MUHAMMADA Versus THE STATE Ch. Ghulam Sarwar , Arshad Khan

1. Muhammada son of Hussain alias Hussaina was tried by the Additional Sessions Judge, Kasur for the murder of Muhammad Amin. The trial Judge held him guilty under section 304 Part-1, P.P.C. He was accordingly sentenced to 10 years R.I. and fine of Rs.3,000 or in default to undergo R.I. for six months. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation.

2. The convict has appealed to this Court.

3. An application was moved for suspension of sentence. Notice in this was issued on 4-10-1987. It came up for hearing before me on 24-1V-1987.

4. As the counsel was very confident that it was a case of no evidence, so instead of suspending the sentence, I ordered the Office to fix this appeal for final disposal for 26-10-1987.

5. The motive as alleged by the prosecution is that on 14-6-1985 at 9/10.00 a.m. the complainant alongwith Muhammad Ishaque and Muhammad Amin came from their houses for a nap under the shade of mango trees. When they came near the house of Yaqub they saw appellant peeping over the wall of the house of Muhammad Yaqub. Muhammad Amin stopped him from doing so. Muhammada appellant grappled with Muhammad Amin. The complainant and his son Muhammad Ishaque intervened and separated them. The appellant went to his house and brought a hatchet with which he inflicted two injuries with the right side and blunt side of the hatchet on the head of Muhammad Amin. He fell down on the ground. The appellant fled away with the hatchet in his hand.

6. On 27-6-1985 F.I.R. was lodged by Siraj Din, maternal uncle of Muhammad Amin deceased at Police Station Kanganpur. It was recorded by Muhammad Akram S.H.O. The first informant and Mst. Karam Bibi widow of the deceased were examined as eye-witnesses.

7. The rest of the evidence consists of recovery of blood-stained hatchet and the medical evidence.

8. The appellant denied the allegations. He pleaded not guilty. He stated that it was due to enmity that he was involved in this case. He declined to produce any evidence in defence. He did not give his own evidence or, oath.

9. Learned counsel appearing for the appellant raised number of points. First was the delay of 14 days in lodging the F. I. R. which according to the counsel had not been explained.

10. It was next contended that there was conflict between ocular and medical evidence.

11. It was further submitted that the two eye-witnesses were interested. Their evidence as such was not to be believed nor there was arty other independent evidence to corroborate their version.

12. Similarly it was argued that the attesting witnesses of the recovery memo did not support the prosecution case.

13. I have gone through the evidence with the help of the counsel for the appellant. Eye-witness account was criticised by the counsel on the ground that both eye-witnesses admitted the factum of enmity.

14. In addition to that the evidence of the two eye-witnesses was not consistent.

15. Learned counsel laid great stress on the following evidence of Siraj Din: "as there was an enmity and party fraction between we people and the accused, so we falsely implicated him in this case. The deceased was inimical towards the accused because the accused had committed Zina with the sister of deceased."

16. Relying on this it was argued that the complainant himself admitted to have falsely implicated the appellant. This evidence, therefore, completely demolishes the prosecution case.

17. While dealing with the evidence of Mst. Karam Bibi, counsel argued that as a matter of fact she was not present at the spot. She was brought to the scene by the prosecution as no other witness was available.

18. Evidence of recovery was challenged on the ground that the attesting witnesses did not support it.

19. Counsel appearing on behalf of the State contended that it is a case of solitary accused. Question of substitution as such does not arise. Case has been proved against the appellant beyond any shadow of doubt. Admittedly there is delay of 14 days in lodging the report but this has been properly and satisfactorily explained by the complainant. The parties tried to settle the matter. The deceased was then alive. They did not come to any agreement. In the meanwhile the injured expired. Naturally things took serious turn. The' complainant as such had no option but to report the matter to the' police.

20. I do not think the delay in this case goes un-explained and is fatal to the prosecution care.

21. Even otherwise perusal of the evidence of Siraj Din shows that he is a truthful witness. He never concealed any thing. He frankly admitted even those facts which were against him. Inspite of his age (70 years) his memory did not betray him and he deposed what he saw very accurately and confidently.

22. I am not going to disbelieve Mst. Karam Bibi. Counsel has not been able to convince me that she was not present at the spot. She narrated the facts as best as could be expected from her. I have no reason to doubt either her testimony or her presence at the spot.

23. The doctor, who examined Muhammad Amin while he was alive noticed the following two injuries:

(1) An incised wound 3.5 c.m. x 0.5. c.m. into scalp deep on the right side of head on the ptyrion region 2 c. m . back to the right eye-brow.

(2) Lacerated wound 2.5 c.m. x 0.5 c.m. into scalp deep on the right side of head on the parietal region.

24. The same injuries were found by the doctor in the post-mortem. According to him death occurred due to lacerated wound.

25. The mere fact that the recovery witnesses did not support the prosecution case would not matter much because the fate of this appeal depends upon the ocular version and the medical evidence.

26. The main emphasis of the counsel was on that portion of evidence of Siraj Din which has been referred to above. In order to be sure I consulted Urdu record-That clarified the entire position because in the Urdu record it is stated.

27. Even otherwise I do not find any force in the contention of the counsel for the appellant that the first informant admitted to have falsely implicated the appellant. As a matter of fact, the suggestion that the appellant had been falsely implicated was denied by the first informant. This is obvious from the plain reading of the sentence because it is a continuing sequence where the entire suggestion has been denied.

28. There is no contradiction between medical and ocular evidence.

29. I am, therefore, fully convinced that the prosecution has proved its case beyond doubt against the appellant.

30. There is no merit in this appeal, which is hereby dismissed.

31. S.A./M-573/L Conviction/ sentence upheld.