' MUHAMMAD NAWAZ ABBASI, J.--- This judgment will dispose of Murder Reference No,26 of 1993 sent by the learned Sessions Judge, Rajanpur, alongwith Criminal Appeal No,18 of 1993 filed by Jeewan and Nazoo, appellants against their conviction and sentence under section 302/34, P.P.C.
Awarded to them by the learned Sessions Judge, Rajanpur, vide judgment, dated 12-1-1993, for the charge of committing the murder of Safdar Hussain and Criminal Revision No,28 of 1993 filed by the complainant for the enhancement of sentence of Nazoo appellant and for setting aside the acquittal of Badroo his co-accused.
2. Precisely, the facts of the case in the background as narrated in the F.I.R. (Exh.P.A.) lodged by Muhammad Nawaz father of Safdar Hussain deceased soon after the occurrence with Police Station City Rajanpur recorded by Bashir Ahmad, S.-I./S.H.O. P.W.7 are to the following effect:-- "That on 27-4-1990 after Eid-ul-Fitr prayer Muhammad Nawaz complainant went to Moael High School for Boys, Rajanpur to see the Kabaddi match. Safdar Hussain his son along with Ahmad Khan his brother-in-law and Bashir Ahmad also reaching there were present with him. Safdar Hussain was sitting on the ground, while Ahmad Khan and Bashir Ahmad along with complainant were standing in the playground, when at about 11 a.m. Jeewan son of Gulab armed with Kulhari, Nazoo son of Habib Khan armed with Chhuri and Badroo son of Wahid Bakhsh empty-handed, appeared from behind the school building. Badro raised Lalkara that Safdar Hussain will not be spared on that day for causing injuries to Jeewan and in the meanwhile Jeewin appellant inflicted two blows with hatchet on the neck of the deceased, who made an attempt to stand up but fell down and then Nazoo appellant inflicted a Chhuri blow on his chest. Safdar Hussain succumbed to the injuries at, the spot."
' The motive as given in the F.I.R. Was that a year ago Safdar Hussain deceased having suspected illicit relations of Jeewan with his wife caused injuries to Jeewan with Chhuri and as a result thereof a case under section 307, P.P.C. Was registered against Safdar Hussain which was still pending.
Jeewan appellant with a view to take revenge of the said incident in furtherance of common intention of his co-accused namely, Nazoo and Badroo, causing injuries to Safdar Hussain committed his murder.
3. Bashir Ahmad, S.-I./S.H.O. P.W.7 reaching at the spot, secured blood- stained .Earth from the place of occurrence through memo. Exh.P.C. And prepared injury statement Exh.P.G. And inquest report Exh.P.H. Of the deceased and dispatched the dead body for post-mortem examination. He arrested the appellants on 4th of May, 1990. Jeewan appellant led to the recovery of bloodstained hatchet P.5 from his residential house which was taken into possession vide recovery memo.
Exh.P.D. Nazoo appellant got recovered blood-stained Chhuri P.6 which was taken into possession vide recovery memo. Exh.P.E. Both the recoveries witnessed by Ahmad Khan and Bashir Ahmad P.Ws. The Investigating Officer after completing the formal investigation challenged the appellants.
4. Dr. Azhar Hussain P.W.8 being familiar with the signatures of Dr. Aftab Ahmad Alvi proved the post-mortem report Exh.P.F. Prepared by Dr. Aftab Ahmad Alvi, Medical Officer, D.H.Q. Hospital, Rajanpur who conducted the post-mortem examination upon the dead body of Safdar Hussain deceased on 27th of April, 1990 and found the following injuries:-
(1) An incised wound 13 c.m. x 5 c.m. x bone deep, tracheas oasphagus, main blood vessels of the neck, hyoid bone 4th, 5th and 6th servical vertebrae were cut, lying obliquely on the right side of the neck.
(2) An incised wound 4 c.m. x 2 c.m. x hyoid bone cut on the front of neck.
(3) An incised wound 8 c.m. 1 c.m. Muscle deep on the front of the left side of the chest, just below the left clavicle. 4th, 5th and 6th vertebrae were cut down, spinal cord was injured.
' Injuries Nos.1 and 2 were declared grievous and injury No,3 as simple.
5. Muhammad Nawaz P.W.4, father of the deceased, and the first informant as eye-witness of the occurrence confirming the story of the F.I.R. Stated that Jeewan appellant inflicting two successive hatchet blows caused injuries to the deceased on neck and juglar vein, whereas Nazoo appellant caused Chhuri blow on the left side of chest of the deceased. Similarly the second eyewitness namely Ahmad Khan P.W.5 corroborating the statement of Muhammad Nawaz complainant fully supported the prosecution case.
6. The appellants having denied the allegations pleaded false implication due to previous enmity.
8. The learned counsel for the appellants questioning the presence of the prosecution witnesses at the place of occurrence contended that there being no mention of their names in the inquest report and the rough sketch of the scene of occurrence, they were shown present at the scene after conducting preliminary investigation and in consequence thereof the case was registered with deliberation, he argued that admittedly appellants being not armed with fire-arm could easily be resisted by the companions of the deceased but non-interference of his father and brother-in- law caused serious doubt of their presence at the spot. The next contention raised by the learned counsel was that indeed a large number of persons were gathered in the playground on the day of Eid for enjoying Kabaddi match, but no independent person was cited as witness, and the testimony of the father and maternal-uncle of the deceased the inimical and interested witnesses being not confidence inspiring could not be made basis for conviction. The learned counsel further contended that evidently injury No,2 was not the result of hatchet or Chhuri blow and consequently, the prosecution story of only use of Kulhari and Chhuri in the occurrence stood contradicted by the medical evidence and thus. The eye-witnesses account ws shaky to sustain the conviction. The recovery of blood-stained Kulhari and Chhuri has been challenged firstly on the ground that blood could not possibly be traced on such weapons after 10/11 days of the occurrence and secondly that admittedly both the weapons were recovered from a room in the house in joint possession of the appellants and consequently recovery of hatchet and Chhuri being of joint character as not admissible. Lastly it has been contended that grievance of the deceased against Jeewan appellant for carrying of illicit relations with his wife having not came to an end, there being every possibility of false implication, due to the said reason the motive attributed is not proved as such to be a reason behind the crime.
9. Conversely the learned counsel appearing on behalf of the complainant contended that the appellant namely Jeewan and Nazoo being sister's son and sister's son's respectively of Muhammad Nawaz P. W.4 father of the deceased and Badroo (acquitted accused) is his brother's son having no background of enmity except the incident in which Jeewan appellant was injured even a remote possibility of the false implication is excluded. He argued that undoubtedly Ahmad Khan P.W.5 is closely related to the complainant but being not inimical towards the appellants, his testimony was beyond doubt. He forcefully argued that the appellants having grudge against the deceased due to the incident of his causing injuries to Jeewan appellant being revengeful had a strong motive.
10. We with the help of the learned counsel for the appellants as well as the complainant and the State, have gone through the evidence minutely and also heard them at length.
11. The defense without denying the factum of pendency of a criminal case under section 307, P.P.C.
Against the deceased in which Jeewan appellant was injured pleaded false implication due to the said reason, therefore, both sides carrying same grievance would inimical to each other and consequently the motive as such is not deniable. The gravity of grievance was with Jeewan appellant, who having not digested the earlier incident decided to do away with the deceased. The presence of the eye-witnesses has been questioned mainly on the ground that they being residents of about 2-1/2 miles from the place of occurrence were not supposed to come to the playground at 11 a.m. For reviewing the Kabaddi match to be held in the afternoon and further the people generally after Eid prayer first go to their houses and similar it was contended that unconvincing the reason of offering prayer at the shop in the Bazar instead of mosque was advanced by the witnesses only to cover the gap of time with no reality. Undeniably the Model High School being situated near Rajanpur City and students of the surrounding villages including the village of the complainant and the other parties were studying in the said school and the Kabaddi match having scheduled in the afternoon, it was natural for the concerned to reach together in the playground as spectators before the actual start of match. The complainant and P.Ws. Being interested in Kabaddi match also reached there before time, therefore, their presence at the spot in the circumstances cannot be excluded without the availability of specific evidence in rebuttal. The scrutiny of the evidence and the attending circumstances do not suggest any doubt in the presence of complainant and two other witnesses namely Ahmad Khan and Bashir Ahmad.
However, the presence of a witness at the scene of occurrence itself is not a guarantee of his telling the truth. We, therefore, visualizing all possibilities of untrue allegation thoroughly examined the evidence but find that the witnesses are truthful and confidence inspiring. They corroborate each other in confirmation of the prosecution story narrated in the F.I.R. The contention of the learned counsel that the use of more than two type of weapon was proved through the medical evidence with he result that ocular account stood materially contradicted to be relied upon and made basis for conviction was unfounded. It is noticeable that prosecution did not make any effort to make even a slight improvement for removing the wrong impression of use of more than two type of weapons in the occurrence. In view of an admitted fact that both Kulhari and Chhuri were used in the occurrence. The ocular account of the prosecution is fully supported by the medical evidence.
The two injuries with hatchet on the neck of the deceased are attributed to Jeewan appellant, whereas the third injury with Chhuri on the chest is attributed to Nazoo appellant, therefore, the medical evidence in fact provides a confirmatory source to the eye-witnesses account. We, however, may observe that even without using the evidence of recovery of blood-stained weapon of offence the eye-witnesses account seeking ample support from the motive and medical evidence can sufficiently sustain the conviction. The learned counsel placing reliance on Mansab Khan v. The State 1974 PCr.LJ 416 and Abid Rahi v. The State 1987 M LD 1696 contended that the omission of the material facts, such an particulars of F.I.R., the weapon used and the names of witnesses in the inquest report being material in nature created reasonable doubt regarding the truthfulness of the story and lodging of report after preliminary investigation with import of false witnesses . And consequently the conviction was not sustainable. The omission of the names of witnesses in the inquest report would repel the above contention as the inquest report was prepared much later to the lodging of F.I.R. Wherein the appellants have been named as accused, therefore, the omission of their names in the inquest report or any other such document prepared by the police official could have no adverse effect to disbelieve the story. The causing of injuries by Safdar Hussain deceased to Jeewan appellant and registration of case against the deceased being an admitted fact, the nursing of grudge by the appellant against the deceased of taking extreme step of causing his death with the help of his co-accused resulted to this fateful occurrence and, therefore, the minor discrepancies and contradictions, if any, cannot dislodge the prosecution cue. The further contention of the learned counsel that despite the availability of a large number of persons as natural witnesses of the occurrence none was cited as prosecution witness which fact caused serious doubt regarding the truthfulness of the case is also without force. This is common in our society that except the close relatives, no one involves himself in such matters taking the risk of enmity with the accused. This is understandable that the persons present at the spot must have scattered at the happening of the incident and therefore, no person from the gathering could be willing to become a witness against the accused. The result would be that we being in agreement with the view of the evidence taken by the learned trial Court affirm the findings of guilt of the appellants and consequently maintaining the conviction and sentence of the appellants, we dismiss this appeal. We having examined the question of sentence find Jeewan appellant, while indulging in immoral activities disgraced the deceased and upon his reaction taking law in his own hand without waiting for the result of trial done him to death. We having found no mitigating circumstance in favour of Jeewan appellant for lessor penalty answer the Murder Reference in affirmative. Criminal Revision No,28 of 1993 is dismissed.