1985 P Cr (PLP)

The first information report Exh. P.B. was lodged at Police Station, Phalia at 8‑15 a.m. by Karam Bakhsh P.W.2, father of Munawar Hussain injured P.W.5 and it was recorded by Muhammad Inayat H.C. P.W.9. Precisely, it was stated by the first informant that on the fateful day, at about 7‑00 a.m. while he accompanied by his son Munawar Hussain injured P.W. were proceeding to the house of one Sabir Kumhar to assist them in harvesting the wheat crop, and when they reached near the village mosque, Gulzar Hussain appellant, armed with spear, Manzoor Hussain appellant armed with a Chhura, Younis appellant, armed with a Chhuri alongwith their father Muhammad Siddique appellant, suddenly emerged from their house. Muhammad Siddique appellant raised Lalkara, whereupon, all the four appellants attacked Munawar Hussain P.W.5. Gulzar Hussain appellant inflicted a blow with his Balm (spear) on the left arm of Munawar Hussain P.W.5, while Younis appellant inflicted a Chhuri blow on the abdomen of Munawar Hussain P.W.5. Thereafter, Manzoor Hussain appellant repeated another Chhura blow on the abdomen of Munawar Hussain injured P.W. who fell down. It was further stated that all the four appellants then repeated the infliction of blows with their respective weapons while Munawar Hussain P.W.5 was lying on the ground. The hue and cry raised by the first informant attracted Muhammad Inayat P.W.3, Din Muhammad P.W.4 and Ghulam Muhammad (not examined), who saw the occurrence. The motive for the commission of the offence, as stated by the first informant, was that a month before the occurrence, Muhammad Siddique appellant had pasted cow‑dung cakes on the wall of the mosque, which was objected to by the first informant, but Muhammad Siddique appellant ignored the said protest and continued pasting the cow‑dung cakes. It was stated by the first informant that on account of the said activity of Muhammad Siddique appellant, he approached the Chairman of the Union Council, who summoned the appellant where an altercation took place in which the nephew of the first informant, namely, Muhammad Abbas gave a slap to Muhammad Siddique appellant but then a compromise took place. It was also stated that bearing grudge for the insult of` Muhammad Siddique appellant at the hands of the nephew of the first informant, all the, appellants in furtherance of their common intention committed murderous assault on Munawar Hussain P.W.5. The injured Munawar Hussain was taken to hospital after the occurrence where he was medically examined and the doctor noted 11 injuries on his person. Injuries Nos. 1 and 10 were declared to be grievous. From the hospital at Phalia, the injured P.W.5 Munawar Hussain, was shifted to Mayo Hospital, Lahore, where he was treated and recovered. Muhammad Siddique appellant was also found injured and the medical examination revealed three simple injuries caused with blunt weapon on his forehead, shoulder and on a finger.

3. The investigation was conducted by S.I. Zakir Hussain P.W.10, who arrested all the appellants on 23‑4‑1981. Manzoor Hussain appellant, while in custody, led to the recovery of Chhuri P‑I which was taken into possession vide memo. Exh. P.E. Since it was not blood‑stained, therefore, the same was not sent to the Chemical Examiner and it was attested by Islamud Din P.W.6 and Ghulam Muhammad P.W.7, besides, the Investigating Officer. The recovery of knife at the instance of Manzoor Hussain appellant is of no consequence because Chhuri P‑I was not found to be blood‑stained and the evidence of the recovery witnesses also does not inspire confidence because it is discrepant.

4. At the trial, the prosecution relied upon the evidence as to the motive and the ocular testimony furnished by Karam Bakhsh P.W.2, Muhammad Inayat P.W.3, Din Muhammad P.W.4 and Munawar Hussain injured P.W.5. Ghulam Muhammad entered the witness‑box as P.W.7, but he was not examined and was given up because he had refused to take oath. Muhammad Inayat P.W.3 is not related to the complainant side, Din Muhammad P.W.4 is uncle of Munawar Hussain P.W.5.

5. The appellants when examined under section 342, Cr.P.C. denied their participation and stated, that they had been falsely implicated due to enmity. Muhammad Siddique appellant when questioned about the injuries on his person, stated that he had received the same after having fallen from a donkey.

6. I have carefully gone through the entire evidence on the record and I am of the view, that the prosecution has‑ fully established its case. No enmity worth the name was brought on the record so as to show that the testimony of the eye‑witnesses was tainted. The eye‑witnesses had no motive .to falsely implicate the appellants. The injuries on the person of Muhammad Siddique appellant were explained by P.W.5 Munawar Hussain, who stated that he was carrying a stick with which during the attack he had also caused injuries on the person of Muhammad Siddique appellant. The duration of injuries on the person of Muhammad Siddique appellant tallies with the time of the attack on Munawar Hussain P.W.5 by the appellants. In this view of the matter, the presence and participation of Muhammad Siddique appellant stands I established on the record.

7. The learned counsel for the appellants raised the following contentions:‑ (a) That the site plan does not indicate the house of the appellants and, therefore, it is not situated in the street where the fight took place. (b) That there is no proof of the fact that the attack had been launched in furtherance of common intention. (c) That the motive cannot be believed because Muhammad Siddique appellant had donated his land on which the mosque was built. (d) That no documentary evidence is on the record to show that a complaint was lodged with the Chairman of the Union Council concerned. (e) That no independent witness had been produced by the prosecution. (f) That Din Muhammad P.W.4 was a related eye‑witness and, therefore, his testimony should not be believed.

8. I have carefully considered all these contentions and in my view they are devoid of force. It is an admitted fact that the appellants are residents of the same street where the occurrence had taken place. Section 34, P.P.C. is fully applicable in the circumstances of the case, inasmuch as, all the armed appellants had launched attack at the Lalkara of Muhammad Siddique appellant because they wanted to avenge the insult of Muhammad Siddique appellant at the hands of the nephew of the first informant. The number of injuries on the person of Munawar Hussain injured P.W.5 establishes the participation of four armed appellants and the medical evidence corroborates the ocular testimony. Mere relationship of the eye‑witness is not a ground to discard the testimony of such witness.

9. It was also contended by the learned counsel for the appellants that the injuries on the person of Muhammad Siddique appellant had been suppressed by the prosecution.

10. I am afraid that the contention has no merit, in view of the statement of Muhammad Siddique appellant, who ascribed these injuries to a fall from the donkey. The occurrence had taken place at 7‑00 a.m. on the fateful day and Munawar Hussain injured P.W.5 was medically examined at 8‑00 a.m. and the F.I.R. was lodged at 8‑45 a.m. which shows that no time was lost. That is why, Munawar Hussain injured P.W.5 survived otherwise, the nature of injuries was such which could have caused his death.

11. The upshot of the above discussion is that the prosecution has established its case beyond any shadow of doubt. The attack was cold blooded and brutal, hence no leniency can be shown. Accordingly I maintain the conviction and sentence awarded to the appellants by the learned trial Magistrate. Consequently, this appeal is dismissed. S. A. Appeal dismissed.