2005 PLP 950 (YLR)

3. The prosecution story as unfolded in the F.I.R. registered at the instance of Ghulam Muhammad Khan complainant was that on 21‑6‑2000 at evening time, his son Khan Muhammad appellant wanted to cultivate the ground of Jamia High School, Mianwali after taking illegal possession thereof. On coming to know of the said intention of his son, he alongwith his other son, namely, Sher Ali Khan, and his brothers, namely, Abdul Aziz Khan and Sher Khan, reached the spot and forbade Khan Muhammad from cultivating that land; Sher Ali Khan who was 10/12 paces ahead of them, asked Khan Muhammad appellant as to why he was cultivating the said land, whereupon Khan Muhammad while abusing delivered a Wahola blow on the forehead of Sher Ali Khan; on receipt of this injury, he fell down; that complainant alongwith his companions went forward to give support to Sher Ali Khan and then put him on the cot for taking him to the hospital; they had hardly covered 12/13 paces, when Sher Ali breathed his last; the appellant managed to flee from the spot. Resultantly, the instant F. I. R. (Exh.PF) had been recorded.

4. Pursuant to the registration of the case, investigation into the crime commenced. Sher Khan, SI (P.W.8), after completing all legal formalities, like, inspection of the spot, dispatching the dead body to the mortuary for autopsy, collecting blood stained soil from the spot, started searching the appellant. He arrested him on the same day i.e. 21‑6‑2000 from his house and at that time, the appellant himself produced a Wahola, the weapon of offence, before him, which was taken into custody through memo., Exh.PB, duly attested by Sanaullah, constable (P.W.2) and Muhammad Ramzan P.W. (not produced). He got prepared site plans of the place of occurrence in duplicate (Exhs. P.C and PC/1) from M. Shafiq, Draftsman (P.W.3). He recorded statements of the relevant witnesses under section 161, Cr.P.C. and after preparing challan against the appellant submitted the same before the trial Court for his trial in accordance with law.

5. On receipt of the challan, the learned trial Judge framed charge against the appellant and put the same to him, to which he pleaded not guilty and claimed to be tried. Thereafter, the prosecution produced eight witnesses, namely, M. Sultan, constable (P. W.1), Sanaullah, constable (P.W.2), M. Shafiq, Draftsman (P.W.3), Abdul Rauf (P.W.4), Dr. M. Rafiq Khan (P.W.5), Ghulam Muhammad (P. W.6), Abdul Aziz Khan (P. W.7) and Sher Khan, SI (P.W.8), to prove its case. Out of the whole lot, evidence of Sanaullah, constable (P.W.2), Dr. M. Rafiq Khan (P.W.5), Ghulam Muhammad Khan complainant (P. W.6), Abdul Aziz Khan (P. W.7) and Sher Khan, SI (P. W.8) is of great significance, whereas that of rest of the witnesses is of formal nature. Sanaullah, constable (P.W.2) appeared to prove the recovery of Wahola (P4) at the instance of the appellant, which was taken into custody through memo. Exh.PB. Dr. M. Rafiq Khan (P.W.5) performed autopsy on dead body of Sher Ali Khan deceased and observed two injuries on his person, which reads as under:‑‑ (1) A big lacerated wound of 10 x 2 1/2 c.m. on the right side of the forehead, extending deep to right eye. Obvious fracture of bone of forehead and face is seen. Brain matter was also visible. (2) An incised wound of 8 x 1/2 c.m. on the top of skull, Underlying bone was fractured. According to him, death occurred due to injury No.1, which was declared sufficient to cause death in the ordinary course of nature. Ghulam Muhammad complainant (P.W.6) and Abdul Aziz Khan (P.W.7) appeared as eye‑witnesses of the occurrence. They in a nutshell reiterated the story of the F.I.R. They fully supported the prosecution case. Sher Khan, S.‑I. (P.W.8) deposed about the duties performed and acts done by him during course of investigation as discussed above.

6. The learned prosecutor after declaring the rest of the witness being unnecessary and tendering in evidence report of the Chemical Examiner (Exh.PK), closed the case of the prosecution.

7. Thereafter the appellant was examined under section 342, Cr.P.C., during course of which he proclaimed his absolute innocence in the matter and alleged his false involvement in the case. He while answering question No.6 stated as under:‑‑ "I learnt about the murder of my deceased brother. Actually there was a dispute in between my father and Sher Ali deceased. The P.Ws. gave blows of Wahola to the deceased. Sher Ali deceased and the witnesses had a money transaction and this occurrence took place due to that motive and the deceased was injured by the son of Sher Khan P.W. and I wanted to be the complainant of the case because there was a dispute on domestic affair with my father and uncle and due to this dispute, they got me falsely involved in this case." He opted not to make statement on oath under section 340(2), Cr.P.C. in disproof of the allegations levelled against him. He also opted to not produce defence evidence.

8. Upon culmination of trial the learned trial Judge finding the appellant guilty of the charge pronounced verdict of guilt against him as aforementioned.

9. I have heard the learned counsel for both the sides at length and have also perused the record with their able assistance.

10. The learned counsel for the appellant has not been able to point out any misreading, non‑reading of evidence or material discrepancy in the prosecution case. The complainant was none other than real father of the appellant, who fully supported the case of the prosecution. His statement was fully corroborated by Abdul Aziz (P.W.7), who also happened to be a real paternal uncle of the appellant. Both the witnesses had resolutely withstood the test of cross‑examination. No definite line of defence had been taken by the appellant. All that was suggested to the eyewitnesses was that the appellant had been implicated on account of some money transaction. Neither any details of the alleged money transaction had been suggested to the witnesses nor any witness in defence had been produced to establish the so‑called money transaction. There is nothing forthcoming from the record as to why Ghulam Muhammad Khan (P.W.6), the real father of the appellant, falsely implicated the appellant. In his statement under section 342, Cr.P.C. also, the appellant did not give any plausible explanation in response to question No.6, whereby he had been asked to state as to why the case had been made against him. The learned counsel for the appellant feebly attempted to argue that there is some contradiction in the ocular account and the post mortem report. However, when asked to point out the so called contradiction, he failed to elaborate. It is well‑settled that even if there is a conflict between the medical opinion and the credible ocular account and the Court is convinced that the witness had seen the occurrence and is worthy of credence, then conflicting opinion of doctor would not detract from the evidentiary value of the evidence of eyewitnesses. Reference can be made to Ghulam Ullah and another v. The State and another (1996 SCMR 1887). Even otherwise, Dr. M. Rafiq Khan (P.W.5) fully corroborated the ocular account and surprisingly be had not been cross‑examined at all despite opportunity having been given to the defence.

11. It has also been noticed that the F.I.R. had been registered within one and a half hours of the occurrence. Therefore, there was no room for the prosecution for false implication or for fabricating the case a against the appellant. The ocular account, as already stated, has been corroborated by the medical evidence as well as the recovery evidence.

12. As regards quantum of sentence, I may observe here that the appellant has already been dealt with leniently by the learned trial Court for the reason that the prosecution had not been able to prove motive against the appellant. The Hon'ble Supreme Court of Pakistan had time and again held that absence of motive is not to be considered as a mitigating circumstance and that the motive is a matter of mere speculation and does not constitute necessary ingredient of the offence of murder. Reference may be made to Muhammad Sher alias Malang v. The State (PLD 2001 SC 90); Muhammad Aslam and others v. The State and others (2001 SCMR 223) and Waris Khan v. The State (2001 SCMR 387). For what has been discussed above, I find no merit in this appeal, which is accordingly dismissed. H.B.T./K‑77/L Appeal dismissed.