P L D 1966 Azad J & K 42 (PLP)

RAHIM DAD, J.‑Habib accused appellant was tried by the learned Sessions Judge, Muzaffarabad, for an offence under section 302, Penal Code. The charge against him was that on 19‑10‑1964 at about 4 p.m. he murdered his brother Suttar Din. The accused pleaded not guilty. The learned Sessions Judge who tried the accused held that the charge against the accused appellant was fully made out. He found him guilty under section 302; Penal Code and sentenced him to life imprisonment and a fine of Rs. 200 in default of payment of which he was to undergo a further period of 6 months' rigorous imprisonment. The accused has preferred this appeal against his conviction and sentence. The prosecution case .can very briefly be stated as follows:‑

The accused and the deceased were real brothers. Mst. Zaiban was first married to the accused. On being divorced by the accused she re‑married Suttar Din deceased. This divorce took place long ago probably during the Dogra regime. A considerable time has also elapsed since the remarriage. At first the two brothers lived jointly with their father but some 4‑5 years ago, they separated from their father as well as from each other and were living in their respective houses on the land given to them by their father. The incident of divorce of Mst. Zaiban by the accused and her re‑marriage with Suttar Din deceased, it is alleged, generated a secret ill‑will in the mind of the accused though outwardly their relations remained cordial to all appear ance. There was also some unpleasantness between the brothers over their respective shares of the land. On 19‑10‑1964 at about Assar time the accused and deceased were tending their flock of sheep at a distance of 114 yards from the house of Mir Muhammad P. W.

2. At that time Mir 'Mohd. P. W. 2 and Misri alias Ranga P. W. 3 were sitting together on the roof of the house of Mir Muhammad for rest and gossip after working for the whole day in the field‑collecting the maize crop. Their attention was attracted by the cries raised by Suttar Din deceased. They saw Habib accused inflicting a blow with a hatchet on the left side of the neck of the deceased. The deceased fell down and died instantaneously. Misri and Mir Muhammad had seen the quarrel from a distance of 114 yards. They rushed towards the scene of occurrence and found Suttar Din lying dead. Blood was still flowing from the deep cut on the neck. The accused was standing nearby with axe Exh. P‑1 in his hand. A thin branch meant for driving the flock was found in the hand of the deceased. They raised alarm on which Mehr Din, Dullah, Ali Asghar Shah and Mst. Zaiban, wife of the deceased arrived there. Ali Asghar Shah and Dullah were deputed by Mehr Din to inform Misri P. W. 4, the Lumberdar, who arrived at the site of occurrence late at night. On his arrival the Lumberdar directed a search for the accused who had meanwhile slipped away. The accused was apprehended shortly. He made an extra judicial confession before the Lumberdar stating that he had committed the murder of Suttar Din. Consequently the accused was kept under watch by the Lumberdar till the arrival of the police next day. Mehr Din started for the police station to lodge F. I. R. On his way he invited Habib P. W. 10: to accompany him. When they reached Hattian Habib was asked to inform the village Chowkidar, Ali Muhammad P. W. 1 who lodged F. I. R. Exh. PA at the Police Station Garhi Dopatta at 9 a.m. on 20‑10‑64 on which Jahangir Khan Sub‑Inspector investigated the case. The question which we have to consider in this case is whether the prosecution had made out a clear case against the appellant. The learned Sessions Judge has written a very careful and elaborate judgment in which the entire evidence has been discussed with care. We have heard the learned counsel on both sides and after considering the facts of the case we agree with the view taken by the learned Sessions Judge as regards the guilt of the accused. There are two eye‑witnesses Mir Muhammad P. W. 2 and Misri alias Ranga P. W.

3. They happened to be sitting on the roof of the house of Mir Muhammad which is at a distance of 114 yards from the site of the occurrence, for rest and gossip. They state that they saw the accused Habib striking one blow on the left side of the neck of the deceased with axe Exh. P. 1 and the deceased fell down on the ground. Their statement is fully corroborated by the circumstantial evidence. The axe Exh. P. 1, the weapon of the offence, which the accused had hidden under a bush after the incident, while he slipped away from the site of occurrence, was recovered at his instance on the arrival of the Police. It was blood‑stained. There were also blood‑stains on the shalwar of the accused which was taken into possession by the police from his person. The blood on the shalwar is proved to be human blood by the report of the Chemical Examiner and Serologist vide Exh. P. M. and P. N. The axe Exh. P‑1 was identified by the eye‑witnesses as the one in the hand of the accused immediately after the occurrence and further by Ali Asghar Shah as the one belonging to the accused which he had often seen in his hand. It would be seen from the prosecution evidence that both these witnesses raised alarm on their arrival at the site of the occurrence which attracted Mehr Din, father of the deceased and the accused and others. The accused disowns shalwar and kulhari but his denial cannot impair the clear effect created by the prosecution witnesses about the recoveries of these articles from his possession. Mir Muhammad P. W. 2 is a cousin of the deceased as well as the accused. Mst. Zaiban, wife of Suttar Din deceased is his sister. As such there is double relation of this witness with the deceased as compared with the accused who is only a cousin. Misri alias Ranga P. W. 3 has no such nearness to the accused. He is equally related to the accused and the deceased and as such this witness is quite disinterested and independent. Of course, as borne out from the statement of Misri alias Ranga, the relations of Ali Muhammad P. W, 10, brother of Mir Muhammad were strained with the accused because in the Council‑of‑Elders which met some time before the murder to settle dispute between Ali Muhammad P. W and his wife, the accused, out of cousinly affection, supported the wife in securing divorce from the husband. As such the testimony of Ali Muhammad and Mir Muhammad would require severe scrutiny but strained relations between them are no ground for rejecting their evidence. That does not necessarily show that the statement of these witnesses is false although it explains why a near relative as cousin has given evidence at all 'their statements are fully corroborated by circumstantial evidence as well as by eye‑witnesses which leaves no doubt in our mind about the guilt of the accused. Had their relations not been strained they would have rather tried their utmost to save the life of their cousin. It has been argued by the learned counsel for the appellant that the F. I. R. is doubtful. The occurrence, according to him, has not taken place in the manner alleged by the prosecution. His contention is that the F. I. R. which was lodged by the father of the deceased was not recorded by the police and the present F. I. R. was drawn up by the Investigating Officer after visiting the scene of occurrence and deciding the details of the story. He in support of his contention referred to the statement of Mehr Din and few casual phrases in the deposition made by Ali Muhammad P. W.

1. In our opinion the Sessions Judge was right in not placing reliance on the statement of Mehr Din who as a defence witness deposed that the death of his son Suttar Din was a result of an accidental fall and he lodged a written report to that effect in the Police which was not acted upon. It is to be remembered that the witness is the own father of the accused as well and it is only natural that he will do his level best to help his living son. The defence story that the injury was caused by an accidental fall from a precipice is extremely improbable in view of the fact that at the time of post‑mortem no such injury was noticed as would have resulted in case the deceased had fallen from precipice 10 to 12 yards high. The learned Advocate for the appellant has tried in vain to make capital out of an ambiguous remark in the statement of Ali Muhammad P. W. The relevant portion of the deposition reads as follows:‑ "I reached at Riali alongwith police at the evening. Habib accused was under watch of Misri Lumberdar there on the site of occurrence in the field of Mir Muhammad. After hearing the story from Alam Din I went at the same time to the police station." He tried to interpret it that the F. I. R. was lodged after hearing the story from Alam Din at the site of the occurrence. On careful reading of these sentences we cannot agree with 'the version of the learned Advocate for the appellant for the reason that the first sentence which relates about the presence of Habib accused in the field of Mir Muhammad under the watch of Misri is quite separate one, from the latter sentence relating to the hearing of the story from Alam Din. These two sentences are not in answer to one question but appear to be an answer to two different questions. The first answer was to a question relating to the site of the occurrence and the latter sentence appears to be an answer to a question disjunctively put to the witness without any relevancy to the previous one. The matter becomes quite clear when the statement of Ali Muhammad is read alongwith the statement of Alam Din P. W. 10, who states that when he went to the house of Chowkidar he found him standing in the field. Even otherwise a casual and somewhat ambiguous phrase in a deposition of a witness cannot destroy the very clear effect of the whole deposition. It is quite clear from the deposition of Ali Muhammad, when read as a whole, that the F.I. R. was lodged before the police started for the investigation. The learned Sessions Judge has elaborately discussed the point and rejected the plea for cogent reasons that the F. I. R. Exh. P. A. was lodged after investigation had started. After careful consideration of the facts of the case we agree with him that there is no truth in the allegations about the fabrication of a false report by S. H. O. There is no satisfactory evidence in support of the plea of alibi. The learned Sessions Judge held that it was unworthy of reliance on account of discrepancies in the statements of the defence witnesses. It was not even referred at the time of arguments by the learned counsel for the accused. Hence we hold that it was rightly rejected by the Court below. It was further argued by the learned counsel for the appellant that, since the prosecution failed to prove the attributed motive, the prosecution story that the, accused, who is brother of the deceased, killed him becomes doubtful according to him. Motive is a fact which is only within the knowledge of a person doing the act and "which no human being but the party himself devine". It may be that the incident of divorce might have prompted an ill‑will in the mind of the accused which in spite of outwardly cordial relations between the brothers might have been. unconsciously poisoning his mind or some other incident un known to any other, person might have motivated him to commit the crime. However, in the present case the prosecution has not been able to adduce satisfactory evidence to prove the motive but to begin with the evidence of a motive is to begin at the wrong end. In a murder case failure to prove attributed motive is immaterial. It is to be seen whether there is cogent evidence establishing that the crime in fact has been committed by the accused and his crime has been brought home to him on evidence in the record. As discussed above there is cogent evidence to prove the guilt of the accused. Failure to prove the motive does not signify its non‑existence. It may constitute a weakness but is not fatal in law. The failure on the part of the prosecution to prove motive was properly taken into consideration by the learned Sessions Judge while awarding the sentence. Lastly, it was argued by the learned counsel for the defence that in alternative in view of the fact that the origin of the fight is shrouded in obscurity, it being a sudden fight without pre‑meditation and only one blow was delivered; the accused, according to him, is not guilty of murder but culpable homicide not amounting to murder. In the present case the accused inflicted such a severe blow with his hatchet on the deceased's neck that it cut the neck deep to the vertebra. According to Dr. Izhar‑ul‑Haque who performed the post‑mortem examination, the gapping wound was about 2 " x 2' x 2" on the left side of the neck. "The muscles of the servical part of the left side neck were cut. The great vessels were also cut. The transverse process and the body of the 4/5 vertebra was cut partially underneath, the wound." When a person causes a severe injury to another with sharp‑edged weapon on vital part of the body as neck and that injury results in instantaneous death it will be supposed in the absence of special circumstances to the contrary that the person who caused the injury intended to kill his victim. In our opinion, this is a case of clear murder and the accused has been rightly convicted under section 302, Penal Code. As the circumstances preceding the murder were shrouded in obscurity and the prosecution could not prove attributed motive the learned Sessions Judge was perfectly right not to award the extreme penalty of death. The sentence awarded is appropriate and we do not see any reason to interfere with it. Hence the 'appeal is dismissed. S. A. H./S. Q. Appeal dismissed.