195 P Cr (PLP)

(1) An incised wound 5 x 2 x bone cut through over left cheek at level of Angle of mouth. The ear was also cut into two pieces. (2) An incised wound 3 '' x '' x bone cut on left cheek just below eye. (3) An incised wound 2'' x 1'' x bone deep, front of neck, centre. (4) An incised would 4'' x 1'' g muscle deep on right side of neck near its root. The trachea was cut through at the level of injury No.

3. Both sides of heart were empty. External blood vessels of neck were cut off corresponding to injuries Nos. 3 and

4. Oesophagus was cut at the level of injury No.

3. Injuries Nos. 1, 2, 3 and 4 were all caused by sharp‑edged weapon. In juries Nos. 1, 2 and 3 were grievous, while injury No. 4 was simple." In the opinion of the doctor, death was due to shock and haemorrhage caused by injuries Nos. 1, 2, 3 and 4, which were sufficient collectively to cause death to the ordinary course of nature. All the injuries were antemor tem. The time between injuries and death was about within 15 to 30 minutes and that between death and post‑mortem was about 12 to 18 hours. Exh. P. K. is the carbon copy of the post‑mortem examination report while Exh. P. K./1 is the diagram showing the location of the injuries.

5. To support the allegations against the appellant, the prosecution has relied on the ocular testimony of Muhammad Din complainant, and the state ment of Muhammad Sarwar P. W. recorded in the committing Court which has been transferred to the Sessions' file under section 288 of the Code of Criminal Procedure. It also relied upon recovery of blood‑stained hatchet (Exh. P. 1) produced by the appellant which was confirmed by the Serologist to be stained with human blood. At the trial, the accused pleaded not guilty to the charge and denied the prosecution allegations against him. He admitted his relationship with the deceased but denied the existence of any land dispute with him. He also denied the production of blood‑stained hatchet before the police and stated that the P. Ws. have deposed against him on account of suspicion. No evidence was led in defence.

6. The learned Sessions Judge accepted the evidence of motive furnished by Muhammad Din complainant. He also relied on the account of occur rence given by him and the statement of Muhammad Sarwar P. W. recorded in the committing Court which has been transferred to the Sessions file under section 288, Cr. P. C. He also accepted the testimony of Khadim Hussain, A. S. I. regarding the production of blood‑stained hatchet by the appellant and on the basis of this evidence convicted him under section 302 of the Pakistan Penal Code.

7. The learned counsel for the appellant contended that the appellant had no motive to kill the deceased and to support this contention he relied on the statements of Muhammad Aslam (P. W. 5) who stated that the rela tions between the appellant and the deceased were cordial and that he never heard of any dispute between them This witness was cross‑examined by the Public Prosecutor with the permission of the trial Court and his statement made before the committing Magistrate has been transferred to the Sessions' file under section 2~8 of the Criminal Procedure Code. He is the paternal cousin of the deceased as also of the father of the appellant and was expected to make concession in favour of the appellant. The prosecution version of the motive is supported by Muhammad Din complainant (P. W. 7) who is the grandfather of the appellant. He has stated that his land was cultivated by the deceased and Nazar Hussain (father of Muhammad Sarwar P. W.) jointly and they used to give share of produce to him as also to Ghulam Hussain father of the appellant. It is also in his statement that the share of those who cultivated his land (the deceased and Nazar Hussain) was higher than those who did not cultivate it. He further stated that there was some bickering between Abdul Hafeez appellant and Khadim Hussain deceased over the share of fodder and his statement goes unchallenged. It was not put to him that the appellant had normal or cordial relations with the deceased. In cross‑examination his statement is: "As Hafiz accused had grudge against Khadim Hussain I suspected that the assailant was Hafiz." Muhammad Din P. W. had no motive to depose falsely on this point, there fore, there is no reason to disbelieve him thereon. The motive is also men tioned in the statement (Exh.P. A.) which was lodged promptly and, in our view, it stands established.

8. The learned counsel for the appellant further argued that the occur rence had taken place at night time and the eye‑witnesses, namely, Muhammad Din and Muhammad Sarwar P. Ws. came to know about it in the morning and it was on mere suspicion that the appellant was implicated. To support his argument he has drawn our attention to the statements of Muhammad Aslam (P. W. 5), Muhammad Rafiq (P. W. 6) and Alam Hussain F. C. (P. W. 3). Muhammad Aslam P. W. is a formal witness who identified the dad body at the time of post‑mortem examination, and Muhammad Rafiq is a witness of recovery of lantern (Exh. P. 2) and of other articles from the spot. Alam Hussain F. C. escorted the dead body to the mortuary. Muhammad Aslam stated in cross‑examination that when he reached the place of murder the sun had already risen and many person, including Muhammad Din and Muhammad Sarwar P. Ws., had assembled there. He asked Muhammad Din wad Muhammad Sarwar P. Ws. as to who had murdered Khadim Hussain but they replied that they did not know. He also deposed that the Thanedar had reached the village at about 12, noon. This witness was cross‑examined by the Public Prosecutor with the permis sion of the Court and his statement made in the committing Court was transferred to the Sessions` file. The statement of Muhammad Rafiq P. W. is also to the same effect. He, too, was cross‑examined by the Public Pro secutor and his statement in the committing Court was transferred to the Sessions' file under section 288, Cr. P. C. In cross‑examination Alam Hussain F. C. stated that accompanied by the A. S. I., he reached the place of murder at about 9 a.m. from Bagge Mahal, after covering a distance of about a mile. It has been argued that the murder was discovered in the morning, and after that information was sent to the police and it was due to this that the A. S. I. reached the spot at noon time. After a careful consi deration of the evidence on the record, we do not find any force in this argument. At the trial, Muhammad Din complainant (P. W. 7) has clearly stated in examination‑in‑chief that he woke up at 3 a.m. for offering Tahajjad prayers when he saw the appellant giving hatchet blows to the deceased. Similarly; Muhammad Sarwar (P. W. 8) stated at the trial in examination‑in chief that at about 3 a.m. he woke up on hearing the alarm and saw a person giving hatchet blows on the head of Khadinx Hussain. In his statement be fore the committing Magistrate which has been transferred to the Sessions' file under section 288, Cr. P. C. and is substantive evidence in the case, he stated that at 2‑30 a.m. he woke tap on hearing the alarm and saw the appellant giving hatchet blows to the deceased. Muhammad Din is the grandfather of the appellant and Muhammad Sarwar is the son of his paternal uncle and they have absolutely no motive to depose falsely against him. It was not suggested to them that they had come to know about the occurrence in the morning. The complainant has stated that after the occurrence he went to Bagge Mahal at a distance of two squares from the spot and made his statement to the A. S. I. On this point he is supported by Khadim Hussain, A. S. I. who had stated that on 7th October 1972 at 4 a.m. Muhammad Din complainant met him at Bagge Mabal and he recorded his statement. This evidence, coupled with the fact that the formal F. I. R. was recorded at 6‑38 a.m. at Police Station Lundianwala situate at a distance of eleven miles from the place of occurrence, exposes the hollowness of the argument that the murder was discovered late in the morning.

9. Coming to the actual occurrence, the learned counsel for the appellant has contended that there is no reliable evidence on the record to warrant the conviction of the appellant as the only two eyewitnesses, namely, Muhammad Din (P. W. 7) and Muhammad Sarwar (P. W. 8) have not supported the prosecution version of the occurrence at the trial. In examination‑in‑chief, Muhammad Din P. W. clearly stated that on the night of occurrence he woke up at about 3 a.m. for Tahajjad prayers and saw the appellant giving a hatchet blow to the deceased after removing his quilt. It is in his statement that a lantern was burning and Muhammad Sarwar P. W. had also seen the occurrence. In examination- in-chief he stated that the light of the lantern was dim and in cross‑examination he made further concessions saying that his eyesight very weak and he was suffering from night‑blindness. He further stated that during night he can recognise a person up to a distance of about seven yards and the light of the lantern did not reach up to the cot of the deceased. He also stated that it was for the first time on the night of occurrence that the lantern was kept lit and that on waking up he found a figure of a person near the cot of the deceased. Lastly, he stated that he did not see the accused killing Khadim Hussain and had named him on account of suspicion. Relying on these concessions, it has been argued that Muhammad Din P. W. was not in a position to identify the assailant of the deceased and the learned trial Judge was not justified in accepting that part of his testimony which implicates the appellant. Muhammad Din P. W. is the grandfather of the deceased and was expected to make concessions to favour the appellant who is none else but his grandson. It was rightly observed by the learned Sessions Judge that Muhammad Din P. W. made concessions in favour of the appellant against facts and that his statement, that he saw Abdul Hafeez accused killing the deceased, is true because this witness had absolutely no motive to falsely implicate his own grandson in a heinous. crime like murder. It is interesting to note that this‑witness who, according to his own statement, in cross‑examination has weak eyesight and is suffering from night‑blindness has given out that the figure (assailant) was wearing black pant, white shirt and turban on the head. If he was in a position to identify even the colour of the clothes of the assailant it is not possible to believe that he was not in a position to identify the person who was wearing those clothes. We, there fore do not attach any importance to these concessions made by the com plainant in cross‑examination. The statement of Muhammad, Sarwar (P. W. 8) before the committing Court which has been transferred to the Sessions' file under section 288, Cr. P. C. and is substantive evidence in the case, lends substantial support to the testimony of the complainant. In this statement he stated that on the night of occurrence at 2‑30 a.m. he woke up on hearing the alarm and saw the appellant giving two or three hatchet blows to the deceased. He tried to apprehend the appellant but he fled away. He further stated that he and his grandfather (Muhammad Din complainant) had identified the appellant. In cross‑examination be gave out that he was sleep ing at a distance of three or four yards from the deceased and that the appellant had taken away the hatchet with him. At the trial, he resiled from this statement and stated that he woke up at about 3 a.m. and saw a person giving hatchet blows on the head of the deceased who lay on the cot at that time and that he could not identify the assailant due to dark night. The learned counsel for the appellant contended that there is no ground for pre ferring the evidence given before the committing Magistrate to that given before the Sessions Judge and the statement of this witness before the com mitting Magistrate should not have been relied upon. The reason for resiling from the statement made before the committing Magistrate is much too obvious Muhammad Sarwar P. W. is the son of the real paternal uncle of the appellant and is expected to do what he has done, to save the appellant from the legal punishment. The learned Sessions Judge, therefore, rightly decided to act upon the deposition made before the committing Magistrate which had been duly transferred to the Session's file under section 288 of the Code of Criminal Procedure.

10. The ocular testimony of the complainant and Muhammad Sarwar (P. W. 8) finds corroboration from the recovery of hatchet which was found by the Serologist to be stained with human blood vide his report (Exh. P. N.) This recovery is supported by Khadim Hussain A. S. 1. (P. W. 9). The two recovery witnesses of the hatchet, namely, Lai Din and Shah Muhammad, were given up by the prosecution as having been won over by the appellant. The learned counsel for the appellant contended that the prosecution version, that the appellant appeared before the Investigating Officer alongwith the blood‑stained hatchet, is highly improbable and unnatural. This contention was also raised before the learned Sessions Judge who repelled it for cogent reasons. We agree with his finding that in view of the relationship between the appellant and the deceased it can be expected that the father of the appellant could bring his son to the police with the hatchet, the weapon of offence.

11. The ocular testimony supported by the recovery of blood‑stained hatchet as well as the evidence of motive fully establishes the charge against E the appellant. We, therefore, dismiss the appeal. There is no extenuating circumstance on the file to withhold the normal penalty of death provided for the offence of murder. We, therefore, confirm the death sentence. Appeal dismissed.