2007 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.96/J of 2001 filed by Allah Rakha, appellant who was convicted and sentenced vide judgment, dated 29-3-2001 rendered by learned Additional Sessions Judge, Kamalia as under:- Death and to pay compensation of Rs.20,000 to legal heirs of the deceased, in default six months. S.I. under section 302(b), P.P.C. Three years' R.I. and to pay Daman of Rs.5,000 under section 337-F(2), P.P.C. for causing injuries to Muhammad Hanif. Murder Reference No.235 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.

2. Occurrence in this case had taken place at 8-15 a.m. within the revenue estate of Chak No.54/1 Tookra which is at a distance of 7 miles from Police Station, Sadar Kamalia the matter was reported to the police by Muhammad Hanif through written complaint Exh.P.A. at 10 a.m. the same day at the place of occurrence and the formal F.I.R. Exh.P.A./1 was recorded by Muhammad Munsha, Head Constable.

3. Briefly stated the facts of the case are that Muhammad Hanif lodged a complaint Exh.P.A. with police alleging therein that he had sold Sheesham trees standing in Killa No.17 of Square No.27 of Chak No.54/1. Tookra to one Muhammad Yousaf. It was 22-5-1999 that the said Sheesham trees were cut and on 23-5-1999, the trees were to be transported to Kamalia when at 8-30 a.m., Allah Rakha, uncle of complainant Muhammad Hanif met him (the complainant) who claimed his share in the trees which resulted into exchange of hot words. Allah Rakha rushed to his house, came along with Bhalam after 15 minutes, raised Lalkara and then gave a Bhalam blow hitting on right shoulder of Muhammad Hanif. Seeing this situation, Muhammad Sarwar younger brother of Muhammad Hanif tried to intervene but the accused gave one Bhalam blow into abdomen and second on right hip joint of said Muhammad Sarwar. The injured Muhammad Sarwar died at the spot. The motive alleged was that the accused became annoyed on cutting and selling of Sheesham trees and also because of exchange of hot words.

4. Nazir Hussain, S.-I. (P.W.5) took over the investigation. He after recording statement of the complainant Exh.P.A./A, went to the place of occurrence; inspected the dead body; prepared injury statement Exh.P.C.; inquest report Exh.P.I.; he also prepared injury statement Exh.P.E. of the complainant Muhammad Hanif; from the place of occurrence, the Investigating Officer took into possession the blood-stained earth vide memo. Exh.P.D. It was 31-5-1999 when Allah Rakha accused was arrested and on his pointation Bhalam P.1 was taken into possession vide memo. Exh.P.C. After completion of all formal investigation Allah Rakha was sent to face the trial.

5. At the trial prosecution in order to prove its case produced nine witnesses in all. The learned D.D.A. tendered in evidence report of the Chemical Examiner (Exh.P.L.), report of Serologist (Exh.P.M.) and closed the case of prosecution. The accused in his statement under section 342, Cr.P.C. pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.

6. Learned counsel for the appellant after having read the prosecution evidence submits that F.I.R. was recorded after due deliberation and consultation; both the eye-witnesses are closely related to the deceased; no independent witness has been produced; no tree was taken into possession by the Investigating Officer; the recovery of Bhalam is planted inasmuch as there is delay of 12 days in sending the Bhalam to the office of the Chemical Examiner after its alleged recovery on the pointation of the appellant; the injuries on the person of the deceased and the injured P.W. Muhammad Hanif could not have been caused with Bhalam and that version of the appellant taken by him in his statement under section 342, Cr.P.C. is more plausible and nearer to the truth as compared to the story concocted by the prosecution. The nutshell of arguments of learned counsel is that it is a case of false implication. In support of her arguments, learned counsel has relied upon 2002 SCMR 1986, 2004 SCMR 1185 and 2004 PCr.LJ 1239. In the end, it is submitted that if the submissions made by her do not find favour with the Court then it is not a case of death because the appellant at the time of occurrence was 80 years of age.

7. Mr. M. Saleem Shad, Advocate for the State in Murder Reference submits that it is a case of promptly lodged F.I.R.; ocular account furnished by the eye-witnesses is fully corroborated by medical evidence; mere relationship of the P.Ws. with the deceased is no criteria to discard their testimony; old-age itself is no ground for mitigation because the appellant repeated the injuries on the person of the deceased. Mrs. Tahseen Irfan, Advocate for the State in appeal adopts the arguments advanced by Mr. M. Saleem Shad, Advocate. They both support the judgment of trial Court.

8. We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 8-15 a.m. within the revenue estate of Chak No.54/1, Tookra, which is at a distance of 7 miles from Police Station Sadar Kamalia while the matter was reported to the police by Muhammad Hanif through written complaint Exh.P.A. at 10 a.m. the same day at the place of occurrence and the formal F.I.R. Exh.P.A./1 was recorded by Muhammad Munsha, Head Constable so it is a case of promptly lodged F.I.R.

9. Allah Rakha, appellant is real paternal uncle (ﮁﮁﺎ) of deceased Muhammad Sarwar as also of Muhammad Hanif complainant injured P.W. both real brothers inter se. It is a case of single accused. The occurrence had taken place in broad-daylight. What to talk of parties knowing each other, they were closely related inter se as stated above. A real brother could not be expected to have let off the actual killer of his brother and falsely implicate his paternal uncle (ﮁﮁﺎ). Mere relationship of the eye-witnesses (P.Ws.5 and 6) with the deceased is no criteria to discard their testimony, if it is otherwise confidence inspiring. Even otherwise, Muhammad Hanif eye-witness was also closely related to the accused being his real nephew. He is star-witness and had fully supported the case of prosecution. He was also injured at the hands of the appellant. Dr. Fateh Din Shah (P.W.7) medically examined Muhammad Hanif P.W. on the day of occurrence and injuries on his person were opined to have been caused with sharp-edged weapon and fresh in nature. The presence, of Muhammad Hanif P.W. at the spot therefore, cannot be doubted without a pinch of salt. If for the sake of arguments, as submitted by learned counsel for the defence it is admitted that Abdul Ghani P.W.6 was not the resident of place of occurrence but was residing 3/4 kilometers away, still there is statement of Muhammad Hanif P.W.5, who was also injured in the occurrence and he appeared before the trial Court. The settled law is that Court has to see the quality and not the quantity of evidence. Even if we exclude from consideration the testimony of Abdul Ghani P.W.6 still there is evidence of Muhammad Hanif P.W.5 which is confidence inspiring. He had no enmity or ill-will to depose falsely against the appellant. The Bhalam recovered on the pointation of the appellant was found to be stained with human blood as is evident from the report of the Serologist Exh.P.M. We have also gone through the statement of the appellant recorded under section 342, Cr.P.C. The defence coined up by him in answer to question No.10 that in fact Muhammad Hanif, complainant, caused Sua blows on the person of his brother Muhammad Sarwar while he was present and taking benefit of his presence, he has been involved, is not confidence inspiring rather is absurd. We therefore, rule out of consideration the same. After having analyzed the case from all angles, and we have no doubt in our mind so far as participation of appellant Allah Rakha is concerned. It was he who committed the murder of his real nephew Muhammad Sarwar and caused injuries on the person of Muhammad Hanif who too was his real nephew. Now, we come to any mitigating circumstance in favour of the appellant, which is none, firstly for the reason that old age itself is no ground and secondly the appellant did not cause a single injury but repeated the same on the person of the deceased and also injured Muhammad Hanif, complainant, the real brother of the deceased. Resultantly, appeal filed by convict appellant Allah Rakha is dismissed; the conviction and sentence recorded against him vide the impugned judgment of trial Court is maintained in toto, the death sentence is confirmed and murder reference is answered in the affirmative. N.B.T./223/L Appeal dismisse