1983 P Cr (PLP)

Mehr Ghulam Ali Mubashar for Appellant. Malik Yousaf for the State Date of hearing : 12th October, 1981. Dost Muhammad 37, was murdered on the night between 22nd and 23rd. August, 1977. He got two blows on his jaw and neck with a sharp edged weapon and died on the spot. Muhammad Iqbal 17/18, was an accused of committing this murder as the deceased was suspected of having illicit intimacy with Mst. Shabzadan, a sister of the appellant. Mst. Fazalan Bibi.(P. W. 7) the wife of the deceased and Muhammad Aslam (P. W. 8), a neighbour appeared as eye‑witnesses. The appellant was convicted of the murder and was sentenced to imprisonment for life and to a fine of Rs. 5,000 or in default to suffer one year imprisonment. The whole of the fine, if realised, is to be paid as compensation to the legal heirs of the deceased. The judgment of god August, 1979 given by Rao Muhammad Hayat Khan, the learned Additional Sessions Judge, Sargodha has been challenged in appeal.

2. The deceased was sleeping in the courtyard of his house where his wife and small children were also sleeping. Mst. Fazalan Bibi was awakened by the barking of the dog and she saw the appellant scaling over a small wall and within her view gave 2 successive blows to the deceased killing him on the spot. On the alarm raised by her Muhammad Aslam P. W. and Azam (given up) came to the spot but the assailant made good his escape. The F.

1. R. was recorded by Mst. Fazalan Bibi (P. W. 7) at the Police Station Shah Pur Sardar. the same night at 3.00 a. m. The appellant was arrested on 24th August, 1977 and at his instance blood‑stained hatchet P. 9 was recovered and blood‑stained chadar P. 8 which the appellant was wearing at the time of arrest was taken into possession. The appellant has denied his involvement in the occurrence and has stated that he has been falsely implicated on account of enmity of Muhammad Aslam P. W. It is stated that the appellant had been working for Aslam P. W. for 4 or 5 months and that there was a dispute regarding the payment of wages to the appellant by Muhammad Aslam P. W. and on this account the witness bad enmity against the appellant.

3. It has been argued by the learned counsel that Muhammad Aslam P. W. has a house which is about 100 yards away from the place of occur rence, the time taken in the commission of the offence was short, therefore, it was not possible for Muhammad Aslam to have come from that distance. Muhammad Aslam P. W., on the other hand, has stated that he was sleeping at his Baithak and not at his house and the Baithak is only 9/10 karams away from the place of occurrence. As regards Mst. Fazalan Bibi the learned counsel has stated that on the night of occurrence she was not staying in the house of her husband but was present in the house of her parents living in the same village. He has also argued that the conduct of Mst. Fazalan Bibi at the time of occurrence is unnatural as may be seen from the fact that she did not try to pick up the deceased or tried to shelter him or otherwise tried to apprehend the assailant.

4. The enmity which the appellant has alleged against Muhammad Aslam P. W. is not established but even if it is true, the dispute regarding wages, if any, will not impel an ordinary man to involve an innocent person in a charge carrying capital punishment. The learned counsel has pointed out that said Muhammad Aslam P. W. has a large number of enemies and for that purpose he was carrying a gun. If that is true then it is not likely that Muhammad Aslam P. W. will try to involve a boy of 17 years of age for a small dispute regarding wages and let go of this opportunity and not involve any one of his real enemies. Muhammad Aslam's Baitakh is 9/l0karams away from the place of occurrence and the wall of the compound of the deceased was only knee‑high. Under these circumstances, the presence of Muhammad Aslam P. W. at the place of occurrence is quite probable. It is possible, however, that by the time Muhammad Aslam P. W. reached the place, the occurrence was over. It involved only two blows and it cannot have taken that long. Muhammad Aslam P. W. therefore, could not have seen the actual infliction of the injuries, but his arrival at the place in the circumstances almost imme diately after the infliction of the injuries would place him in, a position to have seep the appellant leaving the place of occurrence.

5. The testimony of Mst. Fazalan Bibi P. W. stands on firm ground its the presence of the wife in the house cannot be excluded. A suggestion had been put to Mst. Fazalan Bibi (P. W. 7) that at the time of occurrence she was not present in the house of deceased but was present in the house of her parents. She has denied this suggestion and it is reasonable to assume that she would ordinarily be staying with her husband unless she was called away for some special reasons like a ceremony or any other occasion in the house of her parents. There‑ is no such suggestion that there was any special occasion in the house of her parents. The learned counsel has stated that she had gone to the house of her parents because the deceased bad gone away to Shahpur Sardar. The absence of the deceased from the house, in my view would require the presence of the wife in the house rather than leaving the house unattended. It is reason able to assume that the wife of the deceased was present in the house when the occurrence took place. Her cot was quite close to the cot of the deceased and on being awakened by barking of the dog,, it was possible for her to have identified the assailant who was merely a few feet away from her own cot. There is no suggestion that the assailant had muffled his face or had tried to conceal his identity. There is no motive for false implication and there is no likely reason for substitution. The F.I.R. was recorded promptly and the appellant was mentioned as the single assailant.

6. In view of the above considerations, there is no force in this appeal. It is dismissed. M.Y.M. Appeal dismissed.