1986 P L D 1095 (PLP)

"(1) A stab wound 2 cm x I cm x going deep on the front of right side of abdomen about cm from the midline and 2 cm below the right costal margin. It was obliquely placed. Cut marks were present over the Jarsi, white shirt and Dhoti and mufti‑coloured turban. (2) One incised wound almost horizontal 1 cm x 3/4 cm x muscle deep on the upper part of outer aspect of left upper arm. Cut mark was present over the Jarsi and shirt. (3) One superficial incised wound I cm x 1/8 cm x cuticle deep on the front of left hip joint area. Cut was present over the shirt and Chadar." On internal examination, the heart was found empty on both sides. Peritoneum and abdominal wall were cut under injury No.l and the peritoneum cavity was full of blood. The right lobe of liver was cut. The cut was 1 cm x cm x 1 cm deep. All organs were pale in colour. The‑ death was due to shock and haemorrhage as a result of injury to liver which had been caused by injury No.1. The injuries had been caused by sharp‑edged weapon. Injury No.1 was sufficient to cause death in ordinary course of nature. The time that elapsed between injuries and death was within half an hour while the post‑mortem was conducted after about 12 to 18 hours of death.

5. The accused Mukhtar Hussain was arrested on 28‑1‑1983. At that time, he was found wearing shirt P.6, Shalwar P.7, both hood‑stained. These were got removed and taken in possession vide memo. Exh.P.E. by S.I. Wazir Hussain (P.W.10) in presence of Abdur Rehman (P.W.7) and Faiz Bakhsh P.W. (not examined). On that very day the accused while in Police custody led to the recovery of blood‑stained knife P.8 from Sarkanda bushes which was taken in possession vide memo. Exh. P.F by S.I. Wazir Hussain (P.W.10) in presence of the same witnesses. The knife P.8, shirt P.6 and Shalwar P.7 were found stained with human blood vide report of Chemical Examiner P.K. and that of Serologist Exh. P.L. The accused was challaned after completion of investigation. 6. the prosecution, during the trial, examined ten witnesses in all in support of its case. P.W.5 Allah Bakhsh and P.W.6 Ghaus Muhammad were examined as eye‑witnesses. Ghulam Rasul, another eye‑witness named in the F.I.R was given up as unnecessary. The recoveries of incriminating articles from the accused were witnessed by Abd.ur Rehman (p.W.7). Dr. Saeed Ullah Khan (P.W.9) furnished medical evidence in this case which was investigated by S.I. Wazir Hussain (P.W.10). Allah Bakhsh (P.W.5) witnessed the recovery of blood‑stained earth from the place of occurrence vide memo. Exh.P.D. The evidence of rest of the 'witnesses was of formal nature. The accused Mumtaz Hussain when examined under section 342, Cr.P.C. denied the charge and pleaded innocence. He denied the recovery of knife P.8 and blood‑stained clothes from him. In answer to a. question as to why this case against. him, he made the following statement:‑ On the day of occurrence in between Maghrib and Isha I was returning to the house of Rab Nawaz from the well of my other maternal uncles. At some distance from the house of Rab Nawaz I heard the shrieks of my Mami Mst. Sardaran. When I came near I saw the deceased having caught hold of Mst. Sardaran and was kissing her with intent to commit sexual intercourse with her. I lost control of myself. The deceased also tried to attack me. I took out, a pen knife from my pocket and gave a single blow to the deceased and then I myself appeared before the Police and stated the whole version." He did not produce any evidence in defence. The learned trial Judge placed reliance on the evidence of motive, recoveries from and at the instance of the accused and the eye witnesses and convicted him as stated above.

7. I have gone through the record of this case with the assistance of learned counsel appearing on behalf of the appellant and the State.

8. It was contended on behalf of the appellant that the witnesses were related to the accused and as such were not reliable; that the witnesses were not residents of the place of occurrence and were not present at the spot when this occurrence took place; that the residents of the locality have not come forward to support the prosecution case; that the accused had no motive to murder Mukhtar Hussain and in fact it was Rab Nawaz husband of Mst. Sardaran who shpuld have killed Riaz deceased and finally that the accused acted under grave and sudden provocation and as such the offence under section 302, P.P.C. could not be said to have been proved against him. The learned counsel for the State controverted the contentions on behalf of the appellant.

9. Allah Bakhsh (P.W.5) was an uncle of Riaz Hussain deceased. Allah Bakhsh (P.W.5) was married to a sister of Ghaus Muhammad (P.W.6). A sister of Allah Bakhsh P.W. was the wife of Ghulam Rasul (given up P.W). The mother of Rab Nawaz (husband of Mst. Sardaran and maternal‑uncle of Mukhtar Hussain ‑'accused) was a paternal aunt (Phuphi) of Allah Bakhsh P.W. It is, therefore, clear that the witnesses were not only related to the deceased but also to Mukhtar Hussain accused. It was argued that Allah Bakhsh P.W. was a school teacher in a school about 11 miles from the place of‑occurrence and as such it was not possible for him to be present at the Belna at the time of occurrence. Allah Bakhsh P.W. stated in cross‑examination that the school hours were from 9‑00 a.m. to 4‑00 p.m. during the days of occurrence. However, it being Thursday, the school closed at 12-00 noon and as such he was present at the Belna when the present occurrence took place. Ghaus Muhammad P.W. was a Game Watcher at Kot Addu about 5 miles from the place of occurrence. It was stated by him that he was a resident of village Daragah ; that besides his duties as Game Watcher he also acted as a Prosecutor in the Court of R . M, that on the day of occurrence he attended Court at Kot Addu and was marked present there I am of the view that the Friday being off in day, there was nothing unusual for Ghaus Muhammad P.W. to come to his village on Thursday after close of the working hours at mid‑day. T am, therefore, not prepared to accept the arguments of the learned counsel for the appellant that these two witnesses were not present at the spot when this occurrence tooth place. Both these witnesses were residents of village Daragah. Their houses were near the Belna. The occurrence took place at a place in between their houses and the Belna. These two witnesses had no enmity with Mukhtar Hussain accused to falsely implicate him in the present case. It may here be stated that Mukhtar Hussain accused has admitted having caused injuries to Riaz Hussain deceased though he pleaded to have killed him under grave and sudden provocation. It is correct that the residents of nearby houses have not come forward to support the prosecution case, but as is well known that people generally do not come forward to appear as witnesses for one or the other party in such like cases. The motive in this case was alleged to be that the accused suspected that Riaz Hussain deceased had illicit relations with Mst. Sardaran wife of his maternal uncle Rab Nawaz, This motive is in a way admitted by the accused and I need not, therefore, dilate much on the subject. It was contended on behalf of the appellant that the occurrence took place in front of the house of Rab Nawaz aforesaid and not at the place stated by the eye‑witnesses. This argument is without any substance. The Investigating Officer during spot inspection collected blood‑stained earth from the place of occurrence. The said place was got indicated by the eye‑witnesses irt the site plan as well, No blood‑stained earth was noticed nor any marks of struggle were found in front of the house of Rab Nawaz. It cannot, therefore, be said that the occurrence took place at a place other than the one stated by the eye‑witnesses. 'The learned counsel for the appellant laid much stress on the statement of P.W.1 F.C. Wahid Bakhsh who stated that he had reached the place of occurrence with the Investigating Officer at 7‑30 p.m. on 27‑1‑1983; that when they reached the spot the accused was present there in custody and 20/25 persons. It was argued on behalf of the appellant that the accused was, not arrested on 28‑1‑1983 but was found present at the spot when the Investigating Officer reached there and as such the recoveries of blood‑stained clothes and knife P.8 at the doubtful. I have gone through the statement of this witness. He was a formal witness who had escorted the dead body from the spot to mortuary for post‑mortem examination. He was declared hostile by the Public Prosecutor and cross‑examined. In my opinion, he made concessional statement in cross‑examination with some ulterior motive and as such no reliance can be placed on his evidence. The recovery of knife P.8 and two blood‑stained clothes of the accused was supported by Abdur Rehman (P.W.7) who was in no way related or connected with the complainant party. He also had no enmity with the accused or his maternal uncle Rab Nawaz. The defence could not bring out anything in cross‑examination to justify conclusion that he wag not a reliable witness. It is correct that the knife was recovered from a Sarkanda on the pointing out of the accused and that the said place was accessible to others and is open place. In my view, the accused. had a special knowledge of the presence of ' knife in that Sarkanda and as such led to the recovery of same. The recoveries lend full corroboration to the ocular account of this case.

10. As discussed above, there, is no evidence or circumstance t hold that the accused killed Riaz deceased under grave and sudden provocation. The defence version can, therefore not be accepted. In this view of the matter, I find that the prosecution has successfully proved its case against the accused beyond reasonable doubt. The appeal of Mukhtar Hussain is accordingly dismissed and his convictions and sentence is maintained. S.G.D. Appeal dismissed.