P L D 1999 Lahore 487 (PLP)

TASSADUQ HUSSAIN JILANI, J.

This judgment shall dispose of Criminal Appeal No. 109 of 1989 .filed by appellant Muhammad Javaid alias Jaida (aged 45 years) and Criminal Revision No.423 of 1989 filed by the State for enhancement of sentence awarded to the appellant who was tried under section 302, P.P.C. (in a case registered vide F.I.R. No.88 of 1981 dated 11-4-1981 under section 302, P.P.C., Police Station Ichhra, District Lahore) by Mehar Muhammad Altaf Hussain, Additional Sessions Judge, Lahore, for the murder of Syed Wajid Ali Shah who vide his judgment dated 29-1-1989, convicted the appellant and sentenced him to life imprisonment and a fine of Rs.10,000 in default whereof to further undergo two years' R.I. Compensation of Rs.25,000 was also awarded to him under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased in default whereof to suffer further S.I for six months.

2. The prosecution story as given in the F.I.R. (Exh.PA/1) recorded at 5-10 p.m. by Muhammad Saleem (P.W.17) lodged on the basis of statement (Exh.PA) made at 5-00 p.m. by Syed Abbad Ali (P.W.12) briefly stated is that the complainant who is son of Wajfd Ali Shah deceased worked as typist in the Office of the Rural Supply Cooperative Corporation while his father retired as Chief Head Warden from the Prisons Department three years before and got a job in the tactory of Muhammad Waris at Muhammad Ali Road, Ichhra at Rs.400 per month, that he used to bring his father back on bicycle after the office hours every day, that on the fateful day as usual he alongwith his father left the factory, were going on foot for a while and as they reached Chowk Dohatta Colony, Ichhra, appellant Javaid alias Jaida suddenly reached there from the behind, that his father raised alarm that he be saved from the said "Jaida Badmash" as he was his jail enemy, that the appellant started giving him Chhura blows that his father tried to ward off with his cloth bag but he received injuries on his right thigh and hip joint, that when the complainant raised alarm he too was attacked but he step back and the accused decamped from the spot and that h;, lalbwr succumbed to the injuries at the spot.

3. The post-mortem examination was conducted by Dr. Sabir Ali (P.W.l5) who found the following injuries on his person: -- "(1) Stab wound clean cut 5 c.m. x 1 c.m,. going deep on the upper half of "'the left buttock. (2) Stab wound clean cut 7 c.m. x 2 c. m. going deep placed back outer upper half left thigh, communicating with an incised wound 2 c.m placed on the front inner upper left thigh through muscles." According to the opinion of the doctor both the injuries were individually sufficient to cause death in the ordinary course of nature.

4. The accused was arrested on 26-7-1981. On 2-8-1981 he led to the recovery of Chhura (Exh.PJ) which was witnessed by Syed Ishtaq Ali (P.W.18) and Muhammad Saleem (P.W.17). 5.During the trial the prosecution examined nineteen witnesses including the doctor and the Investigating Officer.

6. The accused when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to enmity. He also produced witnesses in defence. D.W.1 Constable Muhammad Ali brought F.I.Rs. to the effect that P.W.6 Ikhlaq Ahmad Khan is prosecution witness, in few cases registered under various sections. Syed Abbad Ali (P.W.12) made statement consistent with his version given in the F.I.R. Ikhlaq Ahmad Khan appeared as P.W.6. He is a witness to corroborate the statement of P.W.7 on all material particulars. P. W.10 is Muhammad Siddique who corroborated the statements of P.W.12 and P.W.6. The remaining are formal witnesses and need not to be mentioned here. 7.Learned counsel for the appellant in support of the appeal submitted as under: -- (i) That the motive has not bees proved inasmuch as no documentary evidence has been brought on record that the appellant was undergoing sentence and was released on parole when the occurrence took place. (ii) That there is material discrepancy between the ocular account and the medical evidence inasmuch as, as per the ocular account four dagger blows were given by the accused whereas there were two injuries on the person of the deceased. (iii) That P.W.12 Syed Abbad Ali is son of the deceased and P.Ws. 6 and 7 are chance witnesses. They had no business to be there and, therefore, their evidence cannot be credited with truth. (iv) That the evidentiary value of recovery evidence is rather late as the occurrence took place on 11-4-1989 whereas the recovery was effected after four months i.e. on 2-8-1989."

8. The learned Assistant Advocate-General while defending the impugned judgment, so far it convicts the appellant and in support of the Criminal Revision No.423 of 1989 filed by the State for enhancement of sentence, submitted as under:- (i) That it is a case of prompt F.I.R. single accused specifically named, definite role assigned to him and there is nothing on record to show as to why the appellant be falsely implicated. (ii) That there is no discrepancy between the ocular account and the medical evidence as Exh.PF vide which shirt and Shalwar of the deceased were taken into possession shows that. there were cut marks on the shirt as also on Shalwar which are four in number and consistent with the ocular account that the appellant gave four blows to the deceased. If out of four blows two hit the body and the remaining touched the clothes this would not discredit the ocular account as it is in evidence that the deceased was all along trying to ward off back. (iii) That P.W.6 and P.W.10 are not related to the deceased, they had no animus with the appellant to falsely implicate him and their statements are consistent on all material particulars; (iv) It is in evidence that the appellant was on parole when the occurrence took place; (v) That the appellant has criminal-credentials. He absdbnded during parole period. he chased the deceased and caused him fatal blows, he deserved a maximum sentence under section 302, P.P.C. and the reason given by the learned trial Court for awarding him lesser sentence is not tenable in law. "

10. The occurrence took place at 4-30 p.m. The statement of the complainant was recorded at 5-00 p.m., the F.I.R. was registered at 5-10 p.m. wherein the appellant has been specifically named and a definite role of chasing Syed Wajid Ali Shah and of causing successive daggar blows has been assigned to him. The complainant (P.W.12) made statement in Court consistent with F.I.R. and the same not only stands corroborated by the medical evidence but also by a look at the last worn clothes of the deceased which had several cuts. It finds further credence and corroboration from P. Ws. 6 and 10 who are the eyewitnesses. None of these witnesses had any enmity with the appellant to falsely implicate him. Their testimony could not be shaken despite the cross examination to which they were subjected.

11. The eye-witnesses' account that the deceased was chased and given repeated dagger blows is borne out from the following piece of circumstantial evidence: , "(i) Collection of blood-stained earth from two places i.e. from Muhammad Ali Road and from where the deceased fell''dewn and succumbed. to the injuries (vide Exhs. PD and PE attested by P.W.10 and P.W.17); (ii) site plan (Exh.PG); (iii) the cut marks of dagger blows on the last worn clothes (Exh.PF).

12. An attempt was made to discredit P.W.6 and P.W.10 by confronting them with their affidavits sworn on 28-11-1984 (Exh.PA and Exh.DE of.the same date) which they tendered before the learned Additional Sessions Judge, Lahore on the basis of which appellant was allowed bail on 17-1-1985. Both explained that they gave those affidavits out of fear and pressure of the appellant. Now in such a situation when a witness is confronted with his earlier affidavit wherein he disowned the prosecution case the Court has to weigh the statement recorded in Court, its intrinsic worth, any background of mala fides which could have obliged him to falsely depose in Court, any other corroborative material on record supportive of his testimony in Court, and his explanation for the affidavit given earlier. Keeping the foregoing criterion in mind we find that the statements of both these witnesses are worthy of credit, as I they are consistent, they had no motive to falsely implicate the appellant, the medical evidence, the evidence of recovery of weapons corroborates their testimony and they have given a reasonable explanation for the earlier affidavits given. The statement of D.W.1 who brought copies of nine F.I.Rs. could not put any dent on the credibility of P.W.6, because in all the nine F.I.Rs. he is a prosecution witness which will not make the prosecution story doubtful.

13. It is in evidence that the appellant was on parole. P.W.13 Anjum Pervaiz who is a Parole Officer stated that on 11-4-1981 he was informed that Javaid alias Jaida had escaped and this matter was reported to the Model Town Police Station. P.W.17 Muhammad Saleem, at page 62 of the paper book. stated that "the accused is dangerous and hardened criminal as he is a previous convict in many other cases like 302, 382, P.P.C. The accused was also undergoing the life imprisonment in a murder case when the present occurrence took place as he was released on parole (subject to objection by the learned defence counsel). " Similarly Muhammad Sharif (P.W.7) Chief Head Warder, Central Jail, Sahiwal, at page 39 of the paper book, stated that "I and WAN Ali Shah deceased were, employed at Central Jail, Kot Lakhpat Lahore, the accused, now present in Court was undergoing the imprisonment as convicted person under section ;02, P.P.C. The accused was addicted to narcotics and was repeatedly asked by Wajid Ali Shah deceased to refrain from this bad habit but the accused did not desist from addiction to narcotics rather used to threaten him to see him outside the jail, when he would be released. After some time, the accused was released trom jail on parole." PAw'.8 Shaukat Ali stated that the appellant was a drug addict and had threatened the deceased with dire consequences when he used to ask the appellant to refrain from the forereferred bad addiction.

14. The forereferred evidence would show that the appellant had a definite motive, that he had a criminal record, that while he was undergoing sentence in a murder case in a jail where the deceased was the Head Warder, that the latter used to ask him not to take drugs, that en account of the strict discipline which the deceased wanted to enforce, the appellant bore a grudge against him and that on the fateful day he escaped from the parole, chased Wajid Ali deceased and gave him dagger blows which proved fatal and he died.

15. During the course of arguments an issue was raised that since charge had been framed under section 302, P.P.C. and not under section 303, P.P.C. and as he was convicted under the former section, the trial stood vitiated and case be remanded for de novo trial. We are afraid the argument is misconceived for the following reasons:- (i) The record of the trial Court shows that in Urdu version the charge was framed under section 303, P.P.C. and not under section 302, P.P.C. Thus there has been a typographical mistake. The charge framed to Urdu is being quoted below:-- Thus the appellant all along knew that he was being tried under the forereferred charge. No prejudice was caused if the charge framed in English f mentioned, section 302, P.P.C. or he was convicted under section 302, P. P. C. instead of 'section 303, P.P.C. We are fortified by the judgments reported in Ranjha and another v: The State AIR . (38) 1951 Himachal Pradesh 750 and Khair Din v. The State PLD 1957 (W.P.) Lah. 639.

16. Coming to the question of sentence I find that the only ground given by the learned trial Court to award him lesser sentence is that of "protracted trial". There is no doubt that in certain cases protracted trial has been considered as a ground for lesser sentence. However, each case has its own distinguishing features. In the instant case we find that the appellant was a convict in another case under section 302, P.P.C., that he was released on parole, that he misused the concession of release and absconded, that he bore ill-will against the deceased merely because he wanted to maintain discipline in jail, that. even after three years of the latter's retirement his thirst for revenge did not sub-side and he gave repeated blows to the deceased which caused his death. Even in the earlier case in which the appellant was undergoing sentence under section 302, P.P.C. the Court found some mitigating circumstances not to have awarded him death sentence but he misused this concession. Notwithstanding the fact that the appellant should have been convicted under section 303, P.P.C. the learned trial Court chose to convict him under section

302. P.P.C. under which provision the normal sentence is death and the law enjoins the Court to give reasons for Jesse, sentence (section 369, Cr.P.C.). Sentence awarded has to be commensurate with the criminality, of the accused i.e. his conduct, manner of, attack, motive involved and his antecedents. Keeping these factors in mind we are of the view that the appellant did not deserve any leniency and sentence of death was called for.

17. Even otherwise, the appellant committed the offence of murder when he was already undergoing his sentence of life imprisonment in a murder case and C as we have noted in para. 15 above that the appellant was duly charged under section 303, P.P.C., he should have been convicted under section 303, P.P.C. and sentenced to death. Section 303, P.P:C. reads as under:- "

303. Punishment for murder by life-convict.--Whoever,. being under sentence of [imprisonment for life] commits murder, shall be punished with death. " Sentence under the forereferred provision is death. Thus the lesser sentence awarded is not only unjust under section 302, P.P.C. but is also against the mandatory- provision of section 303, P.P.C.

18. For what has been discussed above the Criminal Appeal No.109 of 1989 filed by Muhammad Javaid alias Jaida appellant is dismissed and Criminal Revision No. 423 of 1989 filed by the State is allowed and the sentence of the appellant is enhanced to death and direct that he shall be hanged by neck till he is dead. N.H.Q./M-1105/L Sentence enhanced