P L D 1979 Supreme Court 943 (PLP)

Mst. Aisha's evidence has been disbelieved by the High Court because of the admitted blood feud between the parties owing to the fact that 13/14 years prior to the present occurrence respondent Anwar had abducted Mst. Nazir Begum, sister‑in‑law of deceased Fazal Hussain, as a result of which the parties had fought with each other during the course of which the brother of respondent Anwar named Muhammad Ashraf was killed. The High Court was, therefore, of the view that "If the appellants or Muhammad Anwar appellant in particular had not accepted the said compromise, they might have not waited for so many years in order to take revenge. Besides that, it is not understandable as to how the two appellants could be so suddenly instigated or provocated by the tenants of the mother of Muhammad Anwar appellant that they should come armed with hatchets from the side of the village to the place where the deceased was lying on a cot and after raising a lalkara to have murdered him in order to avenge the death of Shera. In our considered opinion, therefore, the motive as set up by the prosecution, also does no appear to connect the appellants with the commission of crime as it is not a convincing motive". Respectfully, this conclusion seems to be convincing If the respondents had waited 13/14 years to avenge the death of Muhammad ~ Ashraf (the brother of respondent Anwar), it is inconceivable that they would take the life of late Fazat Hussain in broad daylight and that too in the presence of the witnesses. The medical evidence on record would seem to furnish a complete and satisfactory answer to the false claim of P. Ws. Muhammad Hussain and Mst. Aisha that they had seen the occurrence. Doctor Abdul Majid, who had performed autopsy on the dead body of Fazal Hussain had found on his person the following injuries:‑ (1) An incised wound on the right side of head, parietal region 3' above the ear 3" X 1" x bone cut through and through. (2) An incised wound on the head back middle (occipital region) 2x x (3) An incised wound on the left side head back 3" x 2' x bone deep transverse in direction. (4) An incised wound on the right thumb back at the base 1' x x bone cut through and through. (5) An incised wound on the right hand towards the thumb side 2' x x oblique in direction. (6) An incised wound on the right wrist back l " x x , bone underneath was cut. (7) An incised wound on right forearm back middle portion 2 x 1/2" x bone cut through and through. (8) Right humerus bone was fractured with three superficial wound; over it 2" x x each on the front side in the middle an( transverse. (9) Two abrasions on the left collar bone over the outer third portion 1' X 1 /6' each. (10) An incised wound 5' x 2" X bone cut through and throug towards the little toe side. (11) An incised wound 3' X 2 x bone cut through and throug on the lower third portion of the right leg lateral aspect. (12) An incised wound on the right leg below knee joint 4" x 1' bone, chopped off. (13) An incised wound on the right knee front 4' X 2" X bone cc through and through. (14) An incised wound on the right thigh back middle portion 4' a 1' x muscle deep. (15) An incised wound lumber region 3'X 1/2"X 1/2". (16) An abrasion on the left shoulder blade 4"X 1'. (17) An incised wound on the left leg lower third portion on the front side 4" X 1' x bone cut through and through. (t8) An incised wound on the thigh in the middle third portion on the front side 4" x 2" x bone cut. On opening the skull of the deceased, he found the bone structure fractured. And on opening the abdomen, he discovered that the stomach of the deceased contained digested food. Large intestines contained faecal matter. Bladder was full of urine. Now by a careful scrutiny of the injuries suffered by the deceased it should be easy to pinpoint the manner in which he was actually attacked. Injuries Nos. 1, 4, 5, 6, 7, 8, 11, 12, 13 and 14 clearly reveal that these were caused to the deceased when he was lying on the cot on his left side. In point of fact this is the only hypothesis on the basis of which the said injuries can be explained as otherwise the injuries suffered on the back of his right thumb, right hand, on the back of his right wrist, on the back of his right forearm on his right humerus bone, on the lateral aspect of the third portion of his right leg, on the right leg below the knee joint, on the right knee and on the right thigh could not have been caused to him in that set pattern if the evidence of P. Ws. Muhammad Hussain and Mst. Aisha is believed that he was felled to the ground only after having received three hatchet injuries at the hands of the respondents. This conclusion would seem to be supported by the fact that two of the injuries suffered by him, namely, injuries No. 9 and 16 were found to be abrasions appearing on his left collar bone and the left shoulder which in the nature of things he came to suffer when he was given the said various injuries on the right side of his body and consequently his left collar bone and the left shoulder came in violent contact with the rope like webbing of the cot on which he was lying. In this view of the medical evidence, of which however, no notice was taken in the High Court, we are satisfied that P. Ws. Muhammad Hussain and Mst. Aisha had not seen the occurrence. The conditions of the stomach of the deceased as well as of his intestines and bladder would also go a long way to support this conclusion. It is true that the digested food found in his stomach can as well be explained on the hypothesis that being the month of August he might have eaten something in the morning. But the presence of faecal matter in his large intestines, a also that his bladder was found to be full of urine, would be difficult, explain. From this state of the internal organs of the deceased the possibility cannot be excluded that the deceased was done to death sometime in the very early hours of the morning when no one was around. It is the case of the prosecution that the deceased when he was done to death at about dopehrwela was guarding his grass and the trees growing on his land. If this be so, then it would seem to have been more necessary for him to guard the same during the dark hours of the night as in the nature of things their being stolen away during the night would be more convenient. It seems to us that having been murdered sometime in the early hours of the morning, when no one is around the two P. Ws. came forward to foist the blame on the two respondents on account of suspicion, as both of them were not very well disposed towards the respondents. This appeal, therefore, fails and is dismissed. It is, therefore, directed that the respondents shall be released forthwith unless required in some other case. It may be mentioned, however, that by a short order recorded by us on 28‑4‑1979 we had announced our decision as to the dismissal of this appeal, and these are the detailed reasons in support of the said order. S. A. H Appeal dismissed.