2008 PLP 1460 (MLD)

TARIQ SHAMIM, J.

The appellant, namely, Afzaal Ahmad son of Abdul Jabbar along with his co-accused was tried by learned Additional Sessions Judge, Sheikhupura, in case bearing F.I.R. No. 224 of 2000, dated 4-5-2000, registered with Police Station Bhikhi, for offence under sections 302 and 109, P.P.C. The learned trial Judge by virtue of his judgment, dated 31-10-2002 found him guilty of committing the murder of Tariq Javed deceased, convicted under section 302(b), P.P.C. and sentenced him to death with a further direction to pay a sum of Rs.1,00,000 to the legal heirs of the deceased by way of compensation under section 544-A, Cr.P.C. and in default thereof to undergo imprisonment for six months. Abdul Jabbar, co-accused of the appellant was acquitted by the learned trial Court.

2. The appellant by filing his appeal has called in question the conviction and sentence awarded to him vide the impugned judgment, whereas the learned trial Judge has sent Murder Reference No.57 of 2003 for confirmation of said death sentence.

3. Precisely the allegations against the appellant, according to the F.I.R. which was got registered by Javed Iqbal, complainant, (P.W.8), are that one year and 11 months ago, the complainant along with his father Muhammad Younis, Arif and brother Tariq Parvez were proceeding to their home after visiting a friend namely Tanvir, when they reached near the Baithak of Ahmad Ali Barbar at 9-15 p.m., Afzaal Ahmad appellant approached Tariq Parvez deceased from the front side and started abusing him. In view of the witnesses Afzaal Ahmad took out a chhurri from the fold of his loin-cloth and inflicted a chhurri blow on the left side of buttock of Tariq Parvez. They tried to apprehend Afzaal who while brandishing the chhurri managed to escape. Tariq Parvez in an injured condition fell down in front of the house of Ghulam Ali son of Abdul Hakem and succumbed to the injuries.

4. At the trial the prosecution examined as many as 13 witnesses. Javed Iqbal, complainant, appeared as P.W.8 and averred on the same lines as the F.I.R. Nazir Ahmad, Head Constable, appeared as P.W. Muhammad Akram, A.S.-I. appeared as P.W.2, Muhammad Yahya appeared as P.W.3, Ghulam Ali appeared as P.W.4, Muhammad Riaz appeared as P.W.6, Ghulam Murtaza appeared as P.W.7, Muhammad Younis appeared as P.W.9, Khadim Hussain A.S.-I., appeared as P,W.10, Arshad Mahmood, Inspector, appeared as P.W.12. The witness got examined the place of occurrence by the draftsman who took rough notes on the pointation of the complainant and the eye-witnesses; arrested Muhammad Afzaal appellant on 12-5-2000; obtained physical remand of the appellant on 13-5-2000; recorded the statement of the appellant and got recovered the weapon of offence i.e. chhurri on his disclosure and pointation and prepared the report under section 173, Cr.P.C. Dr. Sohail Khyzar who had conducted post-mortem examination of the deceased on 5-5-2000 appeared as P.W.5.

5. On the conclusion the prosecution evidence, statement of the accused under section 342, Cr.P.C. was recorded by the learned trial Court. In answer to the question as to why the case against him and why the P.Ws. had deposed against him, Afzaal Ahmad appellant replied: "The P.Ws. are interested witnesses. They are related inter se and actually it was an unseen occurrence. It was a case of blind murder which is stated to be night time occurrence, as such, I being suspect, has been involved in this case." The appellant neither appeared as his own witness in terms of section 340(2), Cr.P.C. nor did he produced any evidence in his defence.

6. The learned counsel for the appellant contended that the motive as set up by the prosecution was not proved at the trial; that it was a night-time occurrence which was not witnessed by any one; that there was contradiction in the statements of the witnesses regarding the presence of light bulb at the place of occurrence; that the medical evidence was in conflict with the eye-witness account furnished by the P.Ws.; that there was no independent witness of the recovery of weapon of offence from the appellant which even otherwise was taken into possession from a property in joint possession of the appellant and others; that the description of transport in which the deceased was taken to the hospital was not provided by the P.Ws; that there was no independent witness of the occurrence as the eye-witnesses produced at the trial were the brother and father of the deceased whose testimony could not be relied upon without corroboration from some independent source; that the appellant was falsely implicated in the case on account of party faction and election dispute between two rival groups; that number of the F.I.R. was not mentioned on the inquest report which implied that the F.I.R. was lodged after investigation; that the friend from whose house the P.Ws. and the deceased were returning home was not produced and that in fact the occurrence was an unseen one as none of the eye-witnesses was present at the place of occurrence at the relevant time.

7. Conversely, the learned Deputy Prosecutor-General while representing the State contended that it was not a case of false implication as there was no deep routed enmity between the appellant and the deceased; that the appellant had failed to substantiate his claim of false implication in the case on account of political rivalry and election dispute; that in the F.I.R. as well as in the testimony of the P.Ws. it had come out that the appellant was identified by the P.Ws. in the light of an electric bulb, therefore, question of mistaken identity did not arise; that the motive as set up by the prosecution was duly proved at the trial; that the weapon of offence was recovered from the possession of the appellant which was stained with human blood as was evident from the report of the Serologist and that even the father co-accused of the appellant who had been acquitted by the learned trial Court under section 342, Cr.P.C. had stated that he had been implicated in the case on account of his relationship with the appellant.

8. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor-General and have gone through the record with their able assistance.

9. The motive behind the occurrence was stated to be a brawl between the deceased and the appellant on 26-3-2000 at a Kabaddi match in the village Ferozewatwan. The appellant continued to nurse a grudge and in furtherance thereof, on the day of occurrence, he gave a chhurri blow to the deceased on the abetment and instigation of his father Abdul Jabbar (acquitted accused). The witnesses who took the stand to depose about the motive were Javed Iqbal (P.W.8), the brother of the deceased and Muhammad Younis (P.W.9) the father of the deceased. Although the learned counsel for the appellant has controverted the motive as set up by the prosecution stating the same to be weak and not proved through credible evidence, nevertheless, the fact remains that specific date on which the appellant and the deceased had a quarrel while witnessing a Kabaddi match had been proved by the prosecution at the trial. The same has remained uncontroverted by the defence. The statement of Javed Iqbal (P.W.8) to the extent of motive is fully corroborated in material particulars by Muhammad Younis (P.W.9). Even if, for the sake of argument, it be assumed that the motive as set up by the prosecution was weak, the fact remains that mere weakness of motive and even absence of motive in a case punishable with capital sentence is of no consequence as it relates to the state of mind of an accused and can be formed at the spur of the moment. In view of the evidence furnished by the witnesses and the surrounding facts and circumstances of the case we are convinced that prosecution has succeeded in proving the motive behind the occurrence.

10. Adverting to the ocular account, the same was furnished by Javed Iqbal (P.W.8) and Muhammad Younis (P.W.9) who are the real brother and father of the deceased respectively. According to the witnesses while they were returning to their house after visiting a friend namely Tanvir the appellant arrived at the scene, took out a chhurri from the fold of his loin-cloth and gave a blow on the left buttock (koolha) of the deceased. When the witnesses tried to apprehend him he managed to escape. The deceased fell down in front of the shop of one Ghulam Ali from where he was removed to the Civil Hospital, Sheikhupura but he succumbed to the injury prior to reaching the hospital. The testimony furnished by these two witnesses is in line with each other and stands fully corroborated by the medial evidence furnished by Dr. Sohail Khyzar (P.W.5), who on conducting the post-mortem examination of the deceased and found the following injury on his body:-- "Incised wound 4 x 1.5 c.m. at the outer and upper part of left thigh. This injury damaged skin mussels, major blood vessels of thigh, large gut, peritoneum , blood vessel of abdomen of left side." According to the doctor the injury was ante mortem and caused by a sharp edged weapon. The probable time between the receipt of injury and death was about half an hour and time between death and post-mortem was about 12 to 18 hours. It was opined that the injury was sufficient to cause death in the ordinary course of nature. It is manifest that the evidence furnished by Dr. Sohail Khyzar is conclusive as to the time of occurrence, the locale of injury and the weapon used.

11. The prosecution case has received further strength from the promptly lodged F.I.R. which excludes the possibility of false implication of the appellant in the crime. The argument advanced by the learned counsel for the appellant that the occurrence was an un-witnessed one is devoid of any force as the eye-witnesses are consistent in their stance regarding the time and place of occurrence and the events which led to the murder of the deceased. Despite being subjected to a lengthy cross-examination, no significant dent could be created by the defence in their testimony. Discrepancies pointed out in the statements of the eye-witnesses are natural due to influx of time which even otherwise are trivial in nature. As stated earlier their presence at the spot is natural and cannot be disputed. Further, the learned counsel for the appellant has not been able to provide any convincing reason for false implication of the appellant by the witnesses particularly in the background of no deep rooted enmity between the parties. In the above scenario, it is highly unlikely for witnesses, who are close relations with the deceased, to let off the real culprit and involve the appellant in the crime.

12. The eye-witness account is further corroborated by the recovery of Chhurri (P-4) at the instance of and on the pointation of the appellant from his residential house. At the time of recovery chhurri (P-4) was found to be stained with blood and the report of the Chemical Examiner (Exh.PL) on analysis has been returned in the positive. The Serologist to the Government of the Punjab found the blood on the knife to be human blood as is evident from the report Exh.PN. The witnesses of recovery of weapon from the appellant are Javed Iqbal (P.W.8) and Arshad Mahmood, Inspector, Investigating Officer (P.W.11). The argument advanced by the learned counsel for the appellant that since recovery witness Javed Iqbal is the real brother of the deceased and the other witness is a police officer, therefore, no reliance can be placed on the recovery is devoid of any force. Mere relationship of the witness with the deceased by itself is not a valid ground to reject his testimony. The statement made by this witness is fully corroborated in all material particulars by Arshad Mahmood, Inspector (P.W.11). Even otherwise, in such like cases independent witnesses are reluctant to come forward to participate in recovery proceedings out of fear of reprisals from the accused. The account furnished by Javed Iqbal (P.W.8) and Arshad Mahmood, Inspector (P.W.11) in respect of the recovery of weapon from the appellant is credible in all respects and has rightly has been accepted by the learned trial Court.

13. The learned counsel for the appellant has argued that there is contradiction between the ocular account and the medical evidence with respect to the seat of injury. The prosecution witnesses in the F.I.R. as well as in their statements before the learned trial Court have mentioned that the injury was inflicted by the appellant on the "koolha" of the deceased. The witnesses are village persons who are probably illiterate and not in a position to give minute details of the seat of injury. The medical evidence furnished by the doctor is worthy of credence according to which the deceased had suffered a solitary injury on the left upper thigh i.e. in close proximity to the seat of injury as stated by the eye-witnesses.

14. Adverting to the evidence of abetment, it was disbelieved by the learned trial Court and rightly so as the same is not confidence inspiring.

15. From the above discussion it is manifest that the prosecution has proved its case to the hilt against the appellant on the basis of a creditworthy ocular account, the medical evidence which is in line with the ocular account, the evidence of recovery of blood-stained chhurri on the pointation of the appellant from his residential house, the evidence of motive and a promptly lodged F.I.R. As a sequel to the above, we Dismiss the appeal filed by the appellant and maintain the sentence of death awarded to him by the learned trial Court. The murder reference is answered in the Affirmative. N.H.Q./A-44/L Appeal dismissed.