MUHAMMAD AFZAL CHEEMA, J.-Islamul Haq, his brother Ikramul Haq, and their uncle Muhammad Munir were tried by the learned Additional Sessions Judge, Multan, for the murder of one Ghulam Farid, allegedly committed by them, on 29-5-68, at 5-30 a.m., near the railway track in the area of Jhakarpur nine miles away from Police Station Mumtazabad. Muhammad Sharif, the fourth accused, father of Islamul Hag and Ikramul Haq, appellants and brother of Muhammad Munir appellant absconded, and is reported to be still at large. They were also tried for having made a murderous assault on Zahurul Haq, Muhammad Sadiq and Nazir Ahmad prosecution witnesses and Muhammad Siddiq who was given up. They were convicted under section :02/34 of the Pakistan Penal Code, with an award of sentence of death to Islamul Haq, and transportation for life each to Ikramul Haq and Muhammad Munir, and under section 324/34 of the Pakistan Penal Code, with an award of one year rigorous imprisonment each for having caused injuries to the prosecu-- petition witnesses. They have appealed against their conviction and sentences, and we have also before us the murder reference for the confirmation of the death sentence of Islamul Haq appellant under section 374 of the Criminal procedure Code. This judgment will dispose of the appeal as well as the murder reference.
2. According to the prosecution version, a petty quarrel over children took an ugly turn leading to a concerted attack by the appellants and the absconding accused on Ghulam Farid deceased and the injured prosecution witnesses.
According to the initial report, Exh. P. A., promptly lodged by Zahurul Haq, P. W. 6, son of Ghulam Farid deceased, within an hour and a half of the occurrence, at 7 a.m., at Police Station Mumtazabad, after traversing a distance of nine miles, on the evening of 28-5-68, two young lads, namely, Bisharat Mahmood aged five years, younger brother of Zahurul Haq, complainant, and Rab Nawaz aged four or five years, sister's son of Islamul Haq and Ikramul Haq appellants, took bath in a watercourse. Bisharat Mahmood removed the underwear of Rab Nawaz and took it home. The latter's mother, Mst. Shamim Akhtar, sister of Islamul Haq and Ikramul Hag complained to the mother of Bisharat Mahmood and abused her which resulted in an altercation and exchange of abuses between the two women. Mst. Shamim Akhtar was also joined in this by Mst. Zohra Bibi wife of Muhammad Munir appellant in the meantime, Muhammad Munir appellant and Muhammad sharif absconder appeared at the spot, and they also started abusing Mst. Khurshid Bibi, mother of the complainant. Zahurul Haq complainant and his father Ghulam Farid deceased were also attracted to the spot and they started abusing Muhammad Munir and Muhammad Sharif. The parties were, however, separated by Muhammad Siddiq, a brother of Muhammad Munir and Muhammad Sharif who left hurling abuses with a challenge that they would be avenged.
On the next morning, at about 5 a.m., when Zahurul Hag complainant accompanied by his father Ghulam Farid deceased, and Muhammad Siddiq and Shah Din the two given-up prosecution witnesses, left their houses together away to Colony Textile Mills, Ismailabad, where they were all employed, they were overtaken by the three appellants and Muhammad Sharif absconder near the railway track. Islamul Haq challenged that Ghulam Farid would not be spared and assaulted him with a knife hitting him in the chest. Ghulam Farid fell down. Zahurul Haq, Muhammad Siddiq and the given-up P. Ws. Stepped forward to rescue Ghulam Farid hereupon Muhammad Munir and Ikramul Haq, appellants, gave him one low each with their respective sticks on the right and left shoulders respectively. Muhammad Siddiq was given yet another blow by Muhammad Sharif absconder on the head followed by Muhammad Munir who hit him on the right arm. The alarm raised by them attracted Nazir Ahmad P. W. 7 and Muhammad Sadiq P. W. 8 who happened to be present at a short distance. They also tried to physically intervene when Islamul Haq gave a knife blow to Nazir Ahmad near the left axilla. Muhammad Sadiq stepped forward and was in turn also given a knife blow on left cheek. All the four accused, including the three appellants, then departed for their houses. Ghulam Farid succumbed to the injuries almost instantaneously. Leaving Muhammad Siddiq and Shah Din with the dead body, Zahurul Haq left for the Police Station and lodged report Exh. P. A. With Sub-Inspector Raja Khizar Hayat, P. W. 10, who reached the spot at about 8-30/9 a.m. Prepared Injury Statement Exh. P. L. And Inquest Report Exh. P. M. Of the deceased, and despatched the dead body to the Mortuary under the escort of F. C. Sardar Khan, P.
W.
3. The latter, on his return from the Mortuary, handed over the clothes of the deceased, Exhs. P.4 to P. 6, which were taken into possession vide Memo. Exh. P. C. Blood-stained earth was recovered from the spot vide Memo. Exh. P. B. The appellants voluntarily surrendered themselves before the Sub-Inspector on the next day when Islamul Haq appellant led to the recovery of blood-stained knife, Exh. P. I, which was taken into possession vide Memo. Exh. P. N. At the time of his arrest, his clothes were also found to be blood-stained and were taken into possession vide Memo. Exh. P. O.
The Sub-Inspector recorded the statements of the eye-witnesses, got prepared Site Plan Exh. P. B, and its duplicates, Exhs. P. D. 1-2. He prepared Injury Statements of Zahurul Haq, Nazir Ahmad, Muhammad Siddiq and Sadiq Hussain prosecution witnesses which are Exhs. P. R, P. S. P. T. And P. U.
Respectively. He got them medically examined. Having completed the formalities of investigation, he sent up the three appellants to face inquiry and trial.
3. Sadiq Hussain, P. W. 8, was medically examined by Doctor Imtiaz Ahmad, P. W. 1, on 29-5-68 at 8- 15 p.m., and vide Medico-legal Report, Exh. P. E. Was found to have sustained a skin-deep lacerated wound, -- ' x -- " on the left cheek with swelling 1 x 1, and a contusion mark, 1 -- " x 1' on the left wrist.
Both the injuries were simple having been caused by blunt weapon within six to eighteen hours.
On the same date, the Doctor examined Muhammad Siddiq (given-up P. W.), and vide Medico- legal Report, Exh. P. F., found the following simple blunt weapon injuries of the same duration of 6/18 hours on his person:-
(1) A lacerated wound, 1/3" x -- ' on the left side of head.
(2) A contused swelling, 1 -- ' x -- " on the inner side of right fore-arm.
(3) A contused swelling, 2 -- ' x 1' on the left fore-arm.
On the same date, he examined Nazir Ahmad, P. W. 7, and vide Medico-legal Report, Exh. P. C., found an incised wound 1/3 ' x -- ' x skin deep in the left axilla. The injury was simple and caused by a sharp-edged weapon within the duration of 6/18 hours.
On the same date, i.e. On 29-5-1968, the Doctor examined Zahurul Haq, complainant, and vide Medico-legal Report, Exh. P. H. Found two simple blunt weapon injuries, on a contusion mark, 2' x -- ', on the back of left fore-arm, and tae other a contused swelling, 3' x 1', on the back of right fore-arm.
On 30-5-1968, at 8 a.m. He conducted the post-mortem examination of the dead body of Ghulam Farid. It was a body of a young well-built male of about 47 years of age which, vide post-mortem examination Report, Exh. P. J. Was found to have the following injuries:-
(1) A stab wound -- ' x -- ', on the lower part of chest in the left hypochon--drim.
(2)A contusion mark, 4''x 2' on the back of left buttock.
(3)A contusion mark 4' x 2' on the right buttock.
(4)A stab wound, --x -- ', on the back of left shoulder.
Injuries Nos. 1 and 4 were caused with sharp-edged weapon, while injuries Nos. 2 and 3 were caused by blunt weapon.
Internal examination revealed that the heart and pericardium were cut, -- " x -- ' cavity deep.
Stomach contained watery fluid. Large intestines contained faecal matter. Death, in the opinion of- the Doctor, had occurred due to shock and haemorrhage caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature. Death had taken place immediately, and time between death and post-mortem was 24/48 hours.
Query, Exh. P. K. As to the possibility of injury No. 4 having been caused by a fall on a sharp- pointedobject, was replied by him in the affirmative.
4. In support of its case at the trial, the prosecution examined Zahurul Haq P. W. 6, Nazir Ahmad P. W.
7 and Muhammad Sadiq P. W. 8, all of whom were injured, and gave up Muhammad Siddiq and Shah Din as having been won over. Sardara, another witness, who was not mentioned in the initial report, but appeared to have arrived at the spot soon after the occurrence, leas given up as being unnecessary. It may be mentioned in this context that the blood-stained earth recovered- from the spot, the blood-stained clothes removed from the person of Islamul Haq appellant, and the blood- stained knife recovered at his instance were, in turn, sent to the Chemical Examiner and the Serologist, but the latter gave no report whatever, positive or negative, regarding the origin of blood on knife otherwise establi--shed by the Report of the Chemical Examiner.
5. In their statements under section 342 of the Criminal Procedure Code, Ikramul Haq and Muhammad Munir, appellants, simply denied the allegation, The former stated that he was implicated due to enmity of the prosecution witnesses, while the latter attributed his implication to his relationship with the former. Islamul Haq, appellant, however, raised a plea of defence in his statement before the committing Magistrate which he reiterated at the trial. It was as follows:- "Mst. Tasleem Akhtar is my sister. Mst. Shamim Akhtar is also my other sister. My sister Mst. Shamim Akhtar, my father and Ikramul Haq live in a separate kotha. My mother and my brother used to live separately Ghulam Farid deceased, his sons, and his brother Nazir Ahmad wanted to lift Mst.
Tasleem Akhtar forcibly and wanted to marry her with Mangta. Therefore Ghulam Farid etc., at about 3 a.m, before morning azan, trespassed into the house where I, along with Mst. Tasleem Akbtar and Mst. Shamim Akhtar, was present. They attempted to lift Mst. Tasleem Akhtar. Mst.
Shamim Akhtar tried to rescue her, but was injured. She then picked up a sarriya which was lying there for knitting trousers and dealt them with it who made good their escape. Ghulam Farid fell down on the railway lines while running and sustained injuries. A false case has been made out against us.'
It may also be mentioned, in this context that Mst. Shamim Akhtar appeared before the Investigating Officer on 31-5-1968, and, was found to have sustained injuries. Her injury statement was prepared by the Sub. Inspector, who also got her medically examined. Her Medico-legal Report, Exh. P. D. A, was tendered in evidence by Islamul Haq, appellant, which. Indicated four abrasions and five contusions on different parts of her body. They were all simple having been caused with blunt weapon within 24/36 hours. The Sub-Inspector admitted in cross-examination that Mst. Shamim Akhtar had given him her version of the occurrence explaining the injuries sustained by her.
6. Having placed reliance on the ocular testimony, medical evidence, as well as evidence of recoveries, and discarding the defence version for good reasons the learned trial Judge came to the conclusion that the offence of murder stood brought home to the appellants. The charge under section 307/34 of the Pakistan Penal Code was not found to be brought home and instead conviction .Was recorded under section 324/34 of the Pakistan Penal Code as detailed earlier.
7. Learned counsel for the appellants contended before us, firstly, that the ocular evidence was at variance with the medical evidence; secondly, that the evidence of recoveries should not have been believed by the learned trial Judge for reason of the non-examination of the two witnesses of recovery, namely, Muhammad Siddiq and Shah Din; thirdly, that, the judgment 'vas illegal for the reason that the proper procedure as laid down in section 357 of the Criminal Procedure Code had not been adopted by the learned trial Judge in the mode and manner of dealing with relevant points, the discussion having started from the wrong end with disposal of the defence plea.
Reliance was placed in this regard on Ch. Zafarul Haq and another v. The State (PLD 1968 Lah. 437) and Mian Fazli Rahim v. The State (PLD 1961 Pesh. 137). Lastly, it was contended that in view of the positive assertion of Zahurul Haq, complainant, in the First Information Report, that Islamul Haq, appellant, took out the, knife from his pocket (which was an ordinary pen-knife) and then hit Ghulam Farid deceased with it, the community, of intention between the appellants could not be safely inferred justifying the invocation of section 34 of the Pakistan Penal Code.
8. On the other hand, it was contended by the learned counsel for the State that the prosecution case rested on the ocular, testimony of three eye--witnesses who had the stamp of injuries on their persons which established their presence at the relevant time without any shadow of doubt and, of these, Muhammad Sadiq P. W. 8 was an altogether unconnected and disinterested witness. It was argued that the account given by the prosecution witnesses, two of whom were Also witnesses of the earlier occurrence, which furnished a motive to the appellants for the assault finding full support from the medical evidence, could safely form the basis of conviction without further corroboration which too was available in the form of recoveries of blood-stained knife and clothes of Islamul Haq appellant. Regarding the non-examination of witnesses of recovery, namely Muhammad Siddiq and Shall Din on the pretext of having been won over, it was contended on the basis of Emperor v. Santa Singh (AIR 1944 Lah. 339) that the solitary statement of the Sub- Inspector, Raja Khizar Hayat, P. W. 10, was good enough to prove the recoveries.
9. In support of the first contention, the learned counsel for the appellant urged two points before us. The first pertained to the non explanation of injury No. 4 on the person of Ghulam Farid deceased which was a stab wound on the back of left shoulder; the second pertained to the existence of a lacerated wound on the left cheek of Sadiq Hussain P. W. Which was allegedly caused by Islamul Haq appellant with his knife and yet was found by the Doctor to be a blunt weapon injury. As regards the first point, we have already referred to a clarification sought by the Sub. Inspector from the Doctor, vide query Exh. P. K. Wherein the possibility of such an injury having been caused by a fall on a sharp-pointed object was sought to be affirmed or denied. The query was replied in the affirmative. The occurrence had taken place just on the railway track where normally one would invariably find deposit of stones. In fact the, police also took into possession some blood-stained stones from the spot, vide Memo. Exh. P. B. Having seen them in Court, we find at least one or two of them have fairly pointed edges, and a fall on one of the stones could possibly have caused the injury in question. The other alternative, 'however, is that while giving details of the occurrence, one might miss an important point either owing to lapse of memory or mistake of perception. Since in the initial report lodged by Zahurul Haq, complainant; he had omitted to explain this injury, the Sub-Inspector might have genuinely sought its explanations on the hypothesis of the fall of the deceased on a pointed stone. Of course the other prosecution witnesses also toed the line of Zahurul Haq As regards the other point of conflict between ocular testimony and medical evidence, apparently, the lacerated wound on the left cheek of Sadiq Hussain P. W. Cannot be attributed to knife blow. Since it is also accompanied by a swelling 1' x 1'; we cannot avoid an impression that this was sustained during scuffle, but assuming that no satisfactory explanation of this injury is forthcoming, nothing would really turn in the face of a materially consistent version emerging from the evidence of 3 three injured witnesses whose presence at the spot has to be presumed unless their injuries are explained away on an alternative hypothesis. As regards the evidence of recoveries, no doubt Muhammad Siddiq acid Shah Din (given-up prosecution witnesses) of whom the former was also injured during the attach, were the only attesting witnesses of the recovery of knife Exh P. N. At the instance of Islamul Haq appellant, vide Memo. Exh. P. M. And his blood-stained clothes, vide Memo. Exh. P. O. And yet none of them was examined Muhammad Siddiq admitted to be a brother of Muhammad Munir appellant and Muhammad Sharif absconder, and as such was an uncle of Islamul Haq, and Ikramul Haq appellants. We wonder therefore if he despite having sustained injuries at the hands of his brother Muhammad Sharif was prevailed) upon not to support the case against his near relations. Likewise, Shah Din also was given up on the pretext of having been won over with result that we are left with the solitary statement of the Sub-Inspector, it was held in Emperor v. Santa Singh and in Muhammad Sarwar v. The State (PLD 1966 SC 278) that an Investigating Officer was as good a witness as any other member of the public and if otherwise there is no element o doubt in the recovery, it could still be held as approved by the solitary statement of the Sub-Inspector. We are in respectful agreement wit this legal proposition and would not exclude the evidence of recovery on that account. However, the recovery of knife Exh. P. I. Is questionable on another ground. A perusal of the statement of Sub-Inspector Raja Khizar Hayat P. W. 10 shows that the only reference made to the recovery of the knife by him is in the following words:- "At the instance of Islamul Haq I got. Recovered a knife vide Memo. Exh. P. N. It was sealed into a parcel as it was found blood-stained."
It is well-established that the recovery Memo per se does 1 not constitute evidence, and has to be proved in accordance with law. Such a vague reference to the recovery as the above hardly amounts to formal proof of the Memo of Recovery. In the circumstances therefore we are left with no choice but to exclude the recovery of knife Exh. P. I. Even otherwise the origin of blood on it remained un-determined. In fact, a perusal of the Report of the Serologist, Exh. P. X, clearly shows that no opinion whatever positive or negative was expressed in regard to the origin of blood thereon. So far as the recovery of the blood-stained clothes removed from the person of Islamul Haq appellant at the time of his arrest is concerned, it was made on the next day of the occurrence. Normally, one would have expected Islamul Haq to avail of the opportunity of the intervening day and night to change his blood-stained clothes. Surprisingly enough the learned counsel for the appellants would have us believe on the basis of the statement of Nazir Ahmad P.
W. 7 made before the Committing Magistrate with which he was confronted that they were arrested on the same day. Similarly Sadiq Hussain P. W. 8 had stated before the Committing Magistrate though denied at the trial that the accused had been arrested on the day of the occurrence. Once that position were accepted contrary to the assertion made by the Sub- Inspector and supported by the Recovery Memo. Exh. P. O. Dated 30-5-1968, the recovery of blood- stained clothes would constitute a strong incriminating evidence against the appellant. However, having regard to the fact that Islamul Haq had ample opportunity to get rid of the blood--stained clothes, we are not inclined to place implicit reliance on this recovery either. Accordingly both the recoveries have to be excluded though for reasons other than those advanced by the learned counsel for the appellants. Yet another circumstance which points to the same direction is the confusion as to the receipt of the parcel in the office of the Chemical Examiner. In the first instance, they were received by Muharrir A. S. I. Dolt Muhammad, P. W. 4, on 31-5-1968 and were deposited in the Malkhana. Surprisingly enough he delivered them to F. C. Muhammad Tufail on 26-5-1968, which is patently wrong as they could not have been delivered five days before their receipt. F. C.
Muhammad Tufail, P. W. 9, stated that these were delivered to him by the Muharrir A. S. I. Dost Muhammad on 20-5-1968, and he delivered them in the office of the Chemical Examiner, Lahore on 21-6-1968. On the other hand, according to the Report of the Chemical Examiner these were received by him on 20-6-1968 and not on 21-6-1968, as asserted by F. C. Muhammad Tufail, P. W. 9.
This confusion has not been satisfactorily resolved. We are thus left with 'the ocular testimony of the three injured witnesses. As stated earlier, the duration of injuries given by the Doctor in the relevant Medico-Legal reports coincides with the time of occurrence Zahurul Haq accompanied his deceased father. Ghulam Farid on his way to Colony Textile Mills, Ismailabad, and while trying to save his father sustained injuries. Nazir Ahmad P. W. 7, brother of the deceased and Muhammad Sadiq, P. W. 8, altogether disinterested witnesses, were also attracted to the spot, and on trying to physically intervene, received injuries. The only discrepancy pointed out in the case of Muhammad Sadiq P. W. 8 was that according to his statement before the committing Magistrate Ghulam Farid deceased was hit by Islamul Haq appellant with his knife in the right flank. The only criticism of his testimony was, firstly, that according to the statement before the committing Magistrate, Ghulam and was hit by Islamul Haq with a knife in the right flank, and, secondly, that the injury on his left cheek attributed to Islamul Haq, with knife, was found to be a lacerated wound caused by a blunt weapon. In the complete and conspicuous absence of any suggestion that the injuries sustained by this witness or, for that matter, any other witness could be self-suffered, their presence has to ' be admitted.. The possibility of the injury on the cheek of Sadiq Hussain P. W. Having been sustained in the course of struggle with the handle of the knife howsoever remote could not be completely excluded. There is nothing on the record to suggest that he had any motive to falsely implicate the appellants. Nazir Ahmad P. W. 7, a brother of Ghulam Farid deceased, was also related to the appellants inasmuch as his sister Mst. Maqsudan was married to Muhammad Shafiq, an uncle of Islamul Haq and Ikramul Haq, appellants. She categorically denied the suggestion that she had been abducted by Muhammad Shafiq, and asserted that she had been married to him as far back as in the year 1949 at Sargodha. The account given by the prosecution witnesses on the whole natural and quite convincing cannot be held doubtful merely for want of satisfactory explanation of one or two minor points. The prosecution witnesses frankly admitted that previously too there was bad blood between the parties. The immediate motive viz. Altercation and exchange of abuses between the parties on the previous evening also stands fully established. The account furnished by them is supported by medical evidence. Accordingly we would be inclined to place reliance on the testimony of the three eye-witnesses even without any further corroboration.
10. Doming to the next contention regarding the illegality of the judgment, we have no hesitation in straightaway repelling the same. No doubt section 367 of the Criminal Procedure Code refers to the point for determination, the decision on those points, and the reasons for decision in a particular sequence yet by no stretch of imagination can it be construed that the discussion in the judgment has necessarily to follow the same order. Individuality and variety of human approach in all matters in general and writing of judgments in particular, cannot be denied being a matter of daily observation and experience. So long as there is no omission, and all the essential requirements of a judgment have been kept in view, to insist on a particular order in the writing of judgments would be going beyond the scope of the law itself and appears to us to be contrary to the letter and spirit of the relevant provision. No doubt the learned trial Judge chose in the defence before dealing with the prosecution cafe yet such a procedure can by no means be characterised as being wholly unwarranted much less amounting to an illegality to be construed as fatal to the judgment. I support of his contention, the learned counsel referred as to Ch. Zafarul Ha and another v. The State (PLD 1968 Lah. 437) and Mian Fazil Rahim v. The State (PLD 1961 Pesh. 139) but eve assuming that the discussion of the prosecution evidence has to precede further than follow the discussion of the defence evidence as a matter of course, such an irregularity, if at all it may be called so, would not outside the pale of the curative provision contained in section 537 of the Criminal Procedure Code.
Of course it would be inconceivable that an Prejudice could be deemed to have been caused to an accused person merely On account of a particular order in the discussion of the relevant points having been adopted in the judgment. In support of his contention, learned counsel referred us to Ch. Bajarul Haq and another v. The State. The precise observation of the Division Bench pressed into service was as follows:- "We also cannot help remarking that the learned Additional Sessions Judge approached the case in an entirely illegal manner in so far as he considered it appropriate to discuss the defence evidence first and then the prosecution evidence. This is, to say the least atopsy-turvy way of dealing with a criminal case. He should have first discussed the prosecution evidence and come to an independent finding on the truth or falsity of the story related by them and should then have examined the statements of the appellants and their defence evidence and criticis--ed them in the light of the circumstances brought on the record. After having weighed the prosecution evidence and the statements of the appellants and the defence witnesses, he would then have been justified in formulating his conclusion as to the guilt or innocence of the appellants."
Having gone through the entire judgment of their Lordships which occasioned the aforesaid observation, we find that unlike the instant case wherein with the exception of a Medico-Legal Report no defence evidence whatever has been placed on the record (nor for that matter not a single witness was examined) a large number of documents had been examined in defence. To prove these, as many as eight persons were examined as Court witnesses. In the circumstances of that case, their Lordships had only reiterated the well-known principle that the prosecution case has to stand on its own legs, and the weakness of defence would in no way improve the case of the prosecution if otherwise it has neither no legs to stand upon or is built on a shaky, foundation. It may be observed with the utmost respect that the reference by their Lordships to the approach of the cases. "In an entirely illegal manner" in proceeding to deal with defence evidence before discussing the prosecution evidence, is somewhat an over-statement which finds no support either from statutory provisions or judicial pronouncements. The other authority referred to by counsel for the appellants cited as Mian Fazli Rahim v. The State (PLD 1961 Pesh. 137) has no relevancy. The learned Single Judge merely reiterated the well settled principle that the prosecution case has to succeed on its own strength and not on the weakness of defence.
11. This brings us to the last contention relating to the justifiability or otherwise of the invocation of section 34 of the Pakistan Penal Code in the circumstances of the case. The challenge to the application of section 34 of the Pakistan Penal Code proceeded on the solitary ground that Zaburul Haq, complainant, P. W. 6, had categorically stated in the initial report that Islamul Haq appellant took out a knife from his pocket and then challenged Ghulam Farid deceased that he would not be spared. Surprisingly enough not a single question was put to any of the eye--witnesses on this point who consistently, stated that Islamul Haq came arm with a knife, while the others wielded sticks. Even Zahurul Haq, complainant, was not confronted with this part of the First Information Report which does not constitute substantive evidence. In fact, in the F.I.R. Itself, the very next sentence refers to the challenge throw y Islamul Haq appellant that Ghulam Farid would be killed.
This part found consistent reference in the statements of the three eye-witness made at the trial.
As such having regard to the previous background motivating the assault when Muhammad Munir appellant and Muhammad Sharif absconder had left with a challenge that they would take avenge of abuses hurled on them, and both of them accompanied by the two sons the f the latter had chased the deceased Ghulam Farid and the complainant Zahurul Haq P. W 6, up to the railway track, there could be hardly an; doubt as to the community of their intention. Once the position is accepted knife Islamul Haq appellant declared that Ghulam Farid that taking out his would be done to death followed by a concerted attack by all of them, no doubt would be left as to the vicarious liability of others regarding the murderous act of Islamul Haq appellant for having dealt a fatal blow to the deceased. A word may also be said about the defence version which was rightly discarded by the learned trial Judge and for good reasons too elaborately mentioned in his judgment. It was suggested to the prosecution witnesses as also stated by Islamul .Haq appellant in his statement under section 342 of the Criminal Procedure Code that the members of the complainant party including the complainant, the deceased, Nazir Ahmad and Sadiq Hussain prosecution witnesses, as also Muhammad Siddiq (given up P. W. Raided the house of Mst. Shamim Akhtar in the early hours of the morning, at about 3 a.m. In order. To forcibly abduct her young sister Mst. Tasleem Akhtar whose hand was solicited by them for one Mangta, a resident of the same locality, and that Mst. Shamim Akhtar physically resisted the attack, and gave injuries to the prosecution witnesses with a piece of iron bar and thus frustrated the attempt. In the first instance it does not stand to reason that the members of the complainant party having unsuccessfully solicited the hand of Mst. Tasleem Akhtar for a person who was not even related to them should have gone to the extent of trespassing into the house and trying to forcibly abduct the girl. What is more important, however, is the glaring preposterousness of the suggestion that Mst. Shamim Akhtar howsoever physically strong was able to successfully foil the attempt of so many well prepared assailants to give injuries to all of them. The suggestion that the deceased later fell on the railway track and sustained more injuries lends implied support to the prosecution case and so far as the fixation of venue of the occurrence is concerned, no blood was recovered from the house of Mst. Shamim Akhtar. She did not appear before the Sub-Inspector till 30-5-1968 who got her medically examined on 31-5-1968. The duration of injuries as given by the Doctor did not fit in with the time of occurrence as rightly held by the learned trial Judge. In the circumstances therefore it was nothing but a crude attempt to fabricate an untenable defence version which had no legs to stand and as such was rightly brushed aside by the learned trial Judge.
The upshot of the discussion therefore is that the appeal fails and is hereby dismissed. The sentence of death awarded to Islamul Haq appellant is confirmed.