1984 PLP 109 (SCMR)

MUHAMMAD HALEEM, ACTG. C. J.‑Leave to appeal was granted to consider the effect of some features in the evidence of Muhammad Aslam (P. W. 4), which were not dealt with by the High Court as it was considered (that these might have direct bearing on the guilt of the appellant. About three weeks before the incident, which occurred on the mid‑night of the 1st/2nd of February, 1973, the appellant was seen by Muhammad Nawaz, deceased, committing an unnatural act with his buffaloe. There upon, it is alleged that a Punchayat was convened in which Muhammad Ashraf and Sardar Ahmad participated. According to their decision, the appellant was ordered to pay Rs. 250 as compensation and the animal was directed to be slaughtered and burried. Sardar Muhammad stood surety for the payment of the amount, and he paid it on behalf of the appellant. At about the time at which the incident occurred, Muhammad Qasim, an uncle of the deceased had come to visit the family. He alongwith Muhammad Murad and Muhammad Nawaz was engaged in talking about the betrothal of his son with the daughter of Muhammad Murad, when Muhammad Nawaz felt an urge to urinate, and hardly had reached the spot, a few Karams. away from the cattle‑shed, he raised an alarm upon which both Muhammad Murad and Muhammad Qasim went out and within their sight they saw the appellant causing a knife blow on the abdomen of the deceased in the light of the lantern which one of them carried with him. The appellant thereupon effected his escape, and the deceased expired on the spot. Here it may be mentioned that Muhammad Qasim lived in Chak No. 5 ah which was at a distance of 2 or 3 miles from the Chak of the deceased bearing No. 17 A H. On his arrest, the appellant produced a blood‑stained knife from the Chhapper of his house. On medical examination, the deceased was found to have suffered one incised injury, which caused his death, his bladder was full of urine and the stomach contained semi‑digested food. The appellant in his defence pleaded that the deceased was a man of bad character, and as he refused to sell his house to him, he was falsely implicated. In his earlier statement before the Inquiry Magistrate, his plea was that the deceased suspected him to be having illicit rela tions with the daughter of his elder brother, and it was, therefore, that he was falsely implicated. The trial Court upon appraisal of the evidence accepted the ocular testimony of Muhammad Murad (P. W. 9) and Muhammad Qasim (P. W. 10). Although the presence of Muhammad Qasim was disputed, nevertheless the trial Court accepted his explanation that he had come in the evening to the house to discuss the contemplated marriage of his son with the daughter of Muhammad Murad as in its opinion it was a reasonable explanation. The trial Court was influenced by the fact that : "No animus or malice has been ascribed to these two witnesses for falsely implicating the accused in this case." The trial Court, however, rejected the production of the knife as it was of the opinion that the recovery was not genuine, the reason being that although the Lambardar and other persons of the locality were present, yet none of them was made to attest the recovery memo. The trial Court, accordingly, convicted the appellant under section 302, P. P. C. and awarded him death sentence. On appeal and reference, the High Court accepted the motive as it was of the opinion that while giving out the main decision, Muhammad Ashraf had not adverted to minor details in his police statement, nonetheless the omissions could not affect his version as to the decision taken on the complaint of Muhammad Nawaz. The ocular testimony of both the witnesses was accepted and as for Muhammad Qasim, it was further held that although he was a non‑resident of the locality and a relation of the deceased, yet he was not inimically disposed towards the appellant to falsely implicate him. Further the High Court also accepted the evidence of the recovery of the knife as it was of the opinion that the mere non‑examina tion of the Lambardar or other residents of the locality could not be sufficient to discard this piece of evidence allegedly for the reason that it was not genuine. Accordingly, while upholding his conviction, the High Court altered the sentence to one of imprisonment for life, as it held that there was an extenuating circumstance for the mitigation of the offence, namely, the perpetual shame and the insult brought to him by the decision. As to non‑consideration of the evidence of Muhammad Aslam, it may be stated that he was examined merely to identify the corpse and not as an eye‑witness. His cross‑examination obviously points to weaknesses in the prosecution evidence, such as the lodging of the report at the spot, the arrival of Qasim at 6‑00 a.m.‑ the following morning alongwith Ramzan, Manzoor, Qadir Bakhsh and Muhammad Hussain pursuant to a message sent through Maqbool, a barber. The inferential conclusion that flowed from it was that it was a un witnessed crime and that it was only upon the discovery of the dead body that the incident came to light. It would be of interest to note that Muhammad Ramzan, Muhammad Hussain and Manzoor P. Ws. were given up as won over by the appellant. These witnesses were named by Muhammad Aslam and it cannot be ruled out that Muhammad Aslam would not also be hostile to the prosecution. All these witnesses are related to the deceased and they have ganged up to oblige the appellant. Muhammad Murad left for lodging the report at Police Station Kabirwala which was about 9‑10 miles away immediately after the occurrence, and if Qasim had not been there, we do not see how he would have named him as an eye‑witness and concocted a false story about his arrival on the previous evening. Only a suggestion was put to him in his cross‑examination which he denied. Muhammad Qasim was examined and he also denied having been called in the morning. Further Maqbool hod not been examined to substantiate the assertion that he was sent by Muhammad Aslam to call these persons. Accordingly, it is fallacious to give any credence to his version. Again it was stated by Muhammad Aslam that thumb‑impressions of Muhammad Murad had been taken at the spot "on 2 or 3 papers", the inference being that the F. I. R. was not lodged at the police station but at the spot. This fact was denied by Maqbool Ahmad, A. S.I. in his cross‑examination, and no further question was put to gain some material to establish it. His statement is straightforward and we have no reason to disbelieve it either on the point of recovery of the knife or on the denial of the assertion that he had recorded the F. I. R. at the spot. Both the Courts have given good reasons for accepting the ocular testimony of these witnesses, and we have no reason to disagree wit 'h their appreciation. There was no enmity between them so as to require corroboration, but if at all it was needed, it was provided by the recovery of the blood‑stained knife. Accordingly, there is no merit in this appeal, which is dismissed. M. Z. M. Appeal dismissed.