Aslam Riaz Hussain, J.--Muhammad Shall, aged 31 years, Luqman aged 26 years Muhammad Din aged 41 years and Muhammad Ramzan aged 46 years were tried by Mr. Masud Ahmad Ansari, Additional Sessions Judge, Lahore Camp, Kasur under section 302/326/325/34, P. P. C. for the murder of Ghularn Muhammad deceased and causing injuries to Mst. Hayat Bibi and Mst. Amina P.
W.
9. The learned Judge found them guilty of all the above said offences. He sentenced all of them to transportation for life, with a fine of Rs. 500 each (or six months' R. I. in default of payment of fine) under section 302/34, P. P. C. to three years' R. I. each for the offence under section 326/34, P. P. C. and to two years' R. I. each for the offence under section 325/34, P. P. C. AH the sentences were ordered to run concurrently. The four accused have come up in appeal against their conviction and sentences.
2. The facts of the prosecution case briefly stated are that two years prior to the occurrence Ghulam Muhammad deceased and his wife Mst. Amina P. W. 9 who originally belonged to village March Bhagaun District Sheikhupura shifted toChak No. 9 Gehlan, Police Station, Pattoki, District Lahore along with their children, Mst. Sharifan (P. W. 8) aged 13/14 years (but whose age is given 15/16 years in the F. I. R.) and their son Ashraf, aged 5 years. They took up residence in the Ihata of Muhammad Shafi appel lant. Muhammad Shafi started visiting their house and developed illicit relations with Mst. Sharifan P. W. When the parents of the girl came to know about this they left the Ihata of Muhammad Shafi appellant and shifted to the Ihata of Qamar Din P. W. 7 and after a few days sent Mst. Sharifan to the house of her maternal uncle Noor Muhammad in village Lakho Dehr.
Muhammad Shafi appellant was not happy about their shifting to the house of Qamar Din and repeatedly asked Ghulam Muhammad deceased to come back to his ihata, but the latter refused.
Muhammad Shafi appellant took to roaming near the house of Ghulam Muhammad (deceased) in order to find out if Mst. Sharifan was there. Ghulam Muhammad (deceased) told him to discontinue this practice. On the day of the occurrence i.e. on 21-12-1966 at about peshiwela Ghulam Muhammad (deceased) was sitting in the courtyard of his house with his wife Mst. Amina P. W. Noor lMuhammad a brother of Mst. Amina had also come to visit them. Muhammad Shafi appellant came into the street and stood in front of their house. Ghulam Muhammad (deceased) went out and objected to his standing there. This resulted in altercation between the two. They also exchanged abuses. Muhammad Shafi appellant then left the place, threatening that he would teach the deceased a lesson. After a short time he returned along with the other three appellants.
Muhammad Shafi, Luqman and Muhammad Ramzan appellants were armed with hatchets while Muhammad Din appellant was armed with a dang. They raised a lalkara. Ghulam Muhammad deceased went out from his house. Mst. Amina Bibi P. W. 9 also followed him but her brother Noor Muhammad stayed inside the house. Shortly afterwards, however, Noor Muhammad also came out. All the appellants then assaulted Ghulam Muhammad deceased.
Aslam Riaz Muhammad Din appellant caught hold of Ghulpm Hussain, j Muhammad while Muhammad Shaft appellant gave a hatchet blow on the right side of his head. Ghulam Muhammad deceased fell down on the ground with his face downward.
Luqman and Muhammad Ramzan appellants thereupon struck blows on the deceased from the blunt side of their hatchets while Muhammad Din gave him injuries with his dang.
Mst. Amina stepped forward to rescue her husband but Luqman appellant gave her a blow on her right arm with the blunt side of his hatchet which resulted in the fracture of the bone underneath.
Mst. Hayat Bibi the landlady {i.e. the owner of the lhata in which the deceased was living) also came out and intervened, but Muhammad Ramzan appellant gave a blow on her left forearm, with the right side of his hatchet causing the fraction of the bones underneath. She too fell down on the ground.
Another motive for the attack alleged by the prosecution is that Din Muhammad appellant suspected Ghulam Muhammad deceased of having illicit relations with his wife. Muhammad Din P.
W. 10 and one Sarwar also witnessed the occurrence. Qamar Din P. W. 7 and Taj reached the spot immediately after the occurrence but by that time, the appellant had fled away with their respective weapons. Ghulam Muhammad (deceased) and Mst. Hayat Bibi had become unconscious on receiving the injuries. Qamar Din P. W. Taj and Noor Muhammad carried them to the Civil Dispensary, Pattoki where they were examined by Dr. Muhammad Amin A. M. O. (P. W. l).
The doctor also sent an information to Police Station Pattoki vide ruqa Exh. P. Q. On receiving the information Khurshid Ahmad S. I. (P. W. 11) who was incharge of the police station went to the hospital. He also took a Magistrate along with hint to the hospital for record ing the statement of Ghulam Muhammad who was still alive. The doctor however told them that Ghulam Muhammad was not in a fit condition to make a statement. The S. I. thereupon recorded the statement Exh. P. D. of Mst. Amina Bibi P. W. at 4 p.m. He sent the statement to the police station for the registration of the case. Sultan Mahmood, M. H. C. recorded the formal F. I. R. Exh. P. D./l under section 307/34 and325/34, P. P. C.at4-30 p.m. on the same day. The S. I. then inspected the spot and collected some blood-stained earth from the spot. Ghulam Muhammad died at 8-45 p.m. on the night. On receiving this information the S. I. went back to the hospital and after preparing the necessary documents forwarded the body for post-mortem examination. The F. I. R. was amended and converted to one under sections 302/34 and 325/34, P. P. C.
3. The S. I. arrested all the accused on the next day. While in police custody Muhammad Shah appellant led to the recovery of a blood-stained hatchet P. 4 from his house, Luqman appellant led to the recovery of a hatchet P. 5 from his house, Muhammad Ramzan appellant led to the recovery of hatchet P. 6 from his house and Muhammad Din appellant led to the recovery of dang P. 7 from the house of his father-in-law Allah Din. The S. I. took all these weapons into possession and sealed into parcels. The site plan was also got prepared. At the time of arrest Muhammad Din appellant was found to have a slight injury on the second finger of his right hand. He was, therefore sent for medical examination.
4. Dr. Muhammad Azim Qureshi P. W. 2, who performed the post-mortem examination on the body of Ghulant Muhammad deceased found the following injuries :--
(1) A slight oblique incised wound 51"xlf" and deep into brain matter, over the middle part of the right side of the head extending from as point 1" in front of the upper part of the right ear obliquely upwards of backwards near the top of the head. The skull bone underneath was cut through under the whole length of the wound and so the brain matter. The brain matter was protruding out of the wound.
(2) A contused wound l"x i"x over the inner side of the right part of the lower hip.
(3) An abrasion l"xf" over the upper part of the middle of the forehead.
(4) An abrasion Y x " over the bridge of the nose.
(5) An abrasion V x Y over the lower part of the front of the nose.
(6) An abrasion 11" x 1/6" over the lower part of the right scapulary region.
(7) An abrasion l"x l" over the lower part of the back of the left side of the chest.
(8) A contusion mark 6" x 1" over the left side of the back of the chest in its middle part.
(9) A contusion mark 6' x 1" over the lower part of the upper part of the left buttock.
(10) An abrasion I"x 1/8" over the upper part of the left hip just above injury No. 9. Death in the opinion of the doctor was caused mainly due to injury No. 1, which was sufficient in the ordinary course of nature to cause death. This injury had been caused by a sharp-edged weapon. All the other injuries had been caused with blunt weapons. The probable time between injury and death was between 3 to 8 hours and between death and post-mortem was about 6 hours.
5. Dr. Muhammad Amin P. W. 1 who had examined Mst. Hayat Bibi and Mst. Amina Bibi P. W. found the following injuries on the person of Mst. Hayat Bibi :-- An incised wound 2J*x J"x bone deep situated on the back of left forearm leading to fracture of bone radius and ulna bone on its middle. The injury was grievous inflicted with a sharp- edged weapon within 12 hours. He found the following iujury on the person of Mst. Amina Bibi P. W. 9 :-- An abrasion 1" x 1/6" situated on the upper outerpart of right forearm and accompanied by swelling and fracture of right ulna bone in its upper third. The injury was grievous and had been caused by a blunt weapon within a duration of 12 hours.
6. After the completion of preliminary inquiry all the appel lants were committed for trial to the Court of Session. At the trial the prosecution produced 11 witnesses in support of its case. When examined under section 342, Cr. P. C. the appellants denied their guilt and pleaded innocence.
Muhammad Din appellant admitted the occurrence but gave the following version :-- Yes I came to know of it on the day of occurrence. When I surprised both of them on return to my house. I returned to my house on that day a little afternoon but before normal time. I had a hatchet in my hand with which I had cut fuel wood. I found my house bolted from inside. I knocked at the door. Ghulam Muhammad deceased opened the door and ran away. I followed him and struck blows with the blunt side of my hatchet. When he reached near the shop of Noor Muhammad he picked up a sota and struck at me. I warded off two blows on the hatchet while the third blow hit me on my hand. In the meanwhile Mst. Amina and Hayat Bibi intervened and they received injuries.
After that I gave a hatchet blow from the right side of the hatchet to the deceased and he fell down. I acted under grave and sudden provocation as well as in self-defence."
Muhammad Shall appellant also stated that Ghulam Muhammad deceased had never taken up residence in his ihata but had occupied the ihata of Siddiq and Sharif and hadjnever shifted to the ihata of Qamar Din. He denied the allegation of having cultivated illicit relations with Mst. Sharifan.
He stated that he had been involved falsely due to enmity with Muhammad Din and Qamar DinP.
Ws. and Sarwar and Taj Din. He stated further that Mst. Amina P. W. had been prevailed upon by these persons to inflict him i.e. Muhammad Shaft appellant and his brother Luqman appellant on the promise that they would support the prosecution case by appearing as prosecution witnesses.
Luqman appellant gave a similar statement and said that Qamar Din P. W. was inimical to them because they (Muhammad Shah and Luqman appellants) were in forcible possession of the share of Mst. Hayat Bibi in the property left by their father Sohna.
Muhammad Ramzan appellant stated that he had been falsely involved in the case by Muhammad Din P. W. 10 due to an election dispute. He explained that in the last election of the Union Council Muhammad Din P. W. supported Abdullah Lambardar while he supported one Yahya.
Since he (Muhammad Ramzan) was the head of the Machhi family and had a large Mohd. Shaft number of votes under his control, Muhammad Din P. W. wanted him to use his influence and get the votes cast in favour of Abdullah but he refused. This had resulted in exchange of Aslam Riot abuses and Muhammad Ramzan had hit Muhammad Din P. W. Hussain, J The latter had, therefore, invloved him falsely in the case.
7. We have heard the learned counsel for the parties at length. The learned counsel for the appellants contended that the defence version given by Muhammad Din appellant was correct and that in any case the version offered by the prosecution had not been established- beyond reasonable doubt. He also contended that the eye-witnesses were not telling the truth and attacked the prosecution story on the ground that the motive had not been established that the injury on Muhammad Din appel lant had not been explained and that some of the eye-witnesses hud not been produced which raises a presumption against the prosecution version.
It may be mentioned that five eye-witnesses were mentioned by Mst. Amina P. W. in the F.
1. R. They were Noor Muhammad, Sarwar, Mst. Hayat Bibi, Muhammad Din P. W. 10 and Mst. Amina P. W. 9 herself. Out of these the lirst three persons were not produced at the trial. Mst. Amina and Muhammad Din P. Ws. were however, produced, who fully supported the prosecution version.
8. The learned defence counsel attacked the statement of Mst, Amina P. W. on the ground that she was closely related to the deceased being his widow. She could not deny her presence at the spot in view of the injury sustained by her, but contended that she had been prevailed upon by Qamar Din and Muhammad Din. P. Ws. enemies of Muhammad Shall and Luqman appellants to name them i.e. Shall and Luqman falsely in return of a promise that they would appear as prosecution witnesses in the case and give her full support. He contended further that the story about Muhammad Shall appellant having developed illicit relations, as given by Mst. Amina P. W. was incorrect and disputed the motive for the offence as far as it relates to Muhammad Shali and contended that the real cause for the attack was the suspicion of Muhammad Din appellant that Ghulam Muhammad deceased was carrying on with his wife which is admitted in the F. I. R. itself.
9. Mst. Sharifan the daughter of Ghulam Muhammad deceas ed was produced by the prosecution, as P. W. 8 in support of its case. She has admitted that after her parents had taken up residence in the Ihata of Muhammad Shah appellant, the latter started visiting their house and bringing present for her and developed illicit relations with her but when her parents came to know about the affairs they shifted their residence and sent her to live with her maternal uncle Noor Muhammad at village Lakho Dehr. She however, denied that Muhammad Shah appellant had committed sexual intercourse with her. The learned counsel for the appellants argued that in view of the fact that the girl had (VOL. V with her. He argued further that it is admitted that since that IIiata of the house of Qamar Din P. W. to which Ghulam Muhammad deceased and Mst. Antina P. W. had shifted is visible from the Ihata of Muhammad Shah the latter had no ticed to roam about in the street near the ihata of Qamar Din P. W. to find out whether Mst. Sharifan was there or not.
10. We arc not impressed by these arguments. As rightly pointed out by the learned trial Court it is not necessary that sexual relations must be established between a man and womau (who are not married to each other) before it can be said that they have developed illicit relations. The dictionary meaning of illicit relations are prohibited or forbidden 'relations. As observed by the learned trial Judge, free meeting between a young girl with a member of opposite sex is strictly forbidden in our society specially in the absence of elders. Secret or clandestine meeting between members of the opposite sex is also not perniis- i sible and are in fact prohibited. If a young man develops such 1 relations with a girl which gives him access to her when she is alone this would certainly be resented by the parents of the girl. If a youngtnan develops physical relations with a girl short of sexual intercourse it is to be regarded as illicit relations in view of the above-mentioned social taboos. There is therefore no force in the contention that since Mst. Sharifan P. W. has not admitted having had sexual intercourse with Muhammad Shah appellant it cannot be said that there were any illicit relations between them.
It is no doubt correct that in the Court of the committing Magistrate Mst. Atnina'P. W. 9 stated that the compound of her Ihata (i.e. that of Qamar Din P. W.) was visible from the house of Muhammad Shaft appellant but she denied this at the trial. To check up as to which one of her two statements is correct we examined the site plan Exh. P. C. The house of Muhammad Sliafi appellant as well as the house of Ghulam Muhammad deceased are shown in the plan. There are houses on both sides of the street in which the occurrence took place. The ihata of Qamar Din P. W. where Mst. Amina P.
W. and Ghulam Muhammad deceased resided at the time of the incident is shown at point No. 4. A look at the plan would show that a number of house intervene between the house Of Muhammad'
Shafi appellant and the ihata where Ghulam Muhammad deceased lived and that this ihata could not Be visible from the house of Muhammad Shah appellant. In any case being enamoured of Mst.
Sharifan who as stated by the learned trial Court in para graph 11 of his judgment is a young blood with attractive looks and having developed illicit relations with her, he was not satisfied with looking at the ihata from his own house situated far away, and must have felt compelled to roam around the house of Mst. Sharifan in the hope that; he1 might be able to contact her or he was seen by her.
Wc arc, therefore, of the view that the present story relating to the motive is fully established.
11. As to the seqond. motive namely that Muhammad-Din appellant suspected Ghulam Muhammad deceased of having illicit relations with his wife, this motive has been admitted by Muhainmad Din appellant himself. The prosecution was, therefore not required to establish it by producing evidence.
12. It will be noticed that the occurrence itself is not denied. Only a different version of the same has been put forward by. the defence. Muhammad Din appellant has'stated that he alone had caused injuries to the deceased under grave and sudden, provocation and in the exercise of the right of self- defence. The difference version has already been given above in detail. The question for determination, therefore is as to which one of the two versions is correct. While considering this ques tion it has, of course, to, be kept in mind that while the prosecu tion is under a duty, to establish its case beyond reasonalrle doubt, the accused, person is only required to show that there is a reasonable possibility that the version put forward by him might be true.
13. It will be appropriate to discuss, at the outset, the version put forward by Muhammad Din appellant. Tt will be noticed that before the committing Magistrate Muhammad Din appellant gavethe following version :-- "On the day of occurrence I went to the fields for collecting and cutting chappas for use in the Tandoor. When I returned back to my house at 11 a.m. I saw the door of my outer gate of the house shut. Nobody replied me on my call from inside. I peeped through the slit of the door and found that my wife and Ghulam Muhammad deceased were coming out of the kotha in a suspicious position. The deceased ran after scaling over the wall of my house. The hatchet which was with me already for cutting chappas, I used it from its right and wrong side in sudden provocation and due to rage by pursuing the.deceased. I had no doubt about the fidelity of my wife before this occurrence. I did so in sudden provoca tion and to save, my respect. I produce my written statement."
At the trial, however, he gave a different version which has already been reproduced in paragraph No. 6 above. In the later statement he has made a number of improvements and apart from taking up the plea of grave and sudden provocation he has added circumstances which would enable him to take the plea of the exercise - of right, of private defence. Apart from his bare word there is hardly any evidence on the record to support the version given by him. Nor has he cared to produce any witness in support of his version. The occurrence admittedly took place in front of the itaho of Qamar Din where Ghulam Muhammad deceased and Mst. Amina P. W. were residing at the relevant time. It was from there that the blood-stained earth was collect ed by the Investigating Officer. Even Qamar Din P. W. himself, who had tried to help the appellants, has admitted that Ghulam Muhammad used to reside in the said ihata. This completely negatives the defence version, The counsel for the appellants attempted to argue that the deceased did not live in the said ihata and was overtaken by Muhammad Din appellant where he was running towards his house which was situated far away.
The argument however ignores the fact that apart from the deceased two women, namely Mst.
Amina, P. W. and Mst. Hayat Bibi were also injured during the incident at that very place. The defence version gives no explanation whatsoever as to how these women came - to present there.
The only possible explanation for these injuries is that given by the prosecution, namely that Mst.
Amina and Mst. Hayat Bibi also came out of the house and tried to intervene, but were given injuries by the appellants. The fact that Mst. Amina P. W. came out of the said house further supports the prosecution version that the occurrence had taken place in front of the house of the deceased. Three persons have been injured during the incident. These injuries have already been enumerated in paragraphs Nos. 4 and 5 above. The number and the nature of the injuries support the prosecution version and completely negative the story put forward by Muhammad Din appellant that he alone had attacked Ghulam Muhammad deceased. It is true thttf even according to the prosecution Muhammad Din appellant had a motive to attack Ghulam Muhammad inasmuch as he suspected him of having illicit relations with his wife. But the version given by him is completely belied by the evidence on the record as mentioned above.
We are, therefore of the view that the defence story is utterly false and merits to be rejected.
14. Tt might be mentioned that out of live eye-witnesses men tioned in the F. I. R. only two namely Mst. Amina P. W. 9 and Muhammad Din P. W. 10 were produced at the trial. The remaining three, namelv Sarwar, Noor Muhammad and Mst. Hayat Bibi were not produced. Out of the last mentioned three witnesses Noor Muhammad is the real brother of Mst. Amina P. W. and Mst. Hayat Bibi was herself injured during the incident.
The learned counsel for the appellants contended that the non-production of these eye-witnesses raises a strong presumption against the prosecution, namely that if produced they would not have supported the prosecution version. In support of this con tention the learned counsel referred to Ghulam Muhammad and another v. The State (1). Abdul Monan v. The State (2) and Serajul Mir and others v. The State (3).
15. We have considered this question and have gone through the authorities mentioned by the learned counsel but we are not pursuaded to agree with him on this point.
The Karachi case relates to offences under section 323/324/ 326/34, P. P. C. Three of the eye- witnesses were not produced by the prosecution and the learned Judge observed that in view of the prevaricating statements made by the eye-witnesses pro duced by the prosecution as well as non-examination of three [8] close relations of the complainant it will be unsafe to hold that the version given by the two eye- witnesses produced by the prosecution is worthy of reliance.
In the case of Abdul Manan, it was found that the withholding of certain witnesses, who were essential for the unfolding of the prosecution story gave rise to a presumption under section 114(g) of the Evidence Act against the prosecution.
In the case of Sirajul Mir the learned Court after con- gidering a number of authorities laid down the principle that although there is no obligation on the prosecution to produce every available witness and the prosecutor has the discretion to decide which witnesses should be examined and which witnesses should be dropped and no presumption can be raised against the prosecution merely because some of the eye witnesses are not produced yet even a witness is essential for the unfolding of the narrative on which the prosecution is based and the prosecution has an oblique motive for withholding any witness, a presumption under section 114(g) of the Evidence Act shall arise against the prosecution namely that if produced such a witness would not support the prosecution story.
16. Tn the present case Mst. Hayat Bibi has been given up by the prosecution as having been won over as also because of her old age and infirmity. As already observed there is good reason to believe that Muhammad Shaft and Luqman appellants had reached a compromise with Mst.
Hayat Bibi and that she had been won over. No adverse presumption can therefore, be raised against the prosecution on account of her non-production as there was no oblique motive in not producing her. Noor Muhammad who has been named as an eye-witness as regards the manner in which the occurrence took place. But since Mst. Amina P. W. 9 and Muhammad Din P. W. 10 had already given all the details of the occurrence, the production of Noor Muhammad was not so essential for unfolding of the prosecution version. Apart from this it cannot be contended with any force that Noor Muhammad would not have supported the prosecution story in which his brother- in-law had died and the sister had been badly injured if he had been produced in Court. Therefore, in his case too there was no oblique motive with the prosecution for withholding him. As a result we find that the non-production of these two witnesses does not raise any adverse presumption against the prosecution.
17. We now come to the ocular evidence. The learned counsel for the appellants attacked the evidence of Mst. Amina Bibi P. W. 9 on the ground that she is closely related to the deceased being his widow. He also contended that she had not told the truth and had falsely implicated Muhammad Shaft and Luqman appellants under the influence of Qamar Din and Muhammad Din P. Ws. who are enemies of the said appellants, because they had promised in return to support the prosecution case and appear as prosecution witnesses. He also contended that her statement was discrepant and pointed out that whereas at the trial she had stated that after the earlier incident in which her husband and Muhammad Shaft appellant had exchanged abuses, the latter returned with his companions within two or three minutes but before the committing Magistrate she had stated that he came back after about half an hour. He argued that if she had been present at the spot she would not have made such mistake.
We are not inclined to agree with the learned counsel. In view of the grievous injury sustained by her during the incident, her presence at the spot at the time of occurrence cannot possibly be denied. The above-noted discrepancy does not lead to the inference that she - was not present at the spot but only shows that her estimation of time , is not very accurate. That is. not surprising considering that she- is a rustic and there was a con siderable interval of time between the two statements. The mere fact that she is the widow of the deceased does not in any way effect her credibility for she is not said to have had any previous enmity with any of the appellants and had no reason whatsoever to implicate them falsely. The contention that she had named Muhammad Shafi and Luqman appellants on the persuation of Qamar Din and Muhammad Din P. Ws.is very fetched and does not stand scrutiny.
18. The defence cross-examined Qamar Din and Muhammad Din-P, Ws. at length to show that there was enmity between Muhammad Din P. W. on the one hand and Muhammad Shaft and Luqman appellants on the other, as a result of some murders committed earlier. The attempt was to show that Muhammad Din P, W. and his relatives and Muhammad Shaft appellants and his relatives were alternately murdering each other and that as a result Muhammad Din P. W. was dead set against Muhammad Shaft and his brother Luqman appellants and used the murder of Ghulam Muhammad as an opportunity to get them involved falsely.
We have carefully read the relevant part of the cross-examina tion. The learned counsel for the appellants also prepared a chart to show as to how the enmity is brought out by the cross- examination. He admitted before us that Muhammad Din P. W. himself did not admit anything.wliich would bring out any such enmity and that he lifts prepared the chart from the statement of Qamar Din P. W. 7 alone. He has relied on the following portion of his statement made during the cross-examination :-- (/) Allah Bakhsh was murdered about 15 years ago. I was a P. W. in that case. Suleman a brother of Muhammad Shaft and Luqman accused and their first cousin Abdul Rehman were involved in that case as murderers.
(//) After some time Muhammad Ali son of. Sultan was murdered. In that connection Musa his son Al,i Muhammad his son-in-law Shakar, Sarwar, P. W. and Bashir were challaned. It is correct that Ali Muhammad accused in Ihnt case is brother of Muhammad Din P. W. in this case.
07/) It is correct that Muhammad was son-in-law of Noor Din son of Elahi Bakhsh. This Noor Din is first cousin of It will be noticed that O') that one Allah Bakhsh was murdered 15 years earlier. Suleman a brother and Abdur Rahman- a cousin of Muhammad Shah and Luqntan appellants were accused in that case1 and Qamar Din P. W. appeared as a prosecution Witness in that case. 'The accused in'that ease were acquitted.
The fact that Qamar Din was a P. VI t in that case does not necessarily show that he was inimical to Muhammad Shad and Luqman appellants and it is in fact they who may have had a grudge against Qamar Din for appearing against their brother, who may be innocent (considering that he was acquitted).
In any case, the only inference that can be drawn from these facts is that Qamar Din had a grudge against the alleged murderers of Allah Bakhsh ie. against Suleman and Abdur Rehman. The latter died but Suleman was still alive. If Qamar Din had to involve any one falsely he would have much rhther named Suleman instead of Muhammad Shaft and Luqman appellants.
(i'O the second and the third part of the above-noted, portions of Qamar Din P. W. disclose that one Muhammad Ali was murdered. He was the son-in-law of one Noor Din. This Noor Din is a cousin of Muhammad Shall and Luqman and Musa the father of Ali Muhammad the brother as well as three brothcrs-iu-law of Muhammad Din. P. W. were challaucd in that case.
It is sought to argue front the above-noted facts that Muhammad Din P. W. was, therefore, inimical to Muhammad Shafi and Luqman appellants and was very keen to involve them falsely in some serious case and that lie had in fact, pursuaded Mst. Amina to do so. This inference appears to be unwarranted. Muhammad Ali was too remotely related to Muhammad Shafi and Luqman appellants to give any cause of complaint to Muhammad Din P. W. against them. If at all Muhammad Dtn'P. W. would have involved nearer relatives of the said Muhammad Ali. Secondly it is in evidence that Muhammad Shaft and Luqman had two other brothers namely Suleman and'Khushi Muhammad (the latter is mentioned by Mst, Sharifan P. W. 8). Why isit then that Muhammad Din P. W. (if at all he was aggrieved over the false involvement of his father, brothers- and brothers-in-law) did not involve Suleman and Khushi Muhammad and insisted ou naming Muhammad Shaft and Luqman against whom no distinct or special enmity is alleged.
We are of the view that no previous enmity of a Serious nature between Qamar Din and Muhammad Din P.' Ws. on the one hand and Muhammad Shall and Luqman appellants on the other has been established. As a matter of fact it appears Qamar Din P. W. has during his cross- examination attempted to bring on record some facts on the basis of which it could be argued that they were inimical to Muhammad Shah and Luqman appel lants. We shall discuss the possible reason for this presently.
19. Another cause of enmity between Qaraar Din P. W. and these two appellants (i,e. Muhammad Sliali and Luqrnan) was also convassed i.e. that they had usurped the share of property inherited by Qamar Din to his mother Mst. Hayat Bibi on the death of her father Sohna. it is pertinent to note that Mst. Hayat Bibi is the step-sister of Muhammad Shali and Luqman appellants their father being one Sohna. She had been seriously injured during the incident. She must, therefore, have been present during the occurrence. Yet she did not come into the witness-box to depose against the appellants. She was given up by the A. P. P. inter alia as having been won over. Her sou Qamar Din appeared as P. W.
7. Admittedly he had reached the spot after the incident was over. He did not say anything which could form evidence against them. On the contrary he made a number of concessions or admissions in favour of the appellants which were subsequently made the basis of arguments in favour of the appellants. It appears from their conduct that Muhammad Sliali and Luqman appellants had patched up their differences with Mst. Hayat Bibi and her son Qamar Din P.
W. over the properly left by Sohna. Mst. Hayat Bibi therefore refused to appear as P. W. against her step brothers and her son Qamar Din P. W. was utilized for bringing some favourable material on the record. Considering the attitude of these persons we feel that if Mst. Amina P. W. had in fact named these appellants only on the asking of Qamar Din P. W. and did not have any reason to be aggrieved against them personally then she too would have attempted to exonerate them at the trial.
20. As a result of the above discussion wc are inclined to feel that the contention that Muhammad Shali and Luqman appellants were named by Mst. Amina P. W. under the influence of Qamar Din and Muhammad Din P. Ws. has no force what soever. She is a natural witness, as she lived in the house in front of which the incident took place. Her presence at the spot is established by the injuries on her person. She has no motive to falsely involve the appellants. We have, therefore, no reason to disbelieve her. In fact we are of the view that she is a truthful witness. Her husband had been attacked before her very eyes, and died as a result of the injuries inflicted to him. She would, therefore, name the actual assailants of her husband. The F.
1. R. was lodged without any loss of time. The occurrence took place at pesliiwela. She and her husband were taken to the hospital at Pattoki at a distance of 3 miles where she made the statement Exh. P. D. at 4 p.m. naming all the four appellants. She had no time to concoct the story. She has supported the version given by her in the F. I. R. and the discrepancies in her statement are of trivial nature. We are, therefore, of the view that the version given by her is correct.
21. The learned counsel criticised the evidence of Muhammad Din P. W. 10 on the ground that he was a chance witness and was inimical to the deceased. He pointed out some contradictions in his statements as to the reason of his presence at the spot at the time of occurrence. At the trial this witness explained his presence at the spot by saying that lie was on his way to see one Shah Muhammad and when he reached the house of Maulvi Noor Muhammad he found Sarwar P. W. standing there and stopped to talk to him and that 4/5 minutes thereafter the first incident. In which the deceased and Muhammad Shall exchanged abuses with each other, took place. He explained further that Shah Muhammad to whose house he was going is a flour mill owner whose shop is outside the village towards the east. Before the committing Magistrate however he had stated that he was going to the shop of a lohar which was situated closeby i.e. close to the shop of Maulvi Noor Muhammad. He had stated further that the first incident had taken place after about half an hour after he had met Sarwar.
22. In view of the fact that Muhammad Din is a chance witness, the reason given by him with regard to his presence at the spot, at the time of occurrence, is very material. But from the contradictory statements made by him at the trial and before the committing Magistrate which have been mentioned above it becomes doubtful whether he was present at the spot at the relevant time. Although he may have come there subsequently and joined the investigation. As to the contention that he was inimical to the appellants the learned counsel has not been able to establish it from the record, as discussed earlier in paragraph No. 16 we therefore, find it unsafe to rely on his testimony as far as the details of the occurrence are concerned.
23. Qatnar Din P. W. 7 is not an eye-witness and is said to have come to the spot subsequently after the assailants had already left. He is therefore of no use to the prosecution. As a matter of fact as already observed he appears to have been won over and had made a number of concessions and admissions in their favour.
24. Wc are, therefore, left only with the testimony of Mst. Amina Bibi P. W. 9 as far as the details of the actual occurrence are concerned. We have already found that she is a truthful witness and there is no reason for disbelieving her testi mony. It may be mentioned here that her testimony is supported by the recovery of hatchet P. 4 from the house of Muhammad Shali appellant. This recovery has been deposed to by Muhammad Din P. W. 10 and Khurshid Ahmad S. I. P. W.
11. No doubt we have as a measure of abundant caution, considered it unsafe to rely on the evidence of Muhammad Din P. W. 10 as regards the details of the occurrence as he may not have been present at the spot at the time of the occurrence, but wc have not rejected his testimony in its entirety because there is no reason for disbelieving that he may have come subsequently and joined the investigation. He is not found to have had auy previous enmity with the appellants. It could, therefore, not be unsafe to rely on this portion of his testimony.
Khurshid Ahmad S. I. P. W. 11 has also corroborated the evidence with regard to this recovery and his statement cannot be rejected merely because he is a police officer.
The hatchet P. 4 was found to be stained with human blood. Its recovery from the house of Muhammad Shaft appellant, there fore fully corroborates the prosecution version. Similarly the medical evidence also corroborates the version given by Mst. Amina Bibi P. W.
25. Ghulam Muhammad deceased and Mst. Hayat Bibi had both received incised injuries caused by a hatchet. Mst, Amina Bibi P. W. also received a grievous injury on her arm resulting in the fracture of the boneunderneath. This injury can be caused by the wrong side of the hatchet. The number and nature of injuries on the person of the deceased as well as Mst. Amina Bibi P. W. and Mst. Hayat Bibi show that these were the result of ail attack by more than one person, who were armed with different kind of weapons.
26. As a result of the above discussion we find that the prosecution case against the four appellants (as put forward by Mst. Amina Bibi P. W. 9) and corroborated by the recovery of blood- stained hatchet P. 4 and medical evidence as also by the testimony of Mst. Sharifan P. W. 8 with regard to the motive stands established beyond reasonable doubt. We, therefore, dismiss their appeal. .