2002 PLP 39 (YLR)

MIAN MUHAMMAD NAJAM-UZ- ZAMAN, J.

This judgment will dispose of Criminal Appeal No.227 of 1997 filed by Muhammad Riaz son of Muhammad Rafique (appellant) as well as Murder Reference No.75 of 1997, arising out of judgment dated 28-4-1997 passed by the learned Additional Sessions Judge Sargodha in case F.I.R. No. 174 of 1995 dated 27-8-1995 under section 302, P.P.C. registered at Police Station Cantt. Sargodha.

2. Brief facts of the prosecution case as narrated in the above said F.I.R. are that on 27-8-1995 at about 4-00 p.m. Muhammad Sharif, complainant, alongwith Muhammad Aslam son of Ahmad Khan and Bashir Ahmad P.Ws. were going towards the fields. Abdul Aziz son of Muhammad Sharif was going ahead of P.Ws. at some distance. When Abdul Aziz reached near Square No.20, Killa No.24, Muhammad Riaz appellant while riding on,a bicycle also came there and raised Lalkara that he had come to take revenge of his insult. Statedly, within the view of abovesaid prosecution witnesses Muhammad Riaz appellant took out a Chhuri from the Naifa (fold of Shalwar) and inflicted injury on the neck of Abdul Aziz deceased who fell down. Thereafter, Muhammad to appellant gave second blow with the Chhu to Akbdul Aziz at his back. After the occurrence, Muhammad Riaz appellant while brandishing the weapon of offence ran awe from the spot. The injured was removed to the hospital for medical treatment. The motive as narrated in the F.I.R was that a few days back to the instant occurrence, Abdul A Muhammad Riaz appellant

2. After the occurrence matter was reported at the police station where Bahad Khan MHC/P.W.10 entered formal EL' Formal investigation of this case w conducted by Raja Muhammad La Inspector/P.W.11 as well as Muhammad Nazeer, S.I./P.W.12 and the challan was submitted before the trial Court.

3. During the trial prosecution produced twelve witnesses in order to prove the charge against the appellant. Muhammad Sharif complainant/ P. W .1, and Muhammad Aslam, P. W . 2 were the eye-witnesses of this occurrence. Both of them had supported the prosecution case in verbatim and had narrated the circumstances under which appellant committed the murder of Abdul Aziz with Chhuri. Muzaffar Ahmad, P.W.3, witnessed the reovery of blood-stained dagger, P.1, at the instance of the appellant, the same was taken into customize recovery memo. Exh.P.C. This witness alongwith Muhammad Nawaz attested the recovery memo. Safdar Ali, P.W.4, identified the dead body of Abdul Aziz at the time of post-mortem examination. Khizar Hay Khichi, Patwari/P.W.5, prepared scaled site plan, Exh.P.D and Exh.P.D/1 of the place occurrence. Dr. Waseem Nayar Jafari, P.W.6, conducted the post-mortem examination on the dead body of Abdul Aziz and observed following injuries on his person:

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1. An incised wound 2- x 1- c.m. on the base and front of neck.

2. An incised wound 3 x 1- c.m. on the back of left chest." In the opinion of the doctor, cause of death in this case was injuries Nos. 1 and 2 which led to haemorrhage and breathlessness which were sufficient to cause death in the ordinary course of nature. Muhammad Yaseen, F.C/P.W.7, produced dead body of the deceased before the doctor. Muhammad Nazir, Constable/P.W.8, took the parcels containing blood-stained earth and blood-stained dagger and delivered the same parcels to the office of Chemical Examined Lahore on 25-9-1995 intact. Dr. Muhammad Afzal, P.W.-9, medically examined Abdul Aziz deceased when he was still alive and prepared medico- legal report, Exh.P.F. Bahadur Khan, MHC/P.W.10 entered formal F.I.R. as narrated earlier. This witness also kept the parcels of case property in the Malkhana for safe custody and handed over the same to Muhammad Nazir F.C/P.W.8 for onward transmission to the office of Chemical Examiner Lahore. Raja Muhammad Latif, Inspector/P.W.11, conducted the investigation of this case. He got prepared the site plan, Exh.P.D and Exh.P.D/1 of the place of occurrence through Khizar Hayat Khichi Patwari/P.W.5. This witness also arrested Muhammad Riaz appellant on 19-9-1995 and during his investigation appellant led to the recovery of blood-stained dagger, P.5, which was taken into possession vide recovery memo. Exh. P.C. The final challan was submitted by this witness before the trial Court. Muhammad Nazir S.I/P.W.12, partially investigated this case who during investigation collected blood stained earth from the spot vide recovery memo. Exh-PE. This witness also prepared rough site plan Exh.P.H, of the place of occurrence. After autopsy last worn clothes of the deceased were produced before this witness which were taken into possession vide recovery memo. Exh-I. During investigation, this witness also made an attempt to record the statement of injured person and made applications Exh.P.G, Exh.P.J and Exh.P.K respectively but on all the appelications doctor observed vide reports Exh.P.G/1, Exh.P.J/1 and EXh.P.K/1 respectively that injured was not fit to make statement. On 4-9-1995 on receipt of information that Adul Aziz injured had expired, this Investigating Officer also examined the dead body of Adul Aziz and prepared injury statement, Exh.P.L, and inquest report, Exh.P.M., and entrusted the dead body of Abdul Aziz to Muhammad Yaseen, Constable/P.W.7, for post-mortem examination.

4. Learned DDA tendered in evidence report of Chemical Examiner Exh.P.M. and that of Serologist Exh.P.O and closed the case for the prosecution.

5. After recording the entire prosecution evidence, learned trial Court examined the appellant Muhammad Riaz under section 342, Cr.P.C. wherein he denied his participation in the occurrence and pleaded innocence. The appellant neither made any statement under section 340(2) Cr.P.C. nor produced any evidence in hi defence, however, he tendered in evidence certified copy of order dated 17-12-1995 passed by High Court as Exh.D.C.

6. Learned Trial Court after appraisal of evidence available on record, vide judgment dated 28-4-1997 convicted and sentenced the appellant under section 302-A, P.P.C. to death as Qisas.

7. Being aggrieved by the conviction and sentence, the appellant Muhammad Riaz filed instant criminal appeal whereas the learned trial Court also made a reference bearing Murder Reference No.75 of 1997 for the confirmation of death sentence awarded to Muhammad Riaz appellant.

8. Learned Counsel for the appellant submitted that it was a blind murder. None of the eye-witnesses was present at the time of occurrence and both the eye-witnesses were introduced later on being closely related to the deceased; that the motive for this occurrence was never proved by the prosecution before the trial Court; that the recovery evidence relied upon by the prosecution was tailored during the investigation. In the alternate, learned counsel for the appellant requested for the reduction of sentence awarded to the appellant. Conversely, learned State counsel had supported the judgment of the learned trial Court.

9. We have heard counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statement made by the appellant under section 342, Cr.P.C. and the circumstances appearing in this case. It is a case of single accused who committed the murder of Abdul Aziz (deceased) in broad daylight within the view of Muhammad Sharif, complainant/ P. W .1, and Muhammad Aslam, P. W .2. The F.I.R. in this case was registered without unnecessary delay in which all necessary details of the occurrence have been given. Muhammad Sharif, P.W.1, was father of the deceased whereas Muhammad Aslam, P.W.2, was the resident of the area where this occurrence took place and is absolutely an independent witness. Both these witnesses successfully stood the test of cross- examination. It has been observed that during cross-examination not a single question worth the name of enmity was put to these witnesses nor there is any circumstance on the record to show that these witnesses had any motive to falsely implicate the appellant in this case. During cross-examination, defence has tried to build up the case of self-defence on the ground that "one day prior to the occurrence appellant had a scuffle with one Ghulam Abbas and the present occurrence was motivated because of insult given by the accused/appellant to said Ghulam Abbas that on the day of occurrence, appellant was attacked by said Ghulam Abbas and Abbas Aziz deceased and the appellant afert snatching Chhuri from said Ghulam Abbas inflicted injuries to Abdul Aziz in the right his self-defence". It is not understanding to why the appellant gave injuries to Abdul Aziz (deceased) instead of Ghulam Abba from whom Chhuri was snatched. During the trial, no defence plea was taken up by tl; appellant while making statement undo section 342, Cr.P.C. similarly, appellan neither made any statement under section 340(2), Cr.P.C. in this regard nor produced any evidence in his defence. The defence plea taken up by the appellant seem: to be a later innovation and has not impress us. It is a case of single accused. The real father of the deceased has nominated appellant in the F.I.R. as real culprit and the substitution in such-like cases is a very rare phenomenon. The ocular account narrated by the above said eye-witnesses stand; corroborated by the recovery of blood-stained Chhuri P.1 at the instance of the appellant a well as finds ample support from the medico legal reports. The time of occurrence, location of injuries and weapon used, all this facts as narrated by the eye-witnesses stand established from this piece of evidence. For all these reasons, we find that the ocular account of occurrence given by the said eye witnesses cannot be discarded.

10. We have considered the question of sentence awarded to Muhammad Riaz appellant with utmost care on our part. No doubt, there is not strong evidence on the record in support of motive part of the prosecution case but this defect in the prosecution case is not sufficient to award lesser sentence to the appellant. It is well -settled principle of law that where the eye witnesses account is worth of credence, un impeachable, confidence-inspiring then the weakness of motive or its absence or where alleged motive has not been proved, would not constitute mitigating circumstance. This view is in line with the observation of their lordships in case titled "Waris Khan v. The State (2001 SCMR 387). In this view of the matter, the arguments of the learned counsel for the appellant that unproved motive would be a mitigating circumstance in favour of accused/appellant for lesser penalty, have no force.

11. It has been observed by us that the learned trial Court has convicted appellant under section 302-A, P.P.C. whereas there is nothing on record to show that the ingredients of section 304, P.P.C. have been complied with. In the absence of same, conviction of the appellant under section 302-A, P.P.C. is not sustainable. Accordingly, conviction of the appellant is altered and he stands convicted under section 302-B, P.P.C. and is sentenced to death as ordered by the learned trial Court. The appellant shall also pay Rs.50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. or in default of payment whereof to further undergo six months S.I. with this modification, instant criminal appeal stands dismissed.

12. Murder reference is answered in the affirmative. H.B.T/M-935/L Appeal dismissed/ order accordingly.