1987 PLP 1176 (MLD)

Dr. Muhammad Younas Chughtai P.W.5 on 25-6-1983, at 10- 55 p.m. medically examined Bashir Ahmad P.W. and found 'a contused swelling 8" x 4" on the posterior aspect of left elbow and upper part of forearm with restricted movements'. The injury had been caused by blunt weapon and was of 3 to 4 hours duration, It was kept under observation. This injury was declared grievous in nature.

3. The Investigating Officer S.I. Saeed Ahmad Gondal P.W.10 undertook investigation after registration of the case. No blood was found at the place of occurrence. The accused were arrested on 1-7-1983. On 9-7-1983, Muhammad Din accused led to the recovery of Sota 1, vide memo. Exh.P.D., Sain accused led to the recovery of Dang P.4 vid memo. Exh.P.E. and Muhammad Raf iq accused led to the recovery of Sota P.6 vide memo. Exh.P.F. These recoveries memos. were prepared by S.I. Saeed Ahmad Gondal P.W.10 and attested by Muhammad Iqbal P.W.4 and Muhammad Hussain P.W., not examined. These weapons were not stained with blood. The accused were challaned after completion of investigation.

4. The eye-witness account in this case was furnished by Haji Sardar Khan P.W.7, Bashir Ahmad P.W.8 and Shah Din P.W.9. Another eye witness Fateh Ali, named in the F.I.R., was given up as unnecessary. The recovery of crime weapons was witnessed by Muhamrrad Iqbal P.W.4. The medical evidence was furnished by Dr.Arshad Ali P.W.1 and Dr. Muhammad Younas Chughtai P.W.5 as given in detail above. The case was investigated by S.I. Saeed Ahmad Gondal P.W.10. The evidence of rest of the witnesses was of formal nature. Sain and Mohammad Rafiq accused in their statement; after close of prosecution evidence denied the charge and pleaded innocence. They, however, stated that in fact Karamat Ali deceased made indecent overtures towards Sain accused to commit sodomy on account of which they acted in their right of private defence. The other accused denied their presence at the spot at the time of occurrence. No evidence was led in defence. The learned Additional Sessions Judge, Sialkot came to the conclusion that the prosecution has failed to prove motive against the accused. He did not accept the defence version. He placed reliance on the evidence of the eye-witnesses and recoveries of crime weapons from the accused and vide judgment, dated 30-5- 1985, sentenced Sain 15 and Muhammad Din 65 to death plus fine of Rs.10,000 or in default two years' R.I. each under section 302/34, P.P.C. for murder of Karamat Ali. Mohammad Rafiq accused 45 was sentenced to six years' R.I. and fine of Rs.2,000 or in default one year's R.I. under section 325, P.P.C. for causing grievous hurt to Bashir Ahmad P.W. Mohammad Yaqoob 17, Mohammad Hussain 75 and Mohammad Yousaf 22, co-accused of the appellants, were acquitted by the same judgment. Hence this appeal. Sain and Mohammad Din accused having been sentenced to death, the proceedings are also before us for confirmation of sentence. This judgment will decide both the matters together.

5. We have carefully examined the record and heard the learned counsel appearing for the parties at some length. It is contended on behalf of the appellants that the prosecution has failed to prove motive against the accused; secondly, that the recoveries of crime weapons could not furnish corroborating evidence because of absence of any blood; thirdly, that the eye-witnesses were interested and as such, no reliance should be placed on their testimony; and finally, that in the facts and circumstances of this case, sentence of death to the appellants was uncalled for. The learned counsel for the State and complainant controverted the above contentions.

6. The motive in this case was that Sain and Yaqoob alias Kuk used to play indecent songs on their tape-recorder in front of the houses of the complainant party who objected about a month earlier to the present occurrence. The accused did not stop playing songs. On the day of occurrence, at about Dopeharwela, the parties quarrelled for that reason. In our view, prosecution has failed to prove motive against the accused. The investigating Officer did not examine any womenfolk to verify the, correctness of the statement of complainant on motive. The statement of any of the neighbours of the complainant party in support of the motive was also not recorded. The Investigating Officer did not record any evidence to show that the accused in fact owned/possessed any tape recorder. Even otherwise it seems improbable that the accused, in the month of Ramazan would play indecent songs in the village. If they had done so, other residents of the village also must have felt offended and protested with the accused. The Investigating Officer did not record the statement of any other villager in support of the motive alleged by the complainant. The learned trial Judge, therefore, rightly came to the conclusion that the prosecution has failed to prove motive against the accused.

7. The recoveries of crime weapons P.4 to P.6 were witnessed by Mohammad Iqbal P.W. He was cousin of Karamat Ali deceased. He, however, had no motive to falsely involve the accused in this case. It is correct that these weapons were not stained with pay blood but this fact alone would not mean that the recoveries were false or concocted by the Investigating Officer. The recoveries of these weapons fully corroborate the eye-witnesses of this case. It was argued by the learned counsel that the Sotas and Dangs were commonly found in houses of villagers and as such, it could not be said that these weapons were used by the accused at the time of occurrence. This argument in fact lends support to the prosecution evidence. It is common knowledge that such like weapons are kept by villagers in their houses for more than one reason. The Investigating Officer did not find any blood at the spot during inspection of the place of occurrence. The Medical Officer did not note blood oozing out of the injuries on the person of Karamat deceased or Bashir Ahmad P.W. It was, therefore, natural that the crime weapons were not stained with any blood. The absence of blood does not mean that these weapons were not used by the accused at the time of occurrence. In our view, the recoveries of crime weapons P.4 to P.6 fully corroborates the ocular account of this case.

8. Mohammad Din, Mohammad Rafiq and Mohammad Hussain accused are real brothers inter se. Yousaf and Yaqoob accused are brothers and sons of Mohammad Din accused. Sain accused is nephew of Mohammad Din accused. It is, therefore, apparent that all the accused were closely inter related. Karamat Ali deceased and Bashir Ahmad P.W. were real brothers and nephews of Haji Sardar Khan P.W.7. Shah Din P.W.9 was a cousin of Karamat Ali. Similarly, Fateh Din given up P.W. was also a cousin of the decease

4. All the witnesses are, therefore, closely related to each other but had no previous enmity with any of the accused of this case. The eye-witnesses could not be disbelieved simply on account of their relationship with the deceased. Bashir Ahmad P.W. was injured during the occurrence. His presence at the time of occurrence can, therefore, not be doubted. Sain and Mohammad Rafiq accused admitted the occurrence though they gave their own version of the case. The time of occurrence is also not disputed. The three eye-witnesses made consistant statements to support the prosecution case. After perusing their statements, we do not find anything to exclude their evidence from consideration against the accused. The defence version set up by Sain and Mohammad Rafiq accused is not supported by any evidence or circumstance appearing on record of this case. It is correct that they put forth their version in cross-examination of the eye-witnesses but it just remains a suggestion which was not borne out from any evidence. The learned counsel for the appellants in fact did not have much to say against the three eye-witnesses, one of whom was admittedly injured at the spot at the time of occurrence. The three eye witnesses, as stated above, had no enmity to falsely involve the accused in the instant case. The occurrence took place in front of the house of the complainant party. They were, therefore, natural witnesses. However, the immediate cause of occurrence is not proved on record. We have already held that the prosecution has failed to prove motive against the accused. Sain and Mohammad Din accused gave one injury each on the head of Karamat Ali deceased. It is, therefore, clear that they both intended to murder Karamat Ali. Mohammad Rafiq gave one injury and fractured the arm of Bashir Ahmad P.W.

9. In view of the above discussion, we maintain the conviction of Sain and Mohammad Din accused under section 302/34, P.P.C. As they both caused one injury each to the deceased and because the prosecution has failed to prove motive against them, we reduce their sentence from death to imprisonment for life. The sentence of fine anal imprisonment in default thereof is maintained. The sentence of death of both the appellants is _NOT CONFIRMED, The conviction of Mohammad Rafiq appellant under section 325, P.P.C. is maintained. However, his sentence of imprisonment is reduced to two years' R.I. The sentence of fine and imprisonment in default is maintained. He is on bail. He will surrender to undergo unexpired imprisonment according to law. The appellants will be given benefit of section 382-B, Cr.P.C.

8. Subject to above modification, this appeal fails and is accordingly dismissed. S.A.D./S-50/L Order accordingly.