1983 (PLP)

KHALILUR RHHMAN KHAN, J

‑Ghulam Haider appellant, spas tried under section 302, P. P. C. for committing the murder of Qamar Din deceased by causing injuries on his person with chhuri on 28th April, 1976 at 7.00 p. m. in Naya Bazar of Chowk Mati, Lahore City and the learned Additional Sessions Judge, Lahore .vide judgment dated 25th March, 1978 convicted and sentenced him to death and a fine of Rs. 2,000, or, in default, to suffer further rigorous imprisonment for one year. Half of the fine, if realized, was directed to be paid to the heirs of the deceased.

2. The occurrence took place at 7.00 p. m. on 28th April, 1976 and Qamar Din was removed to Mayo Hospital by Shams‑ud‑Din, P. W. where he made statement (Exh. P. B.) to Ashiq Hussain, A. S. I., P. W. 13 at 8,45 p m. This statement was despatched to Lohari Gate Police Station, Lahore on the basis of which formal F. I. R. (Exh. P. B./1) was registered under section 307, P. P. C. by Ghulam Asghar. A. S. I. Moharrir, P. W.

10. As Qamar Din died on 5th May, 1976 to the Hospital, section 302, P. P. C. was substituted in the F. I. R for section 307, P. P. C.

3. Ghulam Haider, appellant was arrested on 29th April, 1976 when he was allegedly holding chhuri P. 4 in his hand and the same was taken into possession vide memo. Exh. P. G. Stains on the chhuri were found to be of human blood vide Reports Exhs. P. M. and P.N.

4. The prosecution, at trial, relied on the ocular testimony of Shams ud‑Din, P. W. 2, Bashir, P. W. 3. evidence of recovery' contained in the statements of Ashiq Hussain, A. S.‑I. P. W. 13 and Lal Din, F. C. P. W. 11, Medical Evidence contained in the statements of Dr. Mukhtar Ali Naroo, P. W. I and Dr. Tahir Anis P. W. 12 as well as motive evidence contained in the testimony of Shams‑ud‑Din P. W.

2. It may be men tioned at this stage that the only witness of recovery from public, namely, Noor Muhammad was not produced as he had died and the fact of his death was proved through evidence of Muhammad Yaqoob, P. W.

14. As against this, the case of the appellant was of total denial and he, in defence, produced four witnesses. Dr. Muhammad Akhtar Khan, D. W. 1 stated that "Injuries Nos. 3 and 4 could have been due to incisions made by the doctor for Glucose or blood‑transfusion. The incisions at Nos. and 4 may be necessary iii view of injuries Nos. 1 and 2." Dr. S. A, R. Gardezi, D. W. 2 agreed with the opinion expressed by Dr. Muhammad Akhtar Khan in his testimony. The evidence of these witnesses is of no avail to the defence, rather it lends support to the prosecution version that Injuries Nos. 3 and 4, noted by the doctor while performing post‑mortem, were surgical injuries and that there were only two injuries on the body of the deceased which were stated to have been caused by the appellant. Mr. G. N. Butt, D. W. 3, is a crime reporter of Daily Nawai Waqt. He deposed that the news including the photo appearing on the back page of Daily Nawai Waqt dated 29th April, 1976 (Exh. D. W. 3/1), was released by him and that on receiving information about the arrest of accused Ghulam Haider, present appellant, he detailed P. W. Najeeb Ullah photo grapher to have a snap of the appellant from Police Station Lohari Gate, Lahore. Najeeb Ullah, D. W. 4, Photographer of Daily Nawai Waqt deposed that he visited Police Station Lohari Gate, Lahore on 28th April, 1976 at 7.30 p. m. or 8.00 p. m. for taking snap of the appellant and he photographed the appellant in Police Station Lohari Gate, Lahore which is given in Exh. D. W. 3/1.

5. We have gone through the entire record with the assistance of the learned counsel for the appellant as well as the State. Learned counsel for the appellant argued that. the prosecution has failed to prove the motive and that as the motive alleged was false the Investigating Officer in cross‑examination deposed that he did riot investigate the motive. It was further contended that on the contrary Shamas‑ud Din, brother of the deceased had the motive for falsely implicating the appellant as Akhtar Shah, uncle of the appellant, who was falsely implicated for the murder of Sharif, uncle of the deceased was acquitted. It was further argued that presence of Shams‑ud‑Din as well as Bashir, the two eve‑witnesses on the spot at the time of occurrence, is highly doubtful, in this respect attention was drawn to the deposition of Bashir wherein he stated that the brother of the deceased Shams‑ud‑Din came and carried the injured. The brother of the deceased Shams‑ud‑Din P. W. was not near the deceased at the time of occurrence. I did not witness Shams‑ud‑Din, complainant, when the injuries with chhuri were being caused Shams‑ud‑Din P. W. lifted the deceased after he had fallen. Shams‑ud‑Din complainant came near the deceased a minute or two after the fleeing of the accused. As regards Bashir P. W. it was argued that had he been present at the spot he would have helped Shams‑ud‑Din in placing the injured Qamar Din in the Tonga, in this context, reference was made to the statement of Shams‑ud‑Din, P. W. as he had admitted "that none out of the eye‑witnesses either accompanied him (Shams‑ud‑Din) to the Hospital with the injured nor anyone helped him in placing the injured in the Tonga". Next it was argued that recovery of chhuri P. 4 can neither be relied upon nor can be treated as a circumstance corroborative of the ocular account of the eye‑witnesses. According to learned counsel for the appellant, recovery of chhuri was planted on the appellant on 29th April, 1976 .and the fact that the recovery of chhuri was a fake recovery, is apparent from the fact that the appellant was with police since the evening of 28th April, 1976 as he was seen in Police Station, Lohari Gate, Lahore by G. N. Butt D. W. 3 and Najeeb Ullah D. W. 4 and his photo was taken by D.W. 4 on the said evening when the appellant was in police custody.

6. We have gone through the entire evidence with the assistance of the learned counsel for the appellant as well as the State and have also considered the submissions made before us. The occurrence took place at .700 p. m. and the deceased was removed to the Mayo Hospital, Lahore in injured condition where he was examined by Dr. Mukhtar Ali Naroo. P. W. I at 7‑35 p. m. Ashiq Hussain, A. S. I.' P. W. 13 reached Mayo Hospital, Lahore and recorded the statement of Shams‑ud -Din at 3‑45 p. m. On the basis of this statement, F. I. R. Exh. PB/1 was recorded at 8‑55 p. m. This detail has been given to indicate that F. I. R. was lodged promptly. The motive, the injuries given by the appellant as well as eye‑witnesses were named in the F. I. R., itself. The two eye‑witnesses, namely. Shams‑ud‑Din P. W. 2 and Bashi ' P. W. 3, in their statements at the trial, supported the prosecution version as given in the F. I. R. Shams‑ud‑Din, P. W. 2, deposed about the motive and there is nothing on record to show that the motive as deposed to by Shams‑ud‑Din was false. In the circumstances adverse inference as to incorrectness of the motive cannot be drawn on account of the fact that the Investigating Officer admittedly did not investigate about the motive alleged in the F. I. R. The criticism of the learned counsel for the appellant that Shams‑ud‑Din, P. W. 2 was not pre sent at the spot on the basis of the above‑quoted statement of Bashir P. W. is not well founded. It will be seen that Bashir in his statement nowhere stated that Shams‑ud‑Din P. W. was not present at the place of occurrence and the statement that Shams‑ud‑Din complainant came neat the deceased a minute or two after the fleeing of the accused, when read in the context of the entire statement, would rather show that Shams‑ud‑Din P. W. had seen inflicting of the injuries by the appellant to the deceased. It is not denied that the deceased was taken to the hospital by Shams‑ud‑Din, P. W. Moreover, from the admission of Shams‑ud‑Din P. W. that none out of the eye‑witnesses accompanied him to the hospital when he carried the deceased or none out of the eye‑witnesses gave any assistance to him at the time of placing the injured in the Tonga, it can be concluded that the eye‑witnesses were not present at the time of occurrence. The shop of Bashir P. W. was admittedly near the place where Qamar Din was given the knife blows. His presence at the spot at the time of occurrence cannot be doubted. He is, otherwise an independent witness and nothing hag been brought out to even remotely suggest that he would be implicating the appellant falsely in a murder case. The ocular account of the two eye‑witnesses inspires confidence and it also received support from the medical evidence contained in the statements of Dr. Mukhtar Ali Naroo P. W. 1 and Dr. Tahir Anis P. W.

12. This evidence also stands confirmed by the defence evidence of Dr. Akhtar Ali and Dr. S. A. R. Gardezi, D. Ws.

7. We, however agree with the learned counsel for the appellant that the recovery of chhuri P. 4 vide memo Exh. P. G. cannot be relied upon, as it is difficult to believe that the appellant would appear with a blood‑stained chhuri voluntarily as is claimed by P. W. Ashiq Hussain A. S.

1. This recovery cannot be relied upon in view of evidence. of D. W. 3 and D. W. 4 as these witnesses claimed to have seen the appellant in Police Station, Lohari Gate, Lahore on the evening of 28th April, 1976. The recovery evidence, therefore, cannot be used as corroborative piece of evidence. The learned counsel for .the appellant in view of this fake recovery, argued that the investigation in the case was not honest as it was established on record that the appellant was neither arrested on 29th April, 1976 nor chhuri, the weapon of offence, was recovered from him on 29th April, 1976. It was further contended that in view of the fact that fake recovery was planted against the appellant, the entire prosecution version merits to be rejected. This plea cannot be accepted as each and every circumstance and every material piece of evidence. on record is to be weighed and its evidentiary value is to be determined. The best that can be said in respect of fake recovery is that recovery of chhuri P. 4 cannot be relied upon and that such a recovery cannot be used as corroborating the ocular account of eye witnesses. The ocular account of the eye‑witnesses, in the instant case, stands supported from the motive evidence as well as from the medical evidence. This evidence is sufficient to bring home the guilt to the appellant beyond all shadow of doubt.

8. Learned counsel lastly argued that as there is mention of exchange of hot words in the F. I. R. as well as in the evidence on demand made for return of the sum of Rs. 200 extreme penalty of death may not be exacted as, in the circumstances of the case, sentences of life imprisonment will meet the ends of justice. Reliance was placed on Kalcha Sarkar alias Kanchoo and another v. State (P L D 1966 Dacca 508) and Mamoon an another v. The State (P L D 1962 (W. P.) Kar. 800). The principle applied in the precedent cases cannot be invoked in the instant case. There is nothing on record to indicate as to what were the hot words exchanged or the abusive language used. Moreover, the injuries were not caused immediately when the hot words were exchanged as the case of the prosecution was that after exchange of hot words the appellant left for his house after hurling threat that he would kill him as their uncle Sharif was murdered by Akhtar Shah. It was then in the evening that the appellant fatally injured the deceased. In the circumstances there is no extenuating cir cumstance for awarding life imprisonment. The appeal is therefore, dismissed. The death sentence awarded to the appellant is, hereby confirmed and hence the reference made by the Sessions Judge, Lahore, stands accepted. M.Y.M. Death sentence confirmed.