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Petitioner: ALLAH DIWAYA VS Respondent: THE STATEHonorable Justice M. JAMIL ASGHAR,Mian Allah Nawaz
1968 P Cr
1968 P Cr. L J 1918
[Baghdad-ul-Jadid]
Before Mushtaq Hussain and M. Jamil Asghar, JJ
ALLAH DIWAYA‑--Appellant
Versus
THE STATE--‑Respondent
Criminal Appeal No. 52 of 1966/13 W P, decided on 29th May 1968.
Penal Code (XLV of 1860),
S. 302‑--Murder--‑Prosecution case resting on testimony of 3 eye‑witnesses‑--Two of such witnesses related to deceased and one servant of deceased‑Nothing on record to show that witnesses were Inimical towards accused in order to falsely implicate him‑Evidence of witnesses corroborated by recovery of blood stained clothes of accused at his instance---- Conviction maintained.
Mian Allah Nawaz for the State.
Date of hearing: 29th May 1968.
JUDGMENT
M. JAMIL ASGHAR, J.‑--Muhammad Ramzan and his servant Allah Diwaya were convicted under section 302/34, P. P. C. on two counts for committing the murders of Ghaus Bakhsh and his mother Mst. Bhirawan by the learned Additional Sessions Judge, Muzaffargarh. Muhammad Ramzan was sentenced to death on two counts. He was also sentenced to a fine of Rs. 200 or in default to undergo rigorous imprisonment for six months on two counts. Allah Diwaya appellant wets sentenced to transportation for life with a fine of Rs. 200 or in default to undergo rigorous imprisonment for six months on two counts. The sentences in default of payment of line of both ‑the accused were ordered to run concurrently. Muhammad Ramzan separately filed‑an appeal at Lahore which Was dismissed by a Division Bench of this Court on the I 8th of March 1966 and his death sentence was confirmed. Allah Diwaya appellant preferred this appeal against his conviction and sentence at Bahawalpur through jail on the 14th of May 1966, when the appeal of his co‑accused Muhammad Ramzan, had already been disposed of.
2. Allah Diwaya appellant is a resident of village Fatehpur Janubi, District Muzaffargarh, and so were both the deceased persons.
3. Mst. Nizam Mai, wife of Muhammad Ramzan accused, was reputed to be of immoral character. About six months prior to the occurrence under consideration, one Farid Bakhsh a brother of Mst. Nizam Mai, contacted Farid Bakhsh (P. W: 8) and asked him that he should prevail upon Muhammad Ramzan to dismiss his servant Allah Diwaya because he was carrying on with his (Muhammad Ramzan's) wife. About eight days prior to the occurrence under consideration, Muhammad Ramzan approached Farid Bakhsh P. W. and asked him to persuade Ghaus Bakhsh deceased to sever his illicit connections with his wife Mst. Nizam Mai. According to the prosecution, this constituted the motive for the occurrence in this case.
4. On the day of occurrence, i.e. the 6th of November 1963, at late dopehrwela Ghulam Rasool Kumhar (P. W. 11) was grazing his cow near the house of the deceased and Muhammad Hussain (P. W. 12), servant of the deceased, was grazing the mare of his master close by, when they heard an alarm from the house of the deceased. Both of them rushed towards that side and when they reached the door of the room of the deceased, they saw Ghaus Bakhsh deceased lying on the ground, while Allah Diwaya appellant was sitting on his legs and Muhammad Ramzan accused was inflicting injuries to him with a hatchet. Mst. Bhirawan deceased, mother of Ghauns Bakhsh deceased, tried to rescue him by pushing and dragging Muhammad Ramzan accused. Ghulam Rasool Kumhar and Muhammad Hussain P. Ws. tried to stop Muhammad Ramzan accused from giving injuries to the deceased, but he threatened them by showing his hatchet and so they did not advance forward. In the meantime Muhammad Ramzan dealt a hatchet blow on the neck of Mst. Bhirawan who fell down on the ground. The hue and cries raised by these P. Ws. had attracted Ghulam Rasool Markand. (P. W. 10) and Ghulam Hussain (P. W. 9) to the spot. Both of them were erecting boundary‑lines of their fields. Ghulam Rasool Markand P. W. at that time was working as labourer of Ghulam Hussain P. W. They also witnessed the occurrence. Ghulam Hussain P. W. rushed forward and apprehended Muhammad Ramzan while Ghulam Rasool Markand P. W. snatched hatchet Exh. P. 11 from his hand. Allah Diwaya appellant, however, managed to make good his escape. He was seen leaving the house of the deceased with his clothes smeared with blood by Ghulam Haider (P. W. 6). Both the deceased persons died at the spot. Muhammad Hussain P. W. was asked to go and bring Farid Bakhsh P. W., the Lambardar and Chairman of the Union Council, to the spot. After his arrival Ghulam Hussain P. W. went to Police Station Alipur reaching there at about 6‑15 p.m. on the same day acid lodged first information report. Exh. P. C. which was recorded at his dictation by Moharrir Head Constable Ghulam Qasim (P. W. 4). After that, the Moharrir Head Constable sent a copy of the first information report to Sub‑inspector Ch. Muhammad Sadiq (P. W. 13), who was investigating another case in the area of village Baqir Shah. He received the copy of the first informa tion report at 7 p.m. and then proceeded to the scene of offence, where he reached at about 10 p.m. He prepared injury statement Exh. P. N. and inquest report Exh. P. M. of the dead body of Ghauns Bakhsh deceased and injury statement Exh. P. O. and inquest report Exh. P. Q. of the dead body of Mst. Bhirawan deceased and sent both the dead bodies for post‑mortem examina tions. He arrested Muhammad Ramzan accused. Farid Bakhsh P. W. produced blood‑stained hatchet Exh. P. 11 before the S. I. who took it into his possession vide memo. Exh. P. D. and made it into a sealed parcel. The S. I. recovered blood‑stained shirt Exh. P. 12 and blood‑stained chadar Exh. P. 13 from the person of Muhammad Ramzan accused vide memo, Exh. P. E. and made them into a scaled parcel. He also collected blood‑stained earth from the spot vide memo. Exh. P. G. and made it into a sealed parcel. Allah Diwaya appellant appeared before him on the same night and he arrested him. Allah Diwaya appellant, as a result of interrogation, led the Sub‑Inspector to his house and from there produced blood-stained shirt Exh. P. 15 and blood stained loin cloth Exh. P. 16 which the Sub‑Inspector took into his possession vide memo. Exh. P. F. and made it into a sealed parcel. The above recoveries were witnessed by Ghulam Rasool P. W. According to report Exh. P. U. of the serologist the clothes of Allah Diwaya appellant were found to be stained with human blood.
5. Doctor Abdur Rashid (P. W. 1) on the, 7th of November 1963, at 3‑30 p.m., performed post‑mortem examination of the dead body of Ghaus Bakhsh deceased and found the following injuries:‑
(1) A cut, 5" x 2" x 3", at the level of fourth cervical vertebra on the left side. The vertebra was cut and the neck was hanging on the right side.
(2) A cut, 4" x 3" x 2", 1 " below injury No. 1, left clavicle was fractured.
(3) A cut, 4" x 4" x 2" on the top of left shoulder extending towards the neck with collar bone broken.
(4) A cut 3" x 1" x 1 " on the back of neck at the junction of trunk.
(5) Three contusion marks on the outer side of left shoulder in the area 4" x 3".
(6) An incised wound, 1 " x " x skin deep on the back of the chin.
(7) A cut on the palm of ‑ right hand 2" x 1". Metacarpal bone of right thumb and three bones of wrist were cut.
(8) An incised wound, 3" x 1" x bone deep on the back of right forearm lower one‑third.
(9) An incised wound, 3" x 1" x bone deep on the back of right forearm, one‑third.
(10) Half of the terminal phalanx of right thumb and the terminal digits adjoining three fingers were cut. The terminal digits were not attached to the hand in the case of the finger.
(11) An incised wound, 1 " x 1" x ", in the middle of the left forearm.
(12) An abrasion, 1 " x 1 ", on the back of the left elbow.
Death, in the opinion of the doctor, was due to injury No. 1. He further stated that injury No. 1, which had cut the blood vessels of the neck and trachea, besides the spinal cord, at the level of fourth cervical vertebra, was sufficient in the ordinary course of nature to cause death. He added that injury No. 1 had been caused by a heavy sharp‑edged weapon.
On the same day, the doctor performed post‑mortem examination on the dead body of Mst. Bhirawan deceased and found the following injuries:‑
(1) A cut on the right side of the back of head, 5" x 3" x 3" brain was protruding outside.
(2) A cut, 5" x 3" x 4", with spine cut at the level of 3rd cervical vertebra with all blood vessels on right side.
(3) A cut, 2" x 1 ", with injury to bones of spines below and behind right ear extending towards injuries Nos. 1 and 2.
(4) A cut on the upper part of the right shoulder blade 3" x 2" x 2 " with shoulder blade cut.
(5) A contusion mark, 2" x ", on the left eye.
(6) Three contusion marks in an area of 3" x 2" below the left knee‑joint. The wrist was healthy.
In the opinion of the doctor, death had occurred due to injuries Nos. 1 and 2, which were sufficient in the ordinary course of nature to cause death.
6. Allah Diwaya appellant denied his guilt and declined to produce any defence. He denied the ownership of the blood stained clothes alleged to have been recovered at his instance.
7. The prosecution case against the appellant rests on the testimony of Ghulam Hussain (P. W. 9), Ghulam Rasool Marknand (P. W. 10), Ghulam Rasool Kumhar (P. W. 11) and Muhammad Hussain (P. W. 12) coupled with recovery of the blood‑stained clothes at the instance of the appellant. It is, no doubt, true that Muhammad Hussain, Ghulam Rasool and Ghulam Hussain P. Ws. are related to the deceased and Ghulam Hussain Kumhar is the servant of the deceased, but there is nothing on the record to show that they had any enmity against the appellant in order to falsely implicate him. Their evidence also stands corroborated by the recovery of the blood‑stained clothes of the appellant at his instance. 8. In the result, we find no merit in this appeal, which is hereby dismissed.
Appeal dismissed.