2008 P Cr (PLP)

SARDAR MUHAMMAD ASLAM, J.

This judgment shall dispose of Criminal Appeal No.537 of 2000, filed by the appellant to challenge his conviction and sentence and Murder Reference No.287 of 2000 submitted by the learned trial Court for confirmation of sentence, as both arise out of the judgment, dated 20-4-2000 recorded by the learned Additional Sessions Judge, Lahore, whereby he convicted the appellant 'under section 302(b), P.P.C. and sentenced to death. He was also directed to pay compensation of Rs.1,00,000 to be paid to the legal heirs of the deceased as required under section 544-A, Cr.P.C., while acquitted the remaining four co-accused of the appellant.

2. Briefly the prosecution case as contained in F.I.R. Exh. P. H. is that on 19-2-1995 at 8-00 a.m. Namoos Khan, complainant along with his brother Zahir Khan (deceased) and Taj Muhammad were filling bags of "Touri" (chaff) on his "Touri Tall". Amanullah Khan, Abdullah Khan, Raza Khan, Zahir Ullah Khan alias Zia Ullah Khan, all armed with iron bars and Faroon Khan alias Muhammad Farooq armed with a Chhuri came there. They caused injuries on the person of Zahid Khan, deceased, Taj Muhammad and the complainant Namoos Khan. Raza Khan accused, caught hold of Zahir Khan, deceased, while Faroon Khan alias Muhammad Farooq caused injury with his Chhuri on his person hitting him on his left side of chest. Zahir Khan was taken to the hospital but he expired in the way. Muslim Khan and Taj Muhammad also witnessed the occurrence.

3. The motive behind the occurrence was an altercation between the complainant and Raza Khan accused, which took place 2/3 days before.

4. The matter was reported to the police. The case was sent up for trial after completion of investigation under section 173, Cir.P.C. Charge was framed under sections 302/147/148, P.P.C. against the appellant and his co-acquitted accused. They pleaded not guilty of the offences. The prosecution produced 10 witnesses in all. After conclusion of prosecution evidence the appellant and his acquitted co-accused were examined under section 342, Cr.P.C. The appellant did not opt to make statement as required under section 340(2), Cr.P.C.

5. The learned counsel for the appellant submits that the prosecution case rests on the sole testimony of Namoos Khan who is real brother of the deceased and was interested witness that the solitary statement of Namoos Khan is not corroborated) by any independent piece of evidence; that the motive was attributed to one Raza Khan who was later on murdered by the complainant party; that Taj Muhammad, real brother of the deceased, and complainant who had received injuries during the occurrence did not appear to support the prosecution case, one independent witness Muslim Khan was produced by the prosecution as P.W.5, who did not support its case; that no independent witness was produced to prove the recovery of weapon as only A.S.-I. was produced; that during the trial Namoos Khan deliberately suppressed the material important facts, gave an exaggerated version and also made dishonest improvements. Further more he was disbelieved qua four acquitted co-accused; and that the prosecution case was not free from doubts.

6. The learned counsel for the State submits that it is a day light occurrence; that the matter was reported to the police without any loss of time; that Namoos Khan received injuries during the occurrence and, thus, his presence cannot be denied; that his statement was fully corroborated by medical evidence and the recovery of blood-stained earth which was found to be stained with human blood; that police officer appeared to prove the factum of recovery, during the trial, was competent witness and had no malice whatsoever against the appellant; that the rest of the co-accused were acquitted by the learned trial Court for the reason that they had not inflicted any injury on the person of deceased and no specific injury was attributed to them; that the appellant has chosen the most vital part of the body while inflicting injures thus, no mitigating circumstances existed in his favour.

7. Heard. Record perused.

8. P.W.8 Namoos Khan, an injured eye-witness furnished the eye-witness account of the incident. He was medically examined by P. W.10. Dr. Hamayun Hanif, who found three injuries on his person vide Exh.P.O./1, his medico-legal certificate. Besides P.W.8 Taj Muhammad (not produced) was also injured in the incident. He had received two injuries on his person. Reason for non-production of Taj Muhammad has been given by the prosecution through statement of C.W. Abdul Razzaq Constable, who was deputed to execute warrants of arrest to procure his attendance in Court. He submitted his report Exh.C.W.-1/C, that the witness is not traceable. He was declared Proclaimed Offender, therefore, non-production will not in any manner benefit the defence. The conviction and sentence cannot be set at naught on the ground that the prosecution case rests on solitary statement of an injured eye-witness. Presence of P.W.8 injured witness at the spot is established. He has seen the deceased being murdered in his eyesight. He has been cross-examined at length but the defence has not been able to shatter his testimony on any material point. Intrinsic worth of the statement could not be discredited. Reliance, thus can be safely placed on his statement. The prosecution sought corroboration to his statement through medical evidence furnished by Dr. Muhammad Maqsood, P.W.6, who conducted the post-mortem examination of the deceased, which is in line with the ocular account furnished by P.W.8. The blood-stained earth from the place of occurrence was secured through memo. Exh.P.M. It contained human blood. Report of chemical examiner Exh. P. P and report of Serologist Exh.P.Q. proved this fact. The motive of the occurrence has been stated by P.W.8. The complainant's side had fight with Raza Khan, appellant's real brother, 2/3 days prior to the present occurrence, which resulted into a murderous attack on the complainant whereby Zahir Khan deceased, lost his life. P.W.7 proved recovery of P.4, Chhuri on appellant's pointation. Bahadar Khan, another attesting witness of recovery did not appear in Court. C.W.1 Abdul Razzaq constable produced his report Exh.C.W.1/B reporting that he being involved in the murder of Raza Khan registered vide F.I.R. No.224 of 1996 at Police Station, Badami Bagh, Lahore has absconded and is lodging in tribal area. P.W.9 Ghulam Rasool, Inspector/S.H.O. was Investigating Officer in whose presence the recovery of Chhuri P.4 was made. Statements of police officials are as good as of any other public witnesses in absence of any ill-will or animosity with the police officials. However, we find from the record that Chhuri P.4 was not blood-stained and thus was not sent to the Expert. Recovery of Chhuri P.4, therefore, is of no avail to the prosecution. Statement of P.W.8 cannot be discredited for the reason that four co-accused of the appellant has been acquitted. The learned trial Court appreciated the evidence and correctly sifted the grain from chaff.

9. No presumption can be drawn in favour of the defence on account of the statement made by P.W.5 Muslim Khan. He simply stated that he has no knowledge about this case. The defence had full opportunity to summon him as its own witness or applied for his being summoned as C.W. to ascertain the truth. Statement of P.W.5, therefore, would not be advantageous to the appellant. The prosecution has fully proved its case through statement of an injured eye-witness whose presence at the spot stood established. It did find corroboration from medical evidence, motive and recovery of blood-stained earth.

10. For what has been discussed above, we are of the considered view that this appeal is devoid of any force. Consequently, we dismiss his appeal by maintaining conviction and sentence of the appellant. Death sentence is confirmed. Murder reference is answered in affirmative. H.B.T./F-25/L Appeal dismissed.