Tariq Shamim, J.--The appellant, namely, Kashif Nadeem alias Stylo son of Muhammad Sarwar was tried by the learned Additional Sessions Judge, Sialkot, in case bearing FIR. No, 116/2001. dated 27.6.2001, registered with Police Station Kotli Loharan, Sialkot, for offence under Sections 302, 324 and 337-fl P.P.C. The learned trial Judge by virtue of his judgment dated 6.7.2002 found him guilty of committing the murder of Muhammad Akbar, deceased, convicted under Section 302(b) P.P.0 and sentenced him to death as Ta'zir with a further direction to pay a sum of Rs, 2,00,000/- as compensation as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased and in default thereof to undergo rigorous imprisonment for six months.
2. The appellant by filing this appeal has called in question the conviction and sentence awarded to him vide the impugned judgment, whereas the learned trial Judge has sent Murder Reference No, 478 of 2003 for confirmation of said death sentence.
3. Precisely the allegations against the appellant, according to the F.I.R. are that Liaqat Ali and Muhammad Akbar had left their houses at 9/10 a.m. on 25.6.2001, when they reached near Surgical Factory of one Ashraf Thekadar, all of a sudden Kashif alias Stylo appellant who was hiding behind the Havely of Khadim Hussain came and with a chhurri attacked Muhammad Akbar deceased. The first chhurri blow landed on the left flank of the deceased who fell down whereafter the appellant gave a second chhurri blow on the back of right shoulder. On hearing the noise Muhammad Akmal, Muhammad Sajjad and Shahid Hussain, all resident of the same village, who were standing nearby came to the spot and witnessed the occurrence. Kashif appellant while waving chhurri managed to escape.
4. After usual investigation Kashif Ali alias Stylo appellant was sent to face trial. On 26.11.2001, formal charge under Sections 302, 324 and 337-D P.P.0 was framed to which the appellant pleaded not guilty and claimed trial under the law.
5. At the trial the prosecution examined as many as 9 witnesses whereas 4 witnesses were given up. Liaqat Ali appeared as PW-1, Shahid Hussain PW-2, Shamas PW-3, Zafar Iqbal, Sub-Inspector FW-4, Akhtar Naqash Draftsman PW-5, Muhammad Arshad Constable PW-6, Dr. Shabbir Ahmad Mughal appeared as PW-7. He had first examined Muhammad Akbar, deceased. Dr. Fakhar-uz- Zaman appeared as PW-8. He had conducted the postmortem examination on the dead body of the deceased on 10.7.2001 at 6:00 p.m. whereas Rehmat Ali, A.S.I. appeared as PW-9. Reports of the Chemical Examiner Ex.PO and of the Serologist Ex.PP were tendered in evidence.
5. On the conclusion of the prosecution evidence, statement of the accused under Section 342 Cr.P.C. was recorded by the learned trial Court. In answer to the question as to why the case against him and why the PWs had deposed against him, Kashif Nadeem appellant replied as under:-- "I am innocent and have been falsely involved in this case due to enmity and suspicion. The PWs are related inter se and to the deceased and they belong to the same groups/party. The PWs were inimical to me because I was supporter and friend of Zafar Iqbal alias Kala son of Muhammad Rafique. On 30.3.2000 Muhammad Akbar deceased, his brothers and relatives had a quarrel with the said Zafar Iqbal and gave him severe beating and injured him. The said Zafar Iqbal got himself medically examined from R.H.C. Kotli Loharan, the attested copy of his MLD Ex.PG to get a case registered against. Muhammad Akbar deceased etc. and that I am a witness of the said occurrence and supporter of the said Zafar Iqbal but the matter was patched up among them. Due to that reason the PWs bore grudge against me. Moreover, in the last local bodies election we supported Haji Muhammad Arshad as a Nazim while the complainant party supported Muhammad Yaqoob of village Chak Madhar. Haji Muhammad Arshad was elected as Nazim. There is a party faction in our village. The PWs belong to the party of Muhammad Yaqoob of Chak Madhar whereas I belong to party of Haji Muhammad Arshad. Shahid Hussain PW and his family was involved in murder cases. The complainant party had supported Shahid Hussain PW and his family in the murder cases and that Haji Basharat and Muhammad Aslam uncle Liaqat Ali complainant had appeared as witnesses in their favour.
The occurrence of this case had not taken place at the place and in the manner as stated by the PWs. In fact the occurrence had taken place far away from the village Abadi in the deserted/vacant land belonging to the Government/Military. Some unknown assailant had injured Muhammad Akbar in the deserted area and his father and relatives, on hearing about the injuries of Muhammad Akbar rushed to that place and removed him from there to the Police Station Kotli Loharan in semi un-conscious condition and that the police got Muhammad Akbar injured medically examined from RHC Kotli Loharan on 25.6.2001 and on the same day obtained the copy of MLR and his blood-stained clothes from the doctors. The father of Muhammad Akbar deceased had presented an application to Rehmat Ali A.S.I./I.O on the same day about this incident mentioning therein that some unknown assailants injured his son Muhammad Akbar but Rehmat.
Ali S.I. kept the said application with himself without recording any' proceedings on it. The father and other relative of Muhammad Akbar due to his serious condition and in view of the reference of the doctor removed him in serious condition from RHC, Kotli Loharan to AIM Civil Hospital Sialkot where he was entertained and given medical treatment. Then in view of his serious condition he was again referred by AIM Civil Hospital, Sialkot to Mayo Hospital Lahore where he was taken and operated upon and later on he died due to negligence of the doctors. After 2/3 days of the occurrence i.e on 27.6.2001 Liaqat Ali PW conspired with Rehmat Ali A.S.I. and thereafter Rehmat Ali A.S.I. in league with the complainant party and the doctor of RHC Kotli Loharan tempered with original MLR registered regarding the MLR of Muhammad Akbar and the copy of MLR Ex.PE of Muhammad Akbar which had already been supplied to the police, and got registered this false case against me. through application Ex.PA which was dictated by Rehmat Ali A.S.I. to some police officials while sitting at the police station after due deliberation and consultation. Muhammad Akbar injured had been seriously injured and was not in a condition to speak and made statement.
Rehmat Ali A.S.I. on 27.6.2001, did not go to Mayo Hospital, Lahore to record 'statement of Muhammad Akbar injured nor he had obtained any certificate from any doctor regarding the fitness of Muhammad Akbar injured. to make statement. nor he recorded statement Ex.PK of Muhammad Akbar. All these documents i.e statement of Muhammad Akbar injured Ex.PK, application Ex.PJ the certificate of fitness recorded on it were fabricated by Rehmat Ali A.S.I. while sitting at the Police Station. Moreover, the statement Ex.PK. the application Ex.PJ and the certificate of fitness recorded thereon are not according to the legal requirements, and as such . have no legal value. The inquest report Ex.PL. injuries statement Ex.PN and application Ex.PA are in the hands of the same person and that according to Rehmat Ali A.S.I./I.0 PW, the inquest report Ex.PL and the injuries statement Ex.PN are not in his hand. He failed to name the person who recorded these documents. The ziminies and the statements of the PWs and statement Ex.PK of Muhammad Akbar are not in the hand of Rehmat Ali/A.S.I./I.O. The investigation conducted by Rehmat Ali A.S.I. is dishonest and the result of collusion of complainant with Rehmat Ali A.S.I. Rehmat Ali A.S.I. after completion of the challan and the report under Section 173 Cr.P.C. which was prepared by Muhammad Samar S.I./S.H.O. on 15.7.2001, this honestly on 17.7.2001 recorded statement of Shamas Din PW under Section 161 Cr.P.C. and appended it with the police file and added his name in the list of witnesses of prosecution in its end, without any legal authority."
6. Kashif Naeem appellant did not appear as witness in his own defence to disprove the allegations/charges levelled against him as required under Section 340 (2) Cr.P.C. nor did he produce any defence evidence. On the conclusion of trial and after hearing the arguments of the parties, the learned trial Court convicted and sentenced the appellant as aforementioned vide its judgment dated 6.7.2002.
7. The learned counsel for the appellant has contended that the venue of the occurrence is different to the one stated by the prosecution witnesses as the murder took place at some deserted place and was not witnessed by any person; that the F.I.R. was lodged after consultation and premeditation by the complainant; that if it be presumed that the complainant was busy in providing the medical care to the injured/deceased then some other male member of the family could have furnished information to the police regarding the occurrence but the F.I.R. was lodged on 27.06.2001 at 6:25 p.m. i,e, with a delay of 72 hours which has not been plausibly explained; that the appellant has been falsely implicated in this case by the complainant in order to take revenge of sodomy committed by the appellant with Shamas (PW-3), the younger brother of Muhammad Akbar deceased; that even otherwise, the motive as set up by the prosecution is weak and could not be proved at the trial through independent evidence; that if the appellant had committed the sodomy with Shamas (PW-3). then the F.I.R. would have been registered but the matter was never reported to the police; that the defence set up by the appellant was plausible, reasonable and reliable whereas the motive set up by the prosecution was based upon fabrication; that the evidence account furnished by the two eyewitnesses was in contradiction with each other which implies that the said witnesses were not present at the time of commission of the murder and had not seen the occurrence; that the medical evidence was in direct conflict with the ocular account furnished by the eye-witnesses; that Liaqat Ali (PW-1) is real uncle of the deceased, therefore, he is not only related but is also an interested witness whereas Shahid Hussain (PW-2) is an interested witness because in the murder of member of his family the complainant had appeared as witness in support of their case and for that reason the said witness has deposed against the appellant; that PW-1, if he was present at the place of the occurrence, would have made an attempt to rescue his nephew which is not the case; that the recovery of Chhurri P-1 taken into possession vide memo Ex.PB was fake and bogus and had been effected in violation of Section 103 Cr.P.C.; that the weapon was not even made into a sealed parcel by the police; that the medical evidence is in direct conflict with the eye-witness account inasmuch as Dr. Fakhar-uz-Zaman (PW-8), who had conducted the postmortem examination of the deceased, had stated that the deceased had sustained four injuries whereas Dr. Shabbir Ahmed Mughal (PW-7) who had first examined the deceased and had issued MLR Ex.PE had stated that the deceased had suffered only two injuries; that the dying declaration of the deceased was neither properly written nor recorded in accordance with law as the deceased was not in a position to make a statement: that dying declaration was not written in presence of any Doctor and the same was recorded in the presence of other prosecution witnesses, hence it, carries no weight and that the investigation in the case was conducted in a dishonest manner by Rehmat Ali, ASI (PW-9) who was not a man of integrity.
8. Conversely, the learned Deputy Prosecutor while appearing on behalf of the State has contended that it is not a case of false implication as it is highly unlikely for the relatives of the deceased to let off the real culprit in order to falsely implicate another person; that the eye-witness account furnished by PW-1 is corroborated by the statement made by PW-2 which is in consonance therewith on all material particulars; that the medical evidence is in line with the ocular account as Dr. Shabbir Ahmed Mughal (PW-8) who had first examined the deceased had categorically stated in the medico-legal report that he had suffered two injuries; that the discrepancy in the postmortem examination of the deceased was on account of misunderstanding as prior to the postmortem examination the deceased had been operated upon and Injuries Nos, 1 and 4 were, in fact, surgical interventions and Injury No 1 had mistakenly been declared by Dr. Fakhar-uz-Zaman as an injury received during the occurrence; that there was no plausible reason for Dr. Shabbir Ahmed Mughal to have falsely mentioned the number of injuries actually suffered by the deceased; that the motive as set up by the prosecution was fully established at the trial; that the dying declaration of the deceased was competently recorded and had furnished corroboration to the eye-witness account; that the occurrence took place in broad daylight, therefore, there was no possibility of false implication of the appellant in the crime; that the weapon of offence was recovered on the disclosure and pointation of the appellant which has fully been proved at the trial and the same has furnished further corroboration to the ocular account; that the stand taken by the appellant at the trial was inconsistent and unreliable; that the eye-witnesses were subjected to lengthy cross-examination by the defence but their testimony could not be shattered, that the improvements and contradictions referred to above in the statements of the said two eyewitness are trivial in nature, therefore, they do not in any way negatively affect the prosecution case.
9. We have heard the learned counsel for the appellant learned Deputy Prosecutor General and have gone through the record with their able assistance.
10.In the instant case, the occurrence took place at 9:15 a.m. on 25.06.2003 near the factory of one Ashraf Contractor in the presence of complainant Liaqat Ali (PW 1) and Shahid Hussain (PW-2). The injured was shifted to R.H.C. Kotli Loharan where he was provided first aid by the Medical Officer who directed the complainant to shift him to Mayo Hospital for further medical treatment and consequently, the injured/deceased was admitted in the Mayo Hospital on 27.06.2001. The dying declaration of the deceased was recorded by Rehmat Ali, Investigating Officer (PW-9) who in his statement before the learned trial Court has fully supported the same. Since it was a broad daylight occurrence, therefore, false implication of the appellant does not arise. Even otherwise, there is no plausible reason for the complainant and others to let off the real culprit in order to falsely implicate the appellant in the crime. So far as the delay in lodging of the F.I.R. is concerned, the same stands adequately explained by the complainant which obviously was on account of providing prompt medical care to the injured on the advise of Dr. Shabbir Ahmed Mughal (PW-7), who had directed the complainant to immediately shift the injured/deceased to Mayo Hospital, Lahore. In such a situation, the priority of the relatives is to attend to the injured and to provide him immediate medical care. The delay, therefore, in lodging of the F.I.R. in the given facts and circumstances of the case is of no consequence.
11.The ocular account in the case was provided Liaqat Ali (PW1) and Shahid Hussain (PW-2) an independent witness. These witnesses have furnished graphical details of the events leading to the murder of the deceased. The eye-witnesses are natural and their presence at the place of the occurrence at the relevant time with well explained. The witnesses in their statements are consistent with each other on all material particulars of the case and have furnished a credible account of the occurrence. After going through the testimony of the eye-witnesses, we are convinced that the murder of the deceased was committed in their presence and in their view.
12.According to the prosecution witnesses, the motive behind the occurrence was that some time back Shamas (PW-3), the younger brother of the deceased, was subjected to sodomy by the appellant Although no criminal case was registered on account of interference by the respectable of the locality, however, the appellant was strongly admonished by the deceased and on the fateful day the appellant had committed the murder of the deceased on account thereof. Apart from the complainant, Shames (PW-3), the victim of the sodomy, has fully supported the prosecution case to the extent of motive for the occurrence. The said two witnesses are consistent in their statements and their evidence to the said effect has remained unshaken despite lengthy cross-examination by the defence. Even the appellant in his defence has taken inconsistent stand as regards the motive inasmuch as at one point it was urged that the appellant was involved on account of sodomy committed by him with Shamas (PW-3) whereas subsequently, it was stated that the factum of sodomy having been committed by the appellant could not be proved implying that it was not the motive for the occurrence. Be that as it may, the fact remains that the witnesses are consistent in their statements and have no plausible reason for letting off the real culprit in order to falsely implicate the appellant.
13.Other vital piece of evidence against the appellant is the dying declaration of the deceased Ex.PK which was recorded at the Hospital by Rehmat Ali, ASI on 27.06.2001. The deceased in his statement has provided detail of the events leading to his being injured by the appellant and the motive behind the occurrence. No illegality or infirmity has been found in the dying declaration which was got recorded by the deceased at Mayo Hospital under the apprehension of impending death. The police officer prior to recording the dying declaration had submitted an application to the Doctor who had affirmed that the deceased was in a position to make statement. This piece of evidence has lent undisputed corroboration and support to the case as set up by the prosecution.
14.In the course of investigation, Chhurri P-1 was recovered at I the instance of the appellant and on his pointation from his residential house. Rehmat Ali (PW-9) in his statement before the learned trial Court has furnished a credible account of recovery of weapon of offence from the appellant.
Although Rehmat Ali, ASI is a police witness but his testimony cannot be discarded on that ground alone as a police witness is a good a witness as any. It has come out in the evidence of this witness that at the time of recovery of Chhurri from the appellant, with the exception of the witnesses mentioned in the memo of recovery, no other person from the vicinity was available to participate in the recovery proceedings. He has-denied all suggestions regarding recovery of Chhurri being bogus or the same being a planted one. The testimony furnished by this witness is fully supported by the report of Chemical Examiner Ex.PO in which it is stated that Chhurri P-1 was stained with human blood. Scrapings sent to the Serologist were found to be stained with human blood (Ex.PP).
We are in agreement with the conclusion drawn by the learned trial Court that the factum of recovery of Chhurri from the appellant stands established at the trial.
15.The ocular account furnished by the witnesses has received further corroboration from the medical evidence furnished by Dr. Shabbir Ahmed Mughal (PW-7) who had initially examined the deceased on 15.06.2001 at 10:10 a.m. and had found the following injuries on his person:-- Stab wound 7 cm x 5 cm omentum was coming out from wound on left lateral abdominal wall, corresponding cut were present on Qameez.
2 A sharp wound 3 x 1(1/2) on back of lower part of chest on right side. Corresponding cut were present on Qameez." The injuries are in line with the ocular account furnished by the witnesses at the trial. Subsequently, after demise of Muhammad Akbar deceased, his postmortem examination was conducted by Dr. Fakhar-uzZarnan, Medical Officer of AIM Hospital, Sialkot. He discovered the following four injuries on the person of the deceased:-- "1. An incised wound 3 cm x (1/2) cm on the middle of front of left chest at anterior axillary lines 5 cm below the level of nipple.
2. An incised wound 2% x 2(1/2) x skin deep on upper part of hack or right chest.
3 An incised wound 11 x 5 cm on left lateral aspect of upper abdomen. Muscles were exposed.
4. A leparatomy wound 25 cm in lenth in upward down direction in mid abdomen."
16.Admittedly Injury No, 4 is surgical intervention and the disputed Injury No, 1 is an incised wound on middle front of left chest on anterior auxiliary line. The learned counsel for the appellant has laid much stress on the argument that Injury No, 1 was neither mentioned in the F.I.R. nor in the statements of the eye-witnesses or even in the medico-legal report of the injured Ex.PE which implies that the medical evidence is in conflict with the ocular account. We are afraid the argument does not have much force inasmuch as it is apparent from the postmortem report of the deceased that he had been operated upon and Injury No, 4 mentioned, in the postmortem examination was a surgical intervention. In the first instance. Dr. Shabbir Ahmed Mughal (PW-7) had no reason to falsely state the injuries suffered by the deceased and secondly. the complainant in the F.I.R. and the witnesses in their statements before the learned trial Court have given a consistent account of the injuries suffered by the deceased at the hands of the appellant. There is no reason for us to disbelieve the evidence furnished by the eye-witnesses and Dr. Shabbir Ahmed Mughal (PW-7).
17.In the nutshell, we are of the view that the prosecution has (proved its case to the hilt against the appellant before the learned trial ' Court by producing credible ocular account, motive behind the occurrence, dying declaration of the deceased and recovery of the weapon from the appellant. As .a sequel to the above, we DISMISS, this appeal filed by the appellant and maintain the sentence of death awarded to him by the learned trial Court.
18. The death sentence is confirmed and the Murder reference is answered in the Affirmative.