P L D 1988 Lahore 676 (PLP)

IJAZ NISAR, J.‑‑Ijaz alias Jajji (18) and Riaz Ahmad (16) sons of Muhammad Siddique were tried for the murder of Ishfaq deceased (18). The learned Sessions Judge, Gujranwala vide his judgment dated 25‑11‑1984 convicted them under section 302/34 P.P.C. Ijaz alias Jajji was sentenced to death plus a fine of Rs.5,000 or in default to undergo two years' R.I. Riaz Ahmed appellant was awarded sentence of imprisonment for life plus a fine of Rs.5,000 or in default to undergo further R.I. for two years. Both the accused were also directed to pay a compensation of Rs.20,000 each to the legal heirs of the deceased. This judgment will dispose of the appeal filed by the accused, the connected murder reference and the revision filed by Ghias‑ud‑Din father of the deceased for the enhancement of sentence of Riaz Ahmad ,appellant.

2. The prosecution case is that about ten days prior to the occurrence Riaz Ahmad appellant has asked Muhammad Ishfaq deceased to help him in establishing relations with a girl who used to visit his library but he admonished him and declined to do so.

3. On 3‑5‑1982 at about 6.30 p.m. Ghias‑ud‑Din and his son Muhammad Ishfaq deceased were proceeding towards their house. Ghias‑ud‑Din was on foot while Muhammad Ishfaq deceased was riding a bicycle. When the deceased reached Syed Park, Main Bazar both the appellants attacked him with daggers. Ijaz alias Jajji appellant inflicted a dagger blow on his chest while Riaz Ahmed appellant gave Khanjar blow to him on the back of his head. Ijaz gave another blow on the right shoulder of the deceased. Riaz Ahmad appellant also gave him another blow on his left shoulder. The occurrence was witnessed by Ghias‑ud‑Din PW.6, Abdul Sattar P.W.7, Ishfaq and Siddique (not produced). The said witnesses tried to catch hold of the appellants but they ran away brandishing their daggers. The deceased was removed to Turabi Dawakhana but he could not survive. Ghias‑ud‑Din left for Police Station, Saddar, Gujranwala and lodged the F.I.R. Exh.PC on the same evening at 7.15 p.m. Malik Tahir Mahmood, SHO, P.S Saddar, Gujranwala prepared the inquest report Exh.PH. and injury statement Exh. PJ of Muhammad Ishfaq deceased and secured blood‑stained earth from the spot. He also took into possession bicycle of ‑ the deceased and arrested the appellants on 5‑5‑1982. Ijaz alias Jajji appellant led to the recovery of blood‑stained dagger P.5 from his house after digging earth. It was secured and made into a sealed parcel vide memo. Exh.PF. After completing the investigation he challaned the appellants. No recovery could be affected at the instance of Riaz Ahmad appellant. Dagger P.5 of Ijaz was sent for chemical examination and vide report Exh.PL of the Serologist was found to be stained with human blood.

4. Dr. Anjam Javaid PW.1 conducted post‑mortem examination on the dead body of the deceased on 4‑5‑1982 and found the following injuries thereon: (1) An incised wound 2 cm x 1 cm x going deep front of left chest about 3 cm below left clavicle. (2) An incised wound 2 cm x 1 cm x scalp deep on back of head about 10 cm from left ear. (3) An incised wound 2 cm x 1 cm x muscle deep on outer part of left shoulder. (4) An incised wound 2 cm x 1 cm x muscle deep on back of left . scapula upper part about 4 cm from midline. (5) An incised wound 5 cm x 1 cm x muscle deep back of right shoulder. Injury No.1 was grievous and the rest were simple. Death was due to shock and haemorrhage as a result of injury No.l. The duration between injuries and death was immediate and that between death and post‑mortem about 15 hours.

5. The appellants pleaded not guilty to the charge and denied the prosecution allegations. Ijaz appellant produced certified copy (Exh.DA) of statement of Abdul Sattar PW in a case under section 13/XX/1965 of the Arms Ordinance. He also produced certified copy Exh. DB of the rough sketch of the place of recovery of dagger allegedly recovered at his instance. Both of them declined to appear as witnesses in their defence in disproof of the prosecution allegations.

6. The prosecution examined Ghias‑ud‑Din PW.6 and Abdul Sattar PW.7 as ocular witnesses. Abdul Sattar PW.7 also proved the recovery of blood‑stained dagger P.5 at the instance of Ijaz appellant. He attested the relevant memo. Exh.PF. Malik Tahir Mahmood Inspector PW.9 investigated the case, arrested the appellant, effected the recovery of blood‑stained dagger P.5 from Ijaz appellant and challaned the appellants.

7. Relying on the ocular evidence supported by the medical evidence, the motive and recovery of blood‑stained dagger at the instance of Ijaz appellant the trial Court convicted and sentenced the appellants as described above.

8. It is contended by the learned counsel for the appellants that Ghias‑ud‑Din PW. was a chance witness and could not have been in a position to say which injury was caused by which of the appellants and further that no direct evidence of motive ‑was led by the prosecution. The girl with whom Riaz Ahmed appellant allegedly wanted to establish contact was not examined during investigation and as such the motive remains obscure. There is no confirmatory circumstance against Riaz Ahmad appellant because no incriminating recovery was made from him,. it is added.

9. Ghias‑ud‑Din PW.6 and Abdul Sattar PW.7 lived in the same vicinity where the occurrence in question had taken place. Ghias‑ud‑Din PW was accompanying the deceased while Abdul Sattar P.W. was returning from his duty when they witnessed the occurrence. Ghias‑ud‑Din and his deceased son were proceeding towards their house after taking medicine for the former when the deceased was attacked. According to them Ijaz appellant had given the first dagger blow on the left chest of the deceased followed by Riaz appellant who inflicted dagger blow on the back of his, head. The medical evidence fully corroborates them in this respect because in the post‑mortem, examination incised wounds were found on the left chest and back off the head of the deceased. The other injuries attributed by them to the appellants were also found on the body of the deceased. They would not have been in a position to ascribe with such certainty. if they had not been present at the spot. Though Ghias‑ud‑Din PW.6' is father of the deceased but in the absence of any motive to falsely implicate the appellants he cannot be termed as an interested witness. A He stands corroborated by Abdul Sattar P.W. who is an independent witness having no connection with him or animus against the appellants. Both the eye‑witnesses were subjected to lengthy cross‑examination but they withstood the test and no defect or infirmity could be brought out in their evidence. The recovery of blood‑stained dagger P.5 at the instance of Ijaz. appellant tends further corroboration to the ocular account. Since it was dug out by Ijaz appellant from his B house he could be safely presumed to have himself kept it there.

10. Although no direct evidence was led to prove motive but it won't have any material bearing on the prosecution case which otherwise stands established through unimpeachable ocular evidence. It is a settled proposition that prosecution is not always required to set up or prove motive for the commission of crime. The non‑examination or non‑production of the girl with whom Riaz appellant wanted to establish contact does not adversely affect the prosecution case because she might not have been even aware of it. The appellants being real brothers could I stand shoulder to shoulder with each other against the deceased for admonishing Riaz appellant for seeking his help in an immoral act.

11. For the foregoing reasons, the prosecution case stands fully established against the appellants. They were, therefore, rightly convicted. As regards sentence of Ijaz allyas Jajji appellant, we consider, him entitled to leniency because no direct motive is attributed to him and further that at the time of occurrence he was about 16 years Of age. Accordingly, we alter his sentence from death to imprisonment for life but maintain the sentence of fine. The sentence of Riaz Ahmad appellant is, however, maintained.

12. With the above modification in the sentence of Ijaz alias Jajji appellant the appeal otherwise fails and is dismissed accordingly. The sentence of death of Ijaz alias Jajji is not confirmed. Riaz Ahmad appellant was about 13 years of age at the time of occurrence and. only. simple injuries are attributed to him, therefore, we do not fed inclined to enhance his sentence from imprisonment for life. to death. Accordingly, the revision for enhancement of his sentence is dismissed. M.A.K/M-849/L Order accordingly.