{{PAGE CUT}} ' Muhammad Bashir (45) and Muhammad Zaman (35) have been entenced under section 302/34, P.P.C. To life imprisonment and a ine of Rs,10,000 each. In default of payment of fine further R.I. Or six months each.
' They have also been convicted under section 307/34, P.P.C. o 7 years' R.I. And a fine of Rs,5,000 each and in default thereof urther R.I. For six months each. They were convicted by Additional .Essions Judge, Rawalpindi, vide judgment dated 18-8-1985.
' The present appeal is directed against their conviction and entence. Complainant has also filed revision, seeking the enhancement sentence. Both the matters will be disposed of by this judgment.
2. Prosecution story-in brief is that on 25-4-1984 at about 5-30 ..m. Abdul Haq P.W.7 along with his mother Mst.Muhammad Jan was arvesting the wheat crop. Muhammad Taj PW was grazing the cattle earby. Muhammad Bashir and Muhammad Zaman accused armed with atchet and stick respectively came from the village side. They raised alkara on which Abdul Haq PW started running.
He was overtaken by both the accused Muhammad Bashir gave a hatchet blow on the ead of Abdul Haq. Muhammad Zaman gave a stick blow on the head )f Abdul Haq who fell down.
Muhammad Bashir gave another hatchet low with wrong side of it on the head. Mst.Muhammad Jan came orward to save her son. She was warned by the accused persons of to come near Abdul Haq. She did not step back. Muhammad ashir accused gave a hatchet blow on the left side of her hand. Uhammad Zaman gave a stick blow on the front of her head on which she fell down.
Muhammad Taj PW raised hue and cry whereupon Muhammad Sharif and Shabbir were attracted to the spot and saw the )ccurrence. After the commission of offence, both the accused ran - iway with their respective weapons.
' The motive for the occurrence is that two days earlier cows Belonging to the appellants had entered the fields of the complainant. Abdul Haq and Muhammad Taj rounded up the cows and then impounded ::tem in the cattle pond. .
3. FIR Exh.PE was lodged by Muhammad Taj on 26-4-84 with the ['Mice Station Chontra at 11.00 a.m.
It was recorded by Muhammad ruusaf, S.I. S . I-I .0. PW.12. Distance of Police Station from place of )ccurrence is ten kilometers. The case was registered under Section 307/34, P.P.C.1 ' After the registration of the 'case, the Investigation Officer :ook into possession receipt Exh.PF about the impounding of the tattle. He took into possession blood-stained clothes of Abdul Haq, vide memo Exh.PG. On 27-4-1987, he took into possession blood-stained ?Arth vide memo. Exh.PJ from the place of occurrence. On 5-5-1984 Mst.Muhammad Jan, died in Holy Family Hospital, therefore, he added section 302, P.P.C. Both the accused were arrested on 8-5-1984. Muhammad Bashir accused led to the recovery of hatchet P 3 from iis house. Muhammad Zaman accused produced stick P 4 from his house which was taken into possession vide memo Exh.PB and Exh.PC respectively.
4. Dr.Muhammad Tasneem, Medical Officer, D.H.Q. Hospital, Rawalpindi, PW.4 examined Abdul' Haq, on 26-4-1984 at 1 a.m. He round 3 injuries on his person. Injury No,1, 5 c.m. x 5 c.m. Bone deep at the right temporal region was incised wound. The other two injuries were caused by blunt weapon. As there was no bed-available in the hospital he referred the injured to C.M.H. Hospital. On the same day at 2 a.m. Dr.Nasim Akhtar Qureshi a Trainee Officer, C.M.H. Rawalpindi, PW.11, examined Abdul Haq injured and found 3 incised wounds which were stitched. Dr.Akhtar Ali, PW.10, examined Mst.Jan Muhammad on 26-4-1984 at 8.00 a.m. And found two blunt weapon injuries. Injury No,2, was a contused swelling on left temporal region about 3 c.m.x 3 c.m. After X-ray it was declared grievous.
He also conducted post-mortem examination on the dead body of Mst. Muhammad Jan aged 60 years and opined that death was due to haemorrhage and shock because of injuries Nos.1 and 2.
5. 'Prosecution in support of its case has produced 13 P Ws. In all. Eye-witness account has been furnished by Muhammad Taj, PW.6 and Abdul Haq injured PW.7. Both were the sons of the deceased, and Ghulam Shabbir, PW.8, nephew of the deceased. Muhammad Sharif was given up as unnecessary. Recovery from the accused persons has been proved by Abdul Razzaq PW.3, and Muhammad Yousaf, S.I. PW.12. The doctors who had examined the injured have already been discussed above. The rest of the evidence is of formal nature which need not be discussed here.
The accused persons at the conclusion of the trial were examined under Section 342, Cr P C. They have denied every incriminating evidence against them. They have further stated that Abdul Ilaq, PW. Suspected his sister of illicit relation with a son of Muhammad Zaman, accused. On the fateful day, he went to kill his sister when Mst.Muhammad Jan, intervened. Abdul Haq, PW. Caused her injuries as well. One Ashraf was present who tried to save the deceased and in that endeavour caused injuries to Abdul Haq.
6. The trial Court while convicting the accused has believed ocular evidence, the motive, recoveries at the instance of the appellants and the medical evidence.
7. Learned counsel for the appellants states that there is an inordinate delay in registration of the case which has not been explained. Even if it is accepted that the complainant had to take the injured to hospital yet no explanation is on the file to the effect why he did not take both the injured in the same Suzuki van: It is contended that the delay is because of consultation and deliberation with regard to false involvement of the appellants. It is contended that the motive in the instant case has been proved. Because it has not been proved that the cows so impounded belonged to the appellants. It is further contended that the cows allegedly were impounded two days earlier.
During this period no incident took place at all. Especially when both the parties are next door neighbourers. In this view of the matter, it is submitted that the motive as set up by the prosecution could not have been the result of the present occurrence ' It is contended that the alleged recoveries at the instance of the accused persons have not been proved at all: As no reliance on the statement of Abdul Razzaq PW, can be placed. He is admittedly a chance witness as he does not belong to the place of recoveries. He had stated that two statements of him were recorded by the police. Whereas, in fact there is only one statement under Section 161, Cr .P. C .
' It is contended by the defence that Muhammad Taj- complainant was not present at the scene of occurrence at all. Had he been present then the motive should have been directly against Muhammad Taj as he is the one who had taken the cows alongwith his brother to the cattle pond.
The receipt was also issued in his name. In such circumstances, he should have been the first target. As for Abdul Haq injured PW is concerned, it is submitted that he has suppressed certain facts, therefore, cannot be relied upon. Ghulam Shabbir is a close relation, who is an interested witness, therefore, his evidence does not inspire confidence.
' The learned counsel appearing for the State has stated that the delay has been sufficiently explained in the F.I.R. He contends that the recoveries at the instance of the appellants has been fully proved by Abdul Razzaq PW.3, who is an independent witness. He further submits that Abdul Haq who is a injured witness, his statement cannot be ruled out of consideration.
8. I have heard the learned counsel of both the parties at. Length. The case of the prosecution is that occurrence took place at 5-30 p.m. Complainant Taj Muhammad took his brother in a Suzuki van to the hospital then came back and took his mother to the hospital. After obtaining medical certificate of both the injured he got the case registered. In this way he had tried to explain the delay. Delay simpliciter has never been held to be fatal to the prosecution. It is in evidence of doctor Muhammad Tasneem PW.4, that the condition of A Abdul Hag was not good. In such circumstances if Taj Muhammad PW.6, had taken his brother first to the hospital leaving behind his mother would not be unnatural. Since the delay has sufficiently been explained.
' So far the motive in the commission of the offence is concerned, PW.6, Muhammad Taj and PW.7, Abdul Haq have deposed about it. They have further stated that at the time when they rounded up the cows, they did not know about their owners. It is in evidence that both of them had gone to the cattle pond together. Where the cows were received by Amir Khan PW.5, who has also stated that he issued the receipt in the name of Muhammad Taj. The cows were taken back by one Muhammad Ashraf after paying fine of Rs,50. Muhammad Bashir, accused inhis statement under Section 340 Cr.P.C. Had stated that the wife of Muhammad Ashraf is maternal-niece of Muhammad Zaman accused. In this view of the matter this Ashraf is a relation of the accused persons. In such circumstances the impounding of cows by the complainant and their taking away by Muhammad Ashraf is proved beyond any doubt. The contention of the learned counsel that Muhammad Taj has been the first target is also not very convincing. A perusal of the site plan Exh.PQ indicates that Muhammad Taj was 15 karams away from the deceased. The accused persons are alleged to have come from the wrong side in that case Abdul Hag injured P.W. Met them first. In such circumstances, if the accused persons had gone towards Muhammad Taj leaving Abdul Haq and Mst.Muhammad Jan would have been unnatural. Why Muhammad Taj, P.W.
Was not caused any injury, has been explained by Abdul Haq PW.7. According to him the accused could not see Muhammad Taj while coming to the place of occurrence. He has further stated that Muhammad Taj P.W. Has not given any blow as he was pleading, mercy. In such circumstances, I hold that the prosecution has been able to prove the motive.
' As far the recoveries are concerned they were effected in the presence of Abdul Razzaq P.W.3. It is admitted that he is not resident of the village from where the recoveries were effected. But he has given an explanation for his presence at the spot, which had been challenged by the defence. In any case he lives only at the distance of 8 or 10 furlongs away. He has stated in his statement under Section 161, Cr P C, that his two statements were recorded by the police, whereas in fact there is only one statement. According to recovery memos.Exh.P.B. And Exh.P.C. He had thumb-marked both of them. In such circumstances the possibility of his referring to these memos cannot be ruled out.
9. The eye-witness account has been furnished by Muhammad Taj, Abdul Haq and Ghulam Shabbir, P.Ws. 6, 7 and 8 respectively. As far as Abdul Haq P.W.7, is concerned, his presence at the spot cannot be ruled out because he is also injured. It was in the evidence of these witnesses that they had no previous enmity with the accused persons. So much so at the time of rounding of the cows, they did not even know about the owners of the same. In such circumstances the substitution is very remote. Ghulam Shabbir P.W.8, who is no doubt nephew of the daceased but he has not been suggested any reason for false involvement or deposing falsely in the instant case.
The place of occurrence, where the presence of the witness is natural, specially when it was harvesting season, even people are expected to be in the fields during those days.
' The story put forth by the defence is not convincing at all. As has been suggested by the defence that Muhammad Ashraf caused injury to Abdul Haq in that case they should have produced him which has not been done. The Investigation Officer has also denied that Muhammad Ashraf was suspected in the commission of offence. In such circumstances the defence put forth by the accused is too. Far-fetched.
' As far as the question of sentence is concerned it is the prosecution case that there was no bad blood between the parties. It is also in evidence that the accused persons had warned Mst.Muhammad Jan not to come forward. In such circumstances, I feel that the sentence of life imprisonment 'awarded to the appellant is justified.
' For the reasons discussed above, the appeal of both appellants' is dismissed. The revision of the complainant is also dismissed.