased at the time of occurrence and that the P.Ws. had come to the place of occurrence on the alarm raised by him. He stated that the deceased had no enmity with the accused. All the eye‑witnesses admitted that other villagers had also come to the place of occurrence, but they explained that they had come after the accused had run away. The suggestions put to P.Ws. 1, 3 and Bahadur (P.W.2) that Bahadur suspected the deceased of having illicit relations with his wife, were denied by all of them. P.W.1 stated that Bahadur had three children from his wife.

8. Muhammad Arif, A.S.I. (P.W.10), while giving the account of registration of case and recovery of hatchet at the instance of the appellant denied the suggestion that he had recorded the statement (Exh.PA.) of the complainant at the spot after preliminary investigations. He admitted that he had not recorded the statement of the wife of Bahadur P.W. and mother of the deceased during investigation. He denied that the appellant was involved falsely in collusion with him and that the hatchet was planted on him (accused). Statements of the remaining P.Ws. more or less are of a formal nature.

9. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. In answer to the question, `why is the case against .you,' he stated, `out of enmity and strained relations with P.W. Bahadur.'

10. Learned counsel for the appellant criticised the impugned judgment and contended that the prosecution has failed to prove the motive for the occurrence. that the F.I.R. in this case appears to have been recorded at the spot, after preliminary investigations. In this regard learned counsel pointed the admission made by P.W.1 that his statement had been recorded at the spot on return from police station. Learned counsel contended that the P.Ws. are related to the deceased as well as inter se, that P.Ws. 1 and 3 do not appear to have witnessed the occurrence and P.W.2 had made a false statement. Learned counsel submitted that the eye‑witnesses have made discrepant statements, which also shows that they had not witnessed the occurrence. Learned counsel contended that the evidence of recovery of hatchet also has been deposed to by Bahadur, who being an interested witness, cannot be relied upon. Lastly, learned counsel submitted that in case the conviction of the appellant under section 302, P.P.C. is maintained, it would not be a case of capital punishment, as there is no plausible evidence of motive mentioned for the occurrence.

11. Learned counsel for the State defended the judgment of the trial Court and submitted that the ocular account has been deposed to by the natural witnesses, who are not inimical to the appellant in any manner.

12. The occurrence is stated to have taken place at 6 a.m. It was reported t the police at 9‑30 a.m. The autopsy on the dead body was performed on the same day at 4‑30 p.m. In the circumstances, the argument that the F.I.R. was recorded after deliberations and preliminary investigations does not appear to have any force, because if the F.I.R. had been recorded after preliminary investigations and consultations, and the complainant was not sure as to against whom he has to lodge the F.I.R., the dead body could not have been despatched for post‑mortem examination so early and so the post‑mortem could not have been conducted on the same day. Even if it is conceded for the sake of argument that statement of the complainant was recorded by the A.S.I. at the spot, it does not advance the case of the appellant in any manner, because that runs counter to the suggestions made on behalf of the appellant to the three witnesses at the trial. In that, the three eye‑witnesses were suggested that the deceased was done to death by Bahadur P.W. on account of his suspicion against the deceased of having illicit intimacy with his wife. If that had been so, the mother of the deceased, who admittedly .was present in the house on the .day of occurrence and so must have been present when the police arrived there, would not have allowed the substitution of the real murderer of her son. Neither the complainant nor the Police Officer could have dared to make such a bypass. The suggestion that Bahadur suspected the deceased of having illicit intimacy with his wife, even otherwise seems to be absolutely out of place and does not fit in with the circumstances. In that, it is worthy noticing that the deceased had remained abroad in Behrain for seven years and had returned only five days before the occurrence. He could not have cultivated any illicit intimacy in so short span with the wife of his cousin, who had three children.

13. The criticism that P.Ws. 1 and 3 do not appear to have witnessed the occurrence, is based on two facts. One, that both' of them resided in different houses and so could not have reached at the place of occurrence in time to see infection of injuries even after hearing alarm; and the other, that both of them had made contradictory statements with regard to the departure of the accused from the place of occurrence. We have examined this aspect of the case after perusing the evidence. The houses of these witnesses, i.e. P.Ws. 1 and 3 were close by to the place of occurrence. They could have easily reached the spot on hearing alarm. At the best they might have missed to see the infliction of first injury, but it cannot be said with any amount of certainty that they had not at all seen the infliction of injuries, as the narration given by them is absolutely in line with the medical evidence. Morever, if the occurrence had not been witnessed by anybody, then these witnesses would not have agreed to become witnesses to make false statements, in the absence of the mother of the deceased and wife of Bahadur P.W. being not named as witnesses, they would have definitely posed a question that if false statements were to be made, then mother of the deceased and wife of‑Bahadur P:W. should also volunteer being residents of the same house and being closely related to the deceased.

14. The discrepancy pointed out between the statements of two, about the passage which the appellant is said to have used for running from the spot although is there, but we do not think that, that is sufficient to destroy the instransic value of the witnesses. Someone of them might have made inadvertent statement in this regard. Above all, there is no reason to discard the statement of Bahadur, who being resident of the same house was a most natural witness and had no axe to grind with the appellant. In fact, none of the P.Ws. had enmity with the appellant.

15. After going through the testimonies of three eye‑witnesses, we feel convinced that they have made natural statements, leaving no room for any doubts. . The ocular account stands corroborated by recovery of blood‑stained hatchet at the instance of the appellant. No doubt, in that also, the recovery had been attested by Bahadur P.W., but his statement has been corroborated by A.S.I. too, who by no stretch of imagination can be taken to be inimical to the appellant. In the circumstances, we are convinced that the prosecution has been able to prove that it was the appellant, who had murdered the deceased.

16. We are, however, inclined to accept the contention of the learned counsel for the appellant that the prosecution has not been able to prove the motive. In that, the quarrel alleged to have taken place between the deceased and the appellant 2/3 days prior to the occurrence was not witnessed by any of the eye‑witnesses and none else was produced to say that any such quarrel had taken place. On the other hand, P.W 2 stated that there was no enmity between the two while P.W.3 stated that some ordinary dispute had taken place between them a few days before the occurrence. The deceased, according to the witnesses, had returned from abroad only five days before the occurrence. We, therefore, wonder what P.W.3 meant by `few days'. In the circumstances, the motive for the occurrence in this case seems to be shrouded in mystery.

17. As a result of the above discussion, the appeal filed by the appellant is dismissed. The sentence of death awarded to the appellant is however, not confirmed and the same is altered to imprisonment for life. The sentence of fine is maintained. The appellant shall be given the benefit of the provisions of section 382‑B, Cr.P.C. SA./M‑1191/L???????????????????????????????????????????????????????????????????????????????????? Sentence reduced.