2007 PLP 1567 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Muhammad Ashraf alias Achhu along with five other co-accused namely Muhammad Hanif, Noor Muhammad alias Babbu, Allah Ditta, Barish Ali and Yar Muhammad was tried by Ch. Sajid Mahmood Chatha, learned Additional Sessions Judge, Depalpur, in private complaint filed by Jamaat Ali/ complainant against 'them for offences under sections 302/148/149, P.P.C. Vide judgment dated 16-2-2002, the learned trial Court, while acquitting the rest of the accused, convicted Muhammad Ashraf alias Achhu for offence under section 302(b), P.P.C. and sentenced him to death plus payment of Rs.1,00,000.

2. Aggrieved by his above noted conviction and sentence, the appellant has filed the instant appeal. Murder Reference No.126 of 2002 seeking confirmation or otherwise of death sentence awarded to the appellant has also been placed before us, We propose to decide both these matters through this judgment.

3. The facts of the case per complaint Exh.PB filed by Jamaat Ali, complainant/P.W.1, in brief, are that on 24-7-2000 at about 1-15 p.m., the complainant's son Waris Ali was going to the house of Muhammad Wakeel to see him. When Waris Ali reached near the house of Muhammad Wakeel, Muhammad Ashraf alias Achhu/appellant, armed with dagger, Babbu and Muhammad Hanif, both empty handed, were coming from southern side, followed by Allah Ditta armed with single barrel gun, Barish Ali armed with .222 bore rifle and Yar Muhammad armed with .303 bore rifle. Babbu and Hanif caught hold of Waris Ali from his arms, while Muhammad Ashraf/appellant caused a dagger blow hitting Waris Ali on the left side of his chest, in view whereof Waris Ali fell on the ground. Muhammad Ashraf gave successive dagger blows which hit Waris Ali on different parts of his chest. Allah Ditta, Barish Ali and Muhammad Yar also came close to Waris Ali and raised Lalkara that Waris Ali should not be spared. The hue and cry raised by Waris Ali attracted the complainant, Muhammad Wakeel/P.W.2 and one Ashiq at the spot but Allah Ditta etc. threatened them with the same fate in case they came forward. Waris Ali succumbed to the injuries at the spot. All the accused, while brandishing their respective weapons of offence, went to their homes. The motive behind the occurrence was that Mst. Irshad Bibi, an old lady of complainant's brotherhood, got F.I.R. No.161 lodged with Police Station Ahmadabad on 7-7-2000 for offences under sections 324/337-F(ii), P.P.C., wherein Muhammad Ashraf/appellant was also nominated as one of the accused, while the deceased used to pursue that case along with Mst. Irshad Bibi and on account of that grudge, the accused had caused the murder of the deceased. It was further alleged in the complaint that on the same facts, the complainant got F.I.R. No.184 registered at Police Station, Ahmadabad on 24-7-2000 for offences under sections 302/ 148/149, P.P.C. against the accused persons but the police in connivance with the accused persons declared Allah Ditta, Barish Ali, Muhammad Yar, Muhammad Hanif and Noor Muhammad alias Babu as innocent, despite the fact they were nominated in the F.I.R. and the witnesses had stated during the investigation about their participation in the commission of the offence. Hence, the complainant was obliged to file the instant private complaint.

4. In support of his complaint, the complainant produced eight witnesses. Ocular account was furnished by Jamaat Ali, complainant/P.W.1 and Muhammad Wakeel/P.W.2. In addition to that, the complainant also stated about the motive, while Muhammad Wakeel stated about the recoveries effected at the spot. Dr. Rai Niaz Ahmad/P.W.3, who conducted post-mortem examination on the dead body of the deceased on 25-3-2000 at 9-00 a.m., while observing seven incised wounds on the person of the deceased, opined that cause of death was haemorrhage and shock due to the injuries, which were sufficient to cause death in the ordinary course of nature and that all the injuries were ante-mortem and caused by sharp edged weapon. In his opinion, time between injuries and death was almost immediate, while between death and post-mortem examination, it was 18 to 20 hours. Irshad Ali/P.W.6 attested the recovery of dagger P.3, effected at the instance of the appellant. Muhammad Rafiq, Inspector, who partly investigated the case, appeared as C.W.1. He also identified the' signatures and handwriting on different documents prepared by Iqbal Bhatti/S.-I. (since dead) who investigated the case. The rest of the evidence, being formal in nature, need not be discussed.

5. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication by taking up the plea of grave and sudden provocation in the following words:-- "The P.Ws. have given false evidence against me. They have falsely involved me in this case on the basis of fictitious circumstances, by changing the place of occurrence and time of occurrence and by citing false eye-witnesses.. The story of construction of wall has been falsely set up by the complainant. In fact, the deceased had trespassed into the house of my sister Mst. Sharifan Bibi while she was alone in the house, the deceased committed Zina-bil-Jabr with her, and on her alarm, I reached the house, picked up a "Chhuri" meant for vegetables and caused injuries with said "Chhuri" out of "Ghairat" and under sudden and grave provocation. The complainant party, on coming to know about this incident had lodged false F.I.R. against me and my ca-accused, who had nothing to do with the said occurrence. My co-accused are neither related to me nor are from my caste. I have been falsely involved in this case." Neither the appellant appeared as his own witness under section 340(2), Cr.P.C. nor did he produce any witness in defence.

6. Learned counsel for the appellant submits Jamaat Ali/complainant was real father of the deceased whose presence has not been mentioned in the FIR.; that Muhammad Wakeel/P.W.2 is also an interested witness, as Jamaat Ali used to work for him; that there are material contradictions in the statements of Jamaat Ali and Muhammad Wakeel about the direction of the arrival of the appellant; that both the witnesses have been disbelieved qua the five acquitted accused; that the recovery is of no consequence, as it was effected after ten days and no one would keep the weapon of offence intact for such a long time; that the sealed parcel was sent after twenty days of the recovery; that the defence plea was more plausible, as the prosecution failed to prove the motive; that both the witnesses were chance witnesses; and that in any case it was not a case of capital punishment.

7. On the other hand, learned counsel appearing on behalf of the State submits that it was a day-light occurrence; that P.W.2 was an independent witness having no enmity or ill-will so as to falsely depose against the appellant; that the medical evidence fully supports the ocular version; that neither any witness was produced in support of the defence plea nor it is borne out from the circumstances of the case. Supports the judgment passed by the learned trial Court.

8. We have heard the learned counsel for the parties and have also gone through the record.

9. The occurrence took place in broad-daylight at 1-15 p.m. The complainant after covering a distance of 1 1/2 miles on foot met Igbal/S.-I. at Adda Bhana Sahiba, who recorded his statement A Exh.PA and sent the same to police station for registration of case at 2-15 p.m. So the matter was reported to the police promptly. The occurrence has not been denied by the appellant. However, he has taken specific plea of having caused the murder under grave and sudden provocation. His plea has been reproduced in para.5 ante. The prosecution case and the defence plea are to be put in juxtaposition in order to appreciate, which of the two was true or nearer to the truth. The prosecution case mainly rests, on the statements of eye-witnesses Jamaat Ali father of the deceased and Muhammad Wakeel/P.W.2. Perusal of site-plan Exh.PH reveals that the occurrence took place on the road in front of Ihata of P.W. Muhammad Wakeel, where the cattle were kept. Both the P.Ws. have stated that on the fateful day, they were raising wall on the southern side of the Ihata which had been demolished earlier. Both have also stated that they along with Ashiq started raising the wall at 11-00 a.m. Both the witnesses were subjected to lengthy cross-examination but they stood acid test and the intrinsic value of their evidence could not be shaken. The contradictions referred to by the learned counsel are, in fact, the details of the occurrence. Needless to say that the prosecution does not start an end with the story given in the F.I.R. and in the statements recorded under section 161, Cr.P.C. During cross-examination, the witnesses, when questioned, come out with the details of the occurrence, which are not mentioned in the F.I.R. or in earlier statements. Such details cannot be termed as contradictions. Jamaat Ali father of the deceased had no personal grudge or ill-will against the appellant, so as to depose falsely against him. As far as Muhammad Wakeel/P.W.2 is concerned, his presenceat the spot is established. Nothing could be brought on record as to why he should depose against the appellant. The tenor of cross-examination also reveals that it was suggested to the P.Ws. that it was correct that except the appellant, the rest of the accused were found to be innocent. The acquittal of the rest of the accused would not benefit the appellant at all, as none of the rest of the accused had caused any injury to the deceased. The statements of the eye-witnesses are consistent, natural, coherent and confidence inspiring. Those are also supported by the medical evidence, as, according to medical evidence, the deceased received seven injuries in toto, which were incised wounds and were caused by sharp edged weapon and injury No.1 was on the left side of the chest, i.e. in accordance with the seat of injuries given in the F.I.R. P.W.3 Dr. Rai Niaz Ahmad stated that the deceased was clad in white Bunyan and white coloured. Shalwar. The Bunyan was blood stained containing corresponding holes.

10. As far as motive is concerned, defence itself has brought on record the relevant F.I.R. Exh.DG, available at page 99 of the Paper Book, registered on the statement of Mst. Irshad Bibi. Ashraf was one of the accused named therein. According to defence, Naseer-ud-Din and Dr. Mohayy-ud-Din, who had gone along with Mst. Irshad Bibi to the police station at the time of registration of case, were pursuing the case and not the deceased. However, it is not necessary that the persons, who accompanied the complainant to the police station, should continue pursuing the case. It is common knowledge that for the purpose of registration of case, notables of area are taken along. There is no need to comment upon the recovery of dagger, as the occurrence has not been denied.

11. Now coming to the defence plea. Mst. Sharifan Bibi, who is real sister of the appellant, could be the best witness to prove the defence version but she did not come forward. It was stated by the appellant that the deceased committed Zina?bil-Jabr with his sister but there is nothing on record to show that Sharifan appeared before the I.O. in support of the defence plea. Neither any witness was produced nor did the appellant himself appear as a witness in his defence. Muhammad Rafiq appeared as C.W.1 and stated that on 25-8-2000, he was posted as S.H.O., Police Station Mandi Ahmadabad and investigated the instant case under the instructions of A.S.P. During his investigation, he found Allah Ditta and Barish Ali (acquitted accused) to be innocent. He also exonerated Muhammad Hanif and Noor Muhammad, acquitted accused. He was subjected to cross-examination by both the parties. During cross-examination, the learned counsel for the complainant got the writings and signatures of Igbal Bhatti, SI, identified on different documents. He was also cross-examined by the learned defence counsel. During cross-examination by the learned defence counsel, he stated that it emerged in his investigation that there was scuffle between Ashraf and Waris and Ashraf was underneath and he had injured Waris while he was on his top. The plea taken by the appellant before the learned trial Court was not.even suggested to him. It appears that the appellant had been taking different stands as afterthought. After taking the plea of grave and sudden provocation, the onus of proof shifted to the appellant as envisaged by the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984. We are conscious that burden on the accused would not be as heavy as on the prosecution but at least it should spell out from the circumstances of the case or there should be reasonable possibility of the defence plea being true. In the instant case, nothing is available in support of defence plea which consists of only a bald allegation; hence; the same is rejected. No mitigating circumstances exist in favour of the appellant who took the life of a twenty years young boy by causing repeated blows with sharp edged weapon.

12. Resultantly, this appeal is dismissed. The death sentence is confirmed. The murder reference is answered in the affirmative. N.H.Q./M-94/L?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.