' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,361/J of 2000 filed by Gul Muhammad, appellant, who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay a fine of rupees one lac, in default two years' R.I. The conviction and sentence was recorded by learned Additional Sessions Judge, Khushab vide judgment, dated 31-5-2000.
'Murder Reference No,464 of 2000 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at Peshiwela on 14-3-1999 within the revenue estate of Mauza Ghag KaIan which is at a distance of 7 miles from Police Station Khushab and the matter was reported to the police by Allah Ditta at 3 p.m. On 19-5-1999 through written complaint Exh.P.A.
At old bus stand while the formal F.I.R. Exh.P.A./1 was recorded by Agha Hussain Shah, A.S.-I.
3. The facts as disclosed in the complaint Exh.P.A, are that on 14-3-1999, the complainant along with Muhammad Aslam and Muhammad Afzal was present in his house when at Peshiwela. Gul Muhammad came on a cycle. After some time, Gul Muhammad took Shahbaz aged 5 years' son of the complainant along with him on the cycle with the pretext to purchase the cigarettes. Till evening Gul Muhammad did not turn up and on being worried, the complainant searched for his minor child but failed. It was on 19-3-1995 that the complainant along with Bahadur Khan and Muhammad Akhtar went to the father of Gul Muhammad but the father showed his ignorance about Gul Muhammad. In the same sitting, Muhammad Sardar came there and told that at about 8 a.m. On 19-3-1999 Gul Muhammad met him at Jhal Ludaywali and on his asking Gul Muhammad had told that he would not return back the son of the complainant as the complainant had snatched his (Gul Muhammad) wife and daughters. Upon this information, the complainant was going to police station when Qaiser Raza, S.-I. Met him at old bus stand. Initially the case was registered under section 364, P.P.C. But later on section 302, P.P.C. Was, added.
4. Qaiser Raza, S.-I. P.W.12 took over the investigation and arrested the accused on 20-3-1999. The accused while in custody got recovered the dead body of the deceased from bushes near the western bank of river Jhelum. After formal investigation, the accused was sent up to face the trial.
5. At the trial prosecution in order to prove its case produced 12 witnesses in all. Allah Ditta (P.W.9), Muhammad Aslam (P. W.10) and Muhammad Sardar (P.W.11) furnished the ocular account. Dr. Muhammad Sarfraz Khan P.W.5 conducted the post-mortem examination on the dead body of the deceased. The accused in his statement under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant submits that he is not in a position to challenge the conviction of the appellant on merits but there are mitigating circumstances in favor of the appellant.
According to learned counsel the appellant at the time of his trial was insane and under the influence of insanity, committed the offence. He has also referred to the cross-examination of P.W.9 Allah Ditta who stated that the appellant was sane but admitted that sometimes prior to the occurrence, he was shown to some psychiatrist at Faisalabad. Much stress is laid by learned counsel to submit that the appellant did not give reply to any of the questions put to him in his statement under section 342, Cr.P.C. Which shows that he was insane at that time.
7. Learned counsel for the State submits that the appellant did not act in any manner whatsoever before the trial Court so that it could be said that he was insane and that not to answer any question put to the appellant at the time of recording his statement under section 342, Cr.P.C.
Amounts to admission. Further submits that there is sufficient evidence on record in the shape of statements of P.Ws.9 and 10 in whose presence the appellant had taken away the deceased along with him on a cycle. Adds that dead body of the deceased was also recovered on the pointation of the appellant. So far as mitigation is concerned, learned counsel submits that the appellant was sane at the time of occurrence and he did not produce on record any documentary evidence to prove his insanity.
8. We have heard learned counsel for the parties and have gone through the record with their able assistance. The deceased was real maternal-cousin of the appellant. The motive behind the occurrence was that the appellant had a grudge in his mind that it was Allah Ditta, father of the deceased who had got separated the wife and daughters of the appellant and that Allah Ditta should be taught a lesson so that he should remain weeping for his minor son. This motive was narrated by the complainant in the complaint Exh.P.A. After coming to know of the same through the mouth of Muhammad Sardar P.W.11. The statement of complainant Allah Ditta regarding motive is also corroborated by Muhammad Sardar P.W.11. We are thus, fully satisfied that the motive alleged by the prosecution stands proved.
' The dead body of the deceased was recovered on the pointation of the appellant. It is a case of single accused. Both the parties being closely related inter se there was no question of mistaken identity or substitution.
' The evidence of having lastly seen the deceased in the company of the appellant and taking him away on his cycle on the pretext to purchase cigarettes was furnished by Allah Ditta and Muhammad Aslam P.Ws.9 and 10 respectively. The appellant is reai maternal-nephew of Allah Ditta, complainant. He had no animus against the appellant for false implication. A real father would not leave the actual culprit for the murder of his son and involve innocent person specially his real maternal-nephew. The other witness namely Muhammad Aslam P.W.10 is neighbour of the complainant. He is an independent witness and had no animosity whatsoever against the appellant. The evidence of both these witnesses is confidence-inspiring and we believe the same.
' The motive having been proved, there being sufficient evidence in the shape of statements of P.Ws.9 and 10 who had seen the appellant when the appellant took away the deceased on a cycle to purchase cigarettes and the dead body of the deceased also having been recovered on the pointation of the appellant, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt.
Now we take up the mitigation. Mere silence of the appellant while answering the question put to him under section 342, Cr.P.C. Is not sufficient to draw the inference that the appellant was insane.
A counsel before the trial Court was representing the appellant. He did not make any application in this regard. Not a single prescription was placed on record to show that the appellant was insane.
Though Allah Ditta P.W.9 in cross-examination deposed that it was correct that the accused was given treatment at Faisalabad by a Psychiatrist to ascertain his actual condition about his health under the direction of the Court but denied the suggestion that the accused was detained in his house by his parents for some time due to his ill-health and that prior to the occurrence he had jumped from the roof of his Kotha and he suffered fracture of his leg. It D is settled that when an accused wants to bring his case within the purview of section 300, P.P.C. As it was or under section 302(c), P.P.C. The onus lies upon him to prove the same. But the appellant in the instant case has failed to discharge the said onus. He neither produced any D.W. Nor placed on record any prescription about his ailment. Moreover, the appellant had murdered an innocent child of 5 years without any fault of the minor in our view, there is thus, no mitigating circumstance in favor of the appellant.
' As a result of what has been stated above, the appeal filed by the convict appellant is dismissed.
The conviction and sentence recorded against him by the trial Court vide the impugned judgment is maintained in toto. The death sentence of Gul Muhammad appellant is confirmed and the Murder Reference is answered in the affirmative.