1997 PLP 1373 (MLD)

4. Muhammad Iqbal, S.I. (P.W.10), P.S. Chub Kalan investigated the case. After recording the statement of the complainant and lodging of the F.I.R. (Exh.P.G.) under section 324, P.P.C., went to the place of occurrence. He took into possession blood‑stained earth from the spot and made it into a sealed parcel (Exh.P.H.). He also took into possession the brick bat (Exh.P.4), on the pointation of complainant and witnesses and made it into sealed parcel vide memo. (Exh.P.J.). He also prepared site plan of the place of occurrence without scale (Exh.P.K.) On the same day he received information from the Muharrir about the death of Muhammad Yaseen. On this information, he added section 302, P.P.C. in the F.I.R. He then went to the hospital and prepared injury statement (Exh.P.E.) and inquest report (Exh.P.F.) of the deceased. He handed over the dead body of Muhammad Yaseen to Muhammad Aslam, Constable No.931, for post‑mortem examination. On 30‑9‑1992, the aforementioned constable after getting post‑mortem examination, handed over to him the last worn clothes of the deceased i.e. Qameez (P.1), Shalwar (P.2) and Taveez (P.3) which he took into possession vide recovery memo Exh.P.A. He also recorded the statements of all the witnesses under section 161, Cr.P.C. and also got prepared site plan of the place of occurrence Exhs.PB, B/1 and B/2 by Niaz Muhammad Patwari.

5. The medical evidence was furnished by Dr. Mushtaq Ahmad, P.W.4 and Dr. Abdul Kareem Aasi, P.W.5. Medico‑legal Report Exh.P.C. had been proved by Dr. Mushtaq Ahmad, P.W.4, who examined Muhammad Yaseen deceased. In cross‑examination, Dr. Mushtaq Ahmad (P.W.4) disclosed that there was no external bleeding. He did not rule out the possibility that the injury No. l was result of fall on hard substance. About injury No. 2, he disagreed with the suggestion that this injury could be caused during the scuffle.

6. Dr. Abdul Kareem Aasi, P.W.5, had conducted the autopsy, on the dead body (Exh.PD) on 30‑9‑1992 and found almost the same injuries as disclosed in the medico‑legal report. In his opinion the cause of death was, severe haemorrhage and shock due to the injury No.l, which was sufficient to cause death in ordinary course of nature. The injuries were anti‑mortem and caused by blunt weapon. The time between injuries and death was within 20 hours.

7. The ocular account was furnished by Muhammad Ismail son of Ghulam Qadir, P.W.8 and Rab Nawaz complainant P.W.9.

8. At the conclusion of prosecution evidence, the appellant was examined without oath under section 342, Cr.P.C. He refuted not only the allegations and pleaded innocence, but also stated that the occurrence took place at his house and also changed the motive behind the occurrence. He stated as under:‑‑‑ "The witnesses are close relatives of Yaseen (deceased) and deposed against me due to enmity. On the day of occurrence Riaz and Rashid close relative of Yaseen (deceased), being armed with a revolver and dagger tried to forcibly take away Mst. Sharfan sister of the said Rashid, but due to the intervention of the husband of Mst. Sharfan and other neighbours, they failed in their attempt, who were apprehended at the spot and later on, I got them arrested by the local police. Yaseen (deceased) coming to know this fact through his mother that I have insulted his relatives, he got enraged, came to my house in an aggressive mood and grappled with me. During scuffle, Yaseen (deceased) fell on the leg of the cot and received an injury on the left side of his head. Thereafter we were separated by the persons working nearby. I had no motive to commit aggression against the deceased, nor I did. It was the deceased, who assaulted upon me but unluckily he received injury due to his own fault. I am innocent. I have been victimized and falsely involved in this case due to the influence of the complainant party." He, however, neither appeared in his defence on oath nor produced any defence witness.

9. Learned counsel for the appellant contended that prosecution produced 10 witnesses in all and out of them P.W.8 was Rab Nawaz complainant (father of the deceased) while P.W.9 Muhammad Ismail was cousin of the deceased and as such no independent witness was produced; that eye‑witnesses are residents of one square away from the place of occurrence, as such both of them are chance witnesses; that prosecution has failed to prove the motive against the appellant; that the appellant was empty‑handed and cause of fight was shrouded in mystery, both the witnesses saw them, when they were grappling with each other; that had the appellant intended to kill the deceased, he would have been armed with some deadly weapons.

10. The contentions are opposed by the learned State Counsel.

11. I have given my deep consideration to the arguments advanced by the learned counsel of the parties. Except some little contradiction between the P.W..8 and P.W.9, whole of the ocular account is fully corroborated with the medical evidence. The manner in which the eye‑witness gave evidence, inspires confidence. The appellant has admitted the occurrence but in a different manner. Mere relationship cannot brush aside the credibility of eye‑witness. There is no preplanning and premeditation. The appellant was empty‑handed. The eye?witnesses saw them, when both of them (appellant and deceased) were grappling with each other. What happened, just prior to the occurrence, is not known to any body, which is shrouded in mystery.

12. Keeping in view the facts of the case and the evidence, I have come to the conclusion that nothing has brought on record to create any doubt about the evidence of the prosecution. I feel the prosecution has established its case against the appellant beyond any reasonable doubt. The trial Court rightly convicted the appellant under section 316, P.P.C. and I am not inclined to disturb the finding of the trial Court. However, as the motive is not proved against the appellant and that what happened, just prior to the occurrence between the deceased and appellant, is shrouded in mystery. Furthermore, the case against the appellant was registered on 29‑9‑1992 and on 5‑10‑1992 the appellant was arrested. Since then he is in jail. He remained in jail for more than 3 years. In view of all the aspect of the case, I while maintain the conviction of the appellant, reduce the sentence to one already undergone by him, for which I think shall meet the ends of justice. The sentence of Diyat awarded by the learned trial Court shall stand intact.

13. Learned counsel for the appellant has requested for making instalments of the Diyat amount, spread over a period of three years, as envisaged under section 331, P.P.C. Learned counsel is asked to file an application in this respect before the learned trial Court, who shall proceed just in accordance with law.

14. With the above modification in sentence the appeal is disposed of. N.H.Q./B‑168/L????????????????????????????????????????????????????????????????????????????????? Sentence reduced.