P (PLP)

ORDER.‑Fazal aged 28 years and Hassan Muhammad aged about 20 years, two brothers of village Lalli, Police Station Afzalpur were prosecuted under section 302 A. P. C. for having caused the death of their sister's husband, Rahim, on the 31st January 1949 at 9 a. m. in the vicinity of village Sangh in the same police station. The learned Sessions Judge, Mirpur, who tried the case convicted Hassan Muhammad and sentenced him to death. Fazal was, however, acquitted on the ground that the deceased did not suffer any injury caused by a blunt weapon and, doubt arose whether he used the stick carried by him in injuring the deceased. Further 'his own extra judicial confession indicated that the deceased had been attacked by Hassan Muhammad accused only and he took no active part in the crime. Against his conviction and sentence Hassan Muhammad has preferred an appeal and the sentence of death passed on him is also before us for confirmation. It was alleged that shortly before the occurrence the deceased proceeded towards the police station with a view to make a report against the accused in connection with a quarrel which took place between him and the accused on the preceding night. The accused went after him and persuaded him to return to his village without making a report. While the deceased was returning Fazal was proceeding ahead of him and Hassan Muhammad was following him. Fazal was armed with a stick and Hassan Muhammad had a small "toka" with him. At the place of occurrence which is somewhat remote from the abadi of village Sangh the accused attacked the deceased felling him down first and then be labouring him with the weapons in their posses sion. Fazal at first gave him a `Sota' blow on the neck and then Hassan Muhammad gave him several blows with the "toka". On receiving the injuries the deceased expired at the spot. The occurrence was witnessed by Abdullah P. W. 2 and Abdul Malik P. W. 3 who were ploughing their land nearby. Both these witnesses ran after the accused when they departed from the spot and shouted to the villagers to help them in apprehending the culprits. Fazal who had taken shelter in the house of Qazi, P. W. 12 a tailor of village Abdoo Pur was apprehended therefrom and brought to the spot. Hassan Muhammad threw his "toka" into the house of Fatal Hussain P. W. 7 of village Sangh and made good his escape. The "toka" was taken into possession and Hassan Muhammad was thereafter apprehended from his village and brought to the spot. On enquiry Fazal accused‑told‑Feroze Khan, Zaildar, P. W. 6 and other persons present there that the deceased had been injured by his brother Hassan Muhammad. Hassan Muhammad told Ghulam Nabi P. W. 10 and Khushi Muhammad P. W. 5 while he was running from the place of occurrence that he had killed his enemy. A report of the occurrence was made at the police station by Karam Dad, P. W. 1, Chaukidar of village Sangh in which the main facts of the occurrence were stated and the names of the eye‑witnesses were mentioned. The police after investigation sent up the accused for trial. The prosecution case was supported by the witnesses mentioned above. Abdullah and Abdul Malik who claimed to be the eye‑witnesses of the occurrence deposed that they saw the accused attacking the deceased while they were ploughing their fields at a short distance from the place of the occurrence. These witnesses also said that when the hue and cry was raised by the deceased they ran poste‑haste to the spot and gave a hot chase to the accused who had departed before their arrival. These witnesses also stated that Fazal was apprehended from the shop of Qazi while Hassan 'Muhammad was taken into custody from his house. These witnesses further stated that when both the accused were brought to the spot an enquiry was made by the persons assembled there. Fazal gave the details of the attack. The remaining witnesses corroborated them as to the facts within their knowledge. Fazal Hussain stated that 'Hassan Muhammad accused had thrown the "toka" which was handed over to the police, into his house. Some evidence was also produced to prove that the "toka" recovered from the house of Fazal Hussain belonged to Hassan Muhammad. The remaining evidence was more or less of formal character. The defence of the accused was a plea of innocence and of ignorance as to the 'crime. The two witnesses produced by the accused in defence stated that the accused were present at some place other than the place of occurrence at the time the crime was alleged to have been committed. On going through the record most carefully and weighing the evidence produced on both sides we are of opinion that there is absolutely no doubt about the guilt of Hassan Muhammad. The evidence of the eye‑witnesses of the occurrence stands corroborated by the medical evidence which shows that the deceased suffered two incised wounds on the neck and one on the back of the right wrist and his spinal cord was cut across. All the injuries of the deceased had been caused with a sharp weapon like "toka". No reason is assigned which might induce these eye witnesses to will fully perjure themselves The learned counsel for the appellant has argued that these eye‑witnesses are near relations of Feroze Khan, P. W. 6‑zaildar of village Sangh who is at the bottom of the case but this argument however, does not carry any weight because no serious enemity whatsoever is proved to exist between the zaildar Feroze Khan and the appellant's family. A suggestion has been made, by the learned counsel for the appellant that zaildar being an agent of the police. fabricated evidence for the success of the case which was not traceable. 'This is a far fetched argument. The occurrence took place in. broad day light. All the facts relating to it were reported immediately to the police. It cannot possibly be conceived that Feroze Khan zaildar with a view to help the police had time enough to cook up all the evidence produced in the case to prove the complicity of the appellant in the crime. If the occurrence had not been really witnessed by the eye witnesses then they would not have come forward to depose against the appellant without any serious enemity and would not have described the weapons used in injuring the decease. It ii true that the eye‑witnesses stated that the deceased' was also given a stick blow and the medical evidence does not establish it but, from this fact it cannot be concluded that the eye‑witnesses have made any improvement on their original story. The deceased was wearing a "khes" when he was attacked and it is quite possible that the stick blow did not produce any mark of injury on his body on that account. The learned Sessions judge has already given benefit of doubt for that reason to one of the accused, Fazal. The manner in which the assailants 'of the deceased were taken into custody shows that they were virtually caught red‑handed. The learned counsel for the appellant has argued that Hassan Muhammad could not possibly take the "toka" with him while running from the spot and throw it into a stranger's house. It is very difficult to imagine the mental attitude of the criminal while he is leaving the place of occurrence after committing the crime. It is, therefore, not improbable that Hassan Muhammad while running from the place of occurrence considered proper to carry the weapon with him which was, blood stained and conceal it at some place wherefrom it could not be recovered but when he was persued by the eye‑witnesses thought fit to throw it away into the house of the witness from where it was recovered. Anyhow even if this piece of evidence be ignored then also it does not indicate that the prosecution case is false. The evidence as to the extra, judicial confession of the accused is given by disinterested and independent witnesses and there is no sound reason to reject it. The witnesses could easily say that the confession made by each accused implicated both of them in the crime. The fact that they have not so stated shows that they have been very careful m stating the truth, the whole truth and nothing but the truth. The evidence as to the motive for the crime is not very strong as it comprises the testimony of one witness Pehlwan, P. W. 11 only. It is a settled principle of law that evidence of motive for the crime is not at all necessary when direct evidence is so strong that it cannot be ruled out. The learned counsel's arguments therefore that the motive for the crime is not sufficiently proved cannot help the appellant in the present case. For the above reasons we uphold the conviction as well as the sentence of the appellant and dismiss the appeal. The record is ordered to be forwarded to the cabinet alongwith the copy of the judgment for confirmation of the death sentence. K. M. A. Appeal dismissed.