1997 P Cr (PLP)

SH. RIAZ AHMAD, J.

The appellant Latif son of Muhammad Sharif aged 20 years was tried by the Sessions Judge, Sahiwal on the charge under section 302, P.P.C. for having caused the murder of Ghulam Nabi aged 26 years. Vide judgment, dated 29th of February, 1992, the appellant was found guilty on the said charge and accordingly he was convicted under section 302, P.P.C. and sentenced to death. However, sentence of fine or any direction with regard to the compensation was not given by the learned trial Judge. The appellant assails his conviction by preferring this appeal bearing No.68 of 1992 while the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeal and the reference.

2. The unfortunate occurrence resulting into the death of Ghulam Nabi took place on 21st of July, 1991, at about 8-00 a.m. at Dispensary Road Ghalla Mandi, Sahiwal, situated at a distance of 2 furlongs from Police Station Ghalla Mandi, Sahiwal. The occurrence was reported at Police Station Ghalla Mandi, Sahiwal by Meraj Din (P.W.7) who lodged the F.I.R. Exh. P.F. In brief, the complainant in the F.I.R. Exh. P.F. stated that deceased Ghulam Nabi was his maternal-nephew and on the fateful day at about 8-00 a.m. the complainant accompanied by the deceased were coming to their house after having taken Lassi. At the alleged time the complainant was behind the deceased when suddenly the appellant Muhammad Latif emerged at the scene of occurrence armed with Chhuri from the northern side. The appellant instantaneously then caused three successive blows with Chhuri on the person of the deceased. The injuries according to the complainant were inflicted on the left flank, left thigh and left hand. On the hue and cry raised by the complainant, Muhammad Aslam and Barkat Ali also reached the spot and saw the occurrence. According to the complainant he accompanied by Muhammad Aslam and Barkat Ali tried to apprehend the appellant but he succeeded to disappear from the scene while brandishing the Chhuri. The deceased had been seriously injured and was severely bleeding and in that state he was taken to the District Headquarter Hospital but reaching there Ghulam Nabi succumbed to his injuries. Leaving the dead body in the care of Barkat Ali and Muhammad Aslam the complainant then proceeded to the police station where F.I.R. Exh. P.F. as stated by the complainant was lodged.

3. On 21st of July, 1991 P. W.6 Dr. Muhammad Yousuf Nadeem, Medical Officer, D.H.Q. Hospital, Sahiwal conducted the post-mortem examination on the dead body of Ghulam Nabi and following injuries were noticed:-- (1) An incised wound 4 c.m. x 1 c.m. x deep going on the outer lower part of left abdomen 4 c.m. above from anterior, superior liliac. (2) An incised wound 3 c.m. x 2 c.m. x muscle deep on the inner side of left lower thigh. (3) An incised wound 2 c.m. x bone cut on the front middle part of left index finger. (4) An incised wound 2 c.m. x 1 c.m. x muscle deep on the front middle part of left middle finger. On dissection abdominal muscles on the left side of the abdomen were found cut. Paritonium was injured. Mesentary and mesentaric vessels were also injured. There were two perforations in the small intestines on various sites. Abdominal aorata was also cut and there was about 200 ml of clotted blood in the paritonium cavity. In the opinion of the doctor death occurred due to severe haemorrhage and shock as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. He further opined that all the injuries were inflicted with sharp-edged weapon and were ante -mortem. The probable time between injuries and death was within half an hour and between death and post-mortem examination within 4 hours. In cross-examination the doctor further stated that on account of rupture of aorata in the abdomen the death was instantaneous.

4. On 24th of July, 1991, appellant was arrested and in the course of interrogation he led the police party to his house and got recovered blood-stained Chhuri P.3. The same was taken into possession vide memo. Exh. P.D. attested by Muhammad Latif P.W.5 and Muhammad Rafiq P.W. not produced besides the Investigating Officer. The blood-stained Chhuri was sent to the Chemical Examiner who vide his report Exh. P.L. opined that the Chhuri was stained with blood and the Serologist vide his report Exh.P.L./1 was of the opinion that the Chhuri was stained with human blood.

5. To prove its case at the trial the prosecution placed reliance upon the ocular testimony furnished by complainant Mauj Din (P.W.7) and Muhammad Aslam (P.W.8). In addition to the ocular testimony the prosecution also placed reliance on the evidence as to the motive, the medical evidence and the corroborative evidence in the form of recovery of blood-stained Chhuri from the appellant coupled with the report of the Serologist that the same was stained with human blood.

6. With the assistance of the learned counsel for the appellants, State and the complainant, we have carefully gone through the entire evidence on the record and we have also heard the various contentions raised by the learned counsel on both sides.

7. Learned counsel for the appellant in the first instance argued that the eye-witnesses in this case cannot be relied upon as they are not only chance witnesses but were also interested witnesses. It was also contended that since Mauj Din complainant (P.W.7) was related to the deceased, therefore, his testimony should not be relied upon. After careful consideration of the facts available on the record and having perused their statements we are of the opinion that the contentions raised by the learned counsel for the appellant have no force. Hence the same are repelled. No doubt that Mauj Din (P.W.7) is the maternal unlce of the deceased, but mere relationship is no ground to discard the prosecution evidence. The F.I.R. in this case was lodged with promptitude and the lengthy cross-examination clearly shows that he withstood the test and his credibility could not be shaken by the defence. In this view of the matter, we are of the view that his statement cannot be easily brushed aside and we have further noticed that he has no animus against the appellant. An interested witness, according to the ratio laid down in Niaz v. State PLD 1960 SC (Pak.) 387, is the one who has a motive to falsely implicate the accused. In this case nothing has been brought on the record to suggest that the complainant had been motivated so as to falsely involve the appellant in the case. We further observe that even an interested witness can also be relied upon provided the same gets corroboration from an independent evidence. As for the testimony of Muhammad Aslam (P.W.8) the other eye-witness is concerned we may state here that he is Arain by caste whereas the complainant side is Gujjar. He has also withstood the test of cross-examination and furthermore like Mauj Din (P.W.7) complainant he has no enmity with the appellant.

8. Learned counsel further argued that an F. I. R. (Exh. D.B.) was produced by the appellant in defence which shows that Muhammad Aslam (P.W.8)) had been cited as a witness. On this question Muhammad Aslam was cross-examined but he expressed his ignorance and the evidence also disclosed that in that case compromise had taken place. We agree with the contention of the learned counsel for the complainant that had Muhammad Aslam appeared, his deposition would have been produced at the trial. Hence we do not find force in this contention, which is repelled.

9. It is vehemently contended on behalf of the appellant that the complainant and the deceased had taken ' Lassi' from the shop of Muhammad Irshad shopkeeper and he was neither cited nor produced by the prosecution and; therefore, it should be presumed that had he appeared he would not have supported the prosecution case. We are afraid we cannot see eye to eye as for this contention is concerned. We find that the prosecution is not bound to produce this witness. At the same time we find that Muhammad Irshad is the shopkeeper from where the complainant and the deceased had taken ' Lassi' and his presence at the shop could not be doubted. He was not only a truthful witness but also a disinterested witness being resident of the same area. Learned counsel for the appellant also drew our attention to the controversy between the ocular evidence and the medical evidence. We do not agree with the learned counsel as we do not see any conflict between the two, rather the medical evidence corroborates the prosecution evidence. As for the evidence of motive is concerned it has been brought on the record that an altercation had taken place between the appellant and the deceased. This statement was not seriously challenged, therefore, we are left with no other option but to believe it. Assuming for the sake of arguments without conceding that the eye-witnesses are interested and chance witnesses but still their testimony stands corroborated through the recovery of blood-stained Chhuri coupled with the opinion of the Serologist that the same was stained with human blood. Learned counsel for the appellant had also challenged the evidence of recovery of Chhuri stating that admittedly many persons were present at the time of recovery yet no witness of the locality was made to sign the recovery memo. and, therefore, it was a clear violation of the mandatory provision of section 103, Cr.P.C. We find no force in this contention because the provisions of section 103, Cr.P.C. are not mandatory. We are in no manner of doubt that the recovery witness Muhammad Latif (P.W.5) had no animus and an axe of his own to grind.

10. Lastly it was contended that lesser penalty may be awarded in this case inasmuch as the appellant was a young man. We are afraid the argument has no force because it was a brutal murder and three successive blows were inflicted on the person of the deceased, that too in the congested area of the city, in the daylight. In any event it was a brutal murder and the appellant does not deserve to be considered with leniency. Furthermore age has not always been considered as a mitigating circumstance.

11. The upshot of the above discussion is that this appeal fails and is rejected. The death sentence is confirmed.

12. We have noticed that the learned trial Judge did not impose the sentence of fine. However, as laid down in State v.' Rab Nawaz and another PLD 1974 SC 87 award of compensation to heirs of person killed is a salutary and mandatory provision and the same should be made in every case. In this view of the matter we direct that the appellant shall pay an amount of Rs.20,000 (Rupees twenty thousand) as compensation to the heirs of the deceased or in default I whereof shall suffer simple imprisonment for 6 months.

13. In this view of the matter the appeal is rejected and the reference is answered accordingly. N.H.Q./L-10/L Appeal dismissed.