Tariq Shamim, J.--Appellant Ghulam Abbas was tried by the learned Additional Sessions Judge, Sheikhupura in case F.I.R. No,298 dated 14.7.1998 for offence u/S. 302 P.P.0 registered at Police Station Sharaqpur, District Sheikhupura. and vide the judgment of the learned trial Judge dated 25.1.2001 the appellant was convicted u/S. 302(b) P.P.0 for causing Qatl-e-Amd of Muhammad Arshad deceased and sentenced to death including compensation of Rs, 50,000/- to be paid to the legal heirs of the deceased in terms of Section 544-A Cr.P.C. or in default whereof, to suffer 6 months' S.I Besides disposal of this appeal, the Murder Reference (Bearing No, 906/2003) for confirmation of death sentence or otherwise shall also be answered through this single judgment.
2. The facts as narrated by the complainant Muhammad Iqbal in the F.I.R. are that Muhammad Arshad, the younger brother of the complainant had privately appeared in the 2nd year examination and was also serving in an insurance company. At about 10:30 a.m. he had gone to Nai Abadi near Bus Stop of Traddewali to collect his clothes, where a quarrel took place between his brother and Ghulam Abbas, the appellant, but they were intercepted by the persons, present there. Later on, the brother of the complainant started waiting at the bus stop in order to embark a bus. In the meanwhile, Abdul Ghafoor and Ghulam Haider PWs also reached there to board a bus.
Many other persons were already present there. In the meantime, all of a sudden, Ghulam Abbas appellant came at the bus stop and started inflicting several blows with a Chhuri on his brother Muhammad Arshad which landed on the left side of his neck, left flank and the waist. Muhammad Arshad in order to save his life rushed towards Abadi Qila Ghaus about one acre from there, where he fell on the ground and succumbed to the injuries. The complainant including Abdul Ghafoor and Ghulam Haider tried to catch hold Ghulam Abbas but he while extending threats of killing made good his escape brandishing the Chhuri in his hand..Besides the complainant, the occurrence was also witnessed by Abdul Ghafoor and Ghulam Haider, PWs.
3. At the trial, the prosecution in order to prove its case produced as many as 11 witnesses including the eye-witnesses, doctor, witness of recovery, formal witnesses and the Investigating Officer, After tendering in evidence the reports of Chemical Examiner (Ex.PL & Ex.PM) and Psychiatrist (Ex.PN), the learned DDA closed the case for the prosecution. Alter finalization of prosecution evidence, the appellant was examined under Section 342 Cr.P.C. who did not say anything about his innocence.
The learned trial Court after taking into consideration every aspect of the case and hearing the arguments, convicted and sentenced the appellant, as stated above.
4. The learned counsel for the appellant has contended that the eye-witnesses Abdul Ghafoor (PW-8) and Muhammad Iqbal (PW-9) in their statements before the trial Court have contradicted each other as to the sequence in which the injuries were inflicted and the seat of injuries received by the deceased; that the most natural witness of motive i,e, the tailor, in whose presence a quarrel had taken place between the deceased and the appellant, was not examined by the learned trial Court and, therefore, the motive aspect of the case has not been proved at the trial; that the only witness produced by the prosecution in respect of the motive was Muhammad Iqbal (PW-9) who in his cross-examination admitted that in fact the quarrel between the deceased and the appellant had taken place in a wagon, which is contrary to the motive as set up in the FIR; that Muhammad Iqbal (PW-9) and brother of the deceased, if at all he was present at the place of occurrence at the relevant time, would have come forward to save his brother from being injured by the appellant, but there is no evidence on the record that he had done so; that the last worn clothes of the deceased did not have corresponding holes which is evident from the testimony of Dr. Yousaf Kazmi (PW-5); that recovery of weapon of offence from the appellant is of no consequence as scrappings were not sent to the Serologist for determination of origin of blood; that there was no trail of blood of the deceased form the place of occurrence to the place from where his deadbody was recovered, which shows that the occurrence had not taken place as stated by the prosecution witnesses but in fact his deadbody had been dumped in the field after the murder and that there are glaring contradictions in the statements made by the eye-witnesses which are sufficient to vitiate the trial.
5. Conversely, the learned Deputy Prosecutor General while representing the State has contended that the occurrence took place in broad daylight; that the F.I.R. was lodged promptly by the complainant which excludes the possibility of false implication of the appellant; that the eye- witnesses are natural and their presence at the spot cannot be doubted; that the medical evidence is in line with the ocular account which has received further support from the recovery of weapon of offence from the appellant; that the motive as set up by the prosecution has been established at the trial through the testimony of Muhammad Iqbal (PW-9); that there is no plausible reason for the complainant to let off the real culprit in order to falsely implication the appellant in the case and that the judgment of the trial Court is based on proper appraisal of evidence which, therefore, does not call for interference by this Court.
6. We have heard the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have gone through the file with their able assistance.
7. In the instant case, the occurrence took place on 14.7.1998 at about 11:30 a.m. and the written complaint was prepared at 12:30 p.m. whereas the formal F.I.R, was lodged at 1:00 p.m. which obviously reflects that the F.I.R. was lodged without any loss of time and with promptitude.
Therefore, the possibility of premeditation and consultation before lodging of the F.I.R. is excluded.
Further it is note worthy that the occurrence in the instant case took place in broad daylight in a busy place. Thus there is no possibility of substitution of the appellant by the complainant which even otherwise is a rare phenomenon as it is highly unlikely for the relatives of the deceased to let off the real culprit and involve someone else in the crime of murder particularly in a case where there is no direct enmity between the parties as in the instant case.
8. The eye-witness account in this case was furnished by Muhammad Iqbal (PW-9), the brother of the deceased and the complainant of the F.I.R. and Abdul Ghafoor (PW-8). It is note worthy that Abdul Ghafoor (PW-8) is an independent witness who is not related to the deceased or the complainant of the F.I.R. and his presence at the place of occurrence is natural and free from doubt. According to the eyewitnesses, on 14.7.1998 at about 11:30 a.m. in their view the appellant inflicted Chhuri blows on the person of the deceased Muhammad Arshad in consequence of an altercation which had taken place between the deceased and the appellant shortly prior to the occurrence at the shop of a tailor. In their statements, Abdul Ghafoor (PW-8) and Muhammad Iqbal (PW-9) have fully corroborated each other in all material aspects of the case. The discrepancies pointed out by the learned counsel in the statements of the said witnesses are trivial in nature and in our view do not, in any way, affect the merits of the prosecution case or the evidence adduced by the witnesses at the trial. The presence of the witnesses at the place of occurrence is natural which has not even been seriously questioned by the defence. The evidence of ocular account being unimpeachable and credible in all respect has rightly been accepted by the learned trial Court and we also tend to subscribe to the view taken by the learned trial Judge.
9. The medical evidence in the case was furnished by Dr. Yousaf Kazmi (PW-5) who conducted the post-mortem examination on the deadbody of the deceased on 15.7.1998 at about 8:30 a.m. Five incised wounds were found by the doctor on the body of the deceased and Injuries No, 1, 3 & 4 were declared to be sufficient to cause death in the ordinary course of nature. The time between death and post-mortem examination was stated to be 18 to 24 hours and the injuries were declared to have been caused by a sharp edge weapon. The last worn clothes of the deceased were handed over by the said witness to Munir Ahmad, Constable, Although, it is not in the evidence of this witness that the clothes of the deceased had corresponding holes but mere non-mentioning thereof does not ipso facto mean that the clothes did not have corresponding holes. The account furnished by this witness is in line with the ocular account and is conclusive as to the time of occurrence, seat of injuries suffered by the deceased and the weapon used.
10.After being arrested on 21.7.1998 the appellant while in police custody led to the recovery of Chhuri (P-3), blood stained, from his residential house lying in an iron box which was taken into possession vide Ex.PG in the presence of Noor Muhammad (PW-6). The recovery witness is an independent witness in whose presence the appellant had got recovered the weapon of offence.
The statement made by this witness is fully corroborated by Dilawar Hussain, SI (PW-10). Since Chhuri was stained with blood, the same was sent for analysis to the office of the Chemical Examiner, Punjab which in its report dated 15.8.1998 affirmed that the weapon was stained with blood. In view of the evidence adduced by Noor Muhammad (PW-6), Dilawar Hussain (PW-10) and the report of the Chemical Examiner, we do not carry any doubts in our minds that the factum of recovery of weapon of offence from the appellant has been proved by the prosecution.
11.In view of what has been stated above, we have no hesitation in holding that the prosecution has succeeded in proving its case to the hilt against the appellant. Consequently, while dismissing the appeal filed by the appellant we maintain his conviction and sentence. Resultantly, the sentence of death awarded to the appellant is confirmed. The Murder Reference is answered in the affirmative.
12.Before parting with this judgment, we would like to say few words about the judgment of the trial Court. We have noted with concern that Syed Shahbaz Hassan Gardezi. Additional Sessions Judge. Sheikhupura, has passed the judgment in a slipshod manner without properly appraising the prosecution evidence. In our view, it is tantamount to total non-application of mind by the trial Judge. A copy of this judgment be provided to the Registrar of this Court, who, in case the trial Judge is still in service, shall communicate our displeasure to him.