' MUHAMMAD FARRUKH MAHUMD, J.-Muhammad Azeem alias Jeeja-appellant, Zahid Mahmood and Tariq Mahmood were booked in case F.I.R. No,45 registered at Police Station Mustafabad, Lahore, on 28-4-1989 for offences under sections 302/34, P.P.C. For having committed the murder of Nasir Imtiaz. Zahid Mahmood and Tariq Mahmood, accused, were tried by the learned Additional Sessions Judge, Lahore, and were acquitted vide judgment dated 29-5-1991 and the appeal against their acquittal was also dismissed by this Court vide judgment dated 24-4-1993, while Muhammad Azeem alias Jeeja absented himself during the trial and was not tried along with aforesaid co-accused. However, he was subsequently arrested and tried by the learned Additional Sessions Judge, Lahore. Vide judgment dated 7-4-1999, the learned trial Judge convicted the appellant for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs, 25,000 as compensation to the legal heirs of the deceased, in default whereof to undergo R.I. For six months.
2. Muhammad Azeem alias Jeeja has challenged his conviction and sentence by filing the instant appeal. Murder Reference No,213 of 1999 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. Briefly the facts of the prosecution' case per complaint Exh.PA made by Ch. Ali Muhammad, complainant/P.W.13, to Zulfiqar Ali Shah, Inspector/P.W.9, which based the registration of formal F.I.R.
Exh.PA/1, are that the complainant was employed as Electric Foreman at Civil Aviation Airport, while Muhammad Saleem, son of the sister of his wife, was an employee of Ittehad Chemicals Kala Shah Kaku. Muhammad Azeem/appellant, the real brother of Muhammad Saleem, was constructing 'Dahleez' into the stair case of his house, causing hindrance in the entrance of Muhammad Saleem, who forbade Azeem from doing so. Then Muhammad Saleem went on his duty at 1-00 p.m. On 26- 4t1989. After his departure for duty, Azeem again started constructing 'Dahleez1. Mst. Yasmeen wife of Saleem restrained Azeem to construct 'Dahleez'. Muhammad Azeem caused 'Kandi' blow at her hand. The occurrence was witnessed by Nasir Imtiaz son of the complainant who was standing on the roof of his house. Nasir Imtiaz asked Azeem as to why he was beating the wife of his brother and advised him to talk to her husband on his arrival. The matter came to an end. Zahid another brother of Azeem applied bandage on the hand of Mst. Yasmin and pacified the matter. On 27-4- 1989 at 8-00 p.m. Four persons of the Mohaliah were chosen as arbitrators. They inspected the spot and asked Muhammad Azeem to destroy 'Dahleez' as he was at fault. Meanwhile Muhammad Saleem told the arbitrators that yesterday Azeem had given beating to his wife, so he should apologise, whereupon Muhammad Azeem took false oath that he had not given beating to his wife.
The complainant's son Nasir Imtiaz who was standing on the roof of the house interfered and said to Azeem that he was telling a lie, upon which Azeem flared upon and asked Nasir Imtia / that he always interfered into his personal matters. Azeem threatened Nasir Imtiaz with dire consequences but the arbitrators patched up the matter. On the' asking of complainant, his son Nasir Imtiaz came down from the roof and stood at the road in front of his house. The complainant, his brother Fateh Muhammad Shahzad/P.W. 1 and Muhammad Yasin Batalvi/P.W.2 accompanied by the arbitrators came down and were talking with each other while standing at 'Ganda Nala' near their house, whereas the complainant's son Nasir Imtiaz was standing in front of his house on the road side. At about 11-30 p.m. On hearing the noise of Nasir Imtiaz to the effect, the complainant along with Shahzad and Yasin Batalvi rushed towards Nasir Imtiaz and saw that Zahid and Tariq (both acquitted accused) had caught hold him of his both arms, while Muhammad Azeem/appellant was causing Chhurri blow repeatedly to Nasir Imtiaz, who received three injuries under his left armpit and two injuries on his right bicep. When the P.Ws. Tried to save Nasir Imtiaz, they were threatened with dire consequences by the accused, who while raising Lalkara, decamped from the scene of occurrence. Nasir succumbed to the injuries at the spot.
' The motive behind the occurrence was that as Nasir Imtiaz had exposed the appellant before the arbitrators by stating that in his presence the appellant had given beating to Mst. Yasmin, the wife of Saleem, the accused namely Zahid, Tariq and Muhammad Azeem in furtherance of common intention of all committed the murder of the deceased.
4. On 28-4-1989, Zulfiqar Ali Shah, Inspector/S.H.O./P.W.9, who along with other police officials was on patrol duty in Street No,35, on receipt of information about the occurrence, reached the spot; recorded the statement Exh.PA of the complainant and sent the same to the police station where formal F.I.R. Exh.PA/1 was registered. He prepared inquest report of the deceased Exh.PF and sent the dead body to the mortuary for post-mortem examination. He prepared the rough site- plan Exh.PG.
He collected blood-stained earth from spot and sealed the same into parcel vide memo. Exh.PB.
Last-worn blood-stained clothes of the deceased consisting of Shalwar P.1, Shirt P.2, Dopatta Shafoon P.3 and towel P.4 were taken into possession through memo. Ehx.PH. On 2-5-1989, the appellant was arrested and, while in custody, on the same date, led to the recovery of blood- stained Chhuri P.5 which was taken into possession vide memo. Exh.PD, attested by Masood Anwar/P.W.5 and one Mirza Muzaffar Baig. Blood-stained clothes of appellant i.e, Shalwar P.6 and Shirt P.7 were taken into possession through memo. Exh.PC. After completion of investigation, the appellant along with his co-accused was sent up to face the trial. However, during trial on his release on interim bail, which was subsequently cancelled, he absconded and was declared proclaimed offender. After his re-arrest, he was tried alone and was convicted and sentenced as indicated above.
5. To substantiate its version, the prosecution produced thirteen witnesses. Ocular account was furnished by Fateh Muhammad Shahzad/P. W. 1 and Muhammad Yasin Batalvi/P.W.2. The statement of Ch. Ali Muhammad/ complainant/eye-witness, which was recorded on 28-9-1990 and cross- examination was made on 11-11-1990 by the acquitted accused, was transferred to the record of this case as he died before his statement could be recorded against the appellant. They also stated about the motive. Raja Muhammad Yaqoob/P.W.3 stated about the convening of Panchayat and motive. Masood Anwar/P.W.5 stated about the recovery of blood-stained Chhuri at the instance of the appellant. Dr. Haroon Hameed/P.W.12 conducted post-mortem examination on the dead body of the deceased. He, while observing seven injuries on the person of the deceased, opined that all the injuries were ante mortem and caused by a sharp edged weapon. According to him, the cause of death was due to Injuries Nos.4 and 5 leading to damage to underlying lung causing shock and haemorrhage. The injuries were sufficient to cause death in the ordinary course of nature. According to the doctor, the duration between injuries and death was 2 to 5 minutes, while between death and post-mortem examination it was 12 to 20 hours. Zulfiqar Ali Shah, Inspector/P.W.9, stated about the drafting and dispatch of the complaint to the police station and the investigation thereafter. Muhammad Nawaz Cheema, A.S.-I./ P.W.10, stated about the re-arrest of the appellant and submission of challan. Against him. The rest of the evidence, being formal in nature, need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication on account of political rivalry. However, neither he appeared as his own witness under section 340(2), Cr.P.C. Nor did he produce any witness in defence.
7. Learned counsel for the appellant submits that the appellant was roped in this case due to political rivalry, as the appellant belonged to Islami Jamhoori Ittehacf, while the complainant and witnesses belonged to Peoples Party; that both the witnesses have been disbelieved qua Zahid Mahmood and Tariq Mahmood, co-accused, and their acquittal was upheld vide judgment dated 24-4-1993 by this Court; that the prosecution failed to prove the motive, as neither Saleem who was brother of Azeem appellant nor Saleem's wife Mst. Yasmin was produced during trial; that the recovery of blood-stained Chhuri was not worthy of credence, as after its recovery, the blood- stained Chhuri was kept at police station for quite sometime; that Mamoon Khan, A.S.-I./P.W.7, did not specify the date when the blood-stained Chhuri was handed over to him; that according to Moharrer, the blood-stained Chhuri was handed over to the Constable on 15-9-1989, while according to the report of Chemical Examiner, the date of dispatch was on 9-5-1989; that Latif Cqnstable/P.W.8 stated about one sealed parcel of blood-stained Chhuri and not that of clothes; that abscondence of the appellant was not properly proved during trial; that in any case it was not a case of capital punishment, as the deceased invited the trouble by poking his nose in the domestic affairs of two brothers, whereupon an altercation took place between the appellant and the deceased and hot words were exchanged; that the deceased provoked the appellant by his conduct.
8. Conversely, learned counsel for the complainant submits that P.Ws.l and 2 had no motive to involve the appellant falsely; that the ocular account was fully supported by the medical evidence and corroborated by the unchallenged testimony of Ali Muhammad/P.W.13 and recovery of bloodstained Chhuri plus abscondence of appellant for about eight years; that no mitigating circumstances exist in favour of the appellant who caused sharp edged injuries to the deceased.
The learned counsel appearing on behalf of the State support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. The relevant facts leading to the occurrence are that Muhammad Saleem was son of sister of wife of complainant Ch. Ali Muhammad. A dispute was on between Muhammad Saleem and his brother Muhammad Azeem appellant over construction of 'Dahleez' on his stairs. Due to this dispute, Azeem caused injury on the hand of Mst. Yasmin wife of his brother Saleem when he was stopped from construction on 26-4-1989. In order to solve the dispute, four persons were deputed as arbitrators who saw the spot on the fateful day at 8-00 p.m. And held that Azeem was on the wrong. Muhammad Saleem insisted that Muhammad Azeem should apologise for causing injury to his wife. Muhammad Azeem swore that he had not caused injury to the wife of his brother Saleem, whereupon Nasir Imtiaz deceased volunteered that within his view Muhammad Azeem had inflicted injury on the wife of Muhammad Saleem. This incensed Muhammad Azeem who threatened him with dire consequences. At about 11-30 p.m. While Nasir Imtiaz was standing on the road in front of his house within the presence of complainant and other P.Ws., the appellant who was armed with a Chhuri caused repeated injuries on the person of Nasir Imtiaz which proved fatal.
The prosecution story is supported by eye-witnesses P.W.l Fateh Muhammad Shahzad brother of the deceased and Yasin Batalvi/P.W.2 a neighbourer. Both the witnesses had no previous enmity or ill-will against the appellant so as to involve him in a false case. They have given very consistent, coherent, natural and trustworthy account of the occurrence. They were subjected to very lengthy tortuous cross-examination. The intrinsic value of their testimony could not be shaken. It may be noted here that their statements are fully supported and corroborated by the statement of Ch. Ali Muhammad which was recorded on 29-8-1990 and cross- examination by the acquitted accused was done on 11-11-1990. This statement was recorded in the absence of the appellant who had absconded during trial after his release on ad interim bail on the ground of sickness by this Court.
This statement was duly transferred to the record of this case and was relevant under Article 47 of the Qanun-e-Shahadat Order, 1984, as Ali Muhammad died before his statement could be recorded against the appellant.
' According to the learned counsel the appellant was roped in this case due to political enmity. The argument of the learned counsel is without any substance, as no dispute had occurred between the deceased and the appellant over their belonging to different political parties. There is a lot of difference between political rivalry and enmity. In this case no enmity existed between the parties.
There is nothing on record that they ever contested election against each other. The ocular account is fully supported by the medical evidence and corroborated by the statement of Raja Muhammad Yaqoob/P.W.3 vis-ii- vis the convening of Panchayat and motive. The non- appearance of Mst. Yasmin and her husband Saleem would not benefit the appellant at all, as Saleem being real brother of Azeem appellant refused to appear before the trial Court. Similarly, Mst. Yasmin wife of Saleem chose not to appear before the trial Court. Both of them were given up as having been won over but most importantly, none of the two appeared as a defence witness.
11. The appellant was arrested on 2-5-1989 and on the same date he led to the recovery of blood- stained Chhuri and blood-stained clothes from his house. In order to prove the recovery, the prosecution produced Masood Anwar/ P.W.4 and Zulfiqar Ali Shah, Inspector/ P.W.9. Masood Anwar is a witness .From the public. He had no enmity whatsoever with the appellant and his credibility could not be shaken. As far as recovery of bloodstained Chhuri is concerned it stands proved.
However, since P.W.8 Muhammad Latif Constable did not mention that he was handed over the blood-stained clothes, that part of evidence may be excluded. The ocular account is fully supported by the factum of abscondence of the appellant.
' The appellant was admitted to interim bail by this Court on the ground of sickness while he was being tried. The said bail petition was subsequently cancelled and then he absconded. Non- bailable warrants were issued against him by the learned trial Court on 13-1-1990. The order is available on record as Exh.PA at page 129 of the Paper Book. The appellant was re-arrested while he had been declared proclaimed offender by Muhammad Nawaz Cheema, A.S.-I./P.W.10, on 13-11- 1997, after about eight years. The appellant cannot say that he did not know that he was involved in the case and was being tried. The factum of abscondence was put to him through Question No,9 while his statement was recorded under section 342, Cr.P.C. His plain answer was that he did not know. That speaks volumes. The factum of abscondence is proved to the hilt and there was no need for the prosecution to produce the Constable who was handed over the warrants of arrest.
12. The only fault of the deceased who was a young man of twenty two years was that he exposed the appellant before the arbitrators by stating that in his presence the appellant had given beating to this Bhabhi Mst. Yasmin and was wrongly swearing that he had not caused any injury to his Bhabhi. The appellant kept grudge in his heart and after the arbitration proceedings, he came armed with a Chhuri and inflicted repeated blows on the deceased, therefore, does not deserve any leniency. The acquittal of the co-accused would not benefit the appellant in any manner as both of them were empty-handed and they were assigned the role of holding the deceased. The learned trial Court, while acquitting them, followed the principle of safe administration of justice.
13. The upshot of the whole discussion is that in our opinion, the prosecution has successfully proved its case against the appellant. Hence, the judgment passed by the learned trial Court is maintained. This appeal is dismissed. The death sentence is confirmed. The Murder Reference is answered in the affirmative.