ATTAULLAH SAJJAD, J---The two appellants Habibullah and Wahid Bakhsh who are 'Mochis by caste and whose relationship inter se is not apparent front the record, were tried by Malik Akhtar Hassan, Additional Sessions Judge, Multan along with Mohammad Ishaq Rajput for an offence - under section 302/34 of the Pakistan Penal Code for causing the death of their co. Villager Muhammad Sadiq in the area _of the habitation known as Chah Munshiwala in village Danwaran, Police Station Lodhratt en the District Multan. The learned Additional Sessions Judge acquitted Ishaq and found the two appellants guilty of an offence under section 302%34, P. P. C. And sentenced them to transport--ation for life each.
2. The occurrence took place on 30th of August 19158, at about 2 p. m. The evidence is that Mst.
Sharifan the widow of tine Abdur Rehman, wanted to reconstruct the wall of her kotha. Her brother Misri was incharge of the construction but this construction was resisted by Ishaq the acquitted accused and his three brothers Shabbir, Shamshad and Jangu. On the intervention of one Jafar Ali Shah, a local zamindar, the obstructors ultimately agreed to permit Misri to complete the construction but when the construction was started five or seven days before the occurrence with the assistance of a few labourers, the two appellants, Ishaq the no-quitted accused and his three brothers again interfered. Sadiq deceased who was a nephew of the aforesaid Abdul Rehman, insisted that he would raise the wall in spite of the objection of Ishaq etc. Again on the day of the occurrence ire the morning, there was an attempt to rebuild the wall and resistance came from the appellants and their co-accused.
3. At the time of the occurrence, the deceased was coming from the side of Kanerewala well when he was attacked by the three accused. Ishaq clasped him in his arms while Wahid Bakhsh and Habibullah the two appellants who were armed with dangs, started giving dang blows to the deceased. Muhammad Nawab (P. W. 9) a cousin of the deceased and Karim Bakhsh (P. W. 11) another cousin of the deceased were, at that time, talking to each other opposite to the house of Karim Bakhsh which is near the place of occurrence. On hearing the noise they proceeded towards the place of occurrence and saw Rahim Bakhsh (P. W. 10) coming from the direction of Kanerewala side. The accused on seeing these witnesses took to their heels along with their weapons.
Muhammad Nawab P, W. Went to Police StationLodhran whichis at a distance of three miles from the place of occurrence and lodged F. I. R. Exh. P. F. At 4 p. m. Which was recorded by Muharrir A. S. I.
Dur Muhammad Shah (P. W. 8).
4. A. S. I. Asghar Ali (P. W. 1 2) way then in the Ilaqa and was informed through a constable that he had been entrusted with the investigation of this case. He proceeded to the spot and collected blood-stained earth and shells of eggs from the spot. He arrested the accused on 31st, of August 1968, in the afternoon. Wahid Bakhsh appellant led to the recovery of blood-stained dang P. 2 from his cattle-shed. Habib appellant was produced, by Malik Rashid Lambardar. He was wearing a blood-stained kurta at the time of his arrest. On the same day he led the police to his residential kotha and got recovered blood-stained dang P.
3. These articles were sent for chemical examination and the Serologist found that the two dangs and the kurta were stained with human blood.
5. The ocular testimoney in this case comes from the mouth of Muhammad Nawab (P. W. 9) -and Karim Bakhsh (P. W. 11) the two cousins of the deceased and Rahim Bakhsh (P. W. 1,0) who has been described by the trial Court as an independent witness. It was brought out in the cross- examination of the prosecution witnesses that Allah Dad a cousin of Rahim Bakhsh (P. W. 10) was a tenant of Sadiq deceased. It was also admitted by Nawab during his cross-examination that Allah Yar the father of Wahid Bakhsh appellant had abducted the aunt of Rahim Bakhsh.
6. At the trial, the appellants denied the charge against them. Their case was that they had been involved because of the enmity of the witnesses and that the recoveries bad been foisted upon them. During the cross-examination a suggestion was made that the deceased was done to death by some unknown persons near the Majaldiwala Railway Station. No defence evidence was produced.
7. The medical evidence shows that the deceased was one to death as a result of blunt weapon injuries. The doctor who performed the post-mortem examination enumerated ten injuries out of which five were contused wounds, three were contusions and two consisted of multiple abrasions, one on the back of the right hand and the other on the, back of the left thigh. The nasal bone and the bone of the left upper arm" were fractured. Actually, the number of injuries was much more`' than ten. On of the rniuries consisted of five contusion marks measuring 6' x 2 each on the front of the chest. This injury, according to the doctor, was sufficient to cause death in the ordinary course of nature and had resulted in the fracture of the sternum and damage to the left lobe of the right lung. Another injury consisted of four contusions measuring 5' x 2' on the back of the chest. The medical evidence is, therefore, consistent with the participation of two persons, who were armed with dangs, in the commission of the offence.
8. We have gone through the record carefully and have heard the learned on both sides at length.
Mr. Yusuf Ali Khan, the learned counsel for the appellants raised the follow--ing points:-
(i) That no community of interest between the two appellants and the acquitted accused had been brought on record and the learned trial Court having held that the motive part of the prosecution story was not proved, the appellants were entitled to acquittal;
(ii) that none of the eye-witnesses saw the occurrence and that in any case the conduct of the two cousins of the deceased, namely, Nawab and Karim Bakhsh was unnatural as they did not intervene in the fight and did not give any pursuit to the assailants;
(iii) that there was a difference in the narration of facts as given in the F. I. R. And as deposed to at the trial. It was pointed out that in the F. I. R. It was stated by Nawab that when he and Karim Bakhsh went towards the spot the appellants were still showering blows on the deceased who was writhing in pain. At the trial, the case of the prosecution witnesses was that as soon as they reached the spot the assailants decamped and no blow was given in their presence; and
(iv) that the prosecution witnesses were inimical and the F. I. R. In any case was delayed.
9. It is correct that from the record one does not gut a true picture of the motive part of the prosecution story. It was, however, stated by Nawab P. W. That Ishaq the co-accused of the appellants and his three brothers wanted to take possession of the site on which Mst. Sharifan was constructing. As to what was the real claim of Ishaq and his brothers vis-a-vis this land, is not known. Nor is it known as to what interest the two appellants had to join hands with Ishaq. We have, therefore, to see whether or not, apart from the question of motive, the ocular testimony is sufficient to sustain a finding of guilty against the appellants.
10. It is also correct that the story as unfolded in the F. I. R. Was that when the witnesses reached the spot they saw the appellants giving blows to the deceased while the latter was in convulsions. At the trial, however, it was stated that when the witnesses reached the spot the assailants made good their escape and no blow was given in their presence. We find that this contradiction was not put to Nawab during his cross-exami--nation and it is not possible for us to take note of it. Even if this contradiction had been brought out, the other two witnesses could not be contradicted - by what was stated in the F. I. R. The case of the prosecution at the trial was that as soon as the witnesses reached near the spot the assailants made good their escape. The matter was, therefore, already over and the first anxiety of the witnesses would have been to see as to in what condition the injured person was. They found him dead and Nawab P. W. Instead of arranging a pursuit party, quite naturally proceeded to the police station for lodging the F. I. R. Aim, 10-A. We do not agree that the F. I. R. Was delayed. It is true that Nawab stated that he left the spot for the police station on a bicycle about five or seven minutes after the occurrence. He further stated that as soon as he reached the police station he lodged the F. I. R. There was an interval of two hours between the occurrence and the lodging of the F. I. R. When a man is killed in a village the first impact of the grief is so benumbing that one usually loses his idea of time. There is bewailing and moaning and the near relatives have to be consoled. We therefore, think that Nawab could not have left for the Police station five or seven minutes after the occurrence. Even if he had immediately met the A. S. I. On arrival in the police station, some time must have been spent in interrogation and collection of the full facts. The drafting also took some time. We, there--fore, think that two hours time that elapsed between the occurrence and the lodging of the F. I. R. Is not in excess of what the situation demanded.
11. We have now to analyse the ocular testimony and the evidence of recoveries. Rahim Bakhsh (P W. 10) was relied upon by the learned Additional Sessions Judge as an independent witness. We do not agree with him. It has come on the record that the aunt of this witness was abducted by Allah Yar the father of Wahid Bakhsh appellant. He seems to have some connection with the deceased as his cousin was a tenant of the deceased. He stated that he had gone to Kanerewala to realise some dues from one Allah Yar where he met the deceased who had gone there to fetch eggs. In his statement before the police he had stated that the deceased had also met him on his way to Basti Kanerewala but at the trial he stated that the deceased was coming back from Kanerewala when both of them met. It is true that the shells of the eggs were found at the spot by the Investigating Officer but neither Nawab nor Karim Bakhah have stated that they saw the broken shells of the eggs at the spot. It is again to be noted that according to Rahim Bakhsh he was not at the spot when the police arrived although admittedly he was left in charge of the dead body along with Karim Bakhsh. He stated that he had left the dead body and had gone to Jhokwala in order to inform the relatives of the deceased. Karim Bakhsh, the other witness who had been left in charge of the dead body, does not support this story. His case is that Rahim Bakhsh was present when the police arrived but had disappeared after their arrival. He was not able to give any reason for his disappearance. If Rahim Bakhsh had gone to Jhokwala in order to inform the relatives of the deceased about the incident surely Karim Bakhsh would have knowledge of it. Rahim Bakhsh stated that he came back to his village late in the evening and that his statement was recorded on the next day in the afternoon. The suggestion of the defence was that this witness was not present in the village on the day of the occurrence but had gone to Rajapur to sell meat on the marriage ceremony of one Allah Bakhsh son of Shahrah and that he had returned to the village late in the evening. This suggestion is corroborated by the statement of Rahim Bakhsh himself to the extent that after the incident this witness had returned to the village late is aho evening and, on his own showing he had not gone to the police although he knew that the police had arrived in the village.
We, therefore, feel that the name of Rahim Bakhsh was introduced as a witness to enlarge the volume of the prosecu--tion evidence.
12. So far as Nawab and Karim Bakhsh P.Ws. Are con--cerned, they are the residents of the locality.
The occurrence took place at a distance of one killa from the habitation of Chah Munshiwala where the parties reside. The plan shows that the place where Karim Bakhsh and Nawab were talking to each other as at a distance of 90 karams from the place of occurrence. WeP therefore, find that they are the natural witnesses of the occur rence. It has not been brought out on the record that these witnesses had any animus to falsely involve the two appellant in this case. It was admitted that Karim Bakhsh P. W. Hard sold 24 kanals of land to the father .Of Wahid Bakhsh appellant but the suggestion that there was a suit by the son of the vendor was denied. It is also borne out from the record that Muhammad Bakhsh a brother of Karim Bakhsh P.W. Had appeard as a witness in defence of the deceased in a theft case. We also find that Nawab P. W. Had admitted before the committing Magistrate that he had ejected Wahid Bakhsh appellant from his land but had later on permitted him to continue the cultivation of the same land. This is all that the defence was able to bring on record and this we think is not sufficient to hold that the two prosecution witnesses upon whom we propose to rely in this case; namely, Nawab and Karim Bakhsh, were so inimical to the ap--pellants that they should have falsely involved them. It is to be pointed out that the real resisters in this case were Ishaq the acquitted co-accused of the appellant and his three real brothers. If the prosecution were disposed to falsely involve anybody it' should have been the brother of Ishaq. Again, if the prosecution were disposed to falsely involve some body they would have given conspicuous part to Ishaq instead of attributing to him the minor role of clasping the deceased.
13. We are not certain as to the time and the manner in which the appellants were arrested. The Investigating Officer stated that he arrested them in the afternoon of the 31st of August 1968.
Ahmad Bakhsh (P.W. 7) who is a first-cousin of the deceased as well as of Karim Bakhsh P.W. Had joined the investigation soon after the arrival of the police at the spot. He is a witness of the collection of the blood-stained earth from the spot. He had stated before the committing Magistrate that the police had already taken Wahid Bakhsh appellant into custody when he reached the spot. At the trial he denied having made this statement but we have certainly to take note of it. Similarly Karim Bakhsh P.W. Could not say whether the accused had bean apprehended in the evening or in the morning. He; however, had seen the accused in the police custody at about 8 or 9 a.m. Next morning. It, therefore, appears from the admissions made by the above witnesses that the police had taken the accused into custody earlier than the time given on the record. It is stated that Habib appellant was produced by one Rashid who had not been produced at tire trial.
It is, therefore, difficult for us to rely on the recovery of the blood-stained kurea of Habib, as the circumstances under which he was arrested have not been clearly brought on record.
14. In spite of the fact that it cannot be said with certainty as to when the appellants were arrested, the recovery of the two blood-stained dangs can be safely relied upon. There is no difference in the prosecution story as to the time and manner of these recoveries. Nur Muhammad (P.W. 6) who is a witness of the recovery of these two dangs tried to make admissions, during his cross-examination which go to destroy the evidence of recovery of the dangs but in his examination-in-chief he had categorically stated that both the dangs were stained with blood. We agree with the learned Additional Sessions Judge that this witness purposely wanted to destroy the effect of his evidence made in the earlier part of his statement.
We, therefore, hold that the appellants were rightly convicted and sentenced. We maintain their conviction and sentences awarded to them. We dismiss this appeal.