MANZOOR AHMED MALIK, J.---Ghulam Hussain (appellant) along with his co-accused namely Nawaz and Mumtaz was tried by the learned Additional Sessions Judge, Bhalwal, District Sargodha in case FIR No,311 dated 30-7-2005 offence under sections 302 and 109, P.P.C. Registered at Police Station Kot Momin, District Sargodha. Vide judgment dated 28-10-2006, passed by the learned Additional Sessions Judge, Bhalwal, the appellant was convicted under sections 302(b), 324 and 337-F(ii), P.P.C. And sentenced as under:- "(24) ...I convict him under section 302(b), P.P.C. And sentence him for life imprisonment. He is also awarded Rs,1,00,000 as compensation under section 544-A, Code of Criminal Procedure, which if recovered, shall be distributed among the legal heirs of the deceased Muhammad Akram. In default of compensation, he shall further undergo simple imprisonment for six months.
(25) Ghulam Hussain accused also caused injuries on the body of Ahmed Raza, he made murderous assault on the body of Ahmed Raza complainant. So I convict him under section 324, P.P.C. And sentenced him for ten years' R.I. And fine Rs,50,000. In default of fine, accused shall further undergo simple imprisonment for one year.
(26) Ghulam Hussain caused injuries to complainant I add section 337(2)(b), P.P.C. And I also convict him under section 337-E(2)(b) of P.P.C. And sentence him for three years' R.I. Of each three injuries and Daman Rs,10,000 of each three injuries, which if recovered shall be given to Ahmad Raza injured..."
All the substantive sentences were ordered to run concurrently. Benefit of section 382-B, Code of Criminal Procedure, was also given to the appellant.
2. Prosecution story, as set out in the FIR (Exh.PI), registered on the statement of Ahmad Raza complainant/injured (P.W.6) is that he (complainant) was resident of Mohallah Miana and had appeared in the B.A. Examination. On the day of occurrence i.e, 30-7-2005 at about 12-00 a.m.
(noon) Muhammad Akram (deceased) father of the complainant was returning to his house from bazaar after purchasing vegetable whereas the complainant was following him at some paces.
When he reached in the main street near the shop of Abdullah Taili, all of a sudden Ghulam.
Hussain (appellant) while armed with a dagger emerged there and challenged that he would teach a lesson for dispute over the wall. It was further alleged in the FIR the appellant inflicted successive, dagger blows which landed on the head at front side, on right side, left shoulder, in the chest at front side, left and right side of chest and back of Muhammad Akram (deceased) who 'fell down. The complainant intervened consequent whereupon the appellant inflicted dagger blows which landed on bicep of the complainant. Hue and cry of the complainant attracted Irfan Ahmad (P.W. Since given up) and Khan Muhammad (P.W.7) residents of the same village and on seeing them the appellant ran away while brandishing his dagger. The complainant further alleged in the FIR that the occurrence was committed at the abetment of Muhammad Nawaz and Muhammad Mumtaz, co-accused of the appellant since acquitted, and the abetment was witnessed by Muhammad Amin (P.W.8) and Mazhar Hussain (P.W. Since given up). The complainant further averred that he shifted his father to RHC Kot. Momin for treatment where due to precarious condition of Muhammad Akram he was referred to DHQ Hospital Sargodha and the complainant shifted his father to Sargodha and on reaching the hospital he succumbed to the injuries. Motive behind the occurrence was a dispute over joint wall.
3. Umar Hayat S.I (P.W.9) was posted at Police Station Kotmomin. On 30-7-2005 at 4-10 p.m. He recorded the FIR (Exh.PI) on the statement of Ahmad Raza complainant (P.W.6). He proceeded to RHC Kotmomin where the dead body of Muhammad Akram (deceased) was present. He prepared injury statement (Exh.PG) and inquest report (Exh.PH) and entrusted the dead body of Muhammad Akram (deceased) to Muhammad Aslam 1767/C (P.W.3) for taking it to the mortuary for post mortem examination. Thereafter he went to the place of occurrence and inspected the spot. He took into possession blood stained earth from the place of murder of Muhammad Akram (deceased) and took the same into possession through recovery memo (Exh.PJ) after making it into a sealed parcel. He prepared rough site plan (Exh.PK) of the place of occurrence. On the same day Muhammad Aslam (P.W.3) after post mortem examination produced before him last worn clothes of the deceased viz shirt (P.1) and chadar (P.2) which were taken into possession through recovery memo. (Exlr.PB). He searched for the appellant. On 31-7-2005, Ahmad Raza (complainant) produced MLRs of himself and Muhammad Akram (deceased) which were placed on the file. On 3- 8-2005 he got the place of occurrence inspected by Muhammad Hafeez Draftsman (P.W.2), who took rough notes and on 4-8-2005 produced scaled site plan (Exh.PA and Exh.PA/1). On 7-8-2005, he arrested Ghulam Hussain (appellant) in this case. During investigation the appellant led to the recovery of blood stained dagger (P.3) which was taken into possession vide recovery memo.
(Exh.PC). On 23-8-2005 he received final opinion regarding the injuries of Ahmad Raza complainant (Exh.PE/1) and added offence under section 337-F(ii), P.P.C. After completion of the investigation he got the appellant challaned to the court through Saeed Ullah Khan Inspector.
4. The appellant along with his co-accused namely Mumtaz and Nawaz was summoned by the learned Additional Sessions Judge, Bhalwal to face the trial. Copies of relevant documents were provided to them as required under section 265-C; Code of Criminal Procedure and formal charge under sections 302, 324 and 109, P.P.C. Was framed against them on 26-4-2006, to which they pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined nine witnesses in all. Ocular account was furnished by Ahmad Raza 'complainant/injured (P.W.6) and Khan Muhammad (P.W.7). Medical evidence was furnished by Dr Mushtaq Ahmad Ranjha MO (P.W.4). Recovery of blood stained dagger (P.3) which was taken into possession vide recovery memo. (Exh.PC) was witnessed by Muhammad Aslam (P.W.3). Umar Hayat S.I (P.W.9) investigated this case and while appearing before the learned trial court narrated the various steps taken by him during the course of investigation. Rest of the witnesses are either formal in nature or not relevant to the present appellant. Learned Special Public Prosecutor gave up Naveed Iqbal 706/C (P.W) being unnecessary vide statement dated 27-5-2006. He also gave up Muhammad Amjad (P.W.) being unnecessary vide statement dated 15-6-2006. Learned Deputy District Public Prosecutor gave up Irfan and Mazhar Hanif (P.Ws.) being unnecessary vide statement dated 9-9-2006. After tendering in evidence reports of Chemical Examiner (Exh.PL and Exh.PM) and Serologist (Exh.PN and Exh.PO), he closed the case of prosecution vide statement dated 12-10-2006. Statements of the appellant and his co-accused, under section 342, Code of Criminal Procedure were recorded on 14-10-2006, wherein they refuted all the allegations of the prosecution and professed their innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, Ghulam Hussain (appellant) replied as under:- "P.Ws. Are related inter se. They have made false statement against me. I am a poor man from moeen community. The complainant is most influential tribe of Kotmomin. Ahmed Raza complainant forcibly abducted my un-married daughter namely Mst. Bushra and she was returned through the intervention of the respectables. On the day of occurrence Ahmed Raza Complainant while armed with dagger again tried to forcibly abduct my above said daughter. I reached at the spot per chance and I tried to save the honour and dignity of my daughter upon which Ahmed Raza also attacked on me. Meanwhile Muhammad Akram deceased also came there while armed and both attacked me, I received injuries at the hands of the complainant party and deceased; while warding of attack of me for save my life and honour of my un-married daughter deceased received injuries. After the occurrence I approached the police for registration of case on my behalf and got myself medically examined. Due to influence of complainant party police did not register the case. On the death of Muhammad Akram deceased police while twisting the real facts of the case after obtaining fake MLC of Ahmed Raza and P.M report of Muhammad Akram challaned me in this case. I am innocent and on the mercy of the court."
The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as required under section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence this appeal. Through the same judgment, co- accused of the appellant namely Nawaz and Mumtaz were acquitted of the charge and no appeal against Their acquittal was filed either by the State or by the complainant, as confirmed by the learned DDPP and learned counsel for the complainant.
5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated, in this case; that both the witnesses of ocular account are closely related inter se as well as to Muhammad Akram (deceased) as Ahmad Raza (complainant) was the son of the deceased whereas Khan Muhammad (P.W.7) was the brother of wife of Muhammad Akram (deceased) and as such both of them are interested witnesses specially Ahmad Raza (complainant) who had abducted Mst. Bushra, daughter of the appellant and she was returned with the intervention of the respectables of the locality; that Khan Muhammad (P.W.7) stated before the learned trial Court that he was a shop keeper and in the cross-examination stated that his shop opened in the morning and closed in the evening, therefore, there was no occasion for the said witness to be present at the place of occurrence at mid day; that both the witnesses of ocular account while appearing before the learned trial Court made material improvements to strengthen the prosecution case, they were confronted with their previous statements and the improvements were brought on the record; that the story of prosecution is highly improbable as it is the case of the prosecution that the appellant while armed with a dagger caused grievous injuries to Muhammad Akram (deceased) and then after giving dagger blows of Ahmad Raza complainant (P.W.6) ran away from the spot; that it is also case of the prosecution that the occurrence was witnessed by Khan Muhammad (P.W.7) and Irfan (P.W. Since given up) who attracted to the spot after hearing the alarm made by the complainant; that Khan Muhammad (P.W.7) stated during his cross-examination that he heard the alarm and noise from a distance of 44 feet from the place of occurrence; that in the same breath the said witness stated that he was hard of hearing and in the circumstances, it does not appeal to common sense as to how he heard the alarm and noise from a distance of 44 feet; that conduct of the witnesses of prosecution is highly improbable as it is the case of the prosecution that the appellant was not carrying any firearm at the time of occurrence whereas Khan Muhammad (P.W.7) categorically stated during his cross examination that they did not pursue the appellant; that Umar Hayat S.I (P.W.9) who investigated this case stated during the course of his cross examination that he had written age of the appellant about 70/71 years and further stated that in the saza slip' the SHO had mentioned that the appellant was a weak person; that in the circumstances stance of the prosecution that the appellant ran away in presence of the complainant, Khan Muhammad (P.W.7) and. Irfan (P.W.
Since given) appears to be highly improbable as it is not understandable as to how the appellant, who was an old and weak person, managed in running away from the spot in the presence of three prosecution witnesses; that though it was alleged in the FIR that the complainant was also injured in the incident but there is no mention that the complainant or Muhammad Akram (deceased) were medically examined at RHC Hospital Kotmomin and thereafter fake MLRs of the complainant as well as Muhammad Akram (deceased) were obtained to strengthen the prosecution case; that a vague motive was set up in the FIR by alleging that the appellant challenged Muhammad Akram (deceased) that he would be taught a lesson for having a dispute of wall and thereafter it was further alleged in the FIR that the motive behind the occurrence was a dispute of joint wall, however, while appearing before the learned trial Court the complainant made material improvements vis-a-vis the motive behind the occurrence, he was duly confronted with the contents of FIR and the improvements were brought on the record; that the alleged recovery of dagger (P.3) is also doubtful because Muhammad Aslam (P.W.3) who attested the recovery memo.
(Exh.PC) and Umar Hayat S.I (P.W.9) who effected the recovery stated during their cross- examination that the dagger recovered at the instance of Ghulam Hussain (appellant) was easily available in the market and could be purchased by any one; that version of the appellant put to both the witnesses of ocular account namely Ahmad Raza complainant (P.W.6) and Khan Muhammad (P.W.7), Hafeez Khan Draftsman (P.W.2) and Umar Hayat S.I (P.W.9) during their cross- examination and disclosed by the appellant while making his statement under section 342, Code of Criminal Procedure is more probable and gets support from prosecution's own case; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
6. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes this appeal on the grounds that the occurrence took place on 30-7-2005 at about 12-00 a.m. (noon) and the matter was reported to the Police on the same day at 4-10 p.m.; that according to the statement of Dr: Mushtaq Ahmad Ranjha (P.W.4) Muhammad Akram (deceased) in injured condition was medically examined at 1-10 p.m. i.e, just after one hour and ten minutes of the occurrence whereas Ahmad Raza complainant (P.W.6) was medically examined at 1-40 p.m.; that Dr. Mushtaq Ahmad. Ranjha further stated that the complainant had arrived at 1-05 p.m. Along with Muhammad Akram (deceased), therefore, the delay of about four hours in reporting the crime to the Police was not deliberate or conscious as in such like cases first and foremost priority of the kith and kin of the injured is to rush for medical treatment instead of having resort to the Police; that the occurrence took place near the house of Muhammad Akram (deceased) and Ahmad Raza (complainant) was also living in the said house, therefore, presence of the complainant along with his father near their own house is quite natural and probable; that even otherwise the complainant was also injured at the hands of the appellant and he was medically examined on the same day at 1-40 p.m. i.e,, after one hour and forty minutes of the occurrence; therefore, presence of the complainant at the place of occurrence cannot be doubted by any stretch of imagination; that Hafeez Khan (P.W.2) stated during his cross-examination that he had shown the baithak and plot of Muhammad Akram (deceased) in the site plan towards the north of the house of the appellant; that Khan Muhammad (P.W.7) was resident of the same village where this occurrence took place, and he has stated a specific reason for his presence at the place of occurrence, which is to the effect that he was going to his shop from his house when he witnessed the occurrence; that no adverse inference can be drawn against the prosecution from the stance of Khan Muhammad (P.W.7) that they did not pursue the appellant as two persons from complainant's side namely Muhammad Akram (deceased) and Ahmad Raza complainant (P.W.6) were grievously injured at the hands of the appellant and in a state of panic, the complainant's side preferred to attend their injured relatives instead of pursuing the appellant and even otherwise human conduct varies from person to person; that this is a case of single accused so far as the actual occurrence of assaulting the complainant as well as Muhammad Akram (deceased) is concerned and substitution in such like cases is a rare phenomenon as kith and kin of the deceased and in this case specially the son of deceased (P.W.6) who was also injured in the same incident and brother in law (sala) (P.W.7) of the deceased would not implicate an innocent person by letting off the real culprit; that the ocular account is fully supported by the medical evidence; that a specific motive was alleged in the FIR, which was explained by the complainant while appearing before the learned trial court; that the prosecution case is corroborated by the recovery of a dagger (P.3) at the instance of the appellant which was taken into possession vide recovery memo. (Exh.PC) coupled with the positive report of Chemical Examiner and that of Serologist; that version of the appellant is just an afterthought and even otherwise the appellant did not make statement on oath in support of his version; that Mst. Bushra daughter of the appellant who was allegedly abducted by Ahmad Raza complainant and to save whose honour the appellant attacked the complainant and Muhammad Akram (deceased) was the star witness in support of the defence version but she was not produced by the appellant; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this 'appeal; that a lenient view has already been taken by the learned trial court while awarding imprisonment for life to the appellant, therefore, this appeal merits outright dismissal.
7. I have heard learned counsel for the appellant and the learned Deputy District Public Prosecutor for the State assisted by learned counsel for the complainant and gone through the record with their able assistance.
8. Admittedly, it is a 'case of two versions. One set out by the prosecution in the FIR and brought on the record through the statements of the eye-witnesses namely Ahmad Raza complainant (P.W.6) and Khan Muhammad (P.W.7) and the second disclosed by the appellant in his statement recorded under section 342, Code of Criminal Procedure put to both the witnesses of ocular account, Draftsman (P.W.2) and the Investigating Officer (P.W.9) during their cross-examination. In such like situation, the Court is required to first analyze the prosecution case in order to ascertain its truthfulness or otherwise. In this respect, I am guided by the judgment of the Hon'ble Supreme Court of Pakistan passed in the case reported as "Ashiq Hussain v. State" (PLD 1994 SC 879) wherein, at page 883, the Hon'ble Supreme Court has been pleased to observe as under:- "(9) ...The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence :n order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/ excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in' juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
The above view of the Hon'ble apex court of the country has been reiterated in another judgment reported as "Amin All v. The State" (2011 SCMR 323), therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, I will first, examine the case of the prosecution.
9. Case of the prosecution has been discussed in para 2 above. Gist of the same is that on the day of occurrence i.e, 30-7-2005 at about 12-00 a.m. (noon) Muhammad Akram (deceased) was returning to his house from bazaar after purchasing vegetable whereas the complainant was following him. When he reached in the main street near the shop of Abdullah Taili, all of a sudden Ghulam Hussain (appellant) while armed with a dagger emerged there and challenged that he would teach a lesson for dispute over the wall. The appellant inflicted successive dagger blows which landed on the head at front side, on right side, left shoulder, in the chest at front side, left and right side of chest and back of Muhammad Akram (deceased) who fell down. The complainant intervened consequent whereupon the appellant inflicted dagger blows which landed on left bicep of the complainant. Hue and cry of the complainant attracted Irfan Ahmad (P.W. Since given up) and Khan Muhammad (P.W.7) and on seeing them the appellant ran away while brandishing his dagger.
10. This occurrence wherein Muhammad Akram (deceased) father of the complainant was grievously injured who subsequently succumbed to the said injuries and a murderous assault was also launched upon the complainant took place near the house .Of the complainant on 30-7-2005 at about 12-00 (noon). The occurrence was reported to the Police on the same day through the statement of Ahmad Raza complainant (P.W.6) on the basis whereof formal FIR (Exh.PI) was chalked out at 4-10 p.m. Though, prima facie, there is a delay of about four hours in reporting the crime to the Police but I have noted that Muhammad Akram (deceased) in injured condition was medically examined on the same day at 1-10 p.m. Whereas Ahmad Raza complainant injured (P.W.6) was medically examined at 1-40 p.m. And Dr. Mushtaq Ahmad Ranjha (P.W.4) who medically examined them stated before the learned .Trial court that the complainant along with Muhammad Akram (deceased) had A reached the hospital at 1-05 p.m. It is also case of the prosecution that due to precarious condition of 'Muhammad Akram (deceased) he was referred to DHQ Hospital Sargodah and he was shifted to the said hospital, however, on reaching there he succumbed to the injuries. Therefore, I hold that the delay, if any, in reporting the crime to the Police was not conscious or deliberate as in such like cases first and foremost priority of the kith and kin of the injured is to rush for medical treatment instead of having resort to the Police.
11. The ocular account in this case was furnished by Ahmad Raza complainant injured (P.W.6) and Khan Muhammad (P.W.7). The occurrence took place close to the house of the complainant and Ahmad Raza complainant was also residing in the same house. Hafeez. Khan (P.W.2) who prepared the scaled site plan categorically stated during his cross-examination that he had shown the baithak and plot of Muhammad Akram (deceased) in the site plan towards the north of the house of the appellant. Therefore, presence of the complainant along with his father close to their house was quite natural and probable. Moreover the complainant was also injured in the same incident and was medically examined by Dr. Mushtaq Ahmad Ranjha (P.W.2) on 30-7-2005 at 1-40 p.m. i.e, just after one hour and forty minutes of the occurrence, therefore, presence of the complainant cannot be doubted by any stretch of imagination. The other witness of ocular account namely Khan Muhammad (P.W.7) is also resident of the same village where this occurrence took place. It was brought on record through his cross-examination that he was running a grocery shop and his shop was situated one furlong from the place of occurrence. During the course of cross- examination he stated that at the time of occurrence he was going from his house to his shop, therefore, I hold that Khan Muhammad (P.W.7) has also sufficiently explained his presence at the place of occurrence. In view of the above, it can safely be concluded that both the witnesses of ocular account were present at the place of occurrence and had witnessed the crime. No adverse inference can be drawn against the prosecution from the stance of Khan Muhammad (P.W.7) that they did not chase the appellant as two persons from complainant's side namely Muhammad Akram (deceased) and Ahmad Raza complainant (P.W.6) were grievously injured at the hands of the appellant and in a state of panic the complainant's side preferred to attend their injured relatives instead of chasing the appellant. Even otherwise human conduct varies from person to person.
12. It is the case of the prosecution that Ghulam Hussain (appellant) inflicted successive dagger blows which landed on the head at front side on right side, left shoulder, in the chest at front side, left and right side of chest and back of Muhammad Akram (deceased). Muhammad Akram {deceased) in injured condition was medically examined by Dr. Mushtaq Ahmad Ranjha (P.W.4) who noted the following injuries in the MLR .(Exh.PD):-
(1) An incised wound 4 CM X 1/2 CM bone exposed on right side of frontal side of head and fore- head.
(2) An incised wound 3 CM X 1 CM going deep on the right lower and lateral side of chest.
(3) An incised wound 2 CM X 3/4 CM going deep on frontal side of right side of chest.
' An incised wound 11 CM X 1 CM into muscle deep on right upper arm and shoulder.
(4) An incised wound 3 CM X 1 CM bone deep on back side on lumbo sacral region.
(5) An incised wound 3/4 X 1/2 CM on middle phalanx of left little finger. It was muscle deep.
(6) An incised wound 3.4 CM X 1/2 CM on middle phalanx of left ring finger. It was mussel deep.
(7) An incised wound 2 CM X 1/4 'CM muscle deep. On dorsum of left thumb.
After the death of Muhammad Akram (deceased) post mortem examination on his dead body was also conduced by the same doctor and as per post mortem report (Exh.PF) following injuries were observed:-
(1) An incised wound 4 CM X 1/2 CM into bone exposed. On right side of frontal side of base of fore- head.
(2) An incised wound 3 CM X 3/4 CM on right lateral and inner side of chest. It was going deep.
(3) An incised wound 2 CM X 1/4 CM on left side of front of chest. It was going deep.
(4) An incised wound 11 CM X 1 CM into muscle deep on right upper arm and shoulder.
(5) An incised wound 3 CM X 1 CM into bone exposed on dorsal side over lumbo sacral region.
(6) An incised wound 3/4 CM X 1/2 CM into muscles deep on middle phalanx of left little finger.
(7) An incised wound 3/4 CM X 1/2 CM into bone deep on middle phalanx of left ring finger.
(8) An incised wound 2 CM X 1/4 CM into muscle deep on the dorsum aspect of left thumb.
It is also case of the prosecution the appellant inflicted dagger blows which landed on left bicep of the complainant. The complainant was medically examined by Dr. Mushtaq Ahmad Ranjha (P.W.4) who, as per MLR (Exh.PE) noted the following injuries:-
(1) An incised wound 3 CM X 1/2 CM going deep on left scapular region.
(2) An incised wound 1 CM X 1/2 CM on left upper. Arm. It was muscle deep.
(3) An incised wound 1 CM X 1/2 CM on left upper arm, muscles deep and 1 CM antero inf. To injury No. 2.
Therefore. I hold that the ocular account is fully supported by the medicial evidence.
12.(sic.) It is case of the prosecution in the FIR as well as before the learned trial Court that the appellant who was armed with a dagger inflicted dagger blows to Muhammad Akram (deceased) as well as Ahmad Raza (complainant). The occurrence in this case took place on 30-7-2005. The appellant was arrested in this case on 7-8-2005 and on the same day he led to the recovery of blood stained dagger (P.3) which was taken into possession vide recovery memo (Exh.PC). The said dagger was sent to the office of Chemical Examiner and received there on 13-8-2005 and report of Chemical Examiner (Exh.PL) and that of Serologist (Exh.PO) are in the positive.Therefore I hold that the prosecution case is corroborated by the recovery of dagger at the instance of the appellant coupled with the positive report of Chemical Examiner and that of Serologist.
13. It is the case of the prosecution in the FIR that the appellant challenged Muhammad Akram (deceased) that he would be taught a lesson for having a dispute of wall and later on it was further alleged in the FIR that the motive behind the occurrence was a dispute of joint wall. While appearing before the learned trial court vis-a-vis the motive, the complainant (P.W.6) stated as under:- "Motive for the occurrence was that there was a dispute between the accused and my father over the common wall of our house. One week before the occurrence, Ghulam Hussain came to our bathak and demanded from my father that he should allow him to re-construct the common wall by extending it into our courtyard but my father did not agree. On account of which the accused bore a grudge against my father. I was present at the time of said incident."
The above extract from the examination in chief of the complainant manifests that he made improvements. He was cross-examined on this aspect of the case and 'during his cross- examination the complainant stated as under:- "...I had not stated in the FIR that one week before the occurrence Ghulam Hussain came to our bathak and demanded to my father and requested him that he should allow him to reconstruct the common wall by extending it into our court-yard and that my father did not .Agree and that I was present at the time of said incident. Confronted with Ex/P-1 where it is not so recorded and about motive only this much is mentioned that the motive was a dispute over common wall...
Moreover the complainant during his cross-examination stated as under:- "The dispute about the common wall was going for the last three or six months, but no litigation was going on regarding it nor any application was submitted by any party in that connection before any authority. There had been no occurrence or incident regarding the said dispute prior to the day and time of occurrence except the incident mentioned above. We had been living peacefully as neighbours before the occurrence. It is incorrect that I fabricated the motive."
In view of the above, I hold that the motive alleged by the complainant in the FIR as well as before the learned trial Court could not be E established during the trial.
14. Now I take up the version of the appellant put to the witnesses of ocular account, Draftsman and the Investigating Officer during their cross-examination and disclosed by the appellant while making his statement under section 342. Code of Criminal Procedure. The same has been reproduced para 4 above. It is, the case of the appellant that Ahmed Raza complainant forcibly abducted Mst. Bushra, appellant's daughter, and she was returned through the intervention of the respectables. On the day of occurrence Ahmed Raza complainant while armed with dagger again tried to forcibly abduct the said daughter of the appellant. The appellant reached at the spot per chance and tried to save the honour and dignity of his daughter. Meanwhile Muhammad Akram (deceased) also came there while armed and both of them attacked the appellant. The appellant received injuries at the hands of the complainant party and while warding off attack and to save his life and honour of his daughter deceased received injuries. After the occurrence the appellant approached the police for registration of case on his behalf and got him medically examined but due to influence of complainant party police did not register the case. In view of the provisions of 'Article 121 of the Qanun-e-Sliahadat Order, 1984 when an accused takes a specific plea the burden to prove the same lies on the accused. The appellant did not appear as his own witness in disproof of the prosecution allegations levelled against him as provided under section 340(2), Code of Criminal Procedure. Bushra. Daughter of the appellant. Who was allegedly abducted by the complainant and to save whose honour and dignity the appellant attacked upon the complainant as well as Muhammad Akram (deceased), was the star witness in support of the version of the appellant but she was also not produced by the defence. No application was moved to the police hierarchy to bring on record the manner in which the occurrence according to the version of the appellant had taken place nor any private complaint was instituted on behalf of the appellant. No doctor who medically examined the appellant in injured condition was produced.. Therefore, I am of the considered view that the appellant failed to substantiate the defence plea. Even otherwise if both the versions i.e, prosecution story and the defence plea are kept in juxtaposition, the prosecution story appears to be more probable and rings true.
15. In view of the above, I hold that the prosecution successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal, which is hereby dismissed in toto and the convictions and sentences awarded to the appellant by the learned trial Court are maintained.
16. Before parting with this judgment, it is clarified that in para 26 of the impugned judgment, the learned trial court mentioned sections 337-E(2)(b), P.P.C. The Investigating Officer (P.W.9) in his examination in chief stated that after receiving the final opinion regarding the injuries he added section 337-F(ii), P.P.C. It appears that due to typographical mistakes section 337-F(ii), P.P.C. Was written as 337(2)(b), P.P.C. Therefore, in para 26 of the impugned judgment section 337(2)(b), P.P.C.
Be read as 337-F(ii), P.P.C.