' IJAZ AHMAD CHAUDHRY, J.--- We intend to dispose of Criminal Appeal No,12-J of 2002 filed by Muhammad Saleem appellant his conviction and sentence, Criminal Appeal No,581 to 2001 filed against the acquittal of Muhammad Amin, Muhammad Yasin and Muhammad Yousaf and Criminal Revision, No,252 of .2001 filed by Muhammad Nawaz complainants for the enhancement of compensation along with Murder Reference No,241 of 2001 sent by the learned trial Court section 544-A, Cr.P.C. For the confirmation of death sentence of Muhammad Saleem appellant/convict as all these matters have arisen from the same judgment of dated 31-3-2001 passed by the learned Additional Sessions Judge, Sheikhupura through which he has convicted Muhammad Saleem appellant under section 302(b), P.P.C. And sentenced him to death with a direction for payment of compensation amounting to Rs,50,000 to the heirs of the deceased or in default of payment thereof to undergo simple imprisonment for six months. Through the same judgment Muhammad Amin, Muhammad Yasin and Muhammad Yousaf co-accused have been acquitted.
2. The occurrence in the present case had taken place on 30-1-1999 at 10-00 a.m. In the open field within the area of Dera Cheemian Bashmula Chak Narrah 8 miles away from the Police Station Saddar Farooq. Abad District Sheikhupura. Statement of Muhammad Nawaz .Complainant (P.W.8) father of the deceased Yasir Nawaz was recorded at police station on the same day at 12-40 p.m.
Through F.I.R. No,35/1999 (Exh.PF) by Saeed Ahmed S.I. (P.W.14).
3. The brief facts narrated by Muhammad Nawaz complainant (P.W.8) in the F.I.R. (Exh.PF) are that on 30-1-1999 at about 10-00 a.m. His son Yasir Nawaz was proceeding to village Baggi Burji, on-a bicycle to the shop of Blacksmith while the complainant along with Mansoor Hussain and Muhammad Abbas P.Ws were following him as he had to cut the fodder. When his son Yasir Nawaz reached near the sugarcane field, Muhammad Saleem appellant armed with hatchet and Muhammad Amin (acquitted accused) empty handed emerged from the sugarcane field.
Muhammad Amin (acquitted accused) pulled Yasir Nawaz from the bicycle and caught hold of him in a Japha whereas Muhammad Saleem appellant gave hatchet blow on the back of neck of Yasir Nawaz who fell down on the ground. Muhammad Saleem appellant gave another blow which landed at the back. He also gave hatched blows on the right arm and left side of neck blow the ear.
The complainant along with Mansoor Hussain and Abbas rushed to the place of occurrence. The appellant and his acquitted accused fled away towards the sugarcane field while raising Lalkaras.
The complainant also stated that Muhammad Saleem appellant and Muhammad Amin acquitted accused had committed the offence at the instance of Muhammad Yousaf and Muhammad Yaseen acquitted accused as few days earlier Yousaf and Yaseen acquitted accused had asked the complainant's son that they would commit the murder of Yasir Nawaz.
4. The motive behind the occurrence was alleged that father of the accused/ appellant Muhammad Yousaf who is uncle of the complainant had a dispute over the property and due to this reason the present occurrence had taken place.
5. After recording the F.I.R. Saeed Ahmad S.I. (P.W.14) visited the spot, prepare the injury statement Exh. PK, inquest report Exh.PL and sent the dead-body to the mortuary for post-mortem examination through Tariq Mahmood constable (P.W.3) and Shamim Haider constable (given up P.W.). He then inspected the place of occurrence, took the blood-stained earth into possession vide memo. Exh.PC which was attested by Abdul Ghafoor P.W. (not produced) and Zaqa Ullah P.W.5, sickle P.7 and iron pipe P.6 in the presence of the same witnesses vide memo. Exh.PD. He prepared a rough site-plan of the place of occurrence Exh.PN and also got prepared site plan through Muhammad Rafique Patwari (P.W.1) which is Exh.PA, on 16-2-1999 Muhammad Saleem appellant was arrested and on the same day he also led to the recovery of blood-stained hatchet P.8 (weapon of offence) on the pointating out of the appellant from the field of wheat crop of Muhammad Yousaf and hatchet P.8 was taken into possession vide memo. Exh.PE Haq Nawaz (P.W.6) and Sajid (given up P.W.) had witnessed the said recovery.
6. After the completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court, copies as required under section 265-C, Cr.P.C. Were supplied to the appellant/accused and charge was framed against him and his acquitted accused which was denied by him/them and they claimed to be tried.
7. The prosecution in order to prove the guilt of the appellant and his acquitted accused produced as many as 14 witnesses. The ocular account was furnished by Muhammad Nawaz complainant (P.W.8) and Ghulam Abbas (P.W.9) while Nasir Nawaz (P.W.7) deposed about the conspiracy. The investigation was conduced by Saeed Ahmad S.I. (P.W.14) and the post-mortem was conducted by Dr. Muhammad Azam (P.W.13). The remaining witnesses are formal nature and need not to discuss here.
8. 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. On a question that "Why this case against you? And why the P.Ws. Deposed against you" Muhammad Saleem appellant has made the following reply which is reproduced as under:--- ' "I have been falsely involved due to relationship with my co-accused. The complainant party along with the P.Ws. Wanted to snatch our property."He did not opt to make statement under section 340(2), Cr.P.C. And also denied to produce any defence evidence. However, Nazar Hussain, Inspector/S.H.O. Lorry Adda, Lahore was also examined as C.W.1.
9. 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 appeals and revision petition.
10. Learned counsel for the appellant contends that the eye-witnesses namely Muhammad Nawaz complainant (P.W.8) and Ghulam Abbas (P.W.9) were not present at the spot and they did not witness the occurrence, who also failed to show any reason for their presence at the place of occurrence; that if previous enmity was between the parties regarding the dispute of land then the appellant would have also caused harm to the complainant, father of the deceased; that the eye- witnesses had not spoken the whole truth; that the medical evidence is not in conformity with the ocular account as injury No,3 was found to have been caused by blunt weapon and the said injury had not been explained which means that the witnesses were not present at the spot; that the witnesses had not made statements with consistency as there are contradictions in their statement, which may be disbelieved; that the recovery of hatchet is inconsequential as the same was shown to have been effected from an open place and the said place was easily accessible to everyone, which was not possible after 16 days of the incident; that in such circumstances there was no possibility of remaining of the blood on the said weapon and the reports (Exh.PU and Exh.PV) were fabricated one; and that the motive could not be proved through any documentary evidence and oral statements were not sufficient to prove the same as it was admitted by the complainant that no suit had been filed by any party against each other regarding the dispute over the land, in the alternate it is contended that what had happened immediately before the incident had not been disclosed by the prosecution and in such circumstances at the most was a case of letter punishment only.
11. Learned counsel for the State on the other hand opposes the appeal on the ground that the ocular account furnished by the prosecution had been proved beyond any shadow of doubt; that the witnesses had no previous enmity or grudge to falsely implicate the appellant in the present case; that it was a day-light occurrence and there were no chances of substitution of the appellant in the present case by letting off the real culprit; that the witness had made consistent statements, which are supported by the medical evidence, and that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt, who had given successive blows with hatchet on the vital parts of the body of the deceased and does not deserve for any leniency.
12. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution.
13. The occurrence in the present case had taken place at 10-00 a.m. On 30-1-1999 at a place which was 8 miles away from the Police Station Saddar Farooqabad and the statement of Muhammad Nawaz complainant (P.W.8) was recorded by Saeed Ahmad S.-I. (P.W.14) at 12-40 a.m. on the say day at the police station in which the name of the appellant with the role played by him during the incident had been fully explained. It was stated by the complainant that the appellant while armed with hatchet had caused repeated blows on different parts of the deceased. Saeed Ahmad S.I.
(P.W.14) stated that he had proceeded to the spot after registration of the F.I.R. And then sent the dead-body to mortuary through the Police Constables for the post-mortem examination, which was conducted by Dr. Muhammad Azam (PJW.13) at D.H.Q. Hospital, Sheikhupura on the same day of occurrence at 7-30 p.m., which also supports the factum of the registration of the F.I.R. With promptitude.
14. In order to prove the ocular account Muhammad Nawaz complainant (P.W.8) father of the deceased and Ghulam Abbas (P.W.9) cousin of the complainant were produced by the prosecution. P.W.9 claimed that they were joint holders of land and they had joint Haveli. Both the eye- witnesses admittedly were residents of the same locality as according to P.W.9 the Haveli jointly possessed by both the P.Ws. Was at a distance of 2 acres from the place of incident. Both the eye-witnesses had explained their presence at the spot while standing that they were going for cutting the fodder and deceased was going on a bicycle. It was also admitted by P.W.9 during the cross-examination that the deceased was in possession of a sickle and iron-pipe, who was going on a bicycle and both the eye-witnesses were also in possession of sickles. The Investigating Officer (P.W.14) after registration of the case when visited the spot had also taken into possession sickle, bicycle and iron-pipe which provide support to the story of the prosecution narrated by the eye-witnesses about the purpose of going and passing from the place of occurrence for cutting the fodder. Both the eye-witnesses had no previous enmity or grudge against the appellant to falsely implicate him in the present case by letting off the real culprit, which was a day-light occurrence and there was no possibility of misidentity of the real culprit. Though according to the motive set up by the prosecution there was some dispute between the parties over the land but admittedly no civil suit was pending between the parties and they were not involved previously in criminal litigation with each other. Thus the eye-witnesses cannot be termed as interested witnesses only because of close relationship inter se and with the deceased as the appellant was also related to them. Both the eye-witnesses had made consistent statements regarding the time, place and the manner in which the occurrence had taken place. Both of them categorically stated that the appellant alone while armed with hatchet had given hatchet blows on the person of deceased. The medical evidence also fully supports the ocular accounts injuries Nos.l, 3 and 4 were found to have been caused by sharp edged weapon and the dimension of the injuries shows that the same could be caused by a hatchet as claimed by the prosecution witnesses. Only because injury No,2 on the upper part of neck and lower part of cheek was a contusion to have been caused with blunt weapon, the ocular account cannot be declared in contradiction with the medical evidence as the said injury could also be caused by the wrong side of the hatchet, which is always blunt or by falling on the ground after receiving the other injuries. Even otherwise we find that both the eye-witnesses were subjected to lengthy cross-examination but nothing could be gained by the defence to create any doubt in. The prosecution story. Mere acquittal of the co-accused is not sufficient to belie the prosecution story as the said coaccused had not caused any injury to the deceased and was attributed the role of pha only, which is doubtful as when the appellant was causing injuries with hatchet, re was also possibility of. Sustaining by the co-accused, who could not take e risk of holding of the deceased, Moreover it is generally noticed that the tendency has developed in the society at close relatives/friends of the main accused are also involved in a case by widening the net and attributing the role of Japha, Lalkara and conspiracy etc. On the other had the appellant had caused successive blows with the hatchet and the said injuries were sufficient to cause death in the ordinary course of -nature. Thus we have no hesitation in holding that the ocular account was trustworthy and confidence-inspiriting, which alone is sufficient to bring home charge against the appellant even without seeking corroboration from any independent piece of evidence.
15. The appellant was arrested on 16-2-1999 and on his pointation hatchet P.8 (blood-stained) Ijad been recovered by Saeed Ahmad S.-I. (P.W.14) and Haq Nawaz (P.W.6) had witnessed the said recovery, who was resident of the same locality and had no enmity or motive to falsely depose against the appellant. We do not find any inconsistency in the statements of the recovery witnesses namely Haq Nawaz (P.W.6) and Saeed Ahmad Investigating Officer (P.W.14). It is also noticed that the said recovery of hatchet had been effected from the temporary what and availability thereof even after 16 days of the occurrence was possible. Even otherwise, the said hatchet according to the reports .Of the Chemical Examiner (Exh.P.U.) and the Serologist (Exh.P.V.) were found stained with human blood. The said recovery of hatchet from the appellant and the reports also provide corroboration to the ocular account, which otherwise has been found by us independent, natural and trustworthy.
16. In the above facts and circumstances we find that the prosecution had been able to bring home charge to the appellant beyond any shadow of doubt and he had been rightly convicted by the learned trial Court under section 302(b), P.P.C. On the basis of the evidence on the record.
17. So far as the quantum of sentence is concerned, we are not persuaded with the arguments of the learned counsel for the appellant that the prosecution could not prove the motive as it has been admitted by the appellant himself that there was some land dispute between the appellant and the complainant party: The appellant had given repeated blows to the deceased on the vital part and injury No,l. Individually and injuries Nos.l and 4 collectively were declared sufficient to cause death in the ordinary course of nature. The intention of the appellant can be gathered from the nature of the injuries, which he had caused on the person of the deceased. We do not find any mitigating circumstances warranting the award of lesser sentence by withholding the normal penalty of death provided by the Statute for the offence. Resultantly, the death sentence awarded to the appellant by the learned trial Court is confirmed.
17- A. In view of the above discussion Criminal Appeal No,l2-J of 2002 filed by Muhammad Saleem appellant is dismissed.
18- So far as Criminal Appeal No,581 of 2001 filed by Muhammad Nawaz complainant against the acquittal of Muhammad Amin, Muhammad Yasin and Muhammad Yousaf respondents/accused is concerned, Muhammad Amin admittedly was not armed with any weapon and the allegation against him for catching hold of the deceased at the time of the occurrence, does not appeal to mind as nobody would take the risk of causing harm to him by catching hold of the victim who was being caused injuries with the hatchet. Similarly Muhammad Yasin and Muhammad Yousaf (acquitted accused) had not participated in the main occurrence and they were only alleged to have conspired with the other co-accused for commission of the offence. We have noticed that the complainant had not mentioned the place and the time for hatching the conspiracy with the convict Muhammad Saleem and only vague allegation had been levelled in the F.I.R. The statement of Nasir Nawaz (P.W.7) son of the complainant has been rightly disbelieved by the learned trial Court by acquitting the said respondents/accused as well. We do not find any illegality in the impugned judgment to the extent of acquittal of respondents/accused Muhammad Amin, Muhammad Yasin and Muhammad Yousaf as well which is maintained and the appeal against acquittal being void of any merit is dismissed.
19. Criminal Revision No,252 of 2001 was also filed by the complainant seeking enhancement in the compensation amount payable to the legal heirs of the deceased by the convict Muhammad Saleem. We find that the learned trial Court has already exercised its discretion while awarding adequate amount of Rs, 50,000 as 'compensation to the heirs of the deceased. The prosecution has not brought on the record any material about the financial status of the appellant and the property owned by him. No reason has been advanced in the memorandum of revision petition for enhancement of the compensation amount and this Criminal Revision being devoid of any merit is dismissed.
20. Murder Reference No,241 of 2001 is replied in the affirmative and the death sentence is confirmed.