' Nazar Muhammad alias Nazara s/o Muhammad Khan and Muhammad Khan s/o Ahmad Khan, caste Joota Awan, residents of Chak No, 52 Alit NB, Tehsil and District Sargodha, have been convicted by the learned Additional Sessions Judge, Sargodha on 5-3-1981 under sections 302/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs,5,000 each or in default to undergo one year's R.I.
2. Haji Ahmad accused was, however, acquitted, Nazar Muhammad and Muhammad Khan have filed this appeal.
3. The appellants suspected Allah Din deceased of having illicit relations with Mst. Malkani sister of Muhammad Khan appellant.
4. The prosecution case in brief is that on the night between 7/8-7-1980 at about 11 p.m. Amir Aman Ullah Khan P.W. 5 (complainant) was irrigating his fields along with Muhammad Raiz P.W.6 and Muhammad Aziz (not produced). They heard noise from the bank of Suleki Branch. They rushed and saw the appellants and Haji Ahmad (acquitted accused) belaboring Allah Din deceased. After felling him on the ground Haji Ahmad pressed his neck while the appellants caused Dangs blows to him at his back, buttock and legs. On account of fear the P.Ws. Did not go near them. The three accused lifted the deceased from his legs and arms and took him towards their Dera. Amir Aman Ullah Khan P.W. Sent his servant Muhammad Aziz to inform the relatives of the deceased while he himself followed the accused in the company of Riaz P.W. The accused left the deceased in Killa No, 11 and fled away. The deceased died of the injuries instantaneously. The deceased who was a milk- seller used to return from Sargodha at about 10.00 p.m. On the night of occurrence he was on way back to his house when he was done to death. Amir Aman Ullah Khan reported the matter to the police by lodging the F.I.R. Exh.P.F. At about 4.00 a.m, the distance between the spot and the police station being 5 miles. After recording the F.I.R. S.I. Syed Mushir Ali Shah P.W.7 reached the spot, prepared the injury statement Exh. P.G. And inquest report Exh.P.H. Of the deceased. He took into possession cycle P.5, milkdrum P.6, pair of shoes P.7/1-2 from the spot and arrested the accused.
Muhammad Khan appellant produced Sota P.3 on 9-7-1979 which he took into possession through memo. Exh. P.C. Attested by Amir Amanullah Khan and Ali Ahmad P.Ws. Nazar Muhammad appellant produced Sota Exh. P.4 through memo. Exh. P.D. The S.I. Got prepared the site plans Exh.
P.E. And P.E/1. After completion of the investigation he challaned the accused.
5. Dr. Muhammad Altai Hussain P.W.2 conducted autopsy on the dead body of Alla Din deceased
(32) on 8-7-1979 and found the following injuries thereon:- (1). Multiple contusion (countless) of different sizes and in different directions on the whole of the back of the chest and back with swelling.
(2). Multiple contusions (countless) of different sizes and in different directions on both buttocks with swelling.
(3). Multiple contusion (countless) on the back of right thigh of different sizes and directions.
(4). Six (6) contusions in an area of 24 c.m. x 8 c.m. On the outer side of right thigh.
(5). Multiple contusions (countless) on the back of left thigh of different sizes in different directions.
(6). A contusion 18 c.m. x 5 c.m. Area from the back of right leg in different sizes and directions.
(7). Seven (7) contusions in an area of 17 x 5 c.m. On the back of left leg in different sizes and directions.
(8). Two (2) lacerated wounds 4 c.m. x 11 c.m. And 3 c.m. x 11 c.m. On the front of right leg on the lower one 3rd part.
(9). Six (6) contusions 5 c.m. x 3 c.m. And 4 c.m.x 3 c.m. On the right upper arm in different directions.
' All the injuries were ante-mortem and caused with blunt weapons. Death was due to shock and the collective effect of all the injuries which were sufficient to cause death. Stomach contained 4 Ozs. Of digested food. Large intestine contained faucal matter. The time between injuries and death was within 2 hours while that between death and post-mortem examination 18 houRs, Exh.
P.B. Is the post-mortem report.
' The appellants pleaded not guilty to the charges and denied the prosecution allegations. They stated that the deceased was a baildar in the Irrigation Department and was posted at a long distance from the village. They denied to suspect the deceased of having illicit relations with their sister. They produced Ahmad Khan Moharrar Head-Constable in their defence. He proved Exh.P.D.
Certified copy of the F.I.R. No, 348, dated 19-11-1979, P.S. Saddar, District Sargodha under sections 148/149, P.P.C. According to this F.I.R. Gul Sher, Muhammad Ashraf and Muhammad Mumtaz were injured by Muhammad Nawaz and Muhammad Siddique etc.
6. Relying upon the ocular testimony which stood corroborated by the medical evidence, the trial Court convicted and sentenced the appellants as stated above. The motive was also found to be proved against the appellants, however, no importance was given to the recoveries of Dangs from the appellants.
7. Criticizing the judgment of the trial Court learned counsel for the appellants states that the conviction could not be based on the evidence of inimical witnesses, that unexplained delay of 5 hours was sufficient to disbelieve the prosecution story and that it was an unseen occurrence which was the result of grave and sudden provocation. Learned counsel has cited a number of authorities to show that the appellants are entitled to the benefit of grave and sudden provocation although not specifically pleaded by them in their statements under section 342, Cr.P.C. According to him it is spelt out from the evidence that the deceased was done to death near the houses of the appellants at night time while he was roaming about there in suspicious circumstances. No doubt the law permits the extension of the benefit of plea of grave and sudden provocation though not specifically pleaded provided it is discernible from the evidence but in the instant case there is no circumstance from which it can be spelt out that the deceased was found at the spot without any justification. The prosecution case is that he was going back to his house after selling milk in the city. The recovery of his cycle and milk drum support the prosecution version. The assertion of the appellants that the deceased was employed as baildar in the Irrigation Department does not stand established from the evidence on record. They could have produced evidence to prove the same but except their on bald statement there is nothing to substantiate this assertion.
Amir Aman Ullah P.W. 5 and Muhammad Riaz P.W.6 have given cogent reasons for their being present at the spot in the late hours of the night. The former stated that he was irrigating his land with the help of Muhammad Riaz P.W.6. They were subjected to lengthy cross-examination but their evidence could not be shattered. They had no direct enmity with the appellants and had no reason to falsely implicate them. They stand fully corroborated by the medical evidence. The delay in lodging the F.I.R. Is without any significance. It was a night occurrence and the police station was at a distance of 5 miles and keeping in view the fact that the occurrence had taken place in the field and relatives of the deceased were sent for to the spot, before anybody could leave for the police station some delay was obvious. The evidence of motive is based on hearsay but it is a settled proposition that it is not at all necessary that in every case motive must b proved. The absence of motive is without any significance when unimpeachable ocular testimony is available.
8. Keeping in view the above circumstances, I think that the prosecution has fully succeeded in bringing home the guilt to the appellants and thus they were rightly convicted and properly punished. Finding absolutely no merit in the appeal I dismiss the same. The appellant shall, however, be given the benefit of section 382-B, Cr.P.C. In computing the period of their imprisonment.