1968 P Cr (PLP)

KADIR NAWAZ S. AWAN, J.-Appellant Rafique has been convicted under section 302, P. P. C. for the murder of Ismail and sentenced to transportation for fife by the learned Additional ,Sessions Judge, Tharparkar at Sanghar. He was also found guilty under section 24 of the Cattle Trespass Act and sentenced to six months' R. I. Both the sentences were directed to run concurrently. This appeal is directed against his convictions and sentences aforesaid.

2. The eye-witnesses Nangar Kalhoro and Lai Gopang along with Ismail Detho deceased had cultivated lucerne grass for their Zamindar Ibrahim Detho in Survey No. 673/2 which adjoins Survey No. 674/1 where Ismail was murdered on the morning of 1-3-62 at about 10-30 a.m. Appellant Rafique owns lands adjoining this land and both these lands are watered by the same watercourse. He also owns cattle, which are grazed by two boys namely Shabir and Ismail. On the day of the incident these two eye-witnesses Nangar and Lai Bux were cutting lucerne grass at a short distance from Ismail deceased who was ploughing a part of his land. He suddenly found the cattle belonging to appellant Rafique having trespassed in the lucerne grass, which was damaged and eaten by them. He seized the cattle and was about to take them to the cattle pound when appellant Rafique arrived there along with his accomplice. On their request Ismail deceased refused to release the cattle and this was followed by an exchange of harsh words. Consequently, that unknown culprit secured Ismail and then appellant Rafique whipped out his knife and stabbed Ismail on the left side. He died instantaneously on the spot. On his alarm the two eye-witnesses had responded. They failed to secure the culprits due to threats given by them. Muhammad Hasan who was working in a nearby field had responded but had reached the spot after the culprits had disappeared. Both the eye-witnesses informed him -how they had seen appellant Rafique and his companion who was unknown to have assaulted the deceased. Thereafter, Nangar went to the village and informed Manthar how Ismail had been murdered by Rafique and his accomplice. He then went to Shahdadpur Police Station and lodged his report Exh. 13 there at 1-45 p.m. 3 Usual enquiries were made by Abdul Rashid A. S. I. P. He visited the scene of offence, prepared its mashirnama Exh. 18 and an Inquest Report Exh.

19. All these witnesses were then examined by him. He seized the cattle and were sent to the cattle pound. Appellant Rafique was not available either on his lands or his house in Shahdadpur. His brother was called and informed that Rafique was wanted in one murder case. He was produced before A.S.I.P. on the following day at 4 p.m. He arrested him and prepared mashirnama Exh.

15. There after, appellant Rafique led the Police party to a. wheat cultivation and produced a knife, which was secured under mashirnama Exh.

16. After all these enquiries were completed, he was sent up to stand his trial. The report Exh. 23 of the Chemical Examiner shows that blood on knife, shirt and loin cloth had disintegrated and hence its origin was not determined. Appellant Rafique when questioned in both the Courts below bad made flat denials of everything alleged against him and had pleaded his innocence. His case is that his cattle had not trespassed in the lucerne cultivation of Ismail deceased and nor was it damaged. He has denied the production of knife. According to him the prosecution witnesses had deposed due to enmity with Ibrahim Detho who is the Zamindar of Nangar and Lai Khan and brother of prosecution witness Muhammad Hasan. During his trial in the Sessions Court, his case was that he did not own any cattle. He had also produced a copy of complaint Exh. 28 filed by his brother Muhammad Hafiz against Allahdino and others. No witness was examined by him in defence.

4. The murder of Ismail is not under dispute. The medical evidence shows that Ismail deceased had received one injury over area below left axilla with the result that left pleura was ruptured. In the opinion of the doctor Mohanlal this injury was ante-mortem and was caused by a long-bladed knife, spear or dagger. He had further opined that death of the deceased was due to shock and internal haemorrhage due to the injury of vital organ viz. the left lung and was sufficient in the ordinary course of nature to cause death. The remaining prosecution witnesses have deposed about his murder. This point is not disputed in defence. We are, therefore, satisfied that Ismail had died as a result of this injury, which had punctured his left lung.

5. On examining the record we find that ample evidence has been adduced in support of the prosecution case and no doubt is left in our minds about the guilt of appellant Rafique for having caused the murder of Ismail on 1-3-62. The evidence on record shows that this incident was witnessed by Nangar Kalhoro and Lal Bux Gopang. They along with Ismail deceased had cultivated one Athas of land for their Zamindar. Thus, their presence at the scene of offence at the time of the incident appears natural. Their evidence is to the effect that they were cutting lucerne grass, which was about one and a half feet higher while Ismail deceased was ploughing a part of his land. The land belonging to appellant Rafique adjoins this land and the same watercourse waters these two lands. He owns cattle, which is grazed by Shabir and Ismail. Suddenly the cattle trespassed into the lucerne cultivation, damaged it by trampling over it and also ate it. Ismail seized the cattle and was about to leave the land to have them impounded when the appellant arrived there along with his accomplice. When Ismail refused to release the cattle he was- held by that unknown culprit and was then stabbed by appellant Rafique. They had seen this incident from a very short distance. They knew the appellant Rafique prior to this incident. The murder had taken place in the broad day-light. For all these reasons there can be no question of mistaken identity. On the alarm raised, Muhammad Hasan who was working in a nearby field had responded but had reached the spot after the culprits had dis appeared, Both the eye-witnesses had informed him how Ismail was murdered by appellant Rafique. This Information was conveyed to Manthar by Nangar and the report was lodged without any loss of time. This ocular evidence of two eye witnesses namely Nangar Kalhoro and Lal Bux Gopang is corro borated by Muhammad Hasan and Manthar. Rafique was found absconding. He was produced before the police on the following day. Thereafter, he led the Police party to a wheat cultivation and he produced the knife, which was secured under mashirnama Exh.

16. The shirt and loincloth worn by him had blood stains. The origin of the blood on these articles could not be detected by the Chemical Examiner due to disintegra tion.

6. All this evidence is criticised in defence on several grounds. It was urged before us that it has not been proved that the cattle which had trespassed in the lucerne cultivation actually belonged to appellant Rafique, that he has been falsely implicated due to enmity and the two eye-witnesses are interested persons as they along with the deceased in this case had cultivated for the same Zamindar and that recovery of knife is not free from doubt. All these defence pleas have been discussed at great length in the judgment of the trial Court and very sound and convincing reasons have been given by the learned Additional Sessions Judge for rejecting the same. There is no dispute about the scene of offence. The deceased Ismail was murdered in Survey No. 674/1 which adjoins Survey No. 673/2 where lucerne grass was cultivated by the deceased and the two eye witnesses. Blood was found there. All the witnesses have deposed that Ismail was murdered in that survey number. The lucerne grass was damaged and some of it was eaten up by the cattle. The reason alleged by the prosecution is that cattle had trespassed in that lucerne cultivation and had damaged it. All these factors strongly support the ocular evidence. It is correct that no mashirnama was prepared by A.S.I.P. Abdul Rashid when he seized the cattle and sent the same to the cattle pound at Shahdadpur. This is the only drawback in the investigation but it does not affect the merit of the case so far as the guilt of appellant Rafique is concerned. When he was questioned in the Committing Court he had denied that his cattle had trespassed in the lucerne cultivation. This denial shows that he did own cattle. He resiled from this version when he was examined in the trial Court and stated that no cattle was owned by him. The next defence plea is that appellant Rafique has been falsely implicated due to enmity. He has produced a copy of complaint Exh. 28 filed against Allahdino and others. In that case Rafique was neither the complainant nor he figured as a witness Muhammad Hasan in his evidence has stated that there were two-counter cases between the parties and ultimately these were compromised. If the result of these cases was different it was for the appellant Rafique to have produced copies of judgments and in the absence of that evidence we must accept the version of Muhammad Hasan that these two counter cases had resulted in compromise. These cases were filed in 1961 and this murder took place in 1962. Thus we do not find any substance in this defence plea of enmity. It is correct that these two eye-witnesses and the deceased were Harts of the same Zamindar. But, this would not make them interested witnesses. They are supported by other witnesses whose evidence has already been discussed by us. Lastly, we were referred to certain contradictions and further that Nangar is a child who, according to him, is a dangerous witness. It is correct that there are certain discrepancies as to how Muhammad Hasan had reached the spot that is whether Nangar had met him on the way while he was going to Shahdadpur to inform Manthar or whether Muhammad Hasan had responded on hearing the alarm. In this respect Nangar alone has made two contradictory statements. At one stage he had stated that Muhammad Hasan had responded on hearing the alarm. During his cross. examination he had stated that Muhammad Hasan had met him while he was going to Manthar, otherwise other witnesses including Muhammad Hasan had deposed that this witness had come to the spot on hearing the cries. For all these reasons we find no substance in this appeal. Accordingly we dismiss this appeal and confirm the convictions and sentences passed against appellant Rafique. Appeal dismissed,