P L D 1983 Supreme Court 88 (PLP)

ANWARUL HAQ, C. J.-This appeal, by .the leave of the Court, is directed against the judgment of a Division Bench of the Lahore High Court dated the 11th of April, 1977, by which the appellant's conviction for the murder of his co-villager Mukhtar Ahmad by the Additional Sessions Judge, Rahim Yar Khan, was maintained, and the sentence of death was confirmed. According to the prosecution, the incident took place at about 5-30 a.m. on the 17th of June, 1973, near an Octroi Post in Rahim Yar Khan City. At that time the deceased was proceedings to the Lever Brothers Factory on a bicycle, when the appellant emerged from behind a tree and attacked the deceased with an implement described as a gondal, which had an iron blade. The first blow was struck on the head of the deceased, on receiving which he fell down from his bicycle. The appellant then gave a second blow, which hit the deceased on his loft thigh. The incident was witnessed by Taj Muhammad (P. W. 9), Ilam Din kP. W. 10) and two other persons, named Inayat Ali and Muhammad Din, who were, however, given up by the prosecution as having been won over. The F. I. R. was made by Taj Muhammad at the Civil Hospital Rahim Yar Khan, where he had taken the injured man in an unconscious condition. The deceased died 9 days later on the 26th of June, 1973. The motive for the assault was stated to be an incident between the appellant and the deceased during which the deceased had injured a he-buffalo belonging to the appellant as the animal had damaged the crops of the deceased. Although a panchayat had settled the matter between the two by directing that the deceased shall pay compensation in the sum of Rs. 150 to the appellant, yet it appears that the appellant was not pacified, and had threatened revenge. The appellant was arrested on the same day, and at his instance a gondal was recovered from a Jawar field on the 22nd of June, 1977, but it was not found to be blood-stained. At the trial, the prosecution placed reliance on the evidence of motive as furnished by Taj Muhammad (P. W. 9) and Danishmand (P. W. 11) ; the ocular evidence of the incident given by Taj Muhammad and Ilam Din, besides medical evidence, and the evidence of the recovery of the weapon of offence. The appellant pleaded not guilty at the trial, and asserted that he had been falsely implicated at the instance of one Fazal Karim, who had, in fact, got the deceased murdered, but the appellant had been falsely implicated at his instance by Taj Muhammad, who was a phupha of the deceased. The appellant did not, however, led any defence evidence. Both the Courts below have accepted the ocular account of the incident given by Tao Muhammad and Ilam Din, and have also accepted the motive a deposed to by Taj Muhammad and Danishmand. They have observed that both the eye-witnesses were truthful witnesses, and they had no motive whatsoever to falsely implicate the appellant as the solitary culprit in this case. In support of this appeal, Mr. Talib Hussain Rizvi contends that the evidence of Taj Muhammad should not have been relied upon by the Courts below, as he was closely related to the deceased, and had not given a truthful account of all the events, inasmuch as in the F. I. R. he had mentioned that the animal injured by the deceased was a mandha, which means a be-goat, but at the trial be changed this to show that he-buffalo was injured; and that he had, in fact, made the F. I. R. after having been informed by the Hospital authorities about the admission of his nephew, and at a time when the nature of the injuries sustained by the deceased had been fully ascertained by medical examination. He further submits that Taj Muhammad had not mentioned abut the panchayat, which had tried to settle the dispute between the appellant and the deceased, but he had fallen in line with the prosecution case by introducing Danishmand in this context. Mr. Rizvi further contends that the name of Ilam Din was not mentioned in the F. I. R. and his evidence should,, therefore, have been ruled out on this ground, but the Courts below had erred in finding an explanation for the omission of the name of this man from the F. I. R. It appears to the learned counsel that the occurrence had, in fact, taken place in the hours of darkness as the injured had been taken to the Hospital by 6-30 a.m. at a distance of about a mile from the place of occurrence, thus, showing that it was an unwitnessed crime, and the appellant was being named merely on suspicion. Finally, the learned counsel contends that, in any case, the imposition of. the extreme penalty was not justified as there had been provocation on the part of the deceased, and the appellant had given only one blow, and that also with an implement, which is normally used in agriculture, and was not ordinarily used as a weapon of defence. He further submits that the incident took place in 1973, and since then seven long years have elapsed, and on account of this delay as well there is justification for commuting the death sentence to imprisonment for life. After hearing the learned counsel for the appellant and examining the record, we are of the view that there is no merit in these submissions. The incident took place in the month of June, and even though if it conceded that the injury was of about two hours duration at the time it was examined by the Doctor at the Rahim Yar Khan Civil Hospital at 6-50 a.m., it would mean that the incident took place between 4 and 5 a.m., at which time there will be sufficient light in the month of June to enable identification of a person, who was known to the witnesses. According to the eye-witness account the incident took place at about 5-30 a.m. and this time, in fact, corresponds with the opinion of the medical witness, but eve if full allowance is made for the possible variation in time, the incident still would fall within the hours of daylight. We are, therefore, in agreement with the. Courts below that this was not an unwitnessed crime in the hour of darkness. . There was nothing improbable in . the witnesses being present near the place of occurrence, as it falls on a public thoroughfare, and the witnesses have given an account of the reasons for their presence at that place, namely, that they were proceeding to their lands. The deceased was employed in a Factory and was proceeding to his work on a bicycle, when he met Taj Muhammad and his companion Inayat Ali, and slowed down so as to keep pace with them. It was at that time that he was attacked by the appellant. We have carefully scrutinised the evidence of Taj Muhammad, and we see, no reason whatsoever for him to falsely implicate the appellant in a capitals offence. It is true that in the F. I. R. Taj Muhammad mentioned that the; accused had injured a mandha of the deceased, but during the commitment" proceedings and at the trial he mentioned a bhainsa. No attempt was made) to confront him with this contradiction in cross-examination, and it seems to us that the word mandha may have been written by the Police Officer by mistake, as there was no challenge to the statement made that the animal; injured by the deceased was a bhainsa belonging to the appellant. This was the only friction or ill-will between the parties, pointing to the face that an uncle of the deceased could have no motive whatsoever to falsely implicate the appellant, unless, indeed, the appellant was the assailant. The fact that Taj Muhammad did not mention clam Din as an eye-j witness could not, in any way, retract from the evidence of Taj Mubammad,a He has given a straightforward and consistent account of the manner in which the assault was launched by the appellant. We are, therefore, of `f the view that there is no reason for us to differ from the concurrent finding recorded by the Courts below as to the truthfulness of Taj Muhammad. On his evidence alone the conviction of the appellant could be sustained, as it is well-established that mere relationship of a witness with the deceased is no ground for doubting his veracity. It is correct that the name of Ilam Din is not mentioned in the F. I. R.,1, and for this reason the Courts must be cautious in placing reliance on his' evidence, but we find that the evidence of Ilam Din is of a disinterested nature, and it is, indeed, possible that his presence at or near the spot may not have been noticed by the first informant. In the circumstances of the' case, and the independent nature of the witness, we are again in agreements with the Courts below that the evidence of Ilam Din cannot be brushed; aside simply for the reason that his name was not mentioned in the F. I. R.; by Taj Muhammad. Nothing was brought out in his cross-examination to show that Ilam Din was giving false evidence, or that he had any motive whatsoever to falsely implicate the appellant. His presence at the spot has, rightly been accepted by the Courts blow. Some argument was raised at the Bar that the medical evidence was inconsistent with the ocular account, inasmuch as Taj Muhammad had stated that the appellant- had emerged from their right side, but the injuries sustained by the deceased were on the left side of his body. The argument is misconceived, as the evidence gives the impression that the assailant had confronted the deceased, and, accordingly, the left side of the body of the deceased would be opposite to the right side of the assailant. When any attack is launched from the front on the head of a person, it matters little whether the blow actually strikes the left or the right side of the victim. For these reasons we see no contradiction between the medical evidence and! the ocular evidence. In the circumstances, we are fully satisfied that the conviction of the appellant was justified on the evidence produced by the prosecution? Although the appellant had alleged his false implication due to party factions at the instance of Fazal Karim, but nothing material was elicited in crossexamination to support such a contention. As to the question of sentence, the mere fact that a few days before the present incident the deceased had injured an animal belonging to the appellant for the reason that it had trespassed into the crops of the deceased, could not be treated in law as providing a mitigating circumstance, as the incident lied occurred several days earlier, and a compromise had also been effected by the village panchayat, which had awarded compensation to the appellant for the damage caused by the deceased. As to the actual incident, it is clear that the appellant had given a blow with full force with an iron implement on a vital part of the body of he/t deceased, and he must, therefore, be burdened with intention to cause death , or at least such bodily injury as was likely to cause; death, and ordinarily death would be the appropriate penalty in such a case. On the question of delay in the disposal of the present appeal, the law is now well-settled that delay per se would not be made a ground for altering the death sentence to life imprisonment, as the doctrine of expectancy of life could not be invoked in the present state of work in our Courts of law. For all these reasons we are of the view that the trial Court was right in awarding death sentence to the appellant, and there is no justification for us to interfere with the same. ??????????? As a result, the appeal fails and is hereby dismissed. S. A. H. ????????? Appeal dismissed.