1993 P Cr (PLP)

(1)??????? An incised wound 4 x 1-1/2 c.m. x 1-1/2 c.m. on a front of the lower end of the right leg. (2)??????? A contused reddish swelling 10 x 3 c.m. oblique in direction on the outer side of mid of the right thigh. (3)??????? A contused reddish swelling 7 x 4 c.m. verticle in direction on the back of left thigh. (4)??????? A contused swelling 5 x 5 c.m. at the back of the ulner side of the left hand. (5)??????? A contused reddish swelling 12 x 3 c.m. in the direction of ribs on the right side of front of chest below the right nipple. (6)??????? A contused reddish swelling 12 x 3 c.m. in the direction of ribs on left side of front of chest below the left nipple. (7)??????? A contused swelling 4 x 4 c.m. on the ulner side of right wrist joint. (8) ?????? A contused reddish swelling 10 x 5 c.m. at the left buttock in horizontal direction. (9)??????? A contused reddish swelling 8 x 4 c.m. at the right buttock. (10)????? A reddish contusion 12 x 3 c.m. in the direction of ribs at the back of the lower part of the left side of chest. (11) ???? A reddish contusion 12 x 3 c.m. in the direction of ribs just below the injury No.10. (12)????? A reddish contusion 12 x 3 c.m. just below injury No.11. In the opinion of the doctor, injury No.1 was caused by sharp-edged weapon, while all other injuries were caused by blunt weapon. Injuries Nos.5, 6, 10, 11 and 12 were dangerous to life and were sufficient to cause death in the ordinary course of nature individually while the rest of the injuries were simple in nature. All the injuries were ante-mortem. In his opinion the cause of death was due to trauma to lungs and haemorrhage into and outside the both lungs, and shock. Probable time elapsed between injuries and death was between 20 and 40 minutes and time elapsed between death and post-mortem was 13 to 14 hours.

5. Muhammad Anwar, Muhammad Sarwar and Sher Muhammad appellants were arrested by P.W.12 Munawar Alam Leghari, Inspector/S.H.O. on 20-5-1987 and 24-5-1987. On 27-5-1987 Muhammad Sarwar appellant led to the recovery of hatchet P.4 which was secured by P.W.12 vide memo. Exh.P.F. attested by P.W.9 Bashir Ahmad and Bahu P.W. (given up). On the same day Sher Muhammad appellant led to the recovery of Soti P.5 secured by P.W.12. vide memo. Exh.P.G. attested by the same witnesses. On the same day Muhammad Anwar appellant had also led to the recovery of Soti P.6 secured by P.W.12 vide memo. Exh.P.H. attested by the P.Ws. cited above. The incriminating articles P.4, P.5 and P.6 were not blood stained. The report of the Chemical Examiner and that of the Serologist in respect of the blood-stained earth Exhs.P.O. and P.O., respectively in respect of blood-stained earth was positive. The recovery of blood-stained earth from the place of occurrence was witnessed by P.W.10 Muhammad Anwar, P.W. Ali Muhammad (given up) and P.W.11 Muhammad Abdullah. P.W.9 Bashir Ahmad and P.W. Bahu (given up) had witnessed the recovery of hatchet P.4, Soti P.5.and Sod P.6 at the instance of appellants Muhammad Sarwar, Sher Muhammad and Muhammad Anwar respectively on 27-5-1987.

6. P.W.6 Muhammad Hussain complainant, P.W.7 Abdul Qadeer and P.W.8 Muhammad Boota were examined as eye-witnesses. P.W.6 stated that on 12-5-1987 his father Nazar Muhammad deceased went to the cattle shed situated in his land after Isha prayer to sleep there to guard the cattle heads, Muhammad Mansha had told him at his house that the breach had occurred in the canal. He went, to his father to inform him a about the breach of canal. When he was at a distance of one acre from his father, he heard a noise of Dhar Dhar. He saw Sher Muhammad appellant armed with Lathi, Muhammad Anwar appellant armed with Lathi and Muhammad Sarwar armed with hatchet and all the three were giving injuries to his father. He tried to separate them. Sher Muhammad and Muhammad Anwar appellants started beating him with their sticks. He also raised an alarm which attracted Abdul Qadeer (P.W.7) and Muhammad Boota (P.W.8) to the spot who were present at the distance of two acres from the spot at their Belna (sugarcane crushing machine) in their fields. On the Lalkara of P.Ws. 7 and is the appellants ran away. P.W.7 Abdui Qadeer and P.W.8 Muhammad Boota reiterated the eye-witness account stated by P.W.6 Muhammad Hussain complainant. The eye-witnesses are, closely related to the deceased.

7. The appellants when examined under section 342, Cr.P.C. denied the charge against them and had stated that due to enmity and suspicion they had been involved falsely. The witnesses were closely related. They were innocent. They did not make statement on oath as envisaged under section 340(2), Cr.P.C., but produced only D.W.1 Allah Ditta in defence. D.W.1 stated that on the fateful day he was irrigating his land and Ali Muhammad P.W. (given up) who was tenant of his brother Sardara, forcibly diverted water, although he had vet to irrigate for half an hour more out of his turn. He proceeded to the Chak or informing Lamberdar Nazar Muhammad deceased about it, and at his house P.W.6 Muhammad Hussain complainant came out to inform that his father was at his Dera. D.W., proceeded to Dera of the deceased. He called out twice to Nazar Muhammad deceased, but there was no reply. He then proceeded forward and saw that the cut of Nazar Muhammad was lying on the ground and found the deceased lying dead on the ground. He then returned to the Chak and went to inform Muhammad Hussain (P.W.6) who alongwith others went to the spot. The deceased was his first cousin. Sher Muhammad appellant was the son of his paternal-aunt and after sunrise the police reached the spot and traced the footprints and had covered them. D.W.1 produced copy of Warabandi Exh.D.C. in defence.

8. The learned trial Court had convicted and sentenced the appellants vide its impugned judgment.

9. The learned counsel for the appellants urged that no motive against appellants has been proved on record. The ocular testimony furnished on record by the statements of P.Ws.6, 7 and 8 cannot be relied upon as the same is not in consonance with the medical evidence. The recoveries of incriminating articles at the instance of the appellants have not been proved. The appellants are innocent and they have been substituted for the real culprits.

10. The motive for the incident has been stated by P.W.6 and P.VV.7 i.e. Sher Muhammad appellant had contracted second marriage with the mother of Sadiq after the death of his father. Sher Muhammad appellant had got mutated the land of Ghulam Muhammad, uncle of said Sadiq in his name. Sadiq had asked for his share, but the same was refused by Slier Muhammad appellant, on which an appeal was filed before the A.C. Yarman against the mutation and the same was allowed. P.W.6 and P.W.7. have stated that Nazar Muhammad deceased was a Lamberdar of the village and used to help Sadiq and due to that the appellants nourished grudge against him. The people in the village take serious view if any person renders help and assistance to their opponent in the cases of land. The motive stated by P.Ws.6 and 7 stands proved on record.

11. P.W.6 Muhammad Hussain complainant is the son of the deceased, whereas P.W.7 Abdul Qadeer and P.W.8 Muhammad Boota who are eye?witnesses, are related to both the parties and all of them stated that at the relevant time i.e. about 10-30 p.m. (night time) Nazar Muhammad deceased was sleeping in his cattle shed. They heard the noise and reached there and witnessed Sher Muhammad and Muhammad Anwar armed with Lathis and Muhammad Sarwar with hatchet and all the three were causing injuries to the deceased with their respective weapons. The P.Ws. had threatened the appellants who ran away from the spot alongwith their weapons. Muhammad Hussain (P.W.6) complainant was informed about the breach in the canal at his house by one Muhammad Mansha, who proceeded to inform his deceased father at the cattle shed and while on the way he heard the noise (Dhar Dhar) and he reached the spot. Meanwhile P.Ws.7 and 8 who were working at their Bailna (crushing machine) of sugarcane, were attracted to the spot and witnessed the occurrence. No doubt P.W.6 is son of the deceased, whereas P.Ws.7 and 8 are related to the deceased and the appellants as well and nothing has been brought on record that there was enmity between the parties. P.Ws.6, 7 and 8 had given probable cause of their presence at the relevant time at the place of occurrence.

12. The deceased had suffered 12 injuries on his person at the hands of the appellants. Injuries Nos.5, 6, 1Q, 11 and 12 were declared dangerous to life and were sufficient to cause death in the ordinary course of nature individually, while rest of the injuries were simple in nature. P.W.6 Muhammad Hussain complainant stated before the trial Court that to save his deceased father he lay down on the deceased and was injured at the hands of the appellants. He had received 7 injuries, all the blunt weapon and simple in nature. It was vehemently contended by the learned counsel for the appellants that even if P.W.6 was injured, he was not got medically examined by the Investigating Officer as he had reached the police station to lodge F.I.R. Exh.P.E. P.W.5 the doctor, who medically examined P.W.6 has stated that he had examined him at 10-15 a.m. on 12-5-1987. P.W.6 has stated during cross-examination that after lodging the F.I.R. Exh.P.E. he reached the spot alongwith the Investigating Officer (P.W.11) as the dead body of his deceased father was lying at the spot and after its despatch to the mortuary he proceeded to the hospital at Yazman and was medically examined. Learned counsel for the appellants also urged before me that the injuries on the person of P.W.6 were inflicted with friendly hand. Surprisingly, no suggestion was put to P.W.5 or P.W.6 about the same and moreover nothing has been brought on record by the defence that P.W.6 had injuries on his person with friendly hand. The ocular testimony furnished on record by the statements of P.Ws.6, 7 and 8 is in consonance with the medical evidence as stated by P.W.5 Dr. Slier-uz-Zaman.

13. Great stress was laid by the learned counsel for the appellants that the recoveries of hatchet and Sotis P.4, P.5 and P.6, respectively at the instance of Muhammad Sarwar, Sher Muhammad and Muhammad Anwar appellants have no evidentiary value as those were not found to be stained with blood. No doubt P.4, P.5 and P.6 were not stained with blood, but P.Ws.6, 7 and 8 had made their statements in a straightforward manner and had no motive to falsely implicate the appellants in the present case. They had no animus against them. Last but not the least, it was also urged that the F.I.R. Exh.P.E. was lodged after deliberations and preliminary investigation. The incident took place at 12-30 mid-night and the same was reported at 6-30 a.m. at the Police Station Yazman which is at a distance of 5 miles. P.W.6 stated during cross-?examination before the trial Court that after he had found his father succumbed to his injuries, he proceeded to inform Sher Muhammad, Lamberdar of other village and went on foot there, brought him at the spot and after leaving behind P.Ws. Ali Muhammad and Allah Rehm, he proceeded to the police station on foot as no conveyance was available at that odd hour. In the circumstances I am of the view that the F.I.R. Exh.P.E. was lodged without deliberations and preliminary investigations, but with promptitude. It is evident that father of P.W.6 had been done to death and he must be under shock at the relevant time. The delay of six hours in lodging the F.I.R. has been satisfactorily explained by P.W.6. It was also urged on behalf of the appellants that they had been substituted for real culprits. The substitution is a rare phenomena. The occurrence took place on a moonlit night. The appellants were previously known to the P.Ws. who had no motive whatsoever to falsely involve them in the present case.

14. The ocular testimony furnished on record by the statements of P.Ws.6, 7 and 8 is in consonance with the medical evidence made by the statement of P.W.5 and excepting minor discrepancies here and there, nothing has been brought on record that P.Ws. had made dishonest improvements in their statements. The motive as stated by the prosecution also stands proved on record. The statements of P.Ws. are confidence inspiring and an implicit reliance can be placed upon their tesimony.

15. Pursuant to the above discussion, I am of the considered view that the prosecution had succeeded in proving and establishing its case against the appellants beyond doubt and no exception can betaken to their conviction and sentence. The appellants are present in Court who shall be taken into custody I and sent to jail to undergo the sentence awarded to them. Their bail bonds are discharged. The connected criminal revision for enhancement of sentence has, however, no force, which is dismissed. N.H.Q./S-309/L????????????????????????????????????????????????????????? Appeal and revision dismissed.