' IJAZ AHMAD CHAUDHRY, J.--- This judgment will dispose of Criminal Appeal No,836 of 2002 filed by Ijaz Ahmad appellant against his conviction and sentence and Criminal Revision No,928 of 2002 filed by Tariq Mahmood petitioner/complainant for the enhancement of compensation along with Murder Reference No,443 of 2002 sent by the learned trial Court under section 374, Cr.P.C. For confirmation of death sentence as all these matters have arisen from the same judgment dated 24-5-2002 passed by the learned Additional Sessions Judge, Faisalabad through which he had convicted the said appellant under section 302(b), P.P.C. And sentenced him to death with a compensation of Rs,20,000 payable to the legal heirs of the deceased Khalid Mahmood under section 544-A, Cr.P.C. Or in default of payment thereof to undergo S.I. For two months.
2. The occurrence in the present case had taken place on 18-7-2001 at 1-30 p.m. Situated within the area of. Metropol Chowk, .2 kilometers away from Police Station Gulberg District Faisalabad and the statement (Exh.P.A.) of Tariq Mahmood (P.W.7) real brother of the deceased Khalid Mahmood under section 154, Cr.P.C. Was recorded by Dost Muhammad S.-I. (P.W.12) at Akbar More, near Allied Hospital, Faisalabad at 2-50 p.m. On 18-7-2001 on the basis of which formal F.I.R. (Exh.P.A./1) was drafted by Nazir Hussain Moharrar Head Constable (P.W.1) on 18-7-2001 at 3-20 p.m.
3. The brief facts as narrated in the IF.LR. (Exh.P.A./1) by Tariq Mahmood (P.W.7) real brother of the deceased Khalid Mahmood are that he (complainant) along with his brother Khalid Mahmood deceased, Khadim Hussain son of Haji Mushtaq Ali and Pervaiz Iqbal son of Haji Reham Din was sitting in the market at a shop situate in the Chowk of Metropol Cinema Faisalabad when at about 1-30 p.m. Ijaz Ahmad appellant entered the shop and after having whipped out a dagger from "Napha" of his Shalwar raised a Lalkara to his brother Khalid Mahmood saying that on 17-7-2001 the deceased after having called him at, his shop, insulted him and that day he would be taught a lesson for insulting him and he would also pay the amount demanded by him. Then the appellant inflicted two Khanjar blows hitting in the chest and on the left side of neck of Khalid Mahmood deceased who fell down and in that position the appellant inflicted two more Khanjar blows on the deceased who, however, tried to resist those but to no purpose and those hit the deceased on the right side of the chest. The complainant and the P.Ws. Tried to rescue the deceased, but the appellant threatened that whoever came near would also be killed and as such they could not intervene. The appellant gave several blows with Khanjar on the person of the deceased Khalid Mahmood in falling condition, which hit him in the abdomen, head, arm, Paidoo and fingers. The deceased soaked into blood and the appellant while brandishing and raising Lalkara took to his heals. The complainant, Pervaiz Iqbal and Khadim Hussain P.Ws. Took the deceased to Allied Hospital for treatment but the moment they reached the hospital, the deceased succumbed to the injuries.
4. The motive behind the occurrence was alleged that a day before the present occurrence, Khalid Mahmood deceased had called the appellant at his shop and asked him to pay up his debt due from him, which resulted into an altercation/quarrel between them. However, Munawar Rashid P.W.
Who got separated both of them. Due to this grievance the appellant committed the murder of the deceased on the day of occurrence.
5. After the registration of the case Dost Muhammad S.-I. (P.W.12) went to the Allied Hospital Mortuary, in the Varanda of which the dead body of the deceased was lying. He inspected the dead body, prepared injury statement Exh.P.B. And inquest report Exh.P.F. He handed over the dead body to Khalil constable for post-mortem examination of the dead body and instructed Khadim Hussain and Munawar Rashid P.Ws. For identifying the same. On the same day, he went to the spot, inspected the place of occurrence as per pointation of the P.Ws. Including the complainant and recorded the particulars of the case of the occurrence in the daily diary. He also prepared its rough site plan without scale Exh.P.J. He picked up blood-stained earth from the spot and took into possession after making it into sealed parcel vide memo. Exh.P.G., attested by the P.Ws. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. On the same day, Khalil constable produced before him last-worn clothes of the deceased viz Shalwar P.2, Bunyan P.1 both blood- stained which he took into possession vide memo. Exh.P.S: attested by Khalil. On the same day he also recorded the statements of identifiers of the dead body Khadim and Munawar Rashid P.Ws. On the same day, he had been locating the appellant but failed. On 20-7-2001 he got the place of occurrence inspected by the Draftsman in the presence of complainant and P.Ws. On 22-7-2001 the Draftsman handed over to him scaled site plan Exh.P.C. And Exh.P.C./1. He also recorded the statement of Draftsman under section 161, Cr.P.C. On 20-7-2001, 22-7-2001, 25-7-2001, 28-7-2001, 30-7-2001, 1-8-2001 and 4-8-2001 he also recorded the statements of P.Ws. Relating to parcels sent for analysis and for keeping those in the Malkhana. He had handed over the parcel to MHC containing bloodstained earth to keep in Malkhana and for onward transmission to the office of Chemical Examiner, Lahore. Thereafter on 9-8-2001 the investigation was conducted by Muhammad Riaz S.I. (P.W.11). On 21-8-2001 he arrested the appellant Ijaz Ahmad and on 22-$-2001 he obtained physical remand of the appellant from the Ilaqa Magistrate. He also interrogated the appellant who disclosed that he had concealed the dagger in the house of Boota and consequently he led the police party including Akhtar Mahmood and Muhammad Tariq P.Ws. To the house of Boota situate in Model Town, Faisalabad and from the second storey of the house he got recovered Khanjar P.3 (blood-stained) from the residential room of the said house while bringing out the same from beneath the mattress which was lying on the bed. He took the same into possession, made it into sealed parcel and prepared recovery memo. Exh.P.H. Attested by the P.Ws. He also prepared rough site plan of the place of recovery which is Exh:P.H./1. He recorded the statements of the P.Ws. Namely Muhammad Amin' MHC and Falak Sher constable under section 161, Cr.P.C. Thereafter he challaned the appellant.
5. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the statements required under section 265-C, Cr.P.C. Were supplied to the appellant, the charge was framed which was denied by him and he claimed to be tried. The prosecution in order to prove its case produced as many as 12 witnesses. The ocular account had been provided by Tariq Mahmood, (P.W.7) and Pervaiz Iqbal (P.W.8) while the medical evidence had been furnished by Dr. Arshad Masood (P.W.5), who had conducted the postmortem examination of Khalid Mahmood deceased. The investigation had been conducted by Dost Muhammad S.-I. (P.W.12) and Muhammad Riaz S.-I. (P.W.11). The remaining witnesses are of formal nature and need not to discuss here.
6. After the close of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. In which he denied the allegations and professed his innocence. However, to a question that "why this case against you and why the P.Ws. Have deposed against you?" Ijaz Ahmad appellant made the following reply which is reproduce4 as under:,- "This is a false case against me. Khalid Mahmood deceased Was involved in nefarious activities and was doing the business Of match fixing gambling on cricket matches etc. The deceased was dealing of giving and taking money from many persons on account of his above said nefarious business. He was murdered in the room adjoining to his shop by some unknown persons who were affectees of his nefarious activities and on account of his give and take in respect of his business.
Afzal his servant informed the police in like manner. The parents of the deceased who were very influential and powerful take it seriously that if this murder remained untraced, this would be very shameful for them and they in order to save them from the gesture of untraced murder of their son, involved me in this case on account of suspicion.. None of the P.Ws. Was present at the spot, at the time of alleged occurrence. They have made false depositions being the very close relations with the deceased and on the asking of the parents of the deceased. It was an unseen and blind murder."
' The appellant did not opt to make statement under section 340(2), Cr.P.C. And also denied to produce any defence evidence.
7. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant which is being assailed through the instant appeal.
8. Learned counsel for the appellant contends that both the eyewitnesses were not present at the spot, who were chance witnesses as the place of business of both the witnesses was about 5/6 kilometers from the place of incident and they used to go to their place of business in the morning and used to return in the evening; that the P.Ws. Had not explained any reason for being present at the spot who were false witnesses and their statements are not worthy of reliance; that the appellant had been falsely implicated in the present case due to suspicion; that the conduct of the eye-witnesses was unnatural and had they been present at the spot they would have intervened and made efforts to save the life of the deceased; that the incident had taken place in a small room an4 the story narrated by the eye-witnesses was not probable; that the motive was not established and the attending circumstances also are 'sufficient to convert the death sentence to imprisonment for life; that the recovery of Chhuri could not be proved, which was allegedly effected in the present of Muhammad Tariq (P.W.9) and Muhammad Riaz S.-I. (P.W.10), who did not make consistent statements regarding the time and the manner of recovery; that even otherwise the recovery was shown to have been effected from the house of his Humzulf Muhammad Boota and no person from the locality had been joined in the recovery proceedings; that the motive also could not be proved as no documentary evidence or oral evidence had been produced in support of the motive and Munawar Rashid (P.W.10) who deposed regarding the incident which had taken place a day before was not believable as he had not reported the matter to the police and he being a shopkeeper used to go to his shop at 9-00 a.m. And returned in the evening and in such circumstances he could not be present at the time of incident of motive; that the prosecution had failed to prove the case against the appellant beyond any shadow of doubt, who may be acquitted. In the alternative it is contended that it is a case of lesser punishment at least as the incident had taken place in a separate room and the deceased was not properlY dressed.
9. Learned counsel for the complainant assisted by the learned Deputy Prosecutor-General has contended that the eye-witnesses had no enmity or grudge to falsely implicate the appellant in the present case; that the F.I.R. Was got registered with promptitude as the post-mortem had been conducted the same day at 4-30 p.m. That the witnesses had no enmity to falsely implicate the appellant, in the present case by letting of the real culprits; that the witnesses had shown their presence at the spot with reasonable explanation and the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt, who had acted in a brutal manner and does ndt deserve for any leniency in the quantum of sentence.
10. We have heard the arguments of the learned counsel for the parties and also perused the record withldue care and caution.
11. The incident in the present case according to the prosecution had taken place at 1-30 p.m. On 18-7-2001 at the shop of Khalid Mahmood deceased situated at Metropol Chowk, 2 kilometers away from Police Station Gulberg District Faisalabad and the statement (Exh.P.A.) of Tariq Mahmood (P.W.9) was recorded by Dost Muhammad S.-I. (P.W.12) at Akbar More, near Allied Hospital at 2-50 p.m. On the, basis of which formal F.I.R. (Exh.P.A,/1) was drafted at the police station at 3-20 p.m. In the F.I.R. It has been specifically stated by the complainant that he along with the other witnesses had put the deceased in a car and taken him to the Allied Hospital, Faisalabad, who died just after reaching the hospital. During the cross-examination the complainant and the Investigating Officer had made consistent statements regarding the recording of the statement of the complainant under section 154, Cr.P,C. Near Allied Hospital and during the cross-examination the defence failed to gain anything suggesting that the statement had not been recorded with promptitude. Pervaiz Iqbal (P.W.8) also stated that the statement of the complainant was not recorded at Civil Hospital or at the spot, but his statement was earlier recorded when he had gone to lodge the report to the police and the police returned with him at Allied Hospital. According to the prosecution the dead body was found lying in the Allied Hospital wherefrom it was sent to the mortuary through Khalil Ahmad F.C. (P.W.3) and post-mortem had been conducted by Dr. Arshad Masood (P.W.5) on the same day at 4-30 p.m. As per opinion of the doctor, the time between death and post-mortem was two to six hours. In such circumstances we find that the F.I.R. In the present case was got registered with promptitude which had eliminated the possibility of concocting false story and such an F.I.R. Can be used as a corroborative piece of evidence.
12. To prove the ocular account the prosecution produced Tariq Mahmood (P.W.7) and Pervaiz Iqbal (P.W.8). P.W.7 Tariq Mahmood was real brother of Khalid Mahmood deceased while Pervaiz Iqbal (P.W.8) was statedly friend of the deceased Khalid Mahmood. The incident had taken place at the shop of the deceased at 1-30 p.m. Mere relationship of Tariq Mahmood P.W.7 with the deceased was not sufficient to term him as an interested witness as he had no previous enmity or grudge to falsely implicate the appellant in the present case. Both the witnesses were independent witnesses having no reason to substitute the appellant by letting off the real culprit, if he had not committed the murder of the deceased. It has been contended that both the eye-witnesses were chance witnesses and their evidence cannot be relied upon. We have noticed that Tariq Mahmood (P.W.7) during the cross-examination explained that he was running a shop of Yarn Waste at a distance of 1-1/2 or two kilometers from the place of occurrence and he used to close the shop at 6-00 p.m. He also stated that his house was one kilometer away from the place of incident. However, in the Court he stated that he was going to his house for lunch and the shop of the deceased fell in the way while returning 'to his house from his shop where he was sitting with the deceased when Pervaiz Iqbal came there and committed the incident. Similarly Pervaiz Iqbal (P.W.) also admitted that his residence was 6/7 kilometers away from the place of incident and that he was dealing in scrap business at Samundari Road situate 7/8 kilometers away from the spot. He had not mentioned any reason for going to the shop of the deceased. So both were chance witnesses but it is not always necessary that the chance witnesses cannot be relied upon and each case has to be decided on its own facts and circumstances. In the present case F.I.R. Was got registered at 3-20 p.m. And if the witnesses were not present at the spot it was not possible for the prosecution to lodge the F.I.R. With such a promptitude. The postmortem was also conducted by Dr. Arshad Masood (P.W.5) on the same day at 4-30 p.m. Which gives support to the prosecution version that before then the F.I.R.
Had already been recorded as the inquest report containing the prosecution story having already been prepared by the Investigating Officer was produced before conducting the post-mortem examination. It could not be done in such a short span, if the witnesses were not present at the spot and had not witnessed the occurrence or the accused was, not known as the time might have been consumed in calling the close relatives of the deceased,' tracing the culprit and then concocting the story. As such we have no hesitation in holding that both the eye-witnesses were present at the spot and had witnessed the incident as it is not always necessary for a person to go to the shop of his real brother or a friend for some specific purposes. We do not find it unnatural that during the time of occurrence the complainant while coming to 'the home for taking lunch I had stayed at the shop of his deceased brother falling in the way. Both the eye-witnesses had made consistent statements while describing the minute details of the incident regarding the place of incident, the time of incident and the manner in which the incident had taken place.
According to the P.Ws. The appellant alone while armed with Khanjar had given numerous injuries on the person of the deceased. If the witnesses had any motive to falsely implicate their enemies in the present case, they could have done so by attributing the injuries to different persons as the deceased had received about 19 injuries on different parts of his body. The appellant was previously known to the P.Ws. And there were no chances of his misidentity in the daylight occurrence. Even otherwise the incident had taken place in the Chowk during the business hours, when the possibility of presence of number of people in or around the place of occurrence cannot be ruled out. The shop of the deceased was surrounded by the shops on both the sides and the traffic was also going on in front of his shop. Thus, this occurrence could not go unwitnessed. The appellant failed to produce even a single, witness from or around the place of occurrence that the incident had not taken place in the shop of the deceased located in the Chowk .At the given time- and the appellant was not involved in the occurrence. Merely for the reason that the doctor during post-mortem had only found Bunyan on the body of the deceased F is not sufficient to hold that the occurrence had taken place in different facts and circumstances. We have noticed that the occurrence had taken place in the hot month of July and if, the deceased was only wearing a Bunyan in the- mid of the day was not an unnatural or unusual. So far as the contention of the learned counsel for the complainant that the conduct of the witnesses at the spot was unnatural as they did not intervene to rescue their real- brother and friend from the clutches of the appellant is concerned, suffice it to say that different people react distinctly in the similar situation and no hard and fast rule can be laid down in this regard. In the present case the appellant while armed with dagger had caused as many as 17 injuries on the person of the deceased and if the P.Ws.
Could not intervene due to fear of their lives as well, was not an unnatural reaction and for this reason alone their testimonies- cannot be discarded by holding that they had not witnessed the occurrence, when their presence at the spot has been established from the other circumstances of the case like registration'of the F.I.R. With promptitude and conducting of the post-mortem without any inordinate delay as discussed above. Thus, we have no hesitation in holding that the ocular account furnished by both the eye-witnesses is trustworthy, which alone is sufficient to connect the appellant with the commission of the crime even without corroborated by any independent piece of evidence.
14. The motive behind the incident was alleged that the deceased had given some amount to the appellant, who was not returning the same and a day before the incident some altercation had taken place between them and they were separated by Munawar Rashid (P.W.10). Munawar Rashid, appeared in the Court as P.W.10. Admittedly, no complaint had been made to the police about the threats made by the appellant. The residence of P.W.10 was one kilometer away from the place of occurrence whereas he used to work at a distance of 5/6 kilometers from the spot and he used to open the shop at 9-00 a.m. And close it in the evening. Admittedly, no steps had been taken to save the life of the deceased by the witnesses or P.W.10- Munawar Rashid in spite of threats allegedly extended by the appellant a day earlier to the occurrence. No documentary evidence was produced in support of the motive incident. It is also found that the amount allegedly payable by the appellant to the deceased was not mentioned in the F.I.R. Or the statements of the witnesses and no witness was produced in whose presence the said amount was paid to the appellant. In such circumstances we find that the motive set up by the prosecution could not be proved beyond any shadow of doubt. However, mere non-proving or non-existence of motive is not sufficient to exonerate the appellant, whose participation in the occurrence stood proved through the ocular account.
15. Next comes the recovery evidence. According to Muhammad Riaz S.-I. (P.W.11). The appellant was arrested on 21-8-2001 and he led to the recovery of Khanjar blood-stained from the room of his residential house. We find that only Muhammad Tariq (P.W.9) was produced who was resident of the same vieinity and residing at a distance of one mile from the place of recovery. He claimed that he had gone to the police station and parked his motorcycle and went to police station by chance while seeing Akhtar Mahmood (given up P.W.) present there and they stayed outside the police station for half an hour when on the asking of the police they went to the place of recovery. It is admitted that the place of recovery situated in a thickly-populated area but none from the said locality was joined and the recovery had been effected in violation of section 103, Cr.P.C. Even otherwise the place of recovery was not owned or exclusively possessed by the appellant.
Moreover, it cannot be expected that the appellant would have kept the weapon of offence with blood on it for about 1-1/4 months in safe custody for presentation before the police to use as a corroborative piece of evidence against him.
P.W.9 admitted that the alleged recovered dagger was of common pattern. We find that the prosecution had failed to prove on record I through sufficient evidence the recovery of weapon of offence from the appellant, which is of no consequence.
16. So far as the medical evidence is concerned, as per prosecution version the appellant had used dagger for the commission of this occurrence and the doctor found as many as 20 injuries on his person out of which 17 were incised or stab wounds, which were declared to be caused with sharp- edged weapon and could be caused with dagger: Three abrasions found on the left elbow, left knee joint and on the front of left leg could be result of fall on the ground. As such we find that the medical evidence is fully in line with the ocular account.
17. Now we see the defence plea taken by the appellant in his statement under section 342, Cr.P.C.
Reproduced above. The claim of the appellant that Khalid Mahmood deceased was involved in nefarious activities and was doing the business of match fixing has not been proved through any evidence and from the facts of the case and the statements of the witnesses it is not borne out that the deceased was involved in suchlike activities. It is though admitted by the complainant (P.W.7) that Afzal was servant of the deceased, but it was claimed that he was not present on the day of incident and thus, was not produced before the police. As such his non-production before the police is not sufficient to materially affect the prosecution version. we have already discussed that the appellant failed to prove that the occurrence had taken place in some other circumstances. Thus, the defence plea taken by the appellant is not sufficient to exonerate him and the same being an afterthought story has rightly been disbelieved by the learned trial Court.
18. As a result of, the above discussion we find that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the conviction under section 302(b), P.P.C. Recorded against him by the learned trial Court is maintained.
19. So far as quantum of sentence is concerned, although we have disbelieved the motive, but this alone is not sufficient for awarding lesser sentence to the appellant while withholding the normal penalty of death, which should ordinarily be awarded in the absence of any mitigating circumstances. The judgment of Honourable Supreme Court titled Muhammad Azam v. Syed Mukthar Shah and others 2005 SCM R 427 is referred wherein it has been held that mere non- proving of motive or commission of the occurrence at the spur of moment are not the mitigating circumstances for withholding the normal penalty of death in the case of Qatl-e-Amad. In the present case the appellant had come at the spot while armed with dagger and acted in a brutal manner while causing a large number of injuries on the vital parts of the deceased, which shows that his intention was only to cause death of the deceased. Thus, the learned trial Court was quite justified in awarding death penalty to the appellant which is maintained along with the compensation.
20. Asa result of the above discussion Criminal Appeal No,836 of 2002 filed by the appellant is dismissed and the impugned judgment of conviction and sentence is maintained.
21. Murder Reference No,443 of 2002 is replied in the affirmative and the death sentence awarded to the appellant by the learned trial Court is confirmed.
22. So far as Criminal Revision No,928 of 2002 filed by Tariq Mahmood petitioner is concerned, we find no reason for enhancement of compensation as prayed in the same as there is nothing on the record to suggest that the appellant was a man of means and could pay the enhanced compensation. As such this criminal revision being devoid of any force is dismissed.