1. ' This appeal has arisen out of judgment, dated 23-5-1987 passed by the learned Additional Sessions Judge, Faisalabad, who convicted Shafqat alias Shaukat under section 302, P.P.C. For the murder of Riaz and sentenced him to life imprisonment. The appellant Shafqat was also sentenced to a fine of Rs,20,000 or in default to undergo further R.I. For 6 months. He was also convicted under section 324, P.P.C. And sentenced to two years' R.I. And a fine of Rs,5,000 or in default thereof to undergo further R.I. For three months. Both the sentences were ordered to run concurrently.
2. ' Javed appellant was convicted under section 307, P.P.C. And sentenced to 7 years' R.I. And a fine of Rs,10,000 or in default to undergo further R.I. For 6 months. Half of the fine, if realised from the two accused in all sentences, was ordered to be paid to the legal heirs of the deceased as compcnsation. Benefit of section 382-B, Cr.P.C. Was also accorded to the appellants.
3. ' Being aggrieved of the judgment of the Additional Sessions Judge, Faisalabad, both the appellants filed the present appeal against their convictions and sentences, while Ghulam Hussain complainant filed Criminal Revision No,380 of 1987 for the enhancement of their sentences. Both these matters are being decided by this judgment.
4. ' The facts necessary for the disposal of this appeal are that F.I.R. Exh.P.J. Was got recorded at the instance of Ghulam Hussain P.W.7 at Police Station Chak Jhumra on 22-7-1985, which was recorded by Ghulam Abbas S.H.O. (P.W.11). It was the case of the prosecution that the complainant Ghulam Hussain had stated that his grandsons Riaz, Mukhtar and Abid were sitting in front of the house of Mukhtar and Abid on the cots in the Bazar. Shafqat alias Shaukat accused was taking his buffaloes from his Dhari to his house. While he passed his buffaloes near the cots where the aforesaid three persons 'were sitting, Riaz deceased asked Shafqat accused not to pass his buffaloes near to them.
5. There was exchange of hot words between the accused on one side and the aforesaid three persons on the other. Side. However, they were separated. On the same day at 7-15 p.m. Shafqat and Javed accused armed with Khanjars came over there raising Lalkara. Shafqat accused inflicted Khanjar blow on the person of Riaz which hit him on the left side of his neck and he fell down on the ground. Thereupon Javed inflicted Khanjar blow on the person of Mukhtar which hit him on the left side of his abdomen. He too fell down on the ground. Shaukat accused inflicted Khanjar blows on the person of Abid P.W. Which hit him on his right eye-brow, left armpit and on the left side of his back.
6. ' The three injured were taken to the hospital at Chak Jhumra. Riaz injured died on his way to the hospital. The complainant reported the matter at the police station and handed over the medical reports of the injured to the Investigating Officer.
7. ' After the registration of the case, the Investigating Officer reached the spot and prepared injury statement Exh.P.P. And inquest report Exh.P.Q. Of the deceased. He also collected blood-stained earth from three different places and sealed it into parcel.
8. ' Dr. Muhammad Munir Subhani P.W.4 medically examined Mukhtar on 22-7-1985 at 9-00 p.m. And found the following injury on his person:--
(1) An incised penetrating wound 2 c.m. x 0.5 c.m. Into peritoneal cavity deep and cut at the left side of abdomen 3 c.m. Below a d left to umbilicus.
9. ' The same doctor medically examined Abid Hussain on the same day at 9-30 p.m. And found the following injuries on his person:--
(1) An incised wound 0.5 c.m. x 0.2 c.m. At the right eyebrow.
(2) An incised wound (penetrating) 1.5 c.m. x 0.25 c.m. Into muscle deep at the outer side of left upper arm.
(3) An incised wound 0.3 c.m. x 0.2 c.m. At the back of left chest in the middle 2 c.m. Away from vertebral column.
10. ' The same doctor conducted post-mortem examination of Muhammad Riaz deceased on 23-7- 1985 at 7-30 a.m. And found the following injuries on his person:--
(1) A penetrating wound 2.5 c.m. x 0.75 c.m. Into chest cavity deep at the left side of neck 2 c.m.
11. Above the left clavical (Collar Bone).
(2) A lacerated wound 2 c.m. x 1.25 c.m. At the terminal part of right thumb of foot.
12. ' In the opinion of doctor, death occurred due to shock and haemorrhage as a result of injury No,1, which was sufficient to cause death in the ordinary course of nature. The time between injuries and death was 1 to 2 hours and between the death and post-mortem examination was .10 to 15 hours.
13. ' The accused were arrested on 24-7-1985. Both the accused led to the recovery of blood-stained Khanjars P.3 and P.4, which were taken into possession vide memo. Exh.P.H./2 and Exh.P.1 on 27-7- 1985.
14. ' The prosecution examined 11 witnesses to establish its case. The ocular account has been narrated in its material particulars by Ghulam Hussain P.W.7, Abid Hussain P.W.8 and Muhammad Mukhtar P.W.9. The last two witnesses, namely, Mukhtar and Abid were also injured in the aforesaid incident. The presence of Mukhtar and Abid is established beyond any doubt from the record of this case. They have categorically deposed against the present two appellants. Their testimony is in line with the medical evidence. They have successfully withstood cross-examination and the defence failed to get anything out of it.
15. ' When the accused were examined under section 342, Cr.P.C. They denied the allegation levelled against them. However, Shafqat accused stated as under:-- "I have been falsely implicated. A few days prior to the occurrence I had passed the examination of ISSB at Kohat and was waiting for medical examination at Gujranwala Medical Board and on the day of occurrence I alongwith my other family members i.e brother and parents had gone for the condolence of our paternal-aunt at Chak 9/J.B. Bhoewal when my sister Mst. Fakhran Bibi was all alone at our house in this Chak and in the early hours of the morning we received the information in that Chak that Muhammad Riaz deceased had entered our house and on the pretext of borrowing the match box and in that way when he reached near Mst. Fakhran Bibi he made an attempt to outrage her modesty and indulged in indescent approach. It was resisted by Mst.
16. Fakhran Bibi when she was already using the Chhuri for cutting the vegetable and she also received the injuries at the hands of Riaz deceased when he was bending upon her. On hearing the alarm of Mst. Fakhran Bibi certain persons of the neighbourhood and the two injured P.Ws. Entered the house and grappled with each other and during that altercation the injured P.Ws. Had also received the injuries and later on the complainant party falsely implicated me and my brother Javid in this case."
17. ' He also produced Dr. Imtiaz Ahmad Gill as D.W.1, who had stated that he examined Mst. Fakhran Bibi sister of the accused and found the following injuries on her person:--
(1) An incised wound 4 c.m. x 1/2 c.m. Into bone deep on the top of right side head.
(2) A contusion mark 6 c.m. x 2 c.m. On the back middle part of chest.
(3) An abrasion 1/2 c.m. x 1/2 c.m. On back right ring finger.
(4) A contusion mark 5 c.m. x 2 c.m. On back right forearm.
(5) A contusion mark 7 c.m. x 2 c.m. On front of right thigh.
18. ' All the injuries according to the doctor were of simple nature. Injury No,1 was caused by sharp- edged weapon while rest of the injuries were caused by blunt weapon.
19. ' Learned counsel for the appellants has argued that in this case F.I.R. Has been concocted and does not inspire any confidence as the complainant Ghulam Hussain had not seen the occurrence.
20. He argued that the absence of the name of the complainant in the inquest report Exh.P.O. Goes a long way in establishing that he was not present at the scene of occurrence. The learned counsel contended that according to the doctor who conducted the post-mortem examination, the dead body of Riaz deceased was looking fresh. He has further contended that there was no post- mortem staining and rigor mortis were absent. He has also argued that Shafqat accused did not repeat the blow as only one blow has been attributed to him to the deceased. He has also challenged the recovery of Khanjars as according to him they were sent in one sealed parcel to the Chemical Examiner for onward transmission to the Serologist. From this he concluded that the recovery of daggers is doubtful. He also criticised the motive part of the prosecution case as according to him it has not been established. The counsel also criticised the evidence of ocular witnesses saying that they were not present over there. They are interested, inimical and inter- related.
21. ' On the other hand learned State counsel as well as learned counsel for the complainant have argued that the defence has not established its plea which was taken at the time of trial. The lady Mst. Fakhran Bibi was not produced nor she was produced before the Investigation Officer. It is an afterthought. He has further argued that Shafqat accused, though he did not inflict second blow on the deceased yet he repeated the blow on the witnesses. He also argued that as far as time and place of occurrence is concerned there are no two opinions. According to him non-mentioning of the name of the complainant in the inquest report does not change the complexion of the case.
22. ' I have considered the arguments of the learned counsel for the parties. The defence in order to establish its plea has mainly relied upon the medical report of Mst. Fakhratn Bibi through D.W.1 Dr. Imtiaz Gill wherein he had stated about the five injuries of simple nature to her. This witness had stated that he examined the lady in D.H.Q. Hospital, Faisalabad on 23-7-1985 at 1-30 p.m. And discharged her next day. D.W.2 had stated that Mst. Fakhran Bibi was admitted in Mian Muhammad Trust Hospital, Faisalabad on 28-7-1985 and was discharged on 3-8-1985. P.W.11 Ghulam Abbas S.I.
23. Has also stated about application of Muhammad Hussain Exh.P.W.11/A along with her medical report Exh.P.W.11/B. The reading of all these documents does not inspire any confidence whatsoever. On the contrary the prosecution has established the ocular account in its material particulars through Ghulam Hussain P.W.7 and the two injured witnesses, namely, Abid Hussain P.W.8 and Muhammad Mukhtar P,W.9. Their presence at the spot has been fully established and cannot be doubted on any ground whatsoever. Their testimony is in full line with the medical evidence. These three eye-witnesses have minutely given the details of the injuries caused by the appellant to the deceased as well as the witnesses. The recovery of incriminating Khanjars P3 and PA recovered respectively from Shafqat and Javed accused has been established beyond doubt.
24. The assertion that the independent witness from the locality has not been examined, would not advance the case of the defence any further, f he testimony of Ghulam Rasool P.W.6 goes a long way in establishing the recovery of Khanjars on the potation of the accused. It is established ;torn' the record that the Khanjars which were recovered on the imitation of the accused according to the report of Forensic Science Laboratory, were stained with human blood. Learned counsel has argued that only one parcel was sent and that creates doubt in the recovery of the incrirumating articles. I have seen the report of Chemical Examiner Ex.P.T., certifying the receipt of the packet containing daggers through Muhammad Ramzan P.W. In the circumstances, I accept that the Khanjars recovered from the accused were stained with human blood.
25. 'As regards the argument that the doctor said that the deceased was looking fresh at the tune of post-mortem examination, that by itself does not negate the prosecution evidence because this very doctor has stated that the duration between the death and post-mortem examination was 10 to 15 hours. The whole reading of medical evidence fully establishes that the deceased had expired on 22-7-1983 in the evening as stated by the prosecution witnesses. In the circumstances it cannot be said that the medical evidence contradicts the ocular account. On the contrary I am of the considered view that the medical evidence is in full line with the ocular account as stated by the eye-witnesses.
26. ' The upshot of the above discussion is that the prosecution has succeeded in proving the case against the appellants up to the hilt. In the circumstances, the appeal filed by the appellants is dismissed.
27. ' The complainant -Ghulam Hussain has also filed criminal revision for the enhancement of sentence. I think the sentence awarded by the learned Additional Sessions Judge is adequate and would meet the ends of justice. I see no reason for the enhancement of sentence. Hence Criminal Revision is dismissed in limine.
28. ' Javed appellant is on bail. His bail bond is cancelled. He be taken into custody forthwith to serve out the remaining part of his sentence.
29. Appeal and .