' KAMAL MUSTAFA BOKHARY, J.-Kala, aged 26 years son of Nana-ud-Din was convicted under section 302, P. P. C. And was sentenced to death subject to confirmation by this Court for the murder of Mukhtar Ahmed, aged 30 years, son of Muhammad Shari?, vide the judgment and order passed by the learned Additional Sessions Judge, Rahimyar Khan, on 3-7-1976. This judgment shall dispose of the appeal filed by Kale convict and the murder reference by the trial Court.
2. The occurrence in this case is alleged to have taken place at about 5-30 a.m. On 17-6-1973 near Mela Ground Chungi, R. Y. Khan City and the F. I. R.. Was registered at the Police Station City R. Y.
Khan which was situated two miles away from the spot on the same day at 6.45 a.m. It was so registered on the basis of the statement made by Taj Muhammad (P. W. 9) Phophizad of the deceased which statement was recorded by Muhammad Sued. A. S. I. (P. W. 12) in the Civil Hospital, R. Y. Khan at 6-30 a.m. On the same day. The F. I, R. Was originally registered under section 307, P. P.
C. But on the subsequent death of Mukhtar Ahmed in the Civil Hospital on 26-6-1973 at 9.45 p.m.
The offence was altered to under section 302, P. P. C.
3. The motive alleged in the F. I. R. Was that a few days before the present occurrence Mukhtar Ahmed deceased had injured the he-buffalo belonging to the appellant because that animal had damaged his crop. However, at the trial it was also mentioned that the matter relating to injury to the he-buffalo was decided by panchayat according to whose decision Rs, 150 were paid by the deceased to the appellant as compensation for injury caused to the he-buffalo of the appellant yet the appellant had said in the presence of panchayat that the appellant shall take revenge for injury caused by the deceased to the he-buffalo of the appellant.
4. The occurrence as disclosed in the F. I. R. Briefly was that Taj Muhammad first informant P. W.
Who was resident of Chah Mukhi Wala. R. Y. Khan and Inayat Ali (given up as won over) were proceeding to their land alongwith ploughs and seed of chari when Mukhtar Ahmed deceased riding a bicycle approached them from behind because the deceased was employed in Lever brothers Mills and was going to join his duty at the relevant time. The deceased had slowed the speed of his bicycle and was talking to the first informant and aforementioned Inayat AIL When all of them reached near Octroi Post of Mela Ground, Kale appellant suddenly emerged from behind a tree with an iron Kudal and said that he would not leave the deceased alive and immediately on arrival the appellant delivered a blow with kudal on the bead of the deceased due to which the deceased fell down from his bicycle and became unconscious: The appellant then repeated the blow which hit the deceased on his left thigh. Taj Muhammad P. W. Raised alarm as a result of which Kala appellant escaped with the weapon of offence. It was stated In the F. I. R. That the appellant had attacked the deceased with the intention of causing his murder and that the dressed in injured condition was taken to the Civil Hospital, R. Y. Khan where statement of the first informant was recorded.
' In the Kamai Police endorsed on conclusion of statement of Taj Muhammad P. W. (on Exb. P. F.) it was mentioned that per information received from Taj Muhammad P. W. Muhammad Speed A. S. I.
P. W. Along with Muhammad Yaqub F. C. Reached the Civil Hospital, R. Y. Khan and found Mukhtar Ahmed deceased lying there in an unconscious condition in the Emergency Ward where Taj Muhammad P. W. And Inayat Ati (given up as won over) were also present. The A. S. I. Then recorded statement of Taj Muhammad P. W. Also noted down injuries of the deceased, one on the head and the other on the left thigh, and delivered the injury statement of the deceased to the doctor. The A. S. I. Then also sent copy of the statement of Taj Muhammad P. W. At the police station for registration of the F. I. R. Through Muhammad Yaqub F. C.
5. Muhammad Saeed A. S. I. (P. W. 12) supported the prosecution at the trial and deposed that on the day of occurrence Taj Muhammad P. W. Met the witness near the hospital and informed him that the deceased had been injured upon which the witness went to the hospital and found the deceased lying in on unconscious condition and recorded statement of the first informant which was sent by him to the police station for registration of the case. The witness also prepared injury statement (PK) of the deceased and went to the spot where he secured blood-stained earth, ride memo. Exh. P. B. And further took into possession a bicycle (P. 1) of Mukhtar Ahmad deceased, ride memo. Exh. P. A. The Investigating Officer arrested the appellant on 17-6.1973 In the evening, on 22.6-1973 the appellant led the police to the recovery of kudal (P. 2) from a Jawar field which was secured, vide memo. Exh. P. C. The investigating Officer also proved his querry made from the Veterinary Officer relating to treatment of the he-buffalo of the appellant with positive report of the Veterinary Officer and also proved his querry from the Medical Officer if the deceased was in a position to make the statement and the report of the Medical Officer thereon that the deceased was unable to make any statement. The querry with regard to the capacity of the deceased to make the statement was made by the Investigating Officer from the Medical Officer on 19.6-1973, 21-6-1973, 23.6-1973 and 25-6-1973. The Investigating Officer got prepared the site plan and completed the investigation. In cross-examination at the trial the Investigating Officer stated that he recorded statement of Danish-mand P. W. On 29-6-1973 while statement of Ilam Din was recorded on 17-6.1973 and that the Investigating Officer had reached the spot at about 10 a.m. On that day but he did not enquire from adjacent basis as to whether anybody else had seen the occurrence and bad not recorded any statement of any official of the Octroi Post.
6. Dr. Abdul Wahab P. W. Medically examined Mukhtar Ahmad deceased when alive on 17-6.1973 at 6.50 a.m. He found the following injuries on his person:
(1) An irregular contused wound 2.1-2 x 1' x bone deep on the left side of the head and fore-head, left frontal bone fractured, clincally left eye-lids swollen and blackened, patient restless and delerious.
(2) A contusion 4' 1" having a piercing wound 3/4' w I x skin deep on the front and outer side of the thigh.
' Injury No, 1 was dangerous to life and No, 2 was kept under observation. Injuries had been caused by blunt weapon within duration of three hours. The doctor proved his report (P. 1) to the effect that condition of the patient was serious and Duty Magistrate be called to record the dying declaration, also proved query of the Duty Magistrate (P1/1) thereon whether the injured was in a fit condition to give his statement at that time.
' Mukhtar Abmad injured died in the hospital on 26.9-1973 at 9-45 p.m. And the same doctor conducted post-mortem examination on his dead body on 27-6-1973. The doctor found the following injuries on the dead body of the deceased (1)An irregular contused wound 2.1-2 1' X bone deep on the left side of the head and fore-head, left frontal bone fractured, both the eye-lids of both the eyes blackened.
(2)A scab x on the left side of the thigh outer side.
(3)Four scabs 1/3' x 1/3'-1' x 1.1-2 on the outer side of right knee.
' Depressed of left frontal bone, fracture base of skull, anterior and middle cranial foasac. Blood vessels, membrane and brain were injured and congested. A big haemotoma was present in the left anterior loop of the brain.
In the opinion of the doctor the cause of death was fracture of skull frontal bone, base of the skull anterior and middle cranial fossac) and intro cranial hamorrhaie from injury No, 1 caused by blunt weapon. Injury No, 1 alone was sufficient to cause death in the ordinary course of nature and injuries were ante-mortem and probable duration between injuries and death was given by the doctor about 10 days while between death and post-mortem examination was given as 13 hours.
The doctor proved his medico-legal certificate as well as post-mortem examination report. In cross-examination he deposed that probable time Riven by him in the medico-legal report was within three hours but there could be possibility of error of one hour in the time in the duration of injuries and in the case in hand the duration of injuries could be four hours at the same time two hours. He continued to depose that duration of injuries is given by the doctor from the general appearance of the wounds and that the duration cannot be determined accurately, scientifically and mostly the doctors follow book of medical jurisprudence by Modi in which, book the principles and outlines for determining the duration of an injury are given. In reply to a Court question the doctor deposed that minimum duration of injuries could be one hour.
7. The prosecution examined Taj Muhammad first informant (P. W. 9) and Ilam Din (P. W. 10) as eye- witnesses while Inayat All eye-witness mentioned in the F. I. R. Was given up as won over. The recoveries from the spot were proved by Abdul Majid (P. W. 6) and the Investigating officer Muhammad Saeed, A. S. I. (P. W. 12) and the recovery of kudal at the instance of the appellant made on 22.6-1973 was proved by the same Abdul Majid (P. W. 6) and Syed Rise Hussain Shah (P.
W. 7) and the same Investigating Officer. The motive was given by the first informant and Danismand (P. W. 11). The statement of the doctor before. The Committing Magistrate was transferred to the Sessions record. Other formal witnesses were also examined. They all supported the prosecution case. According to the Serologist report the earth recovered from the spot was found stained with human blood.
8. The appellant pleaded not guilty to the charge. When examined under section 342, Cr. P. C. He denied all allegations of the prosecution including the motive and recovery of kulal (P. 1). He stated that it was Fazal Karim who got the deceased murdered because the deceased had beaten the wife of Fazal Karim but the appellant had been falsely implicated at the instance of Paul Karim and that Taj Muhammad first informant P. W. Was a lessee of Paul Karim and was under his influence.
The appellant further stated that the occurrence took place during the dark hours of the night. The appellant also stated that Muhamm id Din cart-driver saw the deceased lying injured about 4-30 a.m. On the day of occurrence and informed father of the deceased and his relatives upon which they reached the spot. According to the appellant Muhammad Din camel-cart driver used to take ice from the city to the villages.
9. The learned trial Judge believed the ocular evidence and found that it was corroborated by the motive which had been established, was further corroborated by the recovery of weapon of offence which had been proved and was supported by the medical evidence as well as by the circumstantial evidence.
' Learned counsel for the appellant argued that the ocular evidence was not worthy of reliance because Taj Muhammad first informant P. W. Was closely related with the deceased and name of Ilam Din eye-witness was not mentioned in the F. I. R. And that Inayat All eye-witness mentioned in the F. R. Was not examined by the prosecution. He further argued that Taj Muhammad and Ilam Din P. Ws. Were chance witnesses and their testimony was contradicted by the medical evidence because both the injuries on the deceased were not possible for the reason that the appellant attacked from right side of the deceased and as a matter of fact such injuries were not possible unless the assailant was on left side of the deceased and that injuries on the deceased could not be caused by a kudal. He also argued that lade-pendent prosecution witnesses were available near about the place of occurrence but were not examined by the prosecution which made the case of prosecution doubtful. Learned counsel argued that F. I. R. In the case was recorded after preliminary investigation and after medical examination of the deceased which further made the prosecution case doubtful. It was also argued by learned counsel for the appellant that the deceased was not expected to pass near the place of occurrence at that hour. Learned counsel for the appellant then argued that recovery of kudal bad been fabricated which recovery in fact had not been made from the appellant and even otherwise that recovery was of no consequence because it was not stained with blood and was liable to be discarded. According to the learned counsel for the appellant the motive alleged by the prosecution had not been proved and be ruled out of consideration that the ocular evidence could not be relied upon without independent corroboration which was not forthcoming and that the defence version to the effect that occurrence took place during dark hours of the night was probable and was liable to be accepted.
Learned counsel for the State controverted arguments advanced by learned counsel fur the appellant. He submitted that the testimony of Taj Muhammad and Ilam Din P. Ws. Be believed without any corroboration and according to him name of Ilam Din was was coming from the opposite ' direction of the side of city of Rahimyar Khan and being at some distance he was not noticed by the first informant ; that the F. I. R. Was promptly lodged leasing no opportunity to deliberate ; that it was a case of one accused and no previous enmity existed between the parties ; and that there was no fabrication in the matter of recovery of feuded from the appellant which weapon was the same as no weapon of the name of kudal was known as an agricultural took and Investigating Officer be believed on the question of recovery of kudal which was a circumstance in support of the ocular evidence which was further supported by the medical evidence.
9-A. We were taken through the evidence which we have perused and considered in the light of submissions made by learned counsel for the parties. There is no doubt that Taj Muhammad first informant (P. W. 9) was closely related with the deceased. The wife of the first informant was sister of father of deceased and son of the first informant was married to the sister of the deceased but mere relationship is no ground for discarding the testimony of a prosecution witness. No previous enmity existed between the deceased sad the appellant as also between Taj Muhammad first informant P. W. And the appellant so as to persuade Taj Muhammad P. W. To falsely implicate the appellant on the charge of capital punishment. The perusal of his testimony leads us to the conclusion that he Is a truthful witness and had no grudge against the appellant. Although conviction and sentence of the appellant can be maintained on the testimony of Taj Muhammad P. W. Alone in the circumstances of the present case we find that his testimony is corroborated by Ilam Din (P. W. 10) who was not related with either party. The objection against Ilam Din was that his name was not mentioned in the F. I. R. Which objection bas no force and rather proves that Taj Muhammad P. W. Was a truthful witness and did not mention the name of Ilam Din only because he did not notice presence of Ilam Din P. W. Near that spot at the time of occurrence for the reason that Taj Muhammad was busy observing the occurrence and attack on the deceased who was his close relation. Apart from the fact that Ram Din was an independent witness not related to either party he was not even inimical towards the appellant. Ilam Din P. W. Had no grudge or ill-will against the appellant so as to implicate him on a charge of capital punishment. There was no discrepancy between the testimony of the afore-mentioned two eye-witnesses on any material point. The testimony was consistent, uniform and inspired confidence. We are satisfied that both of them were present and witnessed the occurrence in which the appellant caused murder of the deceased with the weapon and in the manner alleged by the prosecution. The medical evidence in the case fully supported the ocular evidence. The argument of the learned tunnel for the appellant that it contradicted each other has no force. The number and nature of injuries in the medical evidence correspond with that given by the eye-witnesses. The time, place and cause of occurrence was proved by the prosecution and is not disputed by the defence except the time. The prosecution evidence proved beyond any shadow of doubt that on 17-6-1973 the occurrence took place in the early morning hours when these was sufficient light and the appellant was previously known to the eye-witnesses who were capable of identifying him. The notice was prove by Danishmand (P. W. 11) as well as by the first informant who had no cause to falsely Involve the appellant. The recovery of kudal was proved by Abdul Majid (P. We 6) maternal uncle of the deceased a by an indented circumstance in support of the prosecution version. The defence version was rather a bare denial, false implication and of murder having been committed during dark hours of the night. It was not plausible and was rightly rejected by the trial Court. There is no evidence on record of this case to create any doubt in our minds with regard to the prosecution version. It was a case in which appellant was named on a solitary accused and substitution is a rare phenomenon. On the evidence on record and in the circumstances of the case, we are satisfied that prosecution had proved its case against the appellant beyond reasonable doubt and his conviction and sentence were proper and are liable to be maintained.
10. For the reasons given above, the conviction and sentence of the appellant are maintained and his appeal is dismissed.
' The death sentence of the appellant is confirmed.