' This criminal appeal has been directed against. The judgment dated 17-1-1987 passed by the learned Additional Sessions Judge, Bahawalpur, whereby the appellant was convicted and sentenced to imprisonment for life and a fine of Rs,2,000, in default whereof to suffer R.I. For six months. He was further directed to pay Rs,5,000 as compensation to the legal heirs of the deceased and in case of default in its payment, he was to suffer S.I. For six months. The connected Criminal Revisions Nos.13 of 1987/BWP, 82 of 1987/BWP by the complainant and Criminal Revision No,55 of 1987/BWP shall also be disposed of together.
2. Briefly stated the prosecution case is that the appellant alongwith the acquitted co-accused Ameer Bakhsh was tried for the murder of deceased Muhammad Ibrahim. P.W.10 Abdul Khaliq on 27-5-1986 lodged F.I.R. Exh.P.M. That he was resident of Mauza Sojhla Tanwari and on the said date at about 5-00 a.m. He was going to Jam Pannu resident of Farid Abad in order to get tractor for sowing the cotton crop and while passing near the graveyard heard the voice of Dhar Dhar and while running reached the graveyard and witnessed that on the Qutbi (northern) side of the shrine of Hafiz Muhammad Yousuf, Amir Bakhsh (acquitted co-accused) had caught hold of the paternal-deceased cousin Ibrahim of the complainant and appellant Abdul Qadir was inflicting Chhuri blows on his neck. Meanwhile P.W.11 Gul Muhammad and P.W.12 Wahid Bakhsh reached the spot and witnessed the occurrence. The P.Ws. Tried to apprehend both the accused, but Abdul Qadir appellant threatened that if they would come near, they would also meet the same fate.
After the escape of the accused, the P.Ws. Found that Ibrahim deceased succumbed to his injuries.
The motive behind the occurrence was that Mst. Maryam daughter of Amir Bakhsh (acquitted co- accused) was married with Ibrahim deceased and after dissolution of marriage she had also obtained a decree of 7 Kanals. Ibthhim had handed over the possession of 6 Kanals and 7 Marlas to Amir Bakhsh (acquitted co-accused). Abdul Qadir appellant and Amir Bakhsh (acquitted co- accused) wanted to get 13 Marlas of land adjacent to the house of the deceased and he was not agreeing. Due to that motive when the maternal-cousin of the complainant, Ibrahim deceased had gone to offer Fateha on the grave of his father, the appellant and the acquitted co-accused after making mutual consultation had murdered him.
3. P.W.13 Mian Khurshid Alam, S.H.O. Recorded the F.I.R. Exh.P.M. On the statement of P.W.10 Abdul Khaliq and thereafter proceeded to the spot, inspected the locale, secured blood-stained earth vide memo. Exh.P.N., Tasbeeh P.13, a mat P.14 and a pair of shoes P.15/1-2 vide memo. Exh.P.O. After completing the formalities he despatched the dead body of the deceased to the mortuary. On completion of the investigation P.W.13 challaned the appellant alongwith the acquitted co- accused. The trial Court framed charge under section 302/34, P.P.C. Against the appellant and the acquitted co-accused, to which they denied and claimed trial.
4. The prosecution examined 13 P.Ws. In all to substantiate its case. The motive behind the occurrence has been stated by P.W.10 in the F.I.R. Exh.P.M. To the effect that Mst. Maryam daughter of Amir Bakhsh (acquitted co-accused) was married to Ibrahim deceased, but she obtained a decree of dissolution of marriage and also possession of 7 Kanals of land, but the deceased had handed over possession of 6 Kanals and 7 Marlas to the acquitted co-accused Amir Bakhsh and the remaining 13 Marlas which were adjacent to the house of the deceased, the deceased was not willing to deliver possession thereof and due to that he was done to death.
5. During trial while appearing as P.W.10 Abdul Khaliq complainant stated about the motive to the effect that Ibrahim deceased was married with Mst. Maryam daughter of Amir Bakhsh (acquitted co-accused). The said Amir Bakhsh got the said marriage dissolved forcibly and again stated that the marriage was dissolved ex parte through the process of Court. Amir Bakhsh (acquitted co- accused) and Abdul Qadir appellant then forcibly took possession of the land belonging to Ibrahim deceased. The deceased then moved an application for cancellation of decree passed ex parte in suit for dissolution of marriage filed by Mst. Maryam, which motivated the present occurrence. The motive as stated by P.W.10 complainant in the F.I.R. Exh.P.M. And his statement before the trial Court are. Inconsistent. No other P.W. Was produced to support the motive behind the occurrence by the prosecution.
6. P.W.10 Abdul Khaliq, P.W.11 Gul Muhammad and P.W.12 Wahid Bakhsh have given the ocular account of the occurrence. P.W.10 Abdul Khaliq narrated the facts as stated by him in the F.I.R.
Exh.P.M. P.W.11 Gul Muhammad, a Mujawar of the shrine of Hafiz Muhammad Yousuf, stated that the appellant Abdul Qadir and the acquitted co-accused Amir Bakhsh had offered Fajar prayer alongwith Muhammad Ibrahim deceased in the mosque situated near the shrine. P.W.11 also lived there. After saying prayer, P.W.11 went to Sultan Wah canal for ablution. He heard Dhar Dhar of Muhammad Ibrahim deceased and rushed towards the shrine, Abdul Khaliq (P.W.10) and Wahid Bakhsh (P.W.12) also arrived, there and witnessed that Amir Bakhsh (acquitted co-accused) was holding Ibrahim deceased while Abdul Qadir appellant was inflicting blows with Chhuri on the person of the deceased. The deceased was sitting on the northern side of the shrine on the ground.
Abdul Qadir appellant gave first Chhuri blow on the right side of Ibrahim deceased followed by the other Chhura blows on the right side of neck, who fell down on the ground and the fifth blow was inflicted on his left shoulder. The P.Ws. Tried to catch hold of the accused, but did not intervene on account of the threats of dire consequences extended by Abdul Qadir appellant, and then both the accused ran away. The deceased succumbed to his injuries at the spot. P.W.12 Wahid Bakhsh, another eye-witness of the occurrence stated that on the relevant day at about 5-00 a.m. He was present in his house situated near the shrine of Hafiz Muhammad Yousuf, he heard Dhar Dhar of deceased Muhammad Ibrahim and rushed to the spot. Meanwhile P.W.10 and P.W.11 also reached there, Amir Bakhsh (acquitted co-accused) was holding Muhammad Ibrahim deceased, while Abdul Qadir appellant was causing him the Chhuri blows in stabbing manner. The deceased received about five injuries at the hand of the appellant. The P.Ws. Tried to apprehend the accused and rescue the deceased, but due to the threats extended by the appellant, they could not be apprehended. The accused escaped. The deceased succumbed to his injuries.
' It has been vehemently contended by the learned counsel for the appellant that the statements made by the eye-witnesses cannot be relied upon as the deceased is the maternal-cousin of the complainant, whereas P.W.12 Wahid. Bakhsh was present as stated by him in his house which has a boundary wall of a height of 5/6 feet and he is also related to the deceased whose nieces were his daughters-in-law. It was also urged before me that it was unseen occurrence as is evident from the statement made by P.W.10 and P.W.12 who stated that the S.H.O. Took the P.Ws. In the mosque and gave them oath on the Holy Qur'an in order to verify the fact that they had seen the occurrence or not. The P.Ws. Took the requisite oath. The S.H.O. Was overanxious and due to that he had administered oath through the P.Ws. Once again, otherwise it has been brought on .Record that after registration of the case, P.W.13 Mian Khurshid Alam, S.H.O. Reached the spot. P.W.11 is the Mujawar of the said shrine near which the occurrence took place and he had stated specifically that he alongwith the acquitted co-accused, appellant and the deceased offered Fajar prayer in the mosque. The eye-witnesses had no motive whatsoever to falsely involve the appellant in the present case. They had no animus against the appellant. The statements made by P.Ws.10 and 12 cannot be thrown away or brushed aside on account of their relationship with the deceased and they have given the plausible and probable cause of their presence near the place of occurrence at the relevant time. P.W.11 is the Mujawar and resident of the shrine. P.W.12 resided near the place of occurrence and was attracted to the spot after hearing Dhar Dhar of the deceased. The eye- witnesses had made their statements in a straightforward manner and implicit reliance can be placed on their testimony.
7. P.W.2 Dr. Shabbir Ahmad on 27-5-1986 conducted autopsy on the dead body of Muhammad Ibrahim deceased and found the following injuries on his person:--
(1) A stab wound over right side of forehead above the right eyebrow measuring 3 x 1.5 x 4 c.m.
(2) A stab wound over right side of face at the angle of right mendable 2 x 1 x 1.5 c.m.
(3) A stab wound over right side of the neck at the level of fifth cervical vertebrae penetrating towards downwards and left measuring 7 x 5 x 10 c.m.
(4) A stab wound over right side of the neck 5 c.m. Below injury No,3 measuring about 3 x 1 x 1.5 c.m.
(5) A stab wound over left shoulder on the posterior lateral part 5 x 1 x 3 c.m.
' Exh.P.E. Is the copy of post-mortem examination. All the injuries were caused with a sharp-edged weapon (stab) and were ante-mortem in nature. In the opinion of the doctor, the cause of death was haemorrhage and shock due to extra vassation of blood from major blood vessels of right side of neck by injury No,3. Injury No,3 was sufficient to cause death under ordinary course of life. The time that elapsed between injury and death was within two to five minutes and between death and post-mortem examination was eight to twelve houRs, It was contended that during autopsy P.W.2 noticed that the small intestines contained semi-liquid contents and stomach was found empty, whereas P.W.11 had stated that he alongwith the deceased had taken Sehri. On the day of occurrence, the sun had arisen at 5-17 a.m. According to the calendar. Nothing was brought on record by the defence that what type of Sehri had been taken by the deceased. The deceased must have taken Sehri at about 4-00 a.m. And if he had taken some liquid food, then it would have been digested.
8. The appellant after his arrest on 31-5-1986 was medically examined by P.W.1 Dr. Mahmood Ahmad, who had found the following injuries on his person:--
(1) An incised wound about 3 c.m. In length, spindle-shaped (gapping) in the centre, narrow at margin) into 0.5 c.m. x 0.5 c.m. Deep on the little finger of right hand. Wound was on the palmer aspect of little finger extending on the whole length of palmer aspect. Wound was not fresh and X- Ray was advised for it.
(2) 3 incised wounds about 1 c.m. In length x skin deep parallel to each other about 0.5 c.m.
Distance on the lateral side of palmer aspect of right ring fmger (they are three in number).
' Injury No,1 was kept under observation. All the injuries were simple in nature caused by sharp- edged weapon within one week's duration. Exh.PA. Is the copy of M.L.R. P.W.1 had opined that the possibility of self-infliction of the said injuries could not be ruled out, and during cross-examination had stated that the wounds were in transverse position, on the palmer aspect of little fmger.
' The injuries found on the person of the appellant were not stated by any of the P.Ws. As well as the complainant in the F.I.R. Exh.P.M. The P.Ws. Had witnessed the occurrence from a distance of 4/5 paces and had witnessed the appellant inflicting injuries to the deceased. The appellant was not examined on the point of presence of injuries on his person during his statement under section 342, Cr.P.C. But later on a supplementary statement under section 342, Cr.P.C. Was recorded, wherein the appellant stated about the injuries that his hand was injured while he was sharpening the blade of grass-cutter machine with "Reti" which slipped and injured his finger which is not possible.
There would have been bruises. The medical aspect of the case furnished on record by the statement of P.W.2 is in consonance with the ocular testimony furnished on record by the statements of P.Ws.10 to 12.
9. Recovery aspect of the case has been furnished on record by the statement of P.W.8 Imam Bakhsh, who had joined the investigation and in his presence the appellant led to the recovery of blood-stained Chhuri P.7 from the Nakka of a watercourse which was made into a sealed parcel and secured by P.W.13 vide memo. Exh.P.L. Attested by P.W.8 and P.W. Allah Diwaya (given up). It has been vehemently contended by the learned counsel for the appellant that P.W.8 is related to the deceased and no independent person had been associated in the recovery proceedings. No doubt Imam Bakhsh (P.W.8) is related to the deceased, but nothing has been brought on record by the defence that P.W.8 had any animus against the appellant and on the other hand he had stated that he was related to both the parties. The statement of P.W.8 is corroborated by the statement of P.W.13 S.H.O./I.O. Who had no motive whatsoever to falsely plant the recovery of blood-stained Chhuri P.7. It was also contended that there was no reason for the appellant not to throw Chhuri P.7 in the flowing water of the canal and he had concealed the same in the Nakka. The philosophy of an accused cannot be visualised unless the actual pointation by him is made at the time of the recovery. The appellant must be under the impression that concealing the same in the Nakka of the Khaal would save him from the clutches of law. It is pertinent to mention here that after pointing out the Nakka, the appellant had himself dug out P.7 from underneath the earth and produced the same before P.W.13. The report of the Chemical Examiner and that of the Serologist Exhs.P.Q. And P.R. Respectively are positive. The prosecution has proved recovery of blood-stained Chhuri P.7 at the instance of the appellant.
10. The F.I.R. Exh.P.M. Was lodged with promptitude, the name of the appellant alongwith the weapon carried by him is mentioned in the F.I.R., the names of witnesses and the manner in which the occurrence took place, all are given in the F.I.R. Exh.P.M. The ocular testimony is in conformity with the medical evidence coupled with the factum of recovery of weapon of offence at the instance of the appellant, and excepting some minor discrepancies here and there in the statements of P.Ws., the defence has failed to bring on record the material contradictions and dishonest improvements.
11. Pursuant to the above discussion, I am of the considered view that the appellant was rightly convicted and sentenced by the trial Court. The sentence already awarded to him is maintained.
The appeal is dismissed. However, the appellant shall be extended the benefit of section 382-B; Cr.P.C. The connected Criminal Revisions Nos.13 of 1987/BWP, 82 of 1987/BWP filed by the complainant and Criminal Revision No,55 of 1987/BWP preferred by the State have no force and are dismissed.