1984 PLP 540 (SCMR)

M. S. H. QURAISHI, J.‑Appellant Wali Muhammad and his co‑accused Haji Muhammad Siddik had been found by the trial Court guilty under section 302 /34, P. P. C. of the murder of Feroze Din deceased and sentenced to imprisonment for life and a fine of Rs. 2,000 or in default in payment thereof to further R. 1. for two years each. On appeal, the High Court acquitted Haji Muhammad Siddik but maintained the conviction and sentence of the appellant. Leave was granted to him to re‑examine whether the evidence against him bad been assessed and evaluated in consonance with the established principles for the purpose.

2. The relevant occurrence took place on 18‑10‑1975 at 4‑45 p.m. at the Railway Station Behram, District Larkana, about a furlong from the nearby Police Post. A. S. I. Muhammad Usif on hearing a commotion and pistol shots coming from the Railway Station, rushed there along with three of his subordinates and saw the appellant armed with a hatchet and the co‑accused with. a pistol, running away from the railway station. When challenged by him, they stopped and were apprehended. The appellant's hatchet was stained with blood. They were taken to the spot where the deceased was found lying dead at the railway track with hatchet injuries on his neck and back. The weapons were recovered and a report was prepared by Muhammad Usif A. S. I. himself at 5 p.m. on the basis of which the formal F.I. R. was recorded at 8‑10 a.m. the next day at Police Station Mirokhan, about 11 miles away.

3. The post‑mortem examination revealed the presence of four incised injuries, three on the neck and one on the left shoulder of the deceased. The hatchet though duly secured was lost in transit and could not be sent to the Chemical Examiner or produced during the trial. The prosecution case was, however, supported by the ocular evidence of Imam Din (P. W. 2) and Abdul Majid (P. W. 3) whose names duly appeared in the F.

1. R., by Muhammad Usif A. S.‑I. complainant (P. W. 4) and Ghulam Hussain Constable (P. W. 5) who had pursued and apprehended the appellant near the spot and by Jaffar (P. W. 9) who proved the recovery of the weapons. The appellant and his co‑accused denied the prosecution case. The appellant so denied his arrest at the spot and stated that he had been brought from his house. According to him, the murder had been committed by some Jamalis on account of abduction of a Jamali woman by Qamar Din, the brother of the deceased.

4. In dismissing the appellant's appeal, the High Court relied on the ocular testimony and the corroborating circumstance of the arrest of the appellant at the scene and the recovery of the weapon from him. The co‑accused was, however, acquitted as the High Court was not satisfied that he could be saddled with the liability of common intention with the appellant.

5. Learned counsel for the appellant has urged before us that the F. I. R.. was delayed and that the report made by Muhammad Usif A. S.‑I. on the basis of which the F.

1. R. bad been entered was on a plain paper and did not show that it had been recorded in the daily diary of the Police Post. From. this he wanted us to infer that the actual culprits were unknown but the accused had been roped in later on account of enmity with the police. In this connection he referred to an application dated 31‑8‑1974 addressed by the appellant to S. P. Larkana which he produced in the trial and in which he had complained against Faiz Muhammad, Head Constable Behram Police Post. Muhammad usif had no doubt admitted that the report had been drafted on a plain paper, but he had at the foot of his report mentioned that he bad made a note in the. daily diary which fact is supported by the formal F. I. R. itself, in which it is recorded : "At present a complaint recorded in daily diary of P. P. Behram was received . . . . ." He had denied the suggestion that he had delayed the recording of the F. I. R. Anyway, nothing turns on this technical objection because the substantive evidence is that of the ocular witnesses. It is submitted that they were chance witnesses inasmuch as Imam Din bad his clinic in village Bathi, six miles away, while Abdul Majid belonged to a place twenty miles away from the spot. Both the witnesses had, however, explained their presence. Imam Din belonged to Behram and he was at the relevant time going to the bus stand near the Railway Station. Abdul Majid stated that he had gone to village Lundi, 2 miles from Behram for purchase of buffalo and he came to the latter place in order to catch rail car for Larkana near which his village was situate. Neither of the two witnesses had any motive, whatsoever, to falsely implicate the appellant. Another ground taken, based on the absence of motive, has also no weight because the prosecution had applied under section 540, Cr. P. C. for examining Qamar Din, brother of the deceased, for proving motive but the application had been opposed by the defence itself and had been turned down by the trial Court. The maker of the F. I. R., of course, did not know of the motive. The ocular witnesses, too, had no knowledge of it though they did mention that the acquitted co‑accused had shouted that they were taking revenge. In such a situation, the absence of motive is inconsequential., it was held by this Court in Abdur Rashid v. Umid All (P L D 1975 S C 227 ): "Conversely the weakness of motive or even its conspicuous absence might not be helpful to the accused against whom unimpeachable ocular evidence is available."

6. We are thus satisfied that the appraisal of the evidence by the High Court was correct and in consonance with the established principles laid down by this Court in this regard.

7. At the end, learned counsel for the appellant prayed that benefit under section 382‑B, Cr. P. C. be given to him. There being no objection by learned counsel for the State to the grant of this relief, we allow the prayer. 8.The appeal is accordingly dismissed. The appellant shall, however, be given the benefit under section 382‑B, Cr. P. C. M. Z. M. Appeal dismissed.