1991 P Cr (PLP)

(1) A stab wound 2 c.m. x 3/4 c.m. x chest cavity deep on back right chest in between 7th and 8th ribs. (2) A stab wound 2 c.m. x 3/4 c.m. x abdominal cavity deep on right lumber region cutting the right kidney. (3) An incised wound 2 c.m. x 3/4 c.m. x bone deep on middle of chest and abdomen at spine. (4) An incised wound 2 c.m. x 3/4 c.m. x chest cavity deep on left back chest below scapulae. (5) A stab wound 2 c.m. x 3/4 c.m. x chest cavity deep at left scapulae (6) A fire-arm wound 3/4 c.m. x 3/4 c.m. x on right deltoid. The margins blackened and burned into bone deep on right upper arm. (7) A fire-arm wound 3/4 c.m. x 1/4 c.m. x skin deep on right lateral neck, margins were inverted. In his opinion death had occurred due to shock and haemorrhage as a result of all the injuries. Injuries Nos.1 to 5 were caused by sharp-edged weapon and the rest were caused by lire-arm. Injury No.2 was sufficient to cause death in ordinary course of nature. All these injuries were ante-mortem. Time between injuries and death was within a few minutes.

6. The prosecution in support of its case produced 14 witnesses in all. P.W.1 Shahbaz Ahmad, Constable had got post-mortem examination conducted He also delivered the sealed parcel in the office of Chemical Examiner, Lahore. Bashir Ahmad Constable P.W.3 had delivered 3 sealed parcels on 25-1-1986 in the office of Chemical Examiner and in the office of Forensic Science Laboratory. Muhammad Aslam M.H.C. P.W.4 had recorded the formal F.I.R. Exh.P.B./1. Muhammad Siddiq P.W.6 had identified the dead body and signed the recovery memo. of last-worn clothes of the deceased. Aurangzeb P.W.7 Draftsman had prepared the site plan Exh. P.C. and P.C./1 on the direction of the police and pointation of the witnesses. Muhammad Rafiq P.W.8 had witnessed recoveries at the spot. Muhammad Afzal P.W.9 had witnessed the recovery of revolver P.6 at the instance of Munir appellant. He also witnessed the recovery at the instance of Rafiq and signed both the memos. The doctor who had conducted the post- mortem examination appeared as P.W.10. The ocular account was furnished by Abdul Hameed and Muhammad Boota P.W.12 and P.W.13 respectively. The case was investigated initially by Tahir Nawaz S.I. P.W.14 and challan was submitted by Muhammad Anwar Inspector P.W.11. The rest of the witnesses were of formal nature.

7. At the conclusion of the prosecution evidence accused were examined without oath. Muhammad Munir denied the prosecution allegation and pleaded innocence. In answer to a question he stated that the deceased had a fight with his brother Muhammad Rafiq but he was falsely involved in the occurrence. According to him he was not even present at the spot. Muhammad Rafiq appellant denied the prosecution allegation and pleaded innocence. In answer to a question he stated that on the fateful day his sister was coming back from the lands with bundle of Aag (upper portion of sugar-cane). When she passed near the house of deceased Ghulam Dastgir teased her. She threw the bundle and abused him. Muhammad Rafiq was following her. He caught hold of the deceased whereupon he took out a carbine. Muhammad Rafiq gave a Datar blow. Resultantly the carbine fell down from the hand of the deceased. One Abdul Ghafar, relative of the deceased picked up the carbine while the appellant and the deceased were grappling. The said Abdul Ghafar fired. Accidentally-two pellets hit the deceased. He further stated that none of the eye-witnesses were present at the spot.

8. It is contended by learned counsel for the appellants that the case against them was not proved at all. Submits that the motive could not be proved by the prosecution as none of the witnesses deposed that they had seen the deceased with the sister of the appellants. Submits that ocular account was furnished by interested and inimical witnesses, therefore, no reliance could be placed on the testimony. Submits that even otherwise Boota an eye-witness was a chance witness because he did not live in the vacinity. Argues that the recovery at the instance of the appellants could not furnish any corroboration to the ocular account because tale same was effected after a number of days of the occurrence.

9. These contentions were opposed by learned counsel for the State as well as for the complainant. According to them, the occurrence had taken place on a thorougfare in front of the house of Abdul Hamid P.W. Under such circumstances he became natural witness. It was argued that there was no background of enmity or hostility between the parties, therefore, chances of false involvement could safely be ruled out. Submits that the deceased had received fire-arm injuries as well as incised wound, which could not be the doing of a single person. Therefore, the defence put up by Muhammad Rafiq appellant was an afterthought and may be ignored.

10. I have heard the learned counsel for the parties at length and gone through the evidence with their assistance. The prosecution in order to establish its case had mainly relied upon ocular account furnished by Abdul Hamid and Muhammad Boota P.W.12 and P.W.13 respectively. The prosecution had sought corroboration from the recovery of revolver P.6 and `Khanjer' P.8. Abdul Hamid P.W. stated that he was sitting outside his house and enjoying `Huqqa' when both the appellants surprised his son Ghulam Dastgir when he was coming from the fields carrying `aags' (upper portion of sugar cane for fodder purposes). On `Lalkara' of Rafiq appellant Munir fired four times at the deceased who fell down in an injured condition: Rafiq appellant gave him `Khanjar' blows. He had further deposed about the motive to the effect that both the appellants suspected deceased of illicit relations with their sister. The witness was cross-examined at length. Wherein he stated that in the village there were two Abadis, one called old while the other was known as new Abadi. There was road in between two Abadis. He had further stated that Munir appellant had fired four times at the deceased but all the shots did not hit his son. He further stated that he never suspected his son of immoral character. He refuted the defence suggestion that Rafiq appellant had caused the death under grave provocation. A careful perusal of the statement of the witness clearly indicates that he had witnessed the occurrence and is truthful. He is a natural witness. The occurrence had taken place in front of his house. Under such circumstances his presence in front of his house in lane is neither unnatural nor any exception to it, can be taken. Muhammad Boota corroborated the statement of Abdul Hamid P.W. by giving a detailed account of the occurrence. The defence could not brig out anything, which could create doubt in his testimony. With regard to his presence at the spot he had given plausible explanation by deposing that on the fateful day and time he with Tufail P.W. was going towards the Haveli of Tufail and they had to pass in front of the house of the first informant. After having examined the statement of this witness from every angle I have not been able to find anything, which could create some doubt qua his evidence. For what has been discussed above I hold the statements of both eye-witnesses inspire confidence and can safely be relied upon.

11. As far as motive in the instant case which has been furnished by Abdul Hamid the argument of learned counsel for the defence that this witness had stated in cross-examination that he never suspected his son of immoral character, therefore, motive is not proved, is without force. It is pointed out that he had deposed to the effect that the appellant suspected his son of illicit relations. He had not asserted anywhere that it was correct as well. The suspicion being attributed to the appellants could have been false but that would not mean that the witness had set up an incorrect motive.

12. The contention of the learned counsel for the appellants that Muhammad Boota was a chance witness as he lived in different `Abadi' is also without force. It has come in evidence that he lived in old `Abadi', whereas the occurrence took place in `New Abadi' and there was only a road in between the two `Ahadis'. This would clearly indicate that he belonged to the same village but only happened to live in the place, which was called Old Abadi. It is also in evidence that the appellants also did not live in the `Abadi' where the occurrence took place, yet Muhammad Rafiq appellant in his statement admitted his presence at the spot while going towards his house.

13. The defence taken up by Muhammad Rafiq is not plausible at all. I have examined it from every angle and found it false. According to him the deceased took out a carbine to fire at him but he gave him blow with `Datar'. I have noticed that all the incised injuries including stab wounds were at the back of the deceased. Furthermore, Muhammad Rafiq appellant's assertion that he was grappling with the deceased when one Abdul Ghaffar picked up carbine and fired but incidentally it hit the deceased, is also without force. I have noticed that injury No.2 on the deceased was a stab wound, which had cut right kidney. Doctor's opinion was that he had died within few minutes of receiving the injury. In such circumstances Ghulam Dastgir could never be in a position to grapple with the appellant. Therefore, I rule out of consideration the defence plea of Muhammad Rafiq appellant.

14. As far quantum of sentence is concerned I have noticed that the learned trial Court has awarded lesser sentence because there was no background of enmity between the parties. Both the appellants were real brothers and question of family honour was involved. I have considered the reasons given by the trial Court and found that no exception could be taken. The revision for enhancement fails which is dismissed.

15. What has been discussed above I hold that the prosecution has been able to prove its case beyond any doubt. Appeal fails which is dismissed. N.H.Q./M-2837/L Appeal dismissed.