1999 PLP 449 (MLD)

MUHAMMAD NAWAZ ABBASI, J.

This judgment will dispose of Criminal Appeal No.146 of 1994 and Murder Reference No.264 of 1994. Muhammad Basharat appellant having faced trial for the murder charge has been convicted and sentenced to death under section 302, P.P.C. vide judgment dated 7-11-1994 passed by the learned Sessions Judge, Attock.

2. The prosecution case as disclosed by Altaf Hussain complainant before Muhammad Zaman, Inspector/S.H.O., Police Station Fateh Jang, Attock is that on 3-10-1994 at 4.00 p.m. the appellant within his sight confronted Mulazam Hussain deceased at some distance from Atta Machine of Malik Sher Muhammad, situated in the area of Police Station Pindi Gheb. The appellant shouting lalkara for teaching the deceased a lesson for raising dispute of Haveli with Mst. Tanvir Begum, took out chhurri from his Dub and attacked upon Mulazim Hussain causing him four successive blows on sensitive part of his body. The occurrence was also witnessed by Muhammad Khan.

3. The motive for the occurrence as stated was that civil suit regarding the dispute of Haveli between the appellant and Mst. Tanvir Begum, maternal cousin of appellant was pending at Pindi Gheb. Altaf Hussain complainant father of the deceased removed the injured to the Hospital for medical aid.

4. Muhammad Zaman, Inspector having received information about the occurrence reached in the Hospital and recorded the statement Exh.PC of the complainant on the basis of which a case was registered against the appellant through F.I.R. Exh.PC/1 with Police Station Pindi Gheb. The Inspector taking over the investigation prepared injury statement and moved an application Exh.PF to the Doctor for permission to record the statement of the injured but the injured was, declared not fit to make the statement. The Investigation Officer during the spot inspection took into possession blood-stained earth from the street in front of the house of Mulazim Hussain through memo. Exh.Pl, Mulazim 'Hussain expired during the night of 5-10-1993 and 6-10-1993 it CMH, Rawalpindi, the Investigating Officer prepared inquest report Exh.PN o? the deceased and despatched the dead body to Civil Hospital, for post-morten examination: He arrested the appellant on 11-10-1993 who led. to the recovery o Churri Exh.P4 from the house of Jaffar Khan in Village Langrial.

5. Dr. Muhammad Ibrahim P.W.5, Medical Officer, T.H.Q. Hospital Talagang, medically examined the deceased in injured condition on 3-10-1993 a 5.00 p.m. and found the following injuries on his person:- (1) An incised wound 1-1/2 c.m. x 1/2 c.m. x depth, not proved on the right side of frontal chest, 13 c.m. above and left of right nipple. (2) An incised wound 1-1/2 c. m. x 1 c. m. x depth, not probed, on the right side of the abdomen, 6 c.m. above and right to umblicus. (3) An incised wound 1-1/2 c. m. x 1/2 c. m. x depth, not probed on the left lateral chest, 18 c.m. left to the left nipple. (4) An incised wound 1/2 c.m. x 1/2 c.m. on the outer side of the left shoulder.

6. The post-mortem examination of the deceased by the same Doctor revealed the same injuries.

7. In the opinion of the Doctor death was the result of Injuries Nos.2 and 3 which being grievous and dangerous to life were sufficient to cause death in the ordinary course of nature.

8. The prosecution examined 12 witnesses to prove the charge of murder against the appellant. The prosecution in addition to this direct testimony of Altaf Hussain and Muhammad Khan, the eye-witnesses of the occurrence placed reliance on the recovery of Churri Exh.P4 at the instance of the appellant from the house of Jaffar Khan, maternal uncle of the appellant in Village, Langrial witnessed by Bashir Hussain P.W.6. The Chemical Examiner found Churri Exh.P4 stained with human blood. Muhammad Aslam Record keeper, Sessions Court, Attock P.W.8 producing copy of plaint Exh.PJ deposed that a civil suit titled Mst. Tanvir Begum, daughter of Jaffar Khan v. Altaf Hussain and his deceased son Mulazim Hussain was pending before the Civil Judge, Pindi Gheb. The two eye-witnesses supported the prosecution story of the F.I.R. giving details of the occurrence and the injuries caused to the deceased, with no material change.

9. The appellant having denied the allegations in his statement under section 342, Cr.P,C. pleaded false implication. He made the following answer to the question "Why this case against you and why the P.Ws. have deposed against you?": - "Altaf Hussain P.W. is inimical towards me as his house is situated in front of my maternal uncle, we had an exchange of hot words about 1-1/2 year prior to the present occurrence in which I had disgraced him and that enmity was growing with the passage of time till the present occurrence. Altaf Hussain, being ex-councillor and sarbrah lambardar excluding whole of the family of Mulazim Hussain deceased falsely involved me in this case and associated Muhammad Khan as witness who is closely related to him."

10. The learned counsel for the appellant contended that the blood-stained earth having obtained at a distance of 22 feet from Atta Machine, the place of occurrence was changed. He challenged the presence of the witnesses, with the arguments that no person from the relation of deceased having associated in the investigation strongly suggested that Altaf Hussain complainant being revengeful of his insult arranged false implication of the appellant. He criticising the minor improvement appearing in the evidence of the witnesses contended that the absence of enmity is not a guarantee of the witnesses being truthful. Lastly he forcefully argued that the dispute between Mst. Tanvir Begum maternal cousin of the appellant and complainant side could cause no grievance to the appellant and, therefore, the speculated motive having not proved, this is not a case of capital punishment.

11. The learned counsel appearing on behalf of the complainant argued that eye-witnesses being not related with the deceased having no enmity with the appellant and being entirely independent are truthful to be relied upon. He argued that except the dispute of Mst. Tanvir Begum with the complainant party, there being no other dispute between the deceased and appellant, the motive is not challengeable. He next contended that the site plant being not a substantive evidence cannot be used, to contradict the eye-witnesses and the contention of defence that as per site plan occurrence did not take place as stated by the P.Ws., has no force.

12. The learned state counsel adopting the arguments of the learned counsel for the complainant added that the blood-stained earth having taken into possession from the street outside the house of the deceased, the place of occurrence was not changed.

13. We have heard the learned counsel for the parties and perused the record with their assistance. Altaf Hussain complainant proving the prosecution story categorically deposed that the appellant while standing in the street near flour machine caused successive injuries to the deceased with Churri, on the left upper shoulder, left flank, belly and chest. In the cross-examination, he also deposed on motive and the defence has not been able to discredit the evidence of this witness. Muhammad Khan P.W.11 making a similar statement fully supported the story .narrated by the complainant. The eye-witnesses being residents of the same place are the natural witnesses and they having no animus with the appellant or special interest with the deceased being hesitant from withholding truth or to tell a lie, are independent witnesses and their evidence being free of any material contradiction is confidence .inspiring. The Doctor having found sharp edged injuries on the person of the deceased, the evidence of ocular account regarding the use of weapon of offence and seat of injuries is confirmed by the medical evidence. The recovery of blood-stained Churri has been questioned on the ground that the same was not effected in compliance of the mandatory provision of section 103, Cr.P.C., without discussing the issue much, the recovery of Churri even if is excluded from consideration, for want of association of an independent person of the locality, the fate of case is not changed.

14. The dispute between the appellant and Mst. Tanvir Begum, daughter of Jaffar Khan was of common nature but the demand of the appellant for settlement of the same having not accepted, he felt insulted and consequently being revengeful took extreme step of taking the life of the deceased. The independent and natural witnesses un-mistakenly in the broad daylight occurrence disclosing the use of Churri, on all force fix the liability of the appellant under section 302, P.P.C. We, therefore, upholding the conviction of the appellant under section 302, P.P.C. dismiss this appeal. The appellant causing four, successive blows on most sensitive part of the body acted with cruelty and cowardly as instead of getting verdict from civil Court chose the settlement of the matter through violence. The occurrence being the result of the grievance of civil litigation with no background of serious enmity, the appellant committed the murder of the deceased, a young man of 35 years, for the cause of another person, it is noticeable that some time crime is committed from a very slight motive or with motive of not only taking revenge but to derive of a difficulty, therefore, adequacy or otherwise of motive or no personal motive is of not much importance.. The reason and circumstance under which the murder was committed, do not provide any mitigation for lesser penalty, we, therefore, maintaining the death sentence awarded to the appellant by the learned trial Judge through Judgment dated 7-11-1994 dismiss this appeal. The murder reference is answered in Affirmation. N.H.Q/M.524/L Appeal dismissed.