Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 1085 of 1998 filed by Sultan Ahmad, appellant and Criminal Appeal No, 1093 of 1998 filed by Muhammad Sarfraz, appellant Both the appellants were convicted and sentenced by learned Additional Sessions Judge, Bhalwal vide judgment dated 19.11.1998 as under: Sultan Ahmad Death and to pay compensation of Rs, 30,000/- u/S. 302(b) PPC and Imprisonment for life u/S. 460 PPC.
Muhammad Sarfraz Imprisonment for life on two counts, one u/Ss. 302(b)/34 and other u/S. 46n PPC. The amount of compensation to the tune of Rs, 30,000/- was also ordered to be paid u/S. 302(b) PPC.
Murder Reference No, 78 of 1998 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 1.30 am. (mid night) on 18.4.1995 within the revenue estate of Miani at a distance of 1 kilometer from Police Station Miani district Sargodha while the matter was reported to the Police at 2.15 a.m. (the same night) at Girls Primary School by Umar Din through written complaint Ex. PG and formal FIR Ex. PG/1 was recorded by Muhammad Hayat, Head Constable.
3. Briefly stated the facts of the case are that Umar Din was a labourer having no male 'issue but the God has blessed him with a female child namely Mst. Majeedan. On the night in between 17th and 18th April, 1995, the complainant was sleeping in the Court yard of his house whereas his wife Mst. Sakina and her daughter Mst. Majeedan were sleeping in the verandah of the house. At about 1.30 a.m, the complainant woke up on having heard noise of Mst. Majeedan and witnessed that Sultan armed with toka and Sarfraz armed with sword who were asking for keys of the house from the said lady. On the refusal of Mst. Majeedan, Sultan accused gave a toka blow upon the head of the lady. During the scuffle, the accused Sarfraz also caused injuries with sword to Mst. Majeedan Bibi. On hue and cry raised by the complainant, the accused also caused injuries to complainant.
The accused Sultan gave repeated blows of toka to Mst. Majeedan Bibi with threats not to raise alarm and she was injured seriously. The accused under the threat of apprehension jumped out from the house through stairs but meanwhile PWs reached outside the house of the complainant and apprehended Sultan accused while Sarfraz made good his escape. During the scuffle, Sultan accused was also injured. Initially the FIR was recorded u/S. 459 PPC but since Mst. Majeedan died later on, so offence was amended as Section 460 PPC.
4. Initially, the investigation was conducted by Saif-ur-Rehman SI (not produced). He prepared injury statement Ex. PP of Sultan accused and also that of Mst. Majeedan (Ex. PQ). Her inquest report was Ex. PR. The Investigating Officer also recorded the statement of Mst. Majeedan stained earth was taken into possession vide memo Ex. PL while toka recovered from Sultan, accused was secured vide memo Ex. PK. The site-plan Ex. PD was also prepared by Saif-ur-Rehman SI. Thereafter the investigation was conducted by Muhammad Azam SI/SHO (PW. 10). He got prepared site-plan Exh PH from the draftsman and arrested accused Sarfraz on 27.5.1995 who while in Police custody got recovered sword P. 6 which was secured vide memo Ex. PJ. After completion of the investigation, both the accused were challaned to face the trial.,
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then the learned DDA tendered in evidence report of the Chemical Examiner Ex. PU, report of the Serologist Ex. PV and closed the case of prosecution. After that, statements of the accused were recorded u/S. 342 Cr.P.C. in which they pleaded innocence. After conclusion of the trial, both the accused were convicted and sentenced as stated above.
6. Learned counsel for Sultan appellant at the very outset submits that no charge u/s. 302(b) PPC was framed against the appellant. As to merits of the case, it is submitted that the appellant was falsely implicated in this case, the appellant had suffered six incised wound on his person, he had no intention to commit the murder of the deceased and that if there was any intention that was to commit the theft.
Learned counsel for Sarfraz appellant submits that the appellant has been falsely implicated in this case because of business rivalry with Muhammad Sharif (not produced) as both Sarfraz accused and Muhammad Sharif were running bakery shops. Further submits that the FIR was recorded after consultation and due deliberation and that no specific injury was attributed to appellant and that sword was planted upon the appellant but that too was not blood-stained. Concluding his submissions, learned counsel submits that case of Sarfraz appellant is distinguishable from the case of Sultan appellant and that prosecution story is not believable:
7. On the other hand, learned counsel for the State submits that both the appellants are named in the FIR with their roles. Both the appellants while armed with dangerous weapons committed the murder of the deceased and caused injuries to complainant. He supports the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record with their able assistance. Occurrence in the instant case had taken place at 1.30 a.m. (mid night) in the house of the complainant while the matter was reported to the Police at 2.15 a.m., the same day and the formal FIR Ex. PG/1 was recorded at 2.45 a.m. The occurrence had taken place in the house of Umar Din, complainant who died his natural death and could not appear before the trial Court. He was also injured while his daughter Mst. Majeedan was murdered. Dr. Muhammad Javed Akhtar, PW. 1, medically examined both the deceased and the complainant at 1.45 a.m., the same, mid night.
There were 10 sharp edged injuries on the person of Mst. Majeedan while two were on the person of Umar Din, complainant one with sharp and other with blunt weapon. Injuries on the person of Sultan, appellant were explained in the FIR by -the complainant, and he was apprehended at the spot. Both the appellants Sultan and Sarfraz caused injuries numbering 10 on the person of the deceased. The ocular account is fully corroborated by the medical evidence. Mst. Sakina PW. 5 widow of Umar Din, complainant and mother of Mst. Majeedan, the deceased is most natural witness in this case. She having no enmity whatsoever against the appellants has fully supported the case of prosecution case. Sarfraz appellant could not be apprehended at the spot because he was armed with a sword which is much bigger in length than the toka, so it was not possible for the PWs who had reached at the spot after hearing hue and cry of the complainant party to apprehend him. If Sarfraz appellant was innocent, then the question arises as to why he did appear before the Police till 20.5.1995 when the occurrence had taken place on 18.4.1995. He also got recovered sword on 27.5.1995. After one month and seven days, it was not possible that the sword could have been stained with blood. It is very sad that firstly a young innocent girl, the only daughter of the complainant was murdered and then levelled allegation of seeing her in the company of her paramour. It was argued by learned counsel for the defence that Muhammad Rafique PW. 9 had not seen the appellants while inflicting injuries on the person of the deceased and the injured. According to FIR, this witness was present outside the house of the complainant, after having heard the hue and cry raised by the complainant party. The house of this witness is adjacent to the house of the complainant and the same is shown in the site-plan which is on the eastern side of the place of occurrence. He had seen both the appellants while coming from the house of the complainant after the occurrence. His mere relationship with the deceased or the complainant is no criteria to discard his testimony. Without conceding but for the sake of arguments, if we keep out of consideration the statement of Muhammad Rafique PW. 6, even there is sufficient evidence on record to prove guilt against the appellants, that is, in the shape of statement of Mst. Sakina Bibi PW. 5 the widow of Umar Din, the complainant. The Court has to see the quality and not the quantity of evidence. If the evidence of one witness rings true, no other corroboration is needed.
It is correct that no charge u/S. 302-B PPC was framed against the appellants although they had been convicted under that section but this would not have any effect on the prosecution case because during the trial, sufficient evidence had come on record to prove that Mst. Majeedan was murdered by both the appellants and it has not been denied even by the appellants that Mst.
Majeedan was not murdered but the offence was not committed by them: Such a question came under consideration before the Hon'ble Supreme Court in the case of Zulfiqar Ali Bhutoo vs. The State (PLD 1979 Supreme Court 53). It was concluded in Para 826 of the report as under:- "826. The survey of the cases shows that the law as embodied in Sections 236 and 237 of the Criminal Procedure Code read together appears to be that if on the facts alleged it was doubtful which of several offences the proved facts will constitute and on the fact eventually proved of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their lordships of the Privy Council have indeed put it simply and shortly by saying that a man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made."
Even otherwise, Section 460 PPC included gad, if committed at the time of lurking .house trespass by night or house breaking by night. For facility Section 460 PPC is reproduced:- "460. Persons jointly concerned in lurking house-trespass or house breaking by night punishable for qatl or hurt caused by one of them.--If, at the time of the committing of lurking house trespass by night or house breaking by night, any person guilty of such offence shall voluntarily cause or attempt to commit qatl of, or hurt to, any person, every person jointly concerned in committing such lurking house trespass by night or house breaking by night, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to the same punishment for committing qatl or causing hurt or attempting to cause qatl or hurt as is specified in Chapter XVI of this Code."
After having considered the matter from all angles, we are of the considered view that the prosecution has been successful in proving its case against the appellants to its hilt and despite lengthy cross-examination, the defence could not create any dent in the story of prosecution. The appeals filed by both the appellants are dismissed. Conviction and sentence recorded against them by the trial Court is maintained. However, the sentence of Sarfraz appellant under Sections 302-B and 460 PPC are ordered to run concurrently with the benefit of Section 382-B, Cr.P.C. The trial Court has not awarded any sentence in default of payment of amount of compensation. We direct that in case of default in payment of amount of compensation, both the appellants shall undergo further SI for six months. The death sentence of Sultan appellant is Confirmed and Murder Reference is replied in the affirmative.