' TARIQ SHAMIM, J---The appellant , namely , Muhammad Shabbir son of Muhammad Sharif was tried by the learned Additional Sessions Judge, Gujrat, Camp at Kharian in case bearing F.I.R.
No,441/01, dated 11-6-2001, registered with Police Station Sadar Kharian, for an offence under section 302, P.P.C. The learned trial Judge by virtue of his judgment dated 25-6-2002 found him guilty of committing Qatl-i-Amd of Muhammad Iqbal deceased, convicted under section 302 (b), P.P.C. And sentenced him to death with further direction to pay a sum of Rs,25,000 to the legal heirs of the deceased by way of compensation under section 544-A, Cr.P.C. And in default thereof to undergo simple imprisonment for six months.
2. The appellant by filing this appeal through Jail 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,520 of 2002 for confirmation of said death sentence.
3. Precisely the allegation against the appellant, according to the F.I.R, is that on 7-6-2001 at 5-30 p.m. The complainant along with his brother Muhammad Iqbal, Basharat Ali and Khalil Ahmad were present outside his house in an open place and were busy in talking with each other when Shabbir appellant came there while brandishing his dagger and gave a dagger blow to Muhammad Iqbal, brother of the complainant, which hit him on the abdomen. On receiving the injury Muhammad Iqbal fell down and Muhammad Shabbir appellant while brandishing his dagger fled away from the place of occurrence. Muhammad Iqbal was taken to C.M.H., Kharian in an injured condition and after about eight days he succumbed to the injuries.
4. At trial the prosecution has examined as many as 11 witnesses.
' Muhammad Ashraf (P.W.4) and Khaleel Ahmad (P.W.5), and Basharat were the eye-witnesses.
Muhammad Ashraf (P.W.4) deposed that on 7-6-2001 at about 5/5-30 p.m., he was present near the Haveli of Inayat, Khalil Ahmad, Basharat and Iqbal were also present there. In the meantime Shabbir appellant came there and gave a Khanjar blow to Iqbal near his left flank and ran away.
On receiving the injury Iqbal fell down. He was taken to the C.M.H., Kharian in an injured condition.
After about eight days Iqbal succumbed to the injuries. He further deposed that the occurrence was witnessed by him, Khalil and Basharat, The motive for the offence was that the brother of Shabbir appellant had sold shop to Iqbal deceased who instead of the appellant had given the money to the father of Shabbir appellant. On 11-6-2001, he made statement Exh. PD before the Thanedar near Gulyana Chowk. The statement was read over to him and after admitting it to be correct he signed the same. His grandfather and the grandfather of the appellant were inter se related. Khalil (P.W.5) also deposed on the same lines as Muhammad Ashraf (P.W.4). Muhammad Aslam appeared as P.W. 1, Muhammad Nazir appeared as P.W.2, Dr. Naveed Iqbal, Medical Officer, THQ Hospital appeared as P.W.3, Muhammad Nadeem, Constable, appeared as P.W.6, Pervaiz, Constable, appeared as P.W.7, Liaqat Hussain, A.S-I., Police Station Kharian appeared as P.W.8 who recorded the formal F.I.R. Exh.PD/1 which was in his hand and bore his signatures. Akhtar Naqash, Draftsman, appeared as P.W.9 and Mumtaz Ahmad S.I. Appeared as P.W.11.
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 P.Ws. Had deposed against him, Muhammad Shabbir appellant replied:-- ' "The P.Ws. Are closely related inter se. Adalat Khan, maternal grandfather of Muhammad Ashraf complainant had (sic) Khaleel Ahmad P.W. Died leaving no son. He was Sunni by sect and his daughter is only entitles 2/3rd of his property as shareholder in inheritance while 1/3rd is to go to the father of the accused and his uncle. As the accused and his father were demanding 1/3rd share from the property of said Adalat Khan and to which the complainant and Khalil P.W. Are not going to give them and they were demanding it continuously. Iqbal deceased was injured in the fair of Baba Lakkar Shah where horses were dancing many persons were seeing and enjoying those dances and in the mob some unknown persons injured the deceased as the real culprit could not be traced out so the complainant and his P.W. After consultation and deliberation four days after the occurrence with the connivance of the police involved me in this false case to get rid of the demand from the property of said Adalat Khan. The deceased was having many enemies.
The police did not conduct the investigation honestly and properly and with the connivance of the complainant instead of tracing out the actual culprit involved me in this case falsely."
6. The learned counsel for the appellant has contended that the eye- witnesses have made dishonest improvements in the statements before the learned trial Court inasmuch as even the venue of occurrence has been changed; that in the F.I.R. Injury received by the deceased is on the front side whereas in the medical evidence it has come out that the injury was caused to the deceased on the left flank from the backside; that the motive stated in the F.I.R. Has been changed by the complainant while appearing as a witness before the learned trial Court; that the witnesses are closely related, therefore, independent corroboration is required which is not forthcoming; that there are glaring discrepancies in the statements of Muhammad Ashraf (P.W.4) and Khalil Ahmad (P.W.5) which are fatal to the prosecution case; that delay in lodging of the F.I.R. Has created serious doubt about the veracity of the prosecution case and that the learned trial Court while convicting the appellant has failed to properly appreciate the evidence available on the record and, therefore, the appellant deserves to be acquitted.
7. Conversely, the learned Deputy Prosecutor-General appearing on behalf of the State has contended that the eye-witness account furnished by Muhammad Ashraf (P.W.4) and Khalil Ahmad (P.W.5) is confidence inspiring; that motive for the occurrence has been proved at the trial; that although some improvements were made by the witnesses but the same were not dishonest; that the recovery had been proved at the trial which provided corroboration to the eye-witnesses account and that the judgment of the learned trial Court is in consonance with law, therefore, no interference is called for.
8. We have heard the learned counsel and have gone through the record with their able assistance.
9. The ocular account in this case was furnished by Muhammad Ashraf (P.W.4) and Khalil Ahmad (P.W.5). Muhammad Ashraf (P.W.4) is also the complainant and brother of Muhammad Iqbal deceased. According to the said witnesses on 7-6-2001 at, about 5-5-30 p.m. In the presence of the witnesses near the Haveli of one Inayat the appellant inflicted a Khanjar blow near the left flank of the deceased and before he could be apprehended he managed to escape. On receiving the injury, Muhammad Iqbal fell down and was removed to the C.M.H., Kharian in an injured condition whereafter about eight days he succumbed to the injuries. Motive for the occurrence was stated to be a dispute over money between the deceased and the appellant. The evidence furnished by the eye-witnesses is in line with each other on all material aspects of the case and in particular as to the place of occurrence, the identification of the appellant by witnesses, the weapon used by the appellant and the seat of injury suffered by the deceased. Although the learned counsel for the appellant has pointed to certain discrepancies in the statement of said two witnesses which according to the learned counsel are fatal to the prosecution case, however, we disagree with him as the discrepancies pointed out are trivial in nature and in our opinion do not in any manner affect the veracity of the evidence furnished by the said two witnesses which is creditworthy and has rightly been accepted as such by the learned trial Court. Insofar as the objection of the learned counsel for the appellant that the witnesses are related to the deceased as well as inter se related, therefore, conviction could not have been recorded by the trial Court based on their testimony alone is concerned; we afraid the same has no force. In this contest it is observed that mere relationship of eyewitnesses with the deceased cannot be considered sufficient to discard their testimony particularly when they have withstood the test of lengthy cross-examination as in the instant case. Reference is made to the case of Abdul Karim v. The State 1997 M LD 1363.
10. Adverting to the motive aspect of the case it has been noticed. That the complainant Muhammad Ashraf (P.W.4) has given a different motive in the F.I.R. From the one set up at the trial.
In view of his, divergent stand and on account of non-corroboration of the same from any other source we are constrained to hold that the motive for their occurrence resulting in the murder of the deceased has remained unproven as has been observed by the learned trial Court as well.
11. Dr. Syed Ali Muhammad had examined the deceased on 14-6-2001. He found one incised wound 3 c.m. x 2 c.m. On the left lumber region which was deep and entering the abdominal cavity. In cross-examination he deposed that the operation notes of the deceased were not produced before him by the police or the relatives of the deceased, therefore, he was not in a position to say as to whether after receiving the injury and before being examination, the injured had been provided proper medical care. The autopsy on the dead body of the deceased was conducted by Dr. Naveed Iqbal (P.W.3) on 15-6-2001. The testimony furnished by Dr. Naveed Iqbal (P.W.3) is in line with that of Dr. Syed Ali Muhammad (P.W.10) and is conclusive as to the time of occurrence, locale of injury and the weapon used. It is manifest from the foregoing that the eye-witnesses account furnished by Muhammad Ashraf (P.W.4) and Khalil Ahmad (P.W.5) is in consonance with the medical evidence.
12. The other piece of evidence available on the record is that of recovery of Khanjar P-1 from the possession of the appellant taken into possession by the police vide recovery memo. Exh.PB Muhammad Nazir (P.W.2) is the witness of recovery of weapon who had joined the investigation of the case and in his presence Khanjar P-1 blood stained was recovered from the house of the appellant on his pointation. The Khanjar was sent for chemical examination to the office of the Chemical Examiner Punjab and according to the report Exh.PM the weapon was found sustained with blood. The report of the Serologist was returned in the positive meaning thereby that the dagger, weapon of offence, was found stained with the human blood. The evidence furnished by P.W.2 was fully supported by the testimony of the Investigating Officer who had also deposed on similar lines. Both the witnesses were cross-examined at length but nothing material could be extracted from them which could be termed as favourable to the defence. Although an objection was taken by the learned counsel for the appellant that the place from where the recovery was effected was thickly populated but no independent witness was invited to participate in the recovery proceedings and therefore, the proceedings were in violation of section 103, Cr.P.C. We are afraid the objection is devoid of any force as Muhammad Nazir (P.W.2) in his statement has categorically stated that at the time of recovery of weapon from the house of the appellant no other person came to the place of recovery. There is no denying the fact that public is reluctant to come forward to join proceedings as witnesses in such like cases out of fear of reprisal from the accused. In view of the foregoing we have no hesitation in holding that the prosecution B has successfully proved the recovery of Khanjar/dagger from the appellant which has lent necessary independent corroboration to the eye-witness account.
13. From the above discussion it is evident that the murder of the deceased took place in broad daylight and had been witnessed by Muhammad Ashraf (P.W.4) and Khalil Ahmad (P.W.5) who had furnished a creditworthy account in respect thereof; that the medical evidence was in the line with the ocular account furnished by the said witnesses; that the evidence of recovery has provided further support to the prosecution case and that although the motive part had been disbelieved by the learned trial Court and rightly so, but the fact remains that the complainant and the witnesses had no ulterior motive to falsely implicate the appellant in the crime of murder of the deceased.
14. Now adverting to the quantum of sentence, we are inclined to take a lenient view for reasons that the prosecution could not prove the motive against the appellant which is shrouded in mystery; that the appellant had inflicted one injury on the body of the deceased and did not repeat the blow; that certain improvements were made by the complainant and the other eyewitness in their statements before the learned trial Court and that the deceased had died after 8 days of receiving the injury and there is nothing on record to suggest that in the interregnum he had received proper medical care. Consequently, keeping in view the safe administration of justice, we by maintaining the conviction of the appellant reduce the sentence of death to life imprisonment.
Benefit of section 382-B Cr.P.C. Is extended to the appellant.
' With the above modification in the quantum of sentence, this appeal is dismissed However, the death sentence is not confirmed and the murder reference is answered in the negative.