' RASHID AZIZ KHAN, J.--- Muhammad Azeem son of Pir Bakhsh alias Peeran (30) was reported against with Police Station Saddar, D.G. Khan, for the murder of Mithu (32). Sessions Judge, Dera Ghazi Khan vide judgment, dated 29-2-1992 convicted and sentenced him under section 302, P.P.C.
To death. The convict has appealed. Case is also before us for confirmation of death sentence.
Both these matters will be disposed of by this judgment.
2. According to the prosecution allegations contained in F.I.R. Exh.P.H. First informant Behram, P.W., on 1-3-1990 with his brother Mithu and cousin Abdul Hay'at went to D.G. Khan for purchasing provisions. After buying the provisions, while coming back at about 3 p.m. They reached near Chowk Chorhatta. First informant and Abdul Hayat started buying fruit for children. Mithu went to a nearby hotel for having tea. First informant with Abdul Hayat was going towards the hotel for calling Mithu when they saw Muhammad Azeem armed with Chhuri, who raised a Lalkara that he had come to take revenge for his insult. He gave a blow on the front of chest of Mithu. His second Chhuri blow also landed on the right side of chest and the third blow landed on his left hand, whereupon said Mithu fell down. Muhammad Azeem thereafter gave other injuries on different parts of his body. First informant with Abdul Hayat stepped forward to rescue him, whereupon the assailant raised a Lalkara therefore, they did not intervene. Mithu died at the spot on account of the injuries. Motive for the occurrence was that some time earlier Mithu had sold a buffalo for Rs,9,000 to Muhammad Azeem, who had promised to pay the amount one month after the bargain. He could not pay the money, therefore, Mithu took his buffalo back. On this account Mithu had also insulted him many a time by abusing him, therefore, the present occurrence.
' Occurrence took place on 1-3-1990 at 3 p.m. At Chowk Chorhatta, 2 miles from Police Station Saddar D.G. Khan. F.I.R. Exh.P.H. Regarding the occurrence was got registered on the same day by Behram. P.W.7 at 3-45 p.m. Which was recorded by Muhammad Shafi, S.-I. P.W.B.
' P.W.8 Muhammad Shafi, S.-I./S.H.O. After registration of the case went to the spot and prepared injury statement Exh.P.B. And inquest report Exh.P.C. Of the deceased. He sent the dead body for post-mortem examination. Blood-stained earth from the spot was secured vide memo. Exh.P.E.
Blood- stained last-worn clothes of the deceased were taken into possession vide memo. Exh.P.E.
He arrested Muhammad Azeem on 5-3-1990, and the same day the accused got recovered Chhuri P.3 from his residential Kotha, which was taken into possession vide memo. Exh.P.G. He got all the memos. Attested from the witnesses. He got prepared site plan Exhs.P.D. And P.D./1-2 from the Draftsman and gave his notes in red ink thereunder. After usual investigation, he challaned the accused. P.W.1 Dr. Muhammad Shafi, Senior Medical Officer, D.H.Q. Hospital, D.G. Khan, on 2-3-1990 at 10-30 p.m. Conducted the post-mortem examination on the dead body and found the following injuries:--
(1) An incised wound on chest 2-1/2" x 1" x going deep into the chest. It was vertical.
(2) An incised wound 3" x 1" x going into the chest on the left side of the chest.
(3) An incised wound 1" x 1-1/2" x muscle deep on the sternum manubri.
(4) An incised wound 3" x 1" x going deep on the medial side of left upper arm.
(5) An incised wound 1/2" x 1-1/2" below the left elbow on the lateral side and communicating with injury No,4.
(6) An incised wound 4-1/2" x 3" x cutting the portion of left scapula which was on the left shoulder.
(7) An incised wound 1" x 1-1/2" x going chest cavity situated on the right side of chest.
(8) An incised wound 7" x 2" x cutting the muscles on the back and on the left side of the chest.
(9) An incised wound 1" x 1-1/4" x muscle deep on the right side of front of chest. In his opinion, all the injuries were ante-mortem caused with a sharp-edged weapon. Injuries Nos.1 and 3 were sufficient to cause death in the ordinary course of nature collectively and individually. Injuries Nos.6 and 7 were grievous.
3. Prosecution in support of its case had produced eight witnesses in all Dr. Muhammad Shafi, P.W.1 had conducted the post-mortem examination of the dead body of Mithu. Mian Muhammad Sami, P.W.2 Draftsman, had prepared site plan Exhs:P.D. And P.D./1-2 on the asking of the police. Ghulam Farid, Constable, P.W.4 had delivered the sealed parcels in the office of Chemical Examiner, Lahore, in tact. Ocular account was furnished by Abdul Hayat and Behram, P.Ws.6 and 7, respectively. The case was investigated by Muhammad Shafi, S.-I. P.W.B.
' At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. He, however, neither appeared in his defence on oath nor produced defence evidence. In answer to a question he stated that on the fateful day he was coming back after seeing the cinema show at midnight when Muhammad Shafi. S.-I.
Arrested him and falsely implicated in the case.
4. It was contended by learned counsel for the appellant that the prosecution has not been able to establish its case beyond doubt. According to him, the motive as given in the F.I.R. Was different from the one stated by the witnesses on oath. Argued that the ocular account was at variance with the allegations contained in the F.I.R. In so far as the time of occurrence and the deceased having meals was concerned. Submitted that the eye-witnesses were interested and inimical and could not be relied upon. The contentions were opposed by learned counsel for the State as well as of the complainant. .
5. We have heard the learned counsel and gone through the file. Prosecution in order to establish its case had relied upon ocular account furnished by Abdul Hayat and Behram, P.Ws.6 and 7, respectively, and sought corroboration from medical evidence as well as the recovery of Chhuri P.3 effected at the instance of the appellant. Dr. Muhammad Shafi, P.W.1, on 2-3-1990 conducted the post-mortem examination. In cross-examination he had stated that the dead body was directly brought to him by the police and conducted the post-mortem examination. We have noticed that the post-mortem examination was conducted on 2-3-1990 at 10-30 a.m., whereas the occurrence took place on 1-3-1990 at 3 p.m. Learned counsel on the basis of this discrepancy had argued that it was an unseen occurrence which had taken place on a different day. We have given a careful consideration to this aspect but are of the view that it is not a serious discrepancy. Admittedly, the occurrence took place at 3 p.m. And according to the rules post-mortem examination is not to be conducted after the sun set. Therefore, it had to be on the following day. In such circumstances, no adverse inference can be drawn from the fact that the post-mortem examination was conducted on the following day of the incident.
Ocular account was furnished by Abdul Hayat and Behram, P.Ws.6 and 7,' respectively. Both of them corroborated their version given in their statements before the police. They were put to the test of lengthy cross-examination, but nothing has been brought on the file which could indicate their or motive against the appellant. No background of hostility was even suggested to either of them. The contention of the leahied counsel for the appellant that the occurrence had taken place on a thoroughfare, therefore, both the eye-witnesses are chance witnesses has been considered but we are not impressed with the same. Both the witnesses have given a plausible explanation with regard to their presence at the spot. It is well-established principle that if an occurrence takes place then passers-by are the natural witnesses provided they have been able to explain their presence at the spot, therefore, are natural witnesses. The contention of the learned counsel for the appellant that the statements of the eye-witnesses are in conflict with the medical evidence in so far as the stomach contents of the deceased are concerned, therefore, they may not be relied upon has been considered by us, but are not inclined to accept the argument. In the F.I.R. It was stated that the deceased had gone to a nearby hotel to take tea. The doctor who had conducted the post-mortem examination had found semi-digested food of 3/4 hours duration. Even if it be assumed that the deceased had taken meals, yet it would not establish that the occurrence had taken place not at the place and time suggested by the prosecution. According to averments of both the eyewitnesses, they got busy in purchasing provisions. Subsequently, while buying fruit they heard the commotion and saw the incident. The defence in spite of lengthy cross-examination did not choose to ask them any question with regard to time they consumed in buying provisions. The deceased died after some time. So, in such circumstances, mere fact that digested food was found in the stomach would not contradict the ocular account.
The upshot of the discussion is that while relying upon the statements of both the eye-witnesses, we hold that the prosecution has been able to prove its case beyond doubt. Therefore, the appeal fails, which is dismissed.