TANVIR AHMAD KHAN, J.- Muhammad Sadiq has filed this appeal against the judgment dated 15.2.1987, whereby the learned Additional Sessions Judge, Gujranwala convicted him under section 302 PPC and sentenced to life imprisonment and a fine of Rs.1000/- and in defauIt thereof to undergo R.I. For a period of one year. He was also convicted under section 452 PPC and was sentenced to two years R.I. With a fine of Rs.1000/- and in dcfuaIt thereof to undergo R.I. For a period of three months. Both these sentences were ordered to run concurrently.
2. The facts necessary for the disposal of this appeal are that an FIR No. 264 was recorded on 7.7.1984 at Police-Station Kamoke, u/s 302/307/452/324/34 PPC at the instance of Mst. Zubaida Bibi (P.W-10) widow of the deceased. She made a statement Ex.PD before Anwar Hayat ASI on the basis of the same (P.W-12) Ghulam Sarwar recorded the lormal FIR Ex.PD/1. In her statement made before the police she had stated that about 13 years back her husband late Muhammad Din deceased married his daughter Mst. Bashiran Bibi P.W. With accused Muhammad Sadiq and in return Allah Rakha the deceased's brother was married to one Mst. Safia Bibi a niece of Muhammad Sadiq accused. Subsequently the relations between Muhammad Sadiq and Mst. Bashiran Bibi became strained and about two years back she was deserted by the accused and came back to the house of her father. Thereafter, at the instance of the deceased, aforesaid Mst. Bashiran Bibi filed a suit of dissolution of her marriage against Muhammad Sadiq accused. It is further stated that about two days prior to the occurrence Allah Rakha and Sadiq accused Came to the deceased and asked him to withdraw the suit and send back Mst. Bashiran Bibi along with them. The deceased did not agree to this. Thereupon both the accused left the house after extending threats. On the day of occurrence at about 12.00 in the night when they were present in the court-yard talking with each other Muhammad Sadiq accused armed with Bughda along with Allah Rakha, who was armed with Churi trespassed into their house and challenged Muhammad Din deceased and said that he would be taught lesson for not withdrawing the dissolution suit. Thereupon accused Muhammad Sadiq inflicted a Bughda blow on Muhammad Din deceased while he was lying on the cot. The said Allah Rakha accused injured Nazir and Mst. Bashiran Bibi P.Ws. The ASI Anwar Hayat after recording the statement proceeded to the place of occurrence and prepared the injury statement Ex.PE and iquest report Ex.PF. He also got prepared the injury statement of PW Nazir Ahmad Ex.PG and Mst.
Bashiran Bibi Ex.PH and got them medically examined. Subsequently this investigation was taken over by Ghulain Sarwar(P.W-12) the then SHO, Police-Station Kamoke who got the site plan prepared through Muhammad Ibrahim Draftsman Ex.PM and Ex.PM/1. He also took into possession the blood-stained earth from the spot vide Ex.PB and the last worn clothes of the deceased vide memo Ex.PA. Muhammad Aslam (P.W- 11) also investigated this case. He arrested Allah Rakha accused on 31.10.1984 and Muhammad Sadiq accused on 13.11.1984. Accused Muhammad Sadiq led to the recovery of blood-stained Bughda PI from the house of his brother-in-law Mehnga which was taken into possession vide Ex.PC/1 on 20.11.1984. After the completion of the investigation and the receipt of the reports from Chemical Examiner as well as of Serologist which were positive in nature the challan was submitted. The accused were charge- sheeted on 15th of December,!986.
The prosecution examined 12 witnesses to establish its case. The ocular account has been narrated by Mst. Bashiran Bibi(P.W-S), Muhammad Nazir (P.W-9) and Mst. Zubaida Bibi (P.W-10). All three of them completely exonerated Allah Rakha accused by saying that he was not the same Allah Rakha, who was involved in the case. As regards the present appellant Muhammad Sadiq all of them are consistanl in saying that he gave the deceased a Bughda blow at his neck while he was lying on his cot. The motive for the offence had also been slated by (PAV-8) Mst. Bashiran Bibi and her mother Mst. Zubaida Bibi(P.W-lO) the complainant of the case. Mst. Bashiran Bibi had stated that she was married 13 wars back to Muhammad Sadiq accused who used to maItreat her and had deserted her about two years back. Thereupon, she filed a suit for dissolution of her marriage at Gujranwala. The accused was aggrieved of the fact that her father did not like to send her back to Muhammad Sadiq accused. Doctor Ramzan Pervez (P.W-6) conducted the postmortem examination of the deceased and found the following injury:An incised wound 19x5 c.m.x 8 c.m.
Transverse on left side of neck and below the left mandible on front and outer side of left neck. The wound started on the outer side of left neck about 3 c.m. Below the left ear and about 3 c.m. Away from angle of left mendible and going to the right side of chin.
3. According to the doctor all the structure under injury i.e. Blood vessles, mussles, trachea, oesophague were found cut. The injury was sufficient to cause death in the ordinary course of nature.
4. The same doctor also examined Mst.Bashiran Bibi (P.W-8) and found the following two sharp- edged injuries of simple nature on her person:
1. An incised wound 4.5 x 1 cm x 1 cm oblique on right side of chin.
2. An incised wound 5 x 1 cm x 1 cm oblique on inner side of right upper arm at upper end below the right exilla.
He also medically examined Nazir Ahmad(P.W-9) and found one simple injury of sharp-edged weapon on his person.
5. When the accused was examined under section 342 Cr.P.C, he admitted his marriage with Mst.
Bashiran Bibi(P.W-8) 13 years back. He also admitted that the relations between the parties had become strained. The factum of filing the suit of dissolution of marriage had also been admitted by the accused Muhammad Sadiq. However, he took up the plea that he had been implicated falsely and stated as under: "My mother-in-law Mst. Zubaida wanted me to divorce Mst. Bashiran Bibi P.W and so to secure the same I have been falsely implicated in this case against facts. After the registration of this case I was arrested and my wife obtained an Ex-parte decree of dissolution of marriage against me."
Apart frotr his own statement the accused did not produce any other evidence.
6. I have gone through the record with the help of the learned counsel appearing in this jail appeal.
The record fully shows the involvement of Muhammad Sadiq accused in this offence. The fact that the eye-witnesses, account has only been narrated by the close relatives would not render their testimony untrust worthy. They are the most natural witnesses. Two of them, namely, Mst.
Bashiran(P.W-8) and Muhammad Nazir (P.W-9) got injuries in the occurrence. Their testimony is consistant and is in accord with the medical evidence. Their presence at the spot is fully established and cannot be doubted. The fact that no hurricane lamp was recovered from the place of occurrence and hence the identification of the accused was doubtful would not effect the case of the prosecution in the circumstances of this case. It is established on record that accused Muhammad Sadiq was close relative of the eye-witnesses. It is also in evidence of P.W-8 Mst.
Bashiran and P.W-10 Mst. Zubaida that accused Sadiq challenged the deceased Muhammad Din that he had come to teach him a lesson for not withdrawing the dissolution suit filed by Mst.
Bashiran his daughter. The witnesses arc fully familiar with the appellant. It cannot be said in the circumstances of the case that the witnesses would not identify the accused.
7. The witnesses have also mentioned the pressence of hurricane lamp at the place of occurrence.
It is true that regarding Allah Rakha all the three witnesses have stated that he was not the same person who trespassed and inflicted the injuries on the witnesses. However, it is on record that Allah Rakha, whose name was mentioned in report and was subsequently challanged, was the brother of the deceased Muhammad Din. He was married in Watta to the accused Muhammad Sadiq's niece Mst. Safia Bibi. But the three eye-witnesses have completely exonerated him and stated that he was different Allah Rakha.
8. As far as the motive is concerned the marriage of the accused and subsequent filing of dissolution suit have fully been established. It is also established on record that the accused came two days prior to the occurrence and asked the deceased to send Mst. Bashiran Bibi along with him. On refusal of the deceased the accused left his house after extending threats. This being the position the prosecution has successfully established the motive against the appellant.
9. Keepking all these factors i.e. Ocular account, medical testimony, propmptness of FIR and recovery of incriminating articles from the accused, I am of the considered view that no exception can be taken to the view taken by the learned Additional Sessions Judge in convicting the accused Muhammad Sadiq under section 302 PPC. In the circumstances of this case the appeal is dismissed. However, the appellant is given the benefit of section 382-B Cr.P.C.