1976 P Cr (PLP)

2. The brief facts of the prosecution case ate that do the night between 12/13‑6‑1972 Muhammad Hafeez deceased, Muhammad Shafi P. W. Yusuf and Aslam (not produced) were sleeping on separate cots in the courtyard of the poultry farm of the deceased. The electric light was on in the courtyard. Muhammad Munir complainant, brother of the deceased, was sleeping on the roof of his house situate in front of the poultry farm, At about 12‑30 a m, he woke up on heating the shriek of Muhammad Hafeez deceased and saw the appellant armed with a sword and Jahangir (since acquitted) armed with a Bughda standing near the deceased who was lying with an injury on the head, He found acquitted accused Akbar Ali. Jahan Khan, Abdul Hameed and Muhammad Din standing in front of the doors of the poultry farm. Of them, Abdul Hameed had a rise and the rest were armed with dams. He raised alarm whereupon the appellant and the acquitted accused fled away from there. On reaching the poultry farm, the complainant enquired from Muhammad Hafeez as to what happened to which he replied that Mansha appellant had injured him, with sword. The occurrence was witnessed by Muhammad Shafi P. W. Yusuf and Aslant (not produced). After the occurrence, Muhammad Munir complainant took Muhammad Hafeez to Civil Hospital, Daska, where he was medically examined at 3‑?5 a.m. on 13th June 1972. The doctor sent ruqqa (Exh. P. L.) to the S. H. O, Daska, intimating him about the admission of Muhammad Hafeez in the hospital. On receipt of this ruqqa, Farzand Ali A. S. I. reached civil Hospital, Daska, at 4‑15 a.m. and enquired from the doctor as to whether Muhammad Hafeez was in a fit condition to make a statement, to which the doctor replied in the negative. The A. S. I. Then recorded the statement (Exh. P. D.) on the dictation of Muhammad Munir P. W. and sent it to the police station for the registration of the case. Muhammad Hafeez died in the hospital at 5‑30 a.m. The A. S. I. prepared the inquest‑report (Exh. P. E/2) of the dead body and sent it to the mortuary for post‑mortem examination.

3. Mirza Izzat Beg, S. H. O., reached the spot at midday. He took some blood‑stained earth from underneath the cot of the deceased and made it into a sealed parcel vide memo. Exh. P. F. He cut blood‑stained baan from the cot of the deceased and made it into a sealed parcel vide memo. Exh. P. G. He also took two blood‑stained khases (Exh. P. 5/1‑2), blood-stained pilow (Exh. F. P. 6) and blood‑stained patka (Exh. P. 7) of the deceased into his possession vide memo. Exh. P. H. He arrested the appellant and the acquitted accused Abdul Hameed, Jehangiri Akbar Ali and Muhammad Din on 14th June 1972. On 25th June 1972 the appellant while in custody, led to the recovery of sword (Exh. P. 8) from a bush which was taken into possession vide memo. Exh. P. Q. The sword was not blood‑stained. After the investigation, a case under sections 148, 452 and 302 read with section 149 of the Pakistan Penal Code was sent up against the appellant and the acquitted accused persons.

4. On 13th June 1912 at 3x15 dam. Dr. A. R. Arain, Medical Officer, Civil Hospital, Daska, examined Muhammad Hafeez deceased, when alive, and found an incised wound 7'x 1 x bone deep on the left side of his head, just above the ear. Muhammad Hafeez was unconscious. Respiration was rapid, pulse was thready and feable and the skin was cold. The injury had been caused by a sharp‑edged weapon within a few hours. On the same day at 8 a.m. Dr. Hafiz Abdul Latif, Medical Officer, Tehsil Headquarter Hospital, Daska, conducted the autopay on the dead today of Muhammad Hafeez and found an incised wound 7' x 1 x cutting the full thickness of the bone (frontal, temporal and occpital‑left parts). Brain matter had come out of the wound. In the opinion of the doctor, death was due to shock and haemorrhage resulting from the above injury, which was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was few hours and that between death and post‑mortem two and half hours.

5. To support its case the prosecution examined fourteen witnesses in all, its main stay being the ocular testimony of Muhammad Munir (P. W. 8), Muhammad Shafi (P. W. 9) and the oral dying declaration of the deceased.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He professed innocence and contended that be had been falsely implicated on account of enmity with Munir P. W. No evidence was led in defence.

7. The learned trial Judge believed the ocular account and found the appellant guilty of murder. He acquitted his co‑accused on the ground that they were 'silent spectators' and had not taken part in the murder. He further observed that it was possible that the appellant had taken them along without disclosing his criminal intention.

8. The learned counsel for the appellant contended that the motive attributed to the appellant was not proved, and since the occurrence had taken place in the dark bouts of night, therefore identification of the assailant was Dot possible. 'He criticized the evidence of Muhammad Munir and Muhammad Shafi P. W. on the ground that they were interested witnesses because the former was a real brother of the deceased and the latter was his servant. He further contended that although the occurrence had taken place in a thickly populated part of the village yet not a single independent witness was produced to support the prosecution version, therefore, the conviction of the appellant was unsustainable.

9. We have gone through the evidence with the help of the learned counsel for the appellant and the State. The motive alleged by the prosecution was that a month before the occurrence the appellant and his brother Yusuf committed theft in the shop of one Allah Rakha. A day before the occurrence, acquitted accused Jahangir and the appellant quarrelled with Muhammad Hafeez deceased because he was helping Allah Rakha in that theft case it is alleged that the appellant and the acquitted accused harboured grudge against the deceased on that account. A copy of the F. I. R. of that theft case (Exh. P. D./2) was placed on the record. The prosecution version of the motive was supported by Muhammad Munir complainant Allah Bakhsh aforesaid was the best witness on the point of motive but he was not produced. The solitary statement of Muhammad Munir complainant is not sufficient to prove the motive as there is sufficient material on the file to show that he had strained relations with the appellant. The absence of proof of motive is, however, not at all fatal if the guilt of the accused is otherwise proved beyond all reasonable doubts on the basis of reliable prosecution evidence.

10. Muhammad Munir (P. W. 8) and Muhammad Shafi (P. W. 9) gave an eye-witness account of the occurrence. The house of Muhammad Munir P. W. was just in front of the poultry farm of the deceased in which the occurrence took place. The occurrence took place in the month of June at about midnight. The presence of Muhammad Munir on the roof of his house at that hour of night was, therefore, quite natural. The medico-legal report (Exh. P. J.) of the deceased shows that Muhammad Munir complainant accompanied Muhammad Hafeez injured to the hospital which lends further support to the view that he was present at the spot. 1 his witness admitted in cross-examination that his cousin appearned as a witness against the accused in the aforesaid theft case. He also admitted that the appellant had quarrelled with him several times before the present occurrence. He also admitted that he made a complaint against Yusuf and Yunis, brothers of the appellant, under section 307/34, P. P. C. He further admitted that he lodged a report against aforesaid Yusuf under section 13 of the Arms Ordinance. The complainant is, no doubt, a natural witness of the occurrence but, in view of the background of enmity between him and the appellant, hi a testimony would be accepted only if it is corroborated by any other independent evidence. We find that corroboration in the testimony of Muhammad Shafi (P. W. 9). The learned counsel for the appellant contended that Muhammad Shafi P. W. was a servant of the deceased, therefore, he was an interested witness and it would be hazardous to place reliance on his testimony. We did not find any force in this contention because this mere fact that this witness was the servant of the deceased would not make him interested unless he is shown to have some motive for falsely implicating the appellant. This witness admitted that he was a married person and had two children. He also admitted that his house was at a distance of fifty feet from the poultry farm. It was suggested to him that he used to stay for the night at his house and would return to his shop in the morning but he denied the suggestion as incorrect and added that the reason for sleeping in the poultry farm was that he used to supply water to the chickens for six or seven times during the night. He further stated that before the occurrence he had provided the water to the chickens thrice and only half an hour before the occurrence he had gone to bed. He thus gave a reasonable explanation for his presence at the poultry-farm when the occurrence had taken place. In cross-examination he further gave out that about twenty to twenty-five earthenwares had been kept at the poultry-farm and he used to fill them with water after an hour or two and those earthenwares could contain four to five seers of water. Relying on this statement, it was contended that the presence of this witness was not required at the poultry-farm because twenty to twenty-five earthenwares full of water would be more than sufficient for the chickens .for whole of night. The argument is misconceived. The earthenwares or utensils for use at poultry-farms are kept full to the brim to make the water accessible to the chicken and for that purpose one has to fill them again and again. The nature of duties of Muhammad Shafi P. W. was such that he was required to stay for the night at the poultry-farm. Muhammad Munir and Muhammad Shafi P. Ws. unanimously stated that there was electric light in the poultry-farm. The site plan (Exh. P. C.) also shows an electric bulb in the poultry-farm and the other in the street facing the Deorhi of the house of Muhammad Munir complainant. In cross-examination Muhammad Shafi stated that the accused was bare-headed. Both the eye-witnesses were, therefore, in a position to identify the assailant in the electric light.

11. Muhammad Munir complainant stated that on getting down from the kotha he asked his brother as to what had happened, to which he replied that "Mansha accused had given him an injury with a sword". Muhammad Shafi P. W. also made a similar statement. It was contended that the above statement was false because the injury was so severe that the deceased must have become unconscious immediately and could not have spoken. Dr. Hafiz Abdul Lateef, who conducted the post-mortem examination, stated that the injury was extremely severe and the brain was badly damaged due to the injury. He also stated that the chances were there that the deceased might have become unconscious immediately after receiving the blow. He was, however, of the opinion that the question whether a person would become unconscious, or riot on receipt of such an injury would depend on the health of the person injured. It is in his statement that the deceased was a well-built young man. Dr. A. R. Arain, who examined the deceased, when alive, stated that since there was no mention in the post-mortem report that the speech or vision center of the deceased was damaged, therefore, he was not in a position to say if the deceased could speak or not. He further stated that in the instant case the patient might have become unconscious immediately or after some time, and added that he had seen thousands of cases in which the patients having extensive injury had not become unconnection. The doctor further stated that last year be had noted two hundred cases of severe head-injuries in Daska where some patients had become unconscious and the other had not. In view of this evidence, we do not feel persuaded to believe that on receiving the injury the deceased had become unconscious immediately or had lost his power of speech.

12. Lastly, it was contended -that although the occurrence is alleged to have taken place in a thickly populated part of the village yet not a single independent witness was produced to support the prosecution version. Muhammad Munir complainant admitted in cross-examination that the houses of Saleh and Bashir are at the back of the poultry-farm, the house of Umar Hayat is towards the east of the house of Bashir and there are many houses in the lane towards the north of the Murghi‑khans. Bashir Masih, Draftsman (P. W. 6) stated that there was only one house towards the east of Murghi‑khana and he had shown it in the site plan. It appears that the houses mentioned by the complainant were at some distance from the poultry‑farm, otherwise the draftsman would have shown them in the site plan. The occurrence took place at midnight. The attack on the deceased was short‑lived. The appellant and his companions must have decamped before the arrival of 1be residents of the other houses. It is in the statement of Muhammad Shafi P, W. that many persons bad come to the spot after the arrival of Munir P. W. It is in evidence that the accused persons started running when Munir complainant was getting soon from the roof. The other persons, therefore, had no opportunity to see the occurrence.

13. After giving out careful consideration to all the facts and circumstances of the case, we are of the view that the prosecution had brought home the charge to the appellant beyond a reasonable doubt and he was rightly convicted. It was cold-blooded murder. There are no mitigating circumstances in favour of the appellant, therefore, we dismiss his appeal and confirm the death sentence. Appeal allowed.