' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Criminal Appeal No.169-J of 2002 filed by Muhammad Azam and Liaqat Ali appellants against their convictions and sentences and Criminal Revision No.598 of 2002 filed by Muhammad Shakeel Akhtar petitioner/complainant for the enhancement of sentence of Liaqat Ali along with Murder Reference No.336 of 2002 sent by the learned trial Court under section 374, Cr.P.C. For confirmation of sentence of death sentence as all these matters have arisen from the same judgment dated 16-5-2002 passed by the learned Additional Sessions Judge, Gojra through which he had convicted both the appellants under section 302(b), P.P.C. And sentenced Muhammad Azam appellant to death with a compensation of Rs.2,00,000 payable to the legal heirs of the -deceased Saghir Ahmad under section 544-A, Cr.P.C.
Or in default of payment thereof to undergo S.-I. For six months and Liaqat Ali appellant to imprisonment for life with a compensation of Rs.50,000 payable to the legal heirs of the deceased or in default of payment thereof to further undergo S.-I. For two months. Liaqat Ali appellant was also convicted under section 324, P.P.C. And sentenced to five years R.I. With a fine of Rs.10,000 or in default of payment of fine to undergo S.I. For one month, He was also convicted under section 337- A(ii), P.P.C. And sentenced to three years R.I. With a fine of Rs.54,000 as Arsh (1/5th of Diyat amount).
He was further convicted under section 337-A(i), P.P.C. And sentenced to one year R.I. With a Daman of Rs.5,000. All the sentences awarded to Liaqat Ali appellant were directed to run concurrency. ,Benefit of section 382-B, Cr.P.C. Was also extended to him. However, through the same judgments Khadiun Hussain and Amanullah co-accused were acquitted from the charges.
2. The occurrence in the present case had taken place at 10-30 a.m. On 30-1-2001, within the area of Jhang Road, opposite Masjid Dr. Rehmat Ullah Hospital Gojra, situated one furlong away from Police Station'City Gojra District Toba Tek Singh and the statement (Exh.P.G.) Muhammad Shakeel Athar real brother of the deceased Saghir Athar under section 154, Cr.P.C. Was recorded by Muhammad Akram S.-I./S.H.O. (P.W.10) near Hockey Stadium Jhang Road, Gojra at 11-30 a.m. On the same day on the basis of which formal F.I.R. (Exh.P.G./1) was drafted by Ijaz Hussain Moharrar Head Constable (P.W.6) on 30-1-2001 at 10-45 a.m.
3. The brief facts as narrated in the F.I.R. (Exh.PG./1) got recorded by Muhammad Shakeel Athar (P.W.7) real brother of the deceased are that he along with Sagheer Athar deceased, Muhammad Khalil and Salamat Ali brother, residents of Dastigir Colony, Gojra had gone to Tehsil Courts Gojra for pursuing the case. At about 10-30 a.m.. They came outside the Katchary for going to home after adjournment of the case and when they reached at Jhang Road, Gojra in front of Mosque of Rehmatullah, the appellant Liaqat Ali armed with dagger, Azam appellant armed with dagger, Khadim Hussain co-accused armed with dagger and Amanullah empty handed emerged from the back of the Mosque and came in front of them while raising Lalkara that they would not spare them. Liaqat All appellant gave a dagger blow to Sagheer Athar deceased which hit near the left eyes. Muhammad Azam gave a dagger blow to Sagheer Athar deceased upon his chest, as a result of which he fell down. Kliadim Hussain co-accused gave a dagger blow to Khalil Ahmad P.W.
On his head. Then Liaqat Ali appellant inflicted two blows of dagger hitting Khalil Ahmad P.W. On his head and near the left ear, who also fell down. All the four accused also gave fist blows to the victims. The occurrence was also witnessed . By Salamat Ali. On raising alarm many persons gathered there while the accused-succeeded in fleeing away while brandishing the dagger in the air. They looked after the injured and immediately - went to Civil Hospital, Gojra on a tonga. Sagheer Athar succumbed to the injuries just after reaching in the hospital.
4. The motive behind the occurrence was alleged that there was a dispute of payment of money between Sagheer Athar deceased and the accused and three days earlier a scuffle had taken place between them and due to this reason all the accused with common intention murdered Sagheer Athar and injured Khalil.
5. After the registration of the case Muhammad Akram S.-1. (P.W.10) went to the Eye-cum-General Hospital, Gojra. The dead-body of Sagheer Athar was lying in the hospital premises. He inspected the dead body of the deceased and prepared the injury statement Exh.PD and inquest report Exh.PE. The dead body was handed-over to Abdul Ghaffar Constable for conducting post-mortem.
He recorded that statements of the P.Ws. Namely Khalil and Salamat Ali. He interrogated the person present there regarding the occurrence. Then he went to the place of occurrence and inspected the spot. He prepared site-plan without scale Exh.P.J. He took the bloodstained earth from the spot vide recovery memo. Exh.P.B., attested by the P.Ws. He recorded the statements of the P.Ws.
Regarding the recovery of blood-stained earth. After conducting the post-mortem on the dead body by the Medical Officer Abdul Ghaffar Constable produced bcfore him last-worn clothes of the deceased viz. Shalwar P.2, Qameez P.3 and Bunyan P.4 which were taken into possession vide recovery memo. Exh.P.1, prepared by him and attested by the P.Ws. He also recorded the statements of the P.Ws. Who had identified the dead body at the time of conducting of the post- mortem examination. He searched for the accused but they could not be arrested on that day. He deposited the parcel of the blood-stained earth and last-worn clothes of the deceased in the Malkhana of the Police Station. On 3-2-2001 Kazam Hussain Draftsman (P.W.1) along with him and the P.Ws. Inspected the site and took the rough notes and on 5-2-2001 he produced before him sealed site-plan Exh.P.A. And Exh.P.A./1.
' On 7-2-2001 the accused were arrested and they were interrogated by him. On the disclosure' of Azam appellant in the presence of the P.Ws., dagger/Khanjar P.1 was got recovered from his residential room which was taken into possession vide recovery memo. Exh.P.H., prepared by him and attested by Shakeel and Zaheer P.Ws. He made the dagger into a sealed parcel and separate complaint/case under section 13 of Arms Ordinance XX. Of 1965 was prepared and dagger was handed to the MHC of the Police Station. Iron Mukka (P.5) was got recovered from Liaqat Ali appellant on 20-2-2001 on his pointation which was taken into possession vide recovery memo.
Exh.P.K. Attested by the P.Ws. Javed. Akhtar and Hameed Ullah. Both the parties were also produced before the ASP, Gojra. He had also prepared the site-plan of the place of recovery of dagger EXh.PN/1 and of Iron Mukka Exh.P.K./1. On 29-3-2001 he recorded the statements of MHC Ijaz Hussain and that of Muhammad Yaqoob Constable pertaining to the onward transmission of the sealed parcel to the office of Chemical Examiner, Lahore and got the accused challaned.
6. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under 'section 265-C, Cr.P.C. Were supplied to the appellants and their co-accused, the charge was framed which was denied by them and they claimed to be tried. The prosecution hi order to prove its case produced as many as 10 witnesses.
The ocular account had been provided by Muhammad Shakeel Athar (P.W.7) and Muhammad Khalil (P.W.8) while the medical evidence had been furnished by Dr. Muhammad Zahid (P.W.4), who had conducted the post-mortem examination of Sagheer Ahmed. The investigation had been conducted by Muhammad Akram S.-I. (P.W.10). The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prosecution evidence the statements of the appellants along with their co- accused were recorded under section 342, Cr.P.C. In which they denied the allegations and professed their innocence. However, to a question that "Do you want to say anything else?"
Muhammad Azam appellant made the following reply which is reproduced as under:- "I am innocent, as a matter of fact we have sold two buffaloes to Muhammad Shafi and Ghulam Rasool alias Seela Nave in lieu of Rs.56,000. Rs.12,000 was paid as earnest money and the balance was yet to be paid. Sometime thereafter Ghulam Rasool and Muhammad Shafi wanted to take away those two buffaloes without paying the balance but we refused .To hand over the said buffaloes to them. Shafi and Ghulam Rasool brought Sagheer Athar deceased to us to get the buffaloes for. Shafi and Ghulam Rasool or in the alternative to pay back the earnest money on which I refused Sagheer Athar who was hot headed and desperate person. He was involved in many criminal cases. He threatened us with dire consequences. Some time thereafter Shafi and Ghulam Rasool mentioned above came along with Ghulam Mustafa and 2/3 respectables of the village whereupon we agreed to pay back the earnest money. The deceased with highly provoked took it to be a matter of his disgrace. On the day of occurrence Khadim Hussain my co-accused went to Court's side Gojra to pursue his case where Sagheer Athar along with, his companion was also present, as we left the Court premises and reached on the outer gate of the gate to go to our house after getting adjournment of the case, the deceased and his companion launched attack on us. Sagheer Athar deceased gave a brick blow on my head, then pulled out a dagger and attacked me. I snatched the dagger from him and in order to save my life, I gave one dagger blow. Khalil.
P.W. Launched an attack on Liaqat my co-accused and in order to save himself he gave iron Mukka blows to him, he had no dagger with him, Khadim Hussain my co-accused was also empty handed along with Amanullah, they had not taken part in the fight nor they have inflicted any blow to the deceased or the injured P.W.I was medically examined at the time of my arrest and was found injured as per MLC No.166 of 2001 Exh.D.E this injury has been purposely suppressed by the prosecution. During successive investigation our plea was accepted by all the Investigation Officers and report under section 173, Cr.P.C. Was drafted to that effect."
' The appellant Liaqat Ali also endorsed the same statement made by Muhammad Azam appellant. The appellants did not opt to make statement under section 340(2), Cr.P.C. And also denied to produce any defence evidence.
8. The leaned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellants which is being assailed through the instant appeal.
9. Learned counsel for the appellants contends that the motive could not be proved; that the recovery of weapon had been effected after 20 days of the incident; that Muhammad Shakeel Athar complainant (P.W.7) was not present at the spot, who was a chance witness, but he failed to explain his presence at the spot; that Muhammad Khalil (P.W.8) had not spoken the truth; that, according to the ocular version Liaqat appellant was armed with a Khanjar but during the investigation Iron Mukka was recovered; that the defence plea is borne out from the record and .Is nearer to the truth; that Khadim Hussain accused has already been acquitted who was also attributed specific injuries on the person of Khalil P.W.; that the Investigation Officer admitted that appellant Azam had also been injured and his first version was the same which was narrated by him in his statement before the Court recorded under section 342, Cr.P.C; that the injury on the person of Azam stood proved through the medico-legal report (Exh.D.E.); that the eye-witnesses had not spoken the whole truth and the prosecution had not been able to prove the case against the appellants beyond any shadow of doubt; and that the sentence of Azam may be reduced as there are mitigating circumstances and Liaqat Ali appellant may be acquitted.
10. Learned counsel for the complainant and the learned Additional Prosecutor General on the other hand have opposed this appeal on the ground that the incident had taken place on 30-1- 2001 at 10-30 a.m. While the statement of the complainant under section 154, Cr.P.C. Was recorded at 11-30 a.m. On the basis of which formal F.I.R. Was drafted at 11-45 a.m.; that the post-mortem also had been conducted without any delay and no time was left with the prosecution to concoct a false ,story; that the motive was also proved; that the defence plea was an afterthought story and is not borne out from the record; that it was a broad daylight occurrence and there were not chances of misidentity of the appellants and the appeal filed by the appellants may be dismissed.
11. We have heard the arguments advanced by the learned counsel for the parties and also perused the record with due care and caution.
12. The incident in the present case according to the prosecution had taken place at 10-30 a.m. On 30-1-2001 and the statement of the complainant Muhammad Shakeel Athar was recorded by Muhammad Akram S.-I. (P.W.10) at Jhang Road in front of Hockey Stadium Gojra at 11-30 a.m.
According to Dr. Muhammad Zahid (P.W.4) he had conducted, the post-mortem examination of the deceased on the same day at 2-00 p.m. So it was not a delayed post-mortem having been conducted immediately and Muhammad Khalil (P.W.8) was also medically examined on the same day at 11-15 a.m. All these facts show that the incident had taken place at the given time and the police papers were , prepared before conducting the post-. Mortem as the inquest report and injury statement had been duly signed by the doctor. So all these facts show that the F.I.R. Was got recorded with promptitude and such an F.I.R. Can be used a corroborative piece of evidence to the ocular account.
13. To prove the ocular account the prosecution produced Muhammad Shakeel Athar (P.W.7) and Muhammad Khalil (P.W.8). No doubt both the eye-witnesses were real brothers of Sagheer Ahmad deceased, but mere relationship inter se and with the deceased of the eye-witnesses is not sufficient to term them as interested witnesses unless it is brought on the record that there was some enmity or previous ill-will between the parties and the witnesses had a motive to falsely implicate the accused in a case of capital charge. In the present ,case admittedly there was no previous enmity between the parties and there was no motive to falsely implicate the appellants in the present case if they had not participated in the incident. It was a daylight occurrence and the parties were known to each other previously, which eliminated the possibility of misidentity of the appellants, who had actually participated in the incident. Both the eyewitnesses remained consistent on the material points regarding the time, place of incident and the manner in which the incident had taken place including the role, ascribed to both the accused/appellants during the incident. They had been subjected to lengthy cross-examination. We are unable to agree with the learned counsel for the appellants that the complainant failed to give any plausible explanation for being present at the spot, who was resident of 1-1/2 miles from the place of occurrence. The complainant specifically explained that he had accompanied his deceased brother to the Tehsil Courts, Gojra where the latter had to face trial in a case registered against him under the Arms Ordinance. The defence failed to produce any documentary evidence that no such case was fixed on the said date. The accompanying of the complainant along with his brother to the Courts on the date of hearing was quite possible when the defence has failed to bring on the record that what was the nature of business of the complainant and he could possibly be present at some other place in routine. Even otherwise the presence of the complainant at the spot is substantiated by the prompt registration of the F.I.R., which has eliminated the possibility of concocting false story. As such we have no hesitation in relying upon the presence of Muhammad Shakeel at the place of incident as well and non-receiving of injuries by Shakeel during the incident is not sufficient to discard his evidence as there was no enmity between the parties though there was some between the deceased and the appellants, hence there was no reason to injure all the persons who were present at the spot by the accused. As far as the other eye-witness, namely, Muhammad Khalil (P.W.8) is concerned, his presence at the spot is stamped with the receiving of the eight injuries on his person duly observed by Dr. Muhammad Zahid (P.W.4), when he was medically examined by him at 11-45 a.m. The same day. Out of eight injuries, injuries Nos.l, 2, 3 and 8 were caused with sharp-edged weapon. It will be relevant to point out that the presence of Muhammad Khalil P.W.8 at the spot had even been admitted by the defence. So the statements of the eye-witnesses are worthy of reliance having confidence inspiring and we have nc hesitation in relying upon the ocular version furnished by both the eye-witnesses, whc were independent witnesses.
14. It has been contended that Khadim Hussain co-accused who has been acquitted by the learned trial Court had also been attributed specific injuries on the person of Muhammad Khalil P.W. And same evidence could not be believed against the other accused without any independent corroboration. We have found that the case of both the appellants is distinguishable from the case of Khadim Hussain acquitted co-accused as during the investigation he was found empty-handed and the learned trial Court has acquitted him as an abundant caution. Moreover, he had been attributed only one injury on the head of Muhammad Khalil P.W. But the appellant Liaqat Ali had been attributed injuries on the left eye of deceased, head and left ear of Muhammad Khalil injured while Muhammad Azam appellant had been attributed an injury on the left side of chest of the deceased. Subsequently the weapon of offence had been recovered from Muhammad Azam appellant. Even both these appellants in their statements before the Court under section 342, Cr.P.C. And according to their first version before the police also admitted their presence at the spot and presence of Muhammad Khalil P.W. As well. So the statements of the eyewitnesses against the appellants coupled with the recovery of weapon from the appellant Muhammad Azam and admission of both the appellants being present at the spot and causing of injuries to the deceased and Muhammad Khalil P.W.8 is sufficient to believe the prosecution evidence as well.
15.The motive of the incident as set up in the F.T.R. Was that there was some dispute of bargain between the deceased and the accused whereupon 3/4 days earlier some quarrel had taken place between them, but the prosecution could not produce any documentary evidence regarding the dispute of bargain and both the P.Ws. Also improved their statements regarding the dispute of plot who were duly confronted in this regard. As regards the quarrel which had allegedly taken place 3/4 days before the incident, none of the eye-witnesses were present at the time of happening the same. Though Muhammad Khalil P.W. Stated that it was told by the deceased yet he was confronted with his previous statement in this regard. So the motive could not be proved against the appellants and the same remained shrouded in mystery.
16.As far as recovery of weapon is concerned, Muhammad Azam appellant according to Muhammad Shakeel complainant and Muhammad Akrani S.-I. (P.W. 10) had led to the recovery of bloodstained Chhuri from his residential room from an Iron box by removing the clothes. So the availability of the said weapon there seems to be in the exclusive knowledge of the appellant Muhammad Azam. Moreover, Shakeel Athar complainant as discussed above had no previous enmity to falsely depose against him. We have no hesitation in believing the recovery of Chhuri from Muhammad Azam appellant. The report of Chemical Examiner and that of Serologist shows that the said weapon was stained with human blood. Even otherwise he has admitted the causing of injuries on the person of the deceased with Chhuri, but had not explained that whether he had thrown the said Chhuri after the incident in his first version. As such the recovery of Chhuri from Muhammad Azam appellant has provided sufficient corroboration to the ocular account.
17. The medical evidence fully supported the ocular account regarding the time of the incident and the causing of the injuries by both the appellants on the persons of Sagheer Athar deceased and Muhammad Khalil injured P.W.8.
18.Now we advert towards the defence plea raised by the appellants in their statements recorded under section 342 Cr.P.C. Reproduced in Para. No.7 ante. We have noticed that the incident had taken place on 30-1-2000, but the appellants and their co-accused had not surrendered them before the police immediately after the incident and they could be arrested for about eight days after the incident. According to the Investigation Officer they themselves had not appeared before him but they were arrested after the receipt of the information about their presence at the particular place. As such we are of the view that both the appellants had raised a plea which was ah afterthought and cannot be considered as being their first plea because sufficient time had been consumed by the appellants in preparing such plea. As far as injuries on the person of the appellant Muhammad Azam are concerned, it is noticed that the complainant in his statement in the Court levelled allegation against Muhammad Akram S.-I. (P.W.10) that he was in league with the accused and his father had moved an application against Muhammad Akram S.-I. And he was also imposed penalty by the SP in connection with the investigation of the present case. It is strange that if the appellant Azam was in an injured condition and his injury was visible, when he was produced before the learned Ilaqa Magistrate on 8-2-2001 after one $ay of his arrest, why he had not claimed before the Ilaqa Magistrate to have received the injury during the incident and asked for getting him medically examined. We have also noticed that Muhammad Akram S.-I.
(P.W.10) also did not get him medically examined on the first day of his arrest, which also shows that the defence plea was concocted subsequently, otherwise, if he had received serious injuries he would have been medically examined immediately after the occurrence. Even otherwise, the said appellant did not opt to make statement on oath under section 340(2), Cr.P.C. And also failed to produce the doctor who had allegedly medically examined him on 9-2-2001. Moreover, after the perusal of the said injury from the medico-legal report, which is quite dim, this injury was declared to be caused with blunt weapon anti simple in nature.
19.Now we see that whether the defence plea is borne'/out from the record of the prosecution or not. None of the witnesses admitted. During the cross- G examination that any of the accused had received any. Injury during the incident. Admittedly Muhammad Azam appellant did not appear before the Medical Officer for his medical examination till 9-2-2001. None of the witnesses had been produced either before the police or before the learned trial Court in support of the defence plea. The defence plea can be accepted if it is borne out from the record and circumstances of the case or if there was possibility of taking place of the incident as per defence plea, j Neither the said plea is borne out from the record nor we find that there was any possibility of taking place of the incident in the manner of defence plea. It does not appeal to our mind that the deceased along with 10 others as claimed by the appellants while armed with Khanjars had been waiting for the appellants and had launched attacked upon them, but they (appellants) succeeded in snatching the Khanjars from them and only then they caused them injuries. The said defence plea does, not explain the sharp edged weapon injuries on H the person of the deceased and Khalil P.W. Which were two and four in number respectively. On the other hand, according to the defence plea both the appellants were alone empty handed and had snatched the Khanjar from the deceased who had first given him brick blow in the head and then he caused the injuries in self-defence. How the deceased and Muhammad Khalil P.W. Had received the injuries and who had caused these injuries was not explained by the defence. After giving due consideration, we are satisfied that the said defence plea was not plausible being an afterthought and not' supported by any evidence except the opinion of the police which cannot be taken into consideration as specific allegation also had been levelled against Muhammad Akram S.-I. (P.W. 10) during the pendency of the investigation for favoring the accused and in such circumstances we find that the defence plea is not acceptable and has rightly been disbelieved by the learned trial Court. Both the appellants had J admitted their presence at the spot and participation in the occurrence, but in a different manner. It was a brcrad-daylight occurrence having been committed on the road near the Tehsil Courts and presence of independent persons around the place of occurrence was admitted. As such this occurrence could not go unwitnessed, but the defence failed to produce even a single person from the locality to support their defence plea that the occurrence had taken place in the other circumstances as claimed in the defence plea. In Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) it has been held as under:- "The statement of an accused should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case, In such a condition, the exculpatory part if proved to be false may be excluded."
In the present case the ocular account has been believed by us and it finds corroboration from the defence plea raised, by the appellants.
20. As a result of the above discussion we find that the prosecution has been able to prove the case against the appellants L beyond and shadow of doubt and their conviction under section 302(b), P.P.C. Is maintained.
21. Now we come to the quantum of sentence. Liaqat Ali appellant has already been awarded lesser sentence of life imprisonment, which is maintained along with the other convictions and sentences recorded by the learned trial Court for causing injuries to Muhammad Khalil injured (P.W.8) So far as case, of Muhammad Azam appellant is concerned, he had been attributed fatal injury with dagger in the chest of the deceased, which is vital part of the body. The intention of the accused can be gathered from the weapon used and the seat of the injury. Although we have disbelieved the motive, but it alone is not sufficient ground for lesser sentence in view of the latest pronouncement of the august Supreme Court made in Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2Q05 SCMR 427) wherein it has been held that mere making of single shot, non-availability of motive and taking place of the occurrence at the spur of moment are not the mitigating circumstances for the award of lesser sentence.
22. As a result of the above discussion we do not find any merit in Criminal Appeal No.169-J of 2002 filed by the appellants which is dismissed. The benefit of section 382-B, Cr.P.C. Is extended to Liaqat Ali appellant.
23. So far as Criminal Revision No.598 of 2002 filed by Muhammad Shakeel Athar petitioner/complainant seeking enhancement of sentence of Liaqat Ali appellant is concerned, suffice it to say that the injury attributed to Liaqat Ali appellant on the person of the deceased was not declared fatal and we do not find any merit in this revision petition which is dismissed.
24. Murder Reference No.336 of 2002 is replied in the affirmative and the death sentence awarded to the appellant Muhammad Azam is confirmed.