' IJAZ AHMAD CHAUDHRY, J.--- Zafar son of Sarang appellant was convicted under section 302(b), P.P.C. Vide judgment, dated 11-6-2001 passed by the learned Additional Sessions Judge, Jhang and sentenced to death for committing Qatl-i-Amd' of Khalid deceased with direction to pay Rs,50,000 to the heirs of Khalid deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo S.I. For six months. Zafar appellant through the instant criminal appeal has challenged his conviction and sentence before this Court while Murder Reference No,428 of 2001 has been received from the learned trial Court seeking confirmation of the sentence of death awarded to the appellant, which are being disposed of together through the present consolidated judgment.
2. The brief facts of the prosecution case narrated in the F.I.R. (Exh.P.C./1) got lodged by Tariq complainants (P.W.7) are that four years prior to the lodging of the F.I.R. Father of Tariq complainant (P.W.7) had died. They were two brothers and four sisters who lived along with their mother at Chak No,133/JB. Mst Kausar sister of the complainant was married to Zafar accused appellant two years earlier. Mst. Kausar had come to their house three days ago after annoying with her husband. On 18-5-1999 a day prior to the occurrence, Zafar accused appellant had come to their house for reconciliation with his wife.
' During the course of talking, he had quarrelled with Khalid (deceased) elder brother of the complainant. Thereafter, Zafar accused-appellant went away after advancing threats of murder to him. On the preceding night the complainant, Khalid (deceased) Mst. Ramai (their mother), other inmates of the house. Humayyun (given up P.W.) and Mansha (P.W.8) were sleeping in the courtyard of the house. Electric bulb was on. At about 1-30 a.m. (night) the complainant after hearing sound of foot-fall, awoke up and saw that Zafar accused appellant while armed with hatchet had reached near the cot of Khalid deceased who was sleeping. The complainant raised hue and cry whereupon Humayyun (given up P.W.), Mansha (P.W.8), Mst. Ramai and other inmates also awoke up and within their view Zafar accused appellant inflicted two hatchet blows to Khalid (deceased) simultaneously, which hit him on the upper part of his right eye, at the forehead and upper part of his right ear overhead. Khalid (deceased) brother of the complainant after receiving severe injuries and smearing in the blood succumbed to the injuries at the cot. Then Zafar accused appellant succeeded in running away from the spot while brandishing hatchet in the air.
3. The motive behind the occurrence was alleged to be that Mst. Kausar wife of Zafar accused appellant had come to the house of the complainant whereupon Zafar accused appellant had come to their house for reconciliation with her, but due to the exchange of hot words and also quarrel with Khalid (deceased) the matter could not be patched up. Due to said grudge, Zafar accused-appellant had murdered Khalid while giving him repeated hatchet blows. Leaving the dead body of Khalid deceased under the guard of Humayyum (given up P.W.) and Sharif (not produced) at the cot, the complainant proceeded to report the matter to the police but he met with Amjad Hussain Shah, A.S.-I. (P.W.10) at Adda Chak No,132/JB Dhamraya and made a statement (Exh.P.C.) before him in respect of the present incident at 10-00 a.m. On 19-5-1999, on the basis of which formal F.I.R. No,241 (Exh.P.C./1) was subsequently registered at Police Station Saddar Chiniot District Jhang at 10-45 a.m. On 19-5-1999 in respect of the offence under section 302, P.P.C.
4. The investigation of this case was conducted by Ahmad Hussain, A.S.-I. (P.W.10) and during the investigation, the dead body of Kimlid ' deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood-stained earth was secured a rough site plan of the place of occurrence was prepared, the dead body was sent to the mortuary for autopsy, the last- worn clothes of the deceased were received, a formal site plan of the place of occurrence was got prepared, the appellant was arrested; recovery of blood-stained hatchet from the appellant's possession was effected and after completion of the investigation report under section 173, Cr.P.C.
Was submitted in the Court.
5. The copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellant, who then was charge-sheeted under section 302, P.P.C. To which he pleaded not guilty and claimed to be tried.
6. To prove its case, the prosecution produced as many as ten witnesses. The ocular account of the incident in question was furnished by Tariq complainant (P.W.7) and Muhammad Mansha (P.W.8) who also deposed about the motive. The medical evidence was led by Dr. Mushtaq Bashir (P.W.6) while Amjad Hussain, A.S.-I. (P.W.10) had stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature, which need not to discuss here.
7. After the close of prosecution evidence, the appellant was examined under section 342, Cr.P.C.
Wherein he refuted the allegations of fact levelled against him by the prosecution and also professed his innocence. The appellant, however, opted not to make statement on oath under section 340(2), Cr.P.C. And he did not produce any witness in his defence.
8. On conclusion of the trial, after hearing the learned counsel for both the parties, the learned trial Court passed the impugned judgment of conviction and sentence against the appellant as detailed in para.1 ante. Hence, both these matters before this Court.
9. The learned counsel for the appellant contends that Muhammad Mansha (P.W.8) was not residing in the house of the complainant and as such he was a chance witness who had failed to explain his presence at the time of incident at the place of occurrence; that there were contradictions in the statements of Tariq complainant (P.W.7) and Muhammad Mansha (P.W.8) regarding their presence at the time of the incident and the prosecution had not been able to prove the case against the appellant beyond any shadow of doubt; that the appellant was involved in the present incident at the instance of Umer Hayat Haral who was serving as head- constable in the Police Department and the complainant party was playing in the hands of said Umer Hayat Haral as wife of the complainant was working in his house; that the motive was not proved; that the recovery of blood-stained hatchet from the appellant's possession was legally inconsequential as the same was witnessed by the complainant and one Humayyun (given up P.W.) who were residents of Chak No,133-JB while the recovery was effected from Chak No,146/JB, but in violation of section 103, Cr.P.C. No independent person from the said locality was joined to witness the recovery proceedings, which shows that it was a fake created evidence, and that the prosecution having been failed to prove its case against the appellant beyond any shadow of doubt he is entitled to be acquitted.
10. On the other hand, learned counsel for the State have contended that the prosecution had succeeded in proving its case by producing sufficient evidence; that the occurrence had taken place in the house of the complainant during night and witnesses were independent and natural being residents of the same house, who had no previous enmity, or grudge to falsely implicate him in the present case by letting off the real culprit; and that blood-stained hatchet was also recovered from his possession, which provides independent corrobbration to the ocular account.
Hence, this appeal is liable to be dismissed and the conviction and sentence recorded by the learned trial Court may be maintained.
11. We have heard the learned counsel for the parties 'at some length and have gone through the record of this case with due care and caution.
12. The occurrence in the present case had taken place at 1-30 a.m. On the night between 18th/19th of May, 1999 and the matter was reported by Tariq complainant (P.W.7) the same day at 10-45 a.m.
No doubt there was delay of about 9 hours in recording the F.I.R., but the same was sufficiently explained by the complainant who stated that he proceeded to the Police Station Sadar Chiniot District Jhang which was at a distance of 12 miles from the place of occurrence i,e, Chak No,133/JB and in the way his statement (Exh.P.C.) was recorded by Amjad Hussain, A.S.-I. (P.W.10) at 10-00 a.m. On the basis of which formal F.I.R. (Exh.P.C./1) was drafted by Irshad Hussain HC (P.W.3). The name of the appellant was mentioned in the F.I.R. As a single accused who had inflicted four hatchet blows to the deceased. It was also mentioned therein that at about 1-30 a.m. On 19-5-1999 Tariq complainant (P.W.7) along with his brother Khalid (deceased) and other inmates of the house, one Hamayun (not produced) and Muhammad Mansha (P.W.8) had been sleeping in the courtyard of the house when appellant Zafar entered in the house and gave four blows with hatchet hitting on the different parts of the body of Khalid deceased. Both the eye-witnesses were closely related to the appellant as sister of P.W.7 was married to him and P.W.8 is maternal-uncle of P.W.7 and there were no chances of substitution of the appellant by letting off the real culprit only because he had strained relations with his wife, sister of the complainant and the deceased, if the appellant had not committed the incident. Moreover, the complainant party had not involved any other person in the present case. The eye-witnesses cannot be termed as interested witnesses merely because of their close relationship inter se and with the deceased, who had no previous enmity, or grudge to falsely implicate the appellant in the present case. They were indepenDdent and natural witnesses being residents of the same house where the occurrence had taken place.
They had sufficiently explained their presence at the spot that on the night of the occurrence they along with other inmates and the deceased were sleeping in the courtyard of the house and had seen the occurrence in the light of the electric bulb which was on at the time of incident. The site plan (Exh.P.A.) was prepared by Haji Ghulam Dastgir, Draftsman (P.W.1) on the pointing out of the eye-witnesses. From the perusal of the site plan (Exh.P.A.) it stands established that at Point No,6 there was an electric bulb which was on at the time of incident and the witnesses had seen the occurrence in the light of the said bulb. Moreover, the possibility of sleeping of the witnesses together with the deceased and other inmates in the courtyard during the month of May cannot be ruled out. The eye-witnesses were subjected to lengthy cross-examination but defence had failed to gain anything to create doubt about the presence of the eye-witnesses at the spot and false implication of the appellant in the present occurrence. The minor discrepancies in their statements regarding places of cots of the other inmates who were sleeping in the house at the time of incident cannot be termed fatal to the prosecution version, but those were natural being lapses of time as the incident had taken place on 19-5-1999 while the statements of the eyewitnesses were recorded on 9-4-2001 after about 2 years of the incident. We do not find any reason for discarding the statements of the eye-witnesses which being trustworthy and confidence-inspiring are found sufficient to connect the appellant with the commission of the crime even without any corroboration through the independent piece of evidence.
13. The ocular account is also supported by the medical evidence regarding the locale of the injuries and time of receiving of injuries by the deceased. So far as the recovery of blood-stained hatchet is concerned, it is noticed that the blood-stained hatchet was shown to be recovered on 24-6-1999 after about 35 days of the incident from Chak No,146/JB, at the place of residence of the appellant in the presence of the complainant (P.W.7) and one Humayun (given up P.W.) who were residents of Chak No,133/JB. As such the recovery was effected in violation of section 103, Cr.P.C.
And we find that the Investigating Officer had not made efforts for joining the persons of the locality from where the said recovery was effected. Moreover, it cannot be believed that the blood- stained hatchet was kept by the appellant in safe custody in his house to create an evidence against him, which is hereby disbelieved. However, it is settled law that mere non-recovery of weapon or non-proving of the recovery during the trial is not sufficient to disbelieve the confidence-inspiring ocular account.
14. In view of the above discussion we have no hesitation in holding that the prosecution had been able to bring home guilt to the appellant beyond any shadow of doubt for committing `Qatl-i-Amd' of Khalid deceased. We do not find any mitigating circumstances for awarding lesser sentence to the appellant by withholding the normal penalty of death provided by the statute for such an offence. The appellant had caused repeated hatchet blows on the vital parts of the deceased and the doctor (P.W.6) noted down four incised wounds on the dead body of the deceased, who does not deserve for any leniency in the quantum of sentence and we are satisfied that the learned trial Court was quite justified in awarding death penalty to the appellant for committing Qatl-i-Amd of Khalid deceased under section 302(b), P.P.C. Which is confirmed. Resultantly this criminal appeal being devoid of any merit is dismissed and impugned judgment of conviction and sentence is maintained.
15. Murder Reference No,428 of 2001 is answered in the affirmative and the sentence of death passed by the learned trial Court against Zafar appellant is hereby confirmed.