' Ali Muhammad, aged 40 years, has preferred appeal against htc judgment dated 30-9-1984 of Sessions Judge, Khushah, whereby the learned Sessions Judge convicted him under section 302/34, P.P.C., for having murdered Muhammad Sher, and sentenced him to imprisonment for life, plus to pay fine of Rs,5,000 in default whereof to undergo R.I. For three years. Fine on realization, has been directed to he paid to the heirs of the deceased.
2. The occurrence took place at Jhiki Degarwela on 8-8-1983, in the fields known as Dhogi, in the area of village Golewali, at a distance of 15 miles from Police Station (ianjial, District Khushah. F.I.R.
(Exh.P.B.) was registered at the police station at 9 p.m. By Muhammad Azam M.H.C. (P.W.2) on receipt of statement (Exh.P.B./1) of Munshi Khan (P.W.8), father of the dceased, recorded by Gul Jehan, S.I./S.H.O. (P.W.11) at 8 p.m. At bridge Sakaisar on the same day.
' According to the F.LR., the complainant was cutting fodder alongwith Aziz (P.W.10) and given up P.W. Sher Khan, in the land, which he had cultivated as a tenant, of Said Amir son of Shamir (P.W. 7).
Muhammad Sher deceased son of the complainant also came there with cattle for grazing. At about Jhiki Degarwela All Muhammad appellant armed with Kulhari accompanied by his brother Nur Muhammad (absconder) armed with a gun came there. Both of them gave a Lalkara to Muhammad Sher {{URDU TEXT}} Nur Muhammad fired a shot which struck Muhammad Sher on the right side of chest. He fell down. Whereafter, All Muhammad gave him a Kulhari blow on the right jaw. Both the accused ran away towards village Golewali, on the Lalkara raised by the complainant and his companions. Muhammad Sher died shortwhile later writhing in pain.
' Motive for the occurrence was suspicion of the accused of the illicit relations of the deceased with Mst. Said Khatun, wife of Ali Muhammad (appellant).
3. Gul khan, S.I. After recording the statement (Exh.P.B./1) despatched the same for registration of case and himself proceeded to spot. He prepared injury statement (Exh.P.G.) and inquest report (Exh.P.H.) of the body of Muhammad Sher and handed over the same to Nawab Khan Constable for postmortem examination. Blood-stained earth was also collected by him from the spot vide memo. Exh.P.E.
' Ali Muhammad appeared before him on 12-8-1983 and produced hatchet (P.3). He was arrested and the hatchet was taken into possession vide memo. Exh.P.F.
' Nur Muhammad could not be arrested in spite of warrants of arrest having been issued against him. He was declared P.O.
' After completion of necessary investigation, challan was put to Court.
4 Statements of eleven prosecution witnesses were recorded at the trial.
' Dr. Pirzada Syed Muhammad Alam Shah, who had performed autopsy on the dead body of Muhammad Sher at 7 a.m. On 9-8-1983, appeared as P.W.1 He noted following injuries on the body of the deceased:-
(1) A fire-arm lacerated wound of entry 1'/2" x 1/2" through and through, on the front upper side of right chest below the right cleviele.
(2) A firearin 1a&rated wound of exit, 3/4" x 1/2" through and through on the hack of lower side of right chest.
(3) An incised wound, "1-3/4" x 1 /47 x 1/4" deep, on the right side of lower jaw (mandible).
(4) Two abrasions each 1/4" x 8" on the right side of forehead 1" apart from each other
(5) A contusion 1/T x 1/2" on the hack left lumbar region.
(6) A contusion 5" x 1/2" on the outer side of left hip-joint.
(7) A contusion, 3" x 1/2" on the outer side of left hip joint 1" below injury No, 6.
' On opening thorax, wall was found perforated on the front right upper side of chest and on the back lower side of right chest. Second and eleventh ribs were fractured. Right parital and visceral pleura were perforated. Right lung was perforated through and through.
' Death was opined to have resulted from shock and haemorrhage resulting from injuries Nos.1 and
2. Injuries 1 and 2 were opined to have been casued by fire-arm. Injury No,3 was opined to have been caused by a sharp-edged weapon while injuries 4 to 7 were caused by blunt weapon. Injuries 3 to 7 were declared simple.
' During cross-examination the doctor stated that the deceased would have suffered fire-arm injuries, from the shot fired from a higher level or when he was in kneeling or bending position. He expressed the view that the deceased could not have suffered those injuries if he was standing face to face with the assailant. He denied the suggestion that he had wrongly described injury No,3 to be an incised wound.
5. Said Amir (P.W.7) deposed about having given his land known as Dhogi, i,e, place of occurrence, on tenancy to Munshi Khan complainant. He also stated that Munshi Khan had sown crop of Jawar for fodder during the days of occurrence. During cross-examination, he stated that one Ghulam Muhammad Mohajir of Qaidabad had claimed the said land as allottee and there was litigation between them, but finally they (Said Amir etc.) were declared owners of the land. In answer to another question, he stated that the said land formcly was under cultivation of Sardar Gui Shahi but he had given up the tenancy of his own.
6. The ocular account was deposed to by Munshi Khan (P.W.8) and Aziz (P.W.10).
' Munshi Khan stated that Nur Muhammad (absconder) and Ali Muhammad (appellant) suspected Muhammad Sher (deceased) of having illicit relations with Said Khatun, wife of Ali Muhammad and that 10/12 days prior to the occurrence Ali Muhammad had come to their Dera and had complained about that. He added that he and his deceased son had assured that the suspicion was unfounded and offered to take oath but Ali Muhammad did not agree and left the Dm, threatening that he would see Muhammad Sher. While narrating the occurrence, he repeated the facts given by him in the FIR. He however, added that when the accused had challenged the deceased, he had bent himself to pick up a stone for self-defence and it was during that time that Nur Muhammad had fired a shot at him, which had struck his chest. He also added that All Muhammad, after inflicting a blow with the right side of the hatchet on the jaw of the deceased had also given him blows on the back of the chest with the handle of the hatchet. During cross- examination, he was not found to have stated in the F.I.R. Of the visit of All Muhammad to his Dera and the fact of deceased having bent himself at the time when he was fired at by Nur Muhammad and of appellant having caused injuries to the deceased with the handle of the hatchet. He denied that Siddique, a cousin of Mst. Bhag Bhari, who had obtained divorce from her husband, Yousaf had become their enemy for their having helped Mst. Bhag Bhari in getting divorce and for allegedly keeping her in their house. He volunteered that Siddique was present outside the Court as his supporter to pursue this case. He admitted that his uncle Ata Muhammad and his cousin Muhammad were murdered by Gul Shahis and Muhammad Khan and they were sentenced to death while Eidal, one of the accused, was sentenced to imprisonment for life. He denied that Eidal had returned home after undergoing the sentence a month before this occurrence. He expressed inability to state, whether he was recorded as a tenant in the Khasra Girdawari of the land, which he had obtained from Said Amir. While explaining the presence of Aziz P.W. At the spot at the time of occurrence, he stated that he had accompanied him to the field for getting fodder, which he (complainant) had promised to give him. He denied the suggestion that he had not witnessed the occurrence and that the F.1.R. Was recorded at the spot after preliminary investigation.
' Aziz (P.W.10) corroborated the statement of Munshi Khan complainant in so far as it pertained to the actual occurrrence. He explained that he had accompanied the complainant to the fields for getting fodder for him, which the complainant had promised to give him. During cross- examination, he admitted that his cousin Baland Khan was murdered in 1975 by Bhattis of their village but denied the suggestion that Ali Muhammad appellant had arranged the defence of Amir Khan accused of that case. He, however, admitted that accused of that case were acquitted. He denied the suggestion that complainant was a witness in the case of burning of his wheat crop. He denied the suggestion that he had not witnessed the occurrence.
' Atta Muhammad (P.W.6) deposed about having witnessed the taking into possession of blood- stained earth and pebbles from the spot, of having witnessed the recovery of hatchet (P.3), produced by the appellant before the police and of having attested the relevant recovery memos.
(Exhs. P.E. And P.F.), respectively.
' Gul Jehan, S.I./S.H.O., who appeared as P.W.11, gave the account of recording of statement (Exh.P.B./1), registration of case and the investigation conducted by him. He denied the suggestion that the F.I.R. Was recorded after preliminary investigation or that he had challaned the accused wrongly.
7. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He examined in defence Muhammad Mumtaz, Revenue Patwari of Halqa, Golaywali, as D.W.1.
' Muhammad Mumtaz stated that Khasra No, 2535 in which the occurrence had taken place was under cultivation of Sardar son of Sultan according to the Khasra Girdawri and his name is entered as a tenant of Mst. Hakiman widow of Munshi, to the extent of 66 Kanals. He added that Mst.
Hakiman etc. Were Mohajirs and they were allotted this land. He gave the total area of Khasra No, 2535 as 1408 Kanals and 15 Marlas, out of which 66 Kanals were under cultivation, while the rest was Ghair Mumkin Banjar Qadeem. During cross-examination, he admitted that according to the entries in the register of Jamabandi in Khata No, 337, many share-holders are mentioned as owners and they included Said Amir son of Shamir, as owner of 49 shares out of 1/3rd of entire holding. He denied the suggestion that he had entered the name of Sardar son of Sultan as cultivator of the said land by mistake on wrong information.
8. Learned counsel for the appellant, after going through the evidence, criticised the impugned judgment and contended that the testimonies of the eyewitnesses in this case do not inspire confidence, as they had made major improvements at the trial to meet conflict of medical evidence with the version given in the F.I.R., that their presence at the spot is not proved, as according to D.W.1, the land where the occurrence had taken place was not under cultivation of Munshi Khan complainant, who claimed at the trial to have gone there to cut fodder, which he had sown. Learned counsel argued that the FIR. In this case was lodged at the spot after preliminary investigations and so no authenticity of truthfulness is attached to it. Learned counsel lastly submitted that the prosecution has failed to prove the motive.
9. Learned counsel for the State defended the judgment of the trial Court.
10. The contention of the learned counsel for the appellant that the F.I.R. In this case was lodged after preliminary investigations, in my view, does not possess any force. In that it is worth pointing out that the blunt weapon injuries found on the body of the deceased do not find mention in statement (Exh.P.B./1) of the A complainant, on the basis of which F.1.R. (Exh.P.B.) was registered. If the F.I.R. Had been lodged after preliminary investigations, this discrepancy would not have crept in.
Both the witnesses, i,e, the complainant and the Investigating Officer, have categorically denied the suggestion at the trial in this regard.
11. The argument of the learned counsel for the appellant that the claim of the eye-witnesses that they were cutting fodder at the spot, which had been cultivated as tenant by the complainant, stands negated from the statement made by the Patwari while appearing as D.W.1 and so their presence at the time of occurrence has to be excluded, is not supported by the evidence on record.
In that, the Patwari while appearing as D.W.1 admitted in cross-examination that Said Amir son of Shamir was shown as owner of a portion of land of Khasra No,2535, Said Amir while appeared as P.W.7 made a categorical statement that he had given this land to Munshi Khan on tenancy and he had cultivated Jawar crop for fodder during Inc days of occurrence. He did not deny that some Mohajirs had claimed the ownership of that land but clarified that as a result of the litigation, they (Mohajirs) had lost the claim and the case was decided in his favour. This fact explains the position narrated by the Patwari, The entries in the Khasra Girdawari have their own importance about sowing of crop but if the land is cultivated by a tenant, the statement of the owner of land about cultivation of that land has also to be given due importance. It is common knowledge that Patwaris prepare Khasra Girdawaris on asking from persons available at spot and not necessarily after holding full inquiries from the owners and the cultivators of the land In the light of these facts being on record, I do not feel inclined to accept the contention of the learned counsel and I am of clear view that the land where the occurrence had taken place belonged to Said Amir (P.W.7) and was under cultivation of the complainant during the days of occurrence. The presence of the eye- witnesses at the spot cannot therefore, he ruled out on the assertion that Munshi Khan had not cultivated the said land during the days of occurrence.
12. The contention of the learned counsel for the appellant that the testimonies of the eye- witnesses do not inspire confidence, in view of their, contradiction by the medical evidence, has been examined by me after going through their statements and the medical evidence.
' No doubt, it is not mentioned in the F.I.R. That Ali Muhammad appellant B had also given injuries to the deceased with the handle side of the hatchet, but he did state this fact at the trial and his statement has been corroborated by Aziz (P.W.10). Out of four injuries opined to be the result of blunt weapon, injury No,4, which was an abrasion on the forehead, could have been the result of fall on the ground. This opinion has been expressed by the doctor as well. The other three injuries are minor and were declared simple. The complainant, whose son had been murdered, had proceeded to lodge the F.I.R. Soon after his death. He might have slipped to mention these injuries as they were of insignificant importance. The major injuries, i,e,, one suffered by the deceased as a result of fire shot and the one suffered by the sharp-edged side of the hatchet have been mentioned by the complainant.
' It is worth noticing that there were two fire-arm injuries on the body of the deceased. One of them was an entry wound while the other was exit wound.. The complainant was not an expert. If he had not been present at the spot and had not seen the infliction of injury with the fire-arm, he would have mentioned the two injuries, i,e, the entry wound and the exit wound, to he the result of two independent shots. His having not done so is another circumstance lending support to his assertion of having witnessed the occurrence. The statement made by him in this regard is also fully corroborated by another witness, i,e, Aziz (P.W.10).
' Yet the other aspect which has weighed with me, in not accepting the argument of the learned counsel for the appellant, that the appellant was involved falsely in this case is the fact that except the differences that might have arisen between the appellant and the deceased about the alleged illicit relations of the deceased with the appellant's wife they had no other differences inter se. In fact, the complainant's uncle and cousin had been murdered. Obviously the complainant would be inimical to them. If he had to lodge the F.I.R. Merely on account of suspicion, he would have firstly thought of the murderers of his uncle and cousin and not the appellant, with whom he had no long standing enmity. A cousin of Aziz (P.W.10) had also been murdered by Bhattis of the village. They had been acquitted prior to the present occurrence. If Aziz had to become a false witness against the appellant, he could well have struck a bargain with the complainant to involve the enemies of his family also, i,e, the murderers of his cousin Balanda.
In these circumstances, I find no reason to discard the testimonies of the two eye-witnesses, one of whom is not even related to the deceased, nor had any enmity with the appellant, the other although is related to the deceased but had C no long standing enmity with the appellant. The statement made by the complainant about the suspicion of the accused-appellant against the deceased of having illicit relations with the wife of the appellant also does not smack of falsehood.
There is nothing on record warranting setting at naught of that portion! Of prosecution evidence.
13. For all the reasons mentioned above, I see no force in the appeal. The same is dismissed.