1999 PLP 85 (MLD)

RAJA MUHAMMAD KHURSHID, J.

The appellant has challenged the judgment dated 1-7-1992 passed by Rao Muhammad Hayat Khan, the then learned Sessions Judge, Toba Tek Singh, whereby, he had convicted the appellant under section 302, P.P.C. and sentenced him to suffer death subject to confirmation by this Court with a direction that the' appellant ' shall pay Rs.50,000 as compensation to the heirs of the deceased or in default to undergo six months' R.I.

2. The brief facts are that a goat of the deceased namely Ahmad son of Tharaaj strayed into the wheat crop of the appellant. This infuriated the appellant who came out of his house armed with a dagger at about 11-00 a.m, on 24-3-1991 and attacked the deceased while abusing him. The deceased also returned the abuses whereupon, the appellant plunged dagger into the neck of the deceased and also caused injury on his left upper arm. The deceased succumbed to the injuries aforesaid. The occurrence was seen by Muhammad Iqbal complainant (P.W.7) and one Ameer son of Basara (P.W.8). The third eye witness namely Behawal was however, given up at the time of trial. The complainant is brother of the deceased, whereas, Amir is father-in-law of brother of the deceased. The appellant led to the recovery of dagger (P.3) while in custody on 5-4-1991 from his house hidden in a bed lying on a cot in his house. The recovery was secured vide memo Exh. P.F. and was attested by Rashid (P.W.6) and Tanveer (given up P.W:) The aforesaid dagger was sent to the Chemical Examiner and the Serologist who gave their reports vide Exh.PL and Exh. PM respectively that it was stained with human blood. The autopsy was conducted by Dr. Muhammad Ajmal Khan (P.W.1) who had given his opinion that the cause of death was haemorrhage and shock due to injury No. 1 which proved fatal and was sufficient to cause death in the ordinary course 'of nature. All the injuries were ante-mortem, whereas, injury No. 1 was dangerous and injury No.2 was simple. The probable duration between injuries and death was 5 to 10 minutes while between death and post-mortem was about seven hours. The post-mortem report was brought on record as Exh. PA whereas diagram of injuries was brought as Exh.PA/1. Both the eye-witnesses examined at the trial had supported the prosecution version. The recovery witness also proved that the dagger (P.3) was recovered at the instance of the accused while in police custody. The motive about the occurrence was also proved by the eye-witnesses that a goat, had strayed into the wheat crop which proved to be a bone of contention.

3. The learned trial Court believing the prosecution case passed the aforesaid conviction and sentence upon the appellant for which the present appeal was preferred by him. The learned trial Judge has made, Murder Reference No.253 of 1992 for confirmation of the death sentence as required by section 374, Cr.P.C. Both the matters are being disposed of through this common judgment.

4. Learned counsel for the appellant contended-that the prosecution case was highly doubtful as the reliance was placed on interested and inimical witnesses. In this context, it was alleged that all the witnesses were related inter se and also to the deceased; that the other eye-witness namely Bahawal was however, given up which allegedly shows the weakness of the prosecution case; that there was some contradictions between the statements given by the witnesses examined at the trial in respect of launching of attack by the appellant upon the deceased; the medical evidence was also stated to be at variance with the ocular account of occurrence as according to the eye-witnesses there were two injuries, whereas, the Medical Officer was not in a position to say whether both the injuries were result of one blow or two blows. It was contended the recovery in this case was also doubtful because of: violation of section 103, Cr.P.C. as nobody was associated at the time of recovery from the neighbourhood. Finally, it was contented that the appellant had acted in self-defence of his property and person because the deceased armed with 'Phaurha' attacked the appellant while the latter was taking the stray goat to the cattle pond.

5. Learned public prosecutor contended that the prosecution had been successful to prove its case through ocular account of occurrence given by the most natural witnesses that the mere fact that they happened to be related to the deceased would not discredit their testimony particularly when they had no animus towards the appellant/accused to rope him in the case falsely; that the eye-witnesses were also corroborated by the recovery of dagger (P.3) which was blood-stained and recovered at the instance of the accused/appellant; the mere fact that there were some slight discrepancies of insignificant nature in the statements of the P.Ws. would not render their testimony incredible; all the witnesses hailed from the same locality and lived in neighbourhood of the accused/appellant and as such, it cannot be said that they were either strangers or chance witnesses. On the contrary, their presence at the spot was not only natural but also highly probable as they were living in the neighbourhood of the place of occurrence within the radius of one to .two squares of land. It is true that there were some "Deras' close to the place of occurrence but according to the eye-witnesses, nobody had turned up from those 'Deras' at the time of murder but had reached later; that even according to the Investigating. Officer, residents of those 'Deras' were related to both the parties and as such, it could be understood that they might have not preferred to become witness at the risk of annoying the other side; that the medical evidence also allegedly supported the ocular account of occurrence as far as the weapon used and the in injuries caused to the deceased were concerned; the prompt lodging of the F.I.R. would lead to irresistible conclusion that the prosecution version took its natural course as there was no chance for deliberation or afterthought to cook up a false story; the site plan (Ex. PD) showed that the land of the accused/appellant and that of the deceased were close to each other and there was a common wall between their houses. The parties lived peaceful life before the straying of goat into wheat field. This showed that there was no enmity between the two sides prior to the unfortunate occurrence. Hence there was no chance of false implication of the appellant in this case. Likewise, the defence version had allegedly no credibility because had the deceased been aggressor, the appellant/accused would have also suffered some injury, may be the slightest one, 'but he remained scratch free which showed that the story of self-defence of person and property was vainly invented by the appellant in order to save hr's skin which otherwise had no merit.

6. We have considered the arguments addressed at the Bar and have also gone through the record with the able assistance of learned counsel for the parties. It is true that both the eye-witnesses are related to the deceased but they I had no enmity with- the accused/appellant nor had any animus to implicate him falsely in this case. The mere relationship of eye-witnesses with the deceased would not, therefore; -render their testimony incredible particularly when they were the residents of the same locality, having their houses at the distance of one to two squares of land. As such, they were the natural witnesses because one of them namely Muhammad Iqbal was returning to his house after ploughing his land, whereas the other was also present in connection with some revenue business. As such, presence of these eye-witnesses cannot be doubted rather it would become natural as they lived in the same locality and were not strangers in the area. It has also come in evidence that the appellant/accused was related to I the complainant side. In such a situation, there was not even the remotest possibility of his false implication. Likewise, the recovery was effected in presence of Rashid (P.W.6) who is residing in the neighbourhood of the house of the appellant/accused. The mere fact that no other respectable was called from the area would not matter much because the aforesaid witness also hailed from the same locality. The dagger (P.3) further linked the appellant with the occurrence because the injuries found on the body of the deceased during the post-mortem examination showed that those were inflicted with a sharp-edged weapon and the location of injuries supported the eye-witnesses as the same location was given by them. The dagger (P.3) was found to' be stained with human blood in view of the expert opinion referred to above given by the Chemical Examiner and the Serologist. As such, recovery -of dagger (P.3) supported the ocular account of occurrence given by the P.Ws. There is no discrepancy even in medical evidence as far as the location of injuries is concerned. The mere fact that the medical officer was unable to say whether both the injuries were the result of one blow or two blows would not make any difference because on this aspect, the ocular account of the occurrence is to be given more weight over the expert opinion which cannot be placed at better footing than the witnesses who had actually seen the occurrence. Both the eye witnesses have stated without any contradiction that the appellant/accused while armed with dagger had given two injuries, one on the neck which proved fatal and other on upper portion of left shoulder. As such, the medical evidence goes in support of ocular account of occurrence. The unfortunate occurrence had taken place at 11-00 a.m. whereas, the F.I.R was registered at 12-45 p.m. on the same day i.e. 24-3-1991. The distance between the Police Station and the place of occurrence was about 10 miles which shows that the occurrence was promptly reported and got recorded without any consultation or premeditation, thereby suggesting that the complainant side had no time of fabrication or to distort the facts of the case. On the contrary, prompt registration of the case would further corroborate the truthfulness of the prosecution story narrated by the P.Ws. Even the documentary evidence such as site plan (Exh.PD), shows that land of the accused/appellant and that of the deceased were adjacent to the 'Deras' which had a common wall. This further shows that the prosecution story as narrated in the F.I.R. looks to be quite natural and plausible. As such, it is correct to say that the prosecution had been able to prove its case against the appellant/accused beyond any reasonable doubt.

7. Now coming to the defence version, it is very clear that the appellant/accused did not receive any injury. If at all he was attacked with a 'Phaura' by the deceased then he should have suffered some sort of injury or harm though to a slightest degree. But his scratch free body would show that there was no occasion for him to take the extreme step even if the deceased allegedly interposed to prevent him to proceed to the cattle pond with the stray goat of the deceased. In fact, the defence version has no truth nor it appears to be probable under the given situation. On the contrary, as stated above, the prosecution case is free from doubt and, as such, the conviction of the appellant/accused under section 302, P.P.C. has been rightly recorded by the learned Trial Court.

8. The question of sentence being not difficult in this case would call for our consideration. It is clear from the FA.R. and also from the statements of the eye-witnesses that there was exchange of .abuses over straying of goat of the deceased in the wheat crop of the appellant/convict. Hence the possibility could not be ruled out that the occurrence had taken place in heat of passion, suddenly and without premeditation. This conclusion can be drawn from the fact that even P.W.7 Muhammad Iqbal complainant i.e. brother of the deceased stated that the occurrence lasted for about half a minute. It is also in evidence that the deceased was still-arising from his cot that he was given dagger blows by the appellant. This further shows that there was no premeditation and being a sudden affair, the origin of attack appears to be shrouded in mystery. As such, it would not become a case of capital sentence and the alternate sentence of imprisonment for life will be suitable in the interest of justice. We, therefore, while maintaining the conviction of the appellant under ,section 302(b), P.P.C. set aside the sentence of death imposed upon the appellant/convict by the learned Trial Court I and the same is altered to the .sentence of imprisonment for life. The compensation of Rs.50,000 as awarded by the learned Trial Court is upheld. The appeal is accordingly dismissed with the above modification in the sentence. The appellant shall get benefit under section-382-B, Cr.P.C.

9. In- view of our above' findings, Murder Reference No.253 of 1992 is answered in negative and death sentence passed upon the appellant/convict is not confirmed. N.H.Q./R-67/L Sentence reduced.