2008 PLP 1360 (MLD)

TARIQ SHAMIM, J.

This judgment will dispose of Criminal Appeal No.2150 of 2002 filed by Muhammad Aslam appellant, who was convicted under section 302(b), P.P.C. and sentenced to death as Ta'zir along with compensation of Rs.50,000 to be paid to the legal heirs of Muhammad Ramzan deceased, or in default whereof, to undergo 6 months' R.I. The conviction and sentence was recorded by Khawaja Imtiaz Ahmad, the learned Sessions Judge, Sargodha, vide his judgment, dated 12-12-2002.

2. The Murder Reference No.860 of 2002 for confirmation or otherwise of death sentence of appellant shall also be replied through this single judgment.

3. The brief facts of the case are that Muhammad Nawaz, the complainant, and Muhammad Ramzan, the deceased, on 23-4-2001 at about 7-30 p.m. after paying visit to the house of their relative Atta Muhammad were returning towards their house, when they reached near the shop of Bashir, all of a sudden, Shera armed with Sota and Muhammad Aslam, the appellant, armed with a knife appeared from the front. Shera raised a Lalkara that the complainant and the deceased be taught a lesson for insulting them, whereupon Muhammad Aslam inflicted below on Muhammad Ramzan deceased with the knife which landed on the upper side of his left flank and on the backside of the neck along the left shoulder, as a result of which he fell on the ground. The complainant did not make any attempt to save the deceased out of fear. On the hue and cry of the deceased, Allah Bakhsh and Muhammad Ashraf were attracted to the scene, whereafter the assailant fled away. The motive behind the occurrence was that Mst. Shahnaz, the wife of Muhammad Raiz, the son of the deceased had illicit relations with the appellant, on account of which Muhammad Raiz had divorced her. The appellant wanted to marry Mst. Shahnaz which was being opposed by the deceased. Two days prior to the occurrence, the deceased and the appellant had exchanged hot words and due to this reason, the murder of Muhammad Ramzan deceased was committed by Muhammad Aslam appellant and his co-accused.

4. The prosecution in order to prove its case produced as many as 10 witnesses including the eye-witnesses namely Muhammad Nawaz (P.W.8) and Allah Bakhsh (P.W.9); Dr. Muhammad Imtiaz (P.W.4); Muhammad Nawaz (P.W.8) and Muhammad Rafique, Sub-Inspector (P.W.10), the recovery witnesses; Muhammad Rafique, S.-I. (P.W.10), the Investigating Officer and the formal witnesses namely Javed Khalid, Muharrer/Head Constable (P.W.1), Shaukat Ali, Constable (P.W.2), Muhammad Mushtaq, Constable (P.W.3), Muhammad Saeed, Constable (P.W.5) and Mehr Wali Muhammad (P. W .6) as well as the draftsman namely Muhammad Salim (P.W.7). After tendering in evidence the reports of Chemical Examiner (Exh.PL and Exh.PM) and that of the Serologist (Exh.PN & Exh. PQ), the learned DDA closed the case for the prosecution. The appellant was examined under section 342, Cr. P. C. in which he pleaded his innocence. The learned trial Court after taking into consideration every aspect of the case and hearing the arguments, convicted and sentenced the appellant, as mentioned above.

5. The learned counsel for the appellant contended that there was delay in lodging of the F.I.R.; that the dead body of the deceased was identified by strangers and not by any relative; that the motive as urged by the prosecution was not proved at the trial; that co-accused of the appellant namely Shera had been acquitted by the learned trial Court on same set of evidence; that the eye-witnesses were chance witnesses and related inter se and that the recovery of weapon of offence from the appellant was highly doubtful.

6. The learned Deputy Prosecutor General submitted that the prosecution had proved its case beyond any shadow of doubt; that the ocular account was fully corroborated by the medical evidence, motive and recovery of weapon of offence at the instance of the appellant and that the prosecution witnesses had no reason to let off the real culprits in order to falsely implicate the appellant in the crime.

7. We have heard the learned counsel for the appellant as well as the learned Additional Prosecutor General for the State and gone through the record.

8. The occurrence in this case took place on 23-4-2001 at about 7-30 p.m., whereas the F.I.R. was lodged at about 10-15 p.m. The learned counsel for the petitioner has argued that there is inordinate delay of about three hours in lodging of the F.I.R. which has made the case of the prosecution doubtful. It has been noticed that the deceased was taken to Civil Hospital, Sargodha in an injured condition by the complainant and others. The deceased succumbed to the injuries, suffered by him during occurrence, at the gate of hospital, whereafter the complainant went to the police station for reporting the matter. It has not come out in the evidence as to what was the distance between the hospital and the place of occurrence and the distance from the hospital to the police station. However, in the testimony of Dr. Muhammad Imtiaz (P.W.4), it has emerged that the time between the receipt of injuries and the death was one hour which implies that by the time the complainant and others reached the hospital with the injured, one hour had elapsed and considering that the complainant after the demise of Muhammad Ramzan had to return to the police station to lodge the F.I.R. would sufficiently cover the time that elapsed between the occurrence and report of the incident by the complainant. Keeping in view the above circumstances, it can be safely said that the F.I.R. was lodged with promptitude and the delay in the F.I.R. referred to by the learned counsel, stands explained satisfactorily.

9. The eye-witness account in this case was furnished by Muhammad Nawaz and Allah Bakhsh who appeared before the learned trial Court as P.W.8 and P.W.9. These witnesses have furnished an accurate account of the events leading to the murder of the deceased. Although it is not denied that both of the witnesses are related to the deceased inter se, however, the mere relationship of the witnesses with the deceased is by itself no sufficient to disbelieve their testimony, particularly in the instant case where no strong previous enmity existed between the parties. The argument that the appellant has been falsely implicated in the case by the complainant is without any substance, as the complainant and others had no plausible reason or motive to let off the real culprits in order to falsely implicate the appellant. Since the appellant was well-known to the eye-witnesses, there is no question of mistaken identity. The P.Ws. have extended satisfactory explanation regarding their presence at the spot. The eye-witnesses were subjected to lengthy cross-examination at the trial but nothing favourable could be extracted by the defence. Minor discrepancies pointed out by the learned counsel for the appellant in the testimony of the P.Ws. are of no consequence as the same are trivial in nature and do not affect the veracity of the evidence adduced by the witnesses at the trial. The statements made by the eye-witnesses before the trial Court are consistent with each other in all material aspects of the case. Insofar as the place of occurrence is concerned, suffice it to say that the blood-stained earth was collected from in front of the shop of Bashir. The recovery witnesses of blood-stained earth while testifying before the trial Court have deposed to the same effect and, therefore, the place of occurrence, as stated by the witnesses, stands established.

10. The medical evidence in this case was furnished by Dr. Muhammad Imtiaz (P.W.4). The said P.W. found the following injuries in the autopsy conducted on the dead body of the deceased on 24-4-2001 at 2-30 a.m:-- (1) An incised wound 1-1/2 x 3/4 c.m. on left lateral chest on lower part, at the level of about 7th rib. (2) An incised wound 3 x 1 c.m. on back of left upper chest, 2-1/2 c.m. away from left side of base of neck. The probable time that elapsed between injuries and death was approximately one hour and the time between death and post mortem examination was about six hours. The medical evidence is in consonance with the eye- witness account and is conclusive as to the time of occurrence, the locale of injuries and the weapon used in the occurrence.

11. In the course of investigation, blood-stained knife (P-4) was recovered by the police at the instance and on the pointation of Muhammad Aslam appellant from his house which was taken into possession vide memo. Exh.PH. The witnesses of recovery Muhammad Nawaz (P.W.8) and Muhammad Rafique, S.-I. (P.W.10) remained unshaken in their testimony before the learned trial Court. The fact that the knife was blood-stained when recovered, is evident from the reports of the Chemical Examiner and the Serologist (Exh.P.M. & Exh.P.Q.), wherein it is stated that the knife recovered from the appellant was stained with human blood. The argument that Muhammad Nawaz (P.W.8) is a close relative of the deceased and that the other recovery witness Muhammad Rafique (P.W.10) is a police official, therefore, no reliance can be placed on their testimony, is without any force inasmuch as both these witnesses have no reason to falsely depose about the recovery of blood-stained knife from the appellant. Mere relationship of P.W.8 with the deceased, as stated earlier, is not a valid ground to discard his evidence. Insofar as Muhammad Rafique, Sub-Inspector (P.W.10) is concerned, it has been held by the Hon'ble Supreme Court of Pakistan in a number of cases that a police witness is as good a witness as any and his testimony can be accepted qua recovery, if otherwise found to be credible.

12. The last piece of evidence is that of motive. According to the prosecution case, the son of the deceased namely Muhammad Riaz was married with Mst. Shahnaz who had developed illicit relations with the appellant and on account thereof Muhammad Riaz had divorced his wife. The appellant intended to marry with Mst. Shahnaz which was not approved of by Muhammad Ramzan deceased and according to the evidence on the record, two days prior to the occurrence, there was an exchange of hot words between the deceased and the appellant. In his testimony before the learned trial Court, Muhammad Nawaz (P.W.8) deposed about the motive behind the occurrence and having gone through his statement, we are convinced that the motive aspect of the occurrence is creditworthy and has rightly been accepted as such by the learned trial Court. Even if for the sake of argument we presume that the prosecution had failed to establish the motive at the trial, the fact remains that insufficiency or even absence of motive is not a valid ground for awarding a lesser sentence, as has been urged by the learned counsel for the appellant. Reliance is in this respect is placed on the case of Waris Khan v. The State (2001 SCMR 387).

13. Insofar as acquittal of co-accused Shera on the same set of evidence is concerned, suffice it to say that the courts have to sift grain from the chaff and although the evidence available on the record may not be sufficient to hold conviction of the co-accused, nevertheless the same is conclusive to the extent of complicity of the appellant in the crime. Considering the defence plea in juxtaposition with the prosecution case, we are convinced that the prosecution version is confidence-inspiring, particularly as the appellant has failed to establish strong enmity between the parties which could have prompted the witnesses to falsely implicate the appellant in the crime.

14. From the above, we are of the considered view that the prosecution has succeeded in proving its case against the appellant beyond any reasonable doubt. Consequently, while agreeing with the conclusions drawn by the learned trial Court, we dismiss the appeal and maintain the sentence of death awarded to the appellant by the learned trial Court. The Murder Reference is answered in the affirmative. M.H./M-219/L Appeal dismissed.