P L D 1984 Lahore 326 (PLP)

(5) A contusion mark 5" x 2 "on the outer side of right chest lower part. All the injuries were caused with blunt weapon within 12 hours. There was fracture of right parietal bone of the skull. Injuries Nos. 1 and 5 were grievous. On the same day, he examined Muhammad Naeem P. W. 8 and found the following injuries on his person (1) A lacerated wound " x " x scalp deep on the middle line of head parietal region. (2) An abrasion 1 " x " on the left temple I' from the eye. (3) A contusion mark 3" x 1 " on the outer side of left shoulder. (4) Complained of pain on the top of right shoulder. (5) An abrasion " x " on the outer side of right elbow joint. (6) An abrasion " x " on the outer side of left little finger, second phalanx. The injuries were simple in nature caused with blunt weapon within 12 hours from the time of examination. He also examined Muhammad Ismail P. W. 9 and found the following injuries on his person (1) An abrasion 3 " x " on the back of left forearm upper part. (2) A contusion mark 4 " x 1" on the outer side of right hip. The injuries were simple in nature caused with blunt weapon with 12 hours from the time of examination. On the same day at 5‑50 p. m., he also examined Mst. Safia P. W. 7 and found the following injuries on her person (1) Contusion " x " on the front of left wrist joint. (2) Complained of pain on the back of right shoulder. The injuries were simple in nature caused with blunt weapon within' 12 hours.

6. Dr. Arif Saeed who conducted post‑mortetri examination on the dead body of Khushi Muhammad deceased could not be examined personally because he was reported to have left for abroad. Consequently, secondary evidence was led to prove the post‑mortem examination Exh. P. G. and diagram Exb. P. G/I and PG/2 by Amir Bakhsh P. W. 5, Head Clerk of the Civil Hospital, Multan.

7. The appellants pleaded not guilty to the charge, denied the prosecu tion allegation and attributed the case to enmity. Explaining his involvement Amir appellant stated as follows "We all the accused persons are closely related inter se. Khan Muhammad Bhapa P. W. is the cousin of Zulfiqar P. W. on mater nal side. Mst. Zahoor Mai is the daughter of said Zulfiqar who was married to Khuda Bakhsh deceased. Zulfiqar P. W. was de manding talag for the daughter Msr. Zahoor Mai from Khuda Bakhsh co‑accused but Khuda Bakhsh was not willing to divorce her which resulted in the enmity of the accused party and that of Khan Muhammad and Zulfiqar P. Ws. In fact Khan Muhammad Bhapa wanted Mst. Safia P. W. for his own sake, and he intended to remove Khushi Muhammad from his way. Khushi Muhammad was mur dered by Khan Muhammad, Naeem anti Muhammad Ismail P. Ws. under a hatched up conspiracy and I and my co‑accused have been falsely implicated in this case due to enmity with Khan Muhammad and other P. Ws. Mst. Safia P. W. is now living with Khan Muhammad Bhapa at Mailsi City as his keep." Muhammad.Nawaz appellant also made a similar statement. The accused did not call any eivdence in defence.

8. The prosecution examined Khan Muhammad P. W. 6, Mst. Safia P. W. 7 Muhammad Naeem P.W. 8 and Muhammad Ismail P.W. 9 as ocular witnesses. Mst. Safia P. W. 7 is the widow of the deceased, Muhammad Naeem P. W. 8 is son of the deceased, Khan Muhammad P. W. 6 is landlord of the deceased while Muhammad Ismail P. W. 9 is nephew of the deceased. Khan Muhammad P. W. 6 was present in his house when he reached the spot on hearing the alarm and thus witnessed the occurrence. Muhammad Ismail P. W. 9 stated that the deceased used to stitch clothes and on the day of occurrence be had gone to his house to collect his clothes when the occurrence took place. Khan Muhammad P. W. 6. also deposed about the motive. Mst. Safia P. W. 7, Muhammad Naeem P. W. 8 and Muhammad Ismail P. W. 9 were also injured during the occurrence and were medically examined. The duration of their injuries tallies with that of the deceased. Muhammad Naeem P. W. 8, Muhammad Ismail P. W. 9 and Abdul Ghafoor S. P. W. 10 testified to the recoveries of Bangs from the appellants and the acquitted accused. ‑They attested the relevant memos.

9. Relying upon the testimony of the eye‑witnesses, the recoveries of dangs from the appellants and the motive the learned trial Court convicted and sentenced the appellants as stated above. However, Khuda Bakhsh, Abdur Razzaq and Ghulam Rasool accused were given the benefit of doubt and acquitted.

10. Impugning the judgment, the learned counsel for the appellants states that there is an inordinate delay in lodging the F. I. R., the eye‑wit nesses being closely related to the deceased are interested and their evidence is full of material discrepancies and contradictions,

11. According to the prosecution, the occurrence had taken place in the house of the deceased. The fact that the inmates of the house, namely, Mst. Safia P. W. 7 and Muhammad Naeem P. W. 8 were also injured coup led with the fact that the blood‑stained earth was also secured from the house of the deceased leaves no room to doubt the testimony of the P. Ws. with regard to the place of occurrence. The evidence of Mst. Safia, Muhammad Naeem and Muhammad Ismail cannot be brushed aside merely on the ground of their relationship with the deceased. Since the occurrence had taken place in the house of the deceased Mst. Safia and Muhammad Naeem P. Ws. are the natural witnesses. They stand corroborated by Khan Muhammad P. W. 6 who had no animus against the appellants. The eye witnesses examined by the prosecution cannot be dubbed as interested wit nesses because they had no motive to falsely implicate them. They have given a consistent account of the occurrence which is quite in line with the medical evidence. They get additional corroboration from the recoveries of blood stained dangs at the instance of the appellants. Since it was a broad day light incident, therefore, the eye‑witnesses would not have faced any difficulty in identifying their assailants. There appears to be hardly no reason for the P. Ws. to substitute the present appellants for the real culprits.

12. We have considered the arguments of the learned counsel regarding the delay in lodging the F.L.R. but do not find it to be having any adverse bearing on the case because it stands fully explained. According to Khan Muhammad P. W. 6 the deceased and the injured were first carried to the Civil Hospital, Mailsi where the doctor kept the injuries of Khushi Muhammad deceased under observation and after the medical and X‑ray reports were delivered to him he lodged the F. I. R. Because of the night fall the X‑ray exami nation and the preparation of the report must have taken some time and as such there appears to be no inordinate delay in reporting the matter to the police. The contradictions pointed out‑ in the statements of the eye‑witnesses, are ignorable being without any significance. Due to lapse of time minor dis crepancies and contradictions do creep to and unless they materially affect the credibility of the P. Ws. or make their versions highly inconsistent they can be safely ignored. We have carefully examined the statements of the eye witnesses but do not find any material contradictions and the discrepancies, The P. Ws. have fully corroborated one another on all material particulars. Despite the fact that they were subjected to lengthy cross‑examination and were put searching questions their testimony remains unshattered. The argu ment advanced by the learned counsel that since the names of, the eye‑witnesses are not mentioned in the site plan, therefore, they should be presumed to be not present at the spot at the relevant time has riot impressed us. The eye‑witnesses examined by the prosecution are named in the F. I. R. and the mere fact that the Patwari has omitted to mention their names would not make their presence at the spot doubtful when it stands established by the presence of injuries on their persons.

13. Considering the evidence and other circumstances, we think that the prosecution's case stands fully established against the, appellants. They were, therefore, rightly convicted. However, as regards sentences, we feel inclined to interfere so far as Amir appellant is concerned because the in juries of the deceased proving fatal are not attributable with certainty to any of the two appellants. Consequently, in the interest of justice we alter his death sentence to imprisonment ‑for life. The sentence of fine as imposed by the trial Court is maintained. The conviction and sentence of Muhammad Nawaz appellant is, however, maintained. The conviction and sentence of the appellants under sections 323 and 452/3 4, P. P. C. is also maintained. The sentences shall run concurrently. The appellants are further directed to pay Rs. 5,000 each as compensation to the heirs of the deceased or in default to undergo three months' R. I. They shall also be given the benefit of section 382‑B, Cr. P. C. The death sentence of Amir appellant is not confirmed.

14. The revision filed by Khan Muhammad complainant for enhance ment of sentence of Muhammad Nawaz appellant fails and is dismissed ac cordingly. M. Z. M. Order accordingly.