JUDGMENT RANA ZAHID MAHMOOD, J. - By this single judgment above-titled Criminal Appeal alongwith Criminal Revision Petition for enhancement of sentence imposed upon the appellant are being disposed of together being outcome of one and the same judgment dated 25.6.2002 passed by the learned Additional Sessions Judge, Sargodha, whereby he convicted and sentenced the appellant under Section 302, P.P.C, to suffer twenty years rigorous imprisonment as taazir with benefit of Section 382- B, Cr.P.C, in case F.I.R. No. 142, dated 25.7.2001 registered under Section 302/34, P.P.C., at Police Station Tarkhanawala, District Sargodha, wherein it is alleged that the appellant while armed with Toka alongwith Muhammad Ramzan, acquitted co-accused, father of the appellant, who was armed with hatchet, had committed the murder of Abdul Sattar deceased on the night of 24/25.7.2001 at about 3.00 a.m. Situated in Village Sulki due to the refusal of the deceased to divorce the sister of the appellant who was earlier given in nikah to the deceased about five years prior to the occurrence and rukhsati had not taken place while relations became strained between the parties.
2. After due investigation the appellant and Muhammad Ramzan, acquitted co-accused were challaned and the learned Additional Sessions Judge, vide impugned judgment, convicted and sentenced the appellant as stated earlier and acquitted Muhammad Ramzan, co-accused, his father.
3. Leamed counsel for the appellant has submitted that the appellant has been falsely involved and case of the prosecution was not proved beyond shadow of reasonable doubt and submitted that it is proved on record that the place of occurrence was situated in the dark and there was no light around admittedly the occurrence had taken place at night time on the intervening night of 24/25.7.2001 at about 3.00 a.m. And submitted that the presence of the complainant who is step- brother of the deceased, is unnatural as it was Dera of one Mushtaq on which the complainant claims to be present at the relevant time with Ahmad Khan (PW.9), who is also a relative of the complainant and the deceased and submitted that both the P.Ws, are close relatives of the deceased and are also interested witnesses. Therefore, no reliance could be placed on the testimonies of interested P.Ws. Further submitted that the presence of the two P.Ws, at 3.00 a.m. At the dera of Mushtaq was also not established neither there was any justification for their presence at the dera and that too talking to each other at such a late stage of the night. He, therefore, submitted that in fact the occurrence was unwitnessed and it was a blind murder. However, there was an allegation against Mushtaq that he had committed the murder of the deceased as the deceased used to live at the dera of Mushtaq and in the absence of Mushtaq, had established illicit relations with his wife, therefore, while the deceased was asleep, he was murdered by Mushtaq and some others. He submitted that prosecution story that the appellant and the co-accused committed the murder of the deceased, does not appeal to reason as instead of committing, the murder of the deceased, the appellant and his father co-accused could have gone to the Family Court for obtaining divorce to their daughter which was refused by the deceased and there was no sense for murdering him and involving the appellant and his father in this serious offence.
4. Learned counsel submitted that as per F.I.R, there were two blows with Toka (P.4) allegedly given by the appellant on the face and neck of the deceased; whereas according to the post-mortem report available on record as Exh.PA, there were seven incised injuries on the person of the deceased, therefore, there is a direct conflict between ocular account and the medical account which makes the prosecution case doubtful that the P.Ws, were not present at the time of alleged murder. He submitted that the appellant has been involved merely on account of suspicion and submitted that in the first instance the motive introduced by the prosecution was weak and in the second, the recovery of Toka is of no help to the prosecution as evidence that it blood-stained, therefore, was not sent to the Chemical Examiner with removal of scrapping of blood from the toka for analysis and report by the Chemical Analyst and also the Serologist. He, therefore, submitted that in the absence of independent eye-witness evidence corroborated by medical evidence, motive and the recovery, the case against the appellant is full of doubts, therefore, the conviction and sentence is illegal. Appeal may be accepted and the appellant may be acquitted.
Learned Deputy Prosecutor General has supported the impugned judgment, opposed the contentions and submitted with reference to the testimony of the draftsman and the site plan prepared by him available on record as Exhs.PD and PD/1 that there waS a bulb on the outer wall of the room/Baithak where PW.8 and PW.9 were sitting and talking to each other on the question of refusal of divorce by the deceased and submitted that the deceased was sleeping outside the room at a distance of about 30/35 feet from the two P.Ws, and as such it cannot be said that the place of occurrence was situated in the dark. He submitted that there is overwhelming evidence on record that the appellant had committed the murder of the deceased which is supported by the testimonies of PW.8 and PW.9 who had every reason to be naturally present at the scene of occurrence at the dera of Mushtaq and submitted that the evidence of the P.Ws, stated above is natural, confidence inspiring and corroborative on all material points to each other which also corroborates the post-mortem report and the testimony of Dr. Zile Hussain (PW.I), it is submitted that the injuries were inflicted with toka with a brutal force on the deceased which wiped off the nose of the deceased completely from his face as is evident from the medical evidence. Further submitted that all the injuries including injuries inflicted by the appellant on the deceased in the sight of the P.Ws, were fatal to the deceased and had caused the death of the deceased in the ordinary course of nature as a collective result of the injuries stated above, on the deceased. He submitted that the deceased died on the spot immediately on the infliction of the injuries and the F.I.R, was lodged within a span of 51/4 hours while the police station is situated at a distance of about seven miles from the place of occurrence, therefore, the F.I.R, itself was prompt and natural. Therefore, there was no question of any deliberations or false involvement in it. In any event, he has submitted that the learned trial Judge had taken into consideration that on account of the refusal of the deceased to divorce to the sister of the appellant the agony of the family was persistent and on the increase, therefore, the same was treated as a mitigating circumstance and as such the appellant was not granted normal penalty of death and he was convicted under Section 302(c), P.P.C, to twenty years rigorous imprisonment though the learned trial Judge omitted to mention sub-section (c) of Section 302, P.P.C, while convicting the appellant through the impugned judgment, In any event, learned Deputy Prosecutor General submitted that except for minor and immaterial discrepancies which are bound to occur in the narration and repetition of facts after lapse of some time, there are no major discrepancies in' the testimonies of eye-witnesses i.e., complainant, PW.8 and Ahmad Khan (PW.9). Therefore, as said testimonies also corroborate the medical evidence and motive is also proved against the appellant, there is no merit in this appeal and neither any exception can be taken to the impugned conviction and sentence, the appeal is; liable to be dismissed, He submitted that none is present from the side of the complainant to prosecute criminal revision for enhancement in which notice had been is;sued which resulted into hearing of this criminal appeal by the Division Bench of this Court,
6. We have heard the learned counsel for the appellant and also the Deputy Prosecutor General for the State and have perused the record including the testimonies of relevant P.Ws, with care.
7. Occurrence in the instant case, as is evident not only from the F.I.R, itself, but also from the testimonies of the eye-witnesses (PW.8) and (PW.9), took place at about 3,00 a.m. On the intervening night of 24/25.7,2001 and it is in the testimonies of said PWs. That the PWs and also the deceased were talking to each other even at late night and the topic under discussion was the question of divorce to the sister of the appellant while the deceased had gone to his bed outside th*e room where said P.Ws, were present and talking to each other about 114 hours before the murder, it is also in evidence that the deceased used to live at the dera of Mushtaq where the occurrence took place. The presence of none of the P.Ws, at the place of occurrence at the relevant time, in any event, is doubtful neither the prosecution through the cross-examination on said P.Ws, has been able to put any dent or crack in the testimonies of said P.Ws, on said point. The venue of occurrence coupled with the time of occurrence naturally excludes the presence of unconcerned P.Ws, and merely from the locality and no doubt can be entertained in this other person witnessing the occurrence at the relevant time. Had the said P.Ws/eye-witnesses not present at the scene of occurrence, there was no question of narration of said facts by specifically nominating the appellant in the F.I.R, with specific role of infliction of injuries on deceased which was promptly lodged within a span of 514 hours after the occurrence while the police station was situated at a distance of seven miles as is also mentioned in the F.I.R, itself. Therefore, the promptness with which the F.I.R, has been lodged itself excludes the possibility of any deliberations or false involvement.
8. The place of occurrence was not dark and there was light all around as at a short distance of about thirty feet at the most a bulb was on outside the wall of the room baithak where the P.Ws, were present and the deceased was sleeping on a cot which was a single cot outside the room.
Thirty feet or thirty-five feet distance from the eye-witnesses could not make the scene of occurrence hazy or in any manner unclear and there is no substance in the argument advanced by the learned counsel for the appellant that persons sitting inside the room could Not clearly see the assailants who committed murder of the deceased. The perusal of the site plan available on record in the testimony of Muhammad Saleem, Draftsman (PW.2) prepared by him shows that there was bulb available and was also on lit at the relevant time fixed on the outer wall of the room where the deceased prior to going for sleep on the cot at the place of occurrence was present alongwith two P.Ws, talking to each other and the main topic was the divorce to the sister of the appellant. The perusal of testimonies of PW.I and PW.2 brings us to the conclusion that the testimonies are corroborative of each other on all material points and admit no material discrepancy prejudicial to the prosecution case. Motive by the prosecution also stands proved on record and there is no denial by the defence/appellant that Mst. Nasim, sister of the appellant was not in the nikah of the deceased five years prior to the occurrence, it is also not denied by the appellant that rukhsati had not taken place for such a long time and deceased despite demand, had refused to grant divorce to the sister of the appellant. There was, therefore, every motive with the appellant to commit the murder of the deceased and it may be mentioned that sufficiency or otherwise of the motive itself is no, ground for suspecting the commission of offence by the appellant; whereas motive as set up by the prosecution has squarely been proved by it. The testimony of Dr. Zile Hussain (PW.I) goes to show that there were seven incised wounds on the person of the deceased and the death had occurred as a natural consequence of said injuries inflicted on the deceased by the appellant and it is immaterial if there are more injuries on the deceased than the one stated by the complainant, firstly in the F.I.R, and by Ahmad Khan (PW.9) in his statement before police under Section 161, Cr.P.C, as the two injuries stated by the P.Ws, on the face and neck of the deceased are very much borne out from the medical evidence and all the injuries including the said two were collectively sufficient to cause the death of the deceased in the ordinary course of nature as has also been expressed by Dr. Zile Hussain (PW.I).
9. We do not find that there is any doubt in the prosecution story on the basis of the evidence adduced by the prosecution. Mere relationship of the P.Ws, with the deceased per se is no ground to discredit and discard their testimonies. The main thing to be seen is the presence of the P.Ws, at the relevant time, whether it was natural or not and whether the prosecution explained the presence of the P.Ws, at the relevant time in a satisfactory manner? The answer to the same is in affirmative. As observed earlier the appellant during cross-examination of the P.Ws, could not shake the credibility of the P.Ws, therefore, mere relationship of the P.Ws, with the deceased would not take away the effect of proof of the testimonies of said P.Ws. The recovery of crime weapon is only a corroborative piece. The proof or otherwise of the same singly without corroborating from any other source is not prejudicial to the prosecution case neither gives any advantage to the appellant. We do not find that there is any scope for interference in the impugned judgment in this appeal. We may, however, observe that it was the legal obligation of the learned trial Judge to be specific under which provisions of Section 302, P.P.C, he was convicting the appellant as sub- section (a) of Section 302, P.P.C, deals with sentence under qisas and the same is death while sub- section (b) of said section death is as taazir or imprisonment for life as taazir, whereas in subsection (c) of section stated above, sentence may extend to twenty-five years, while the learned trial Judge passed sentence of twenty years against the appellant. We, therefore, presume that it was Section 302(c), P.P.C, under which the learned trial Judge passed the conviction and sentence against the appellant. Law expects from all the Sessions Courts to be mature in the comprehension of law at least and that too in clear cut terms. Any expression to the contrary by a Sessions Court can be detrimental to any Presiding Officer in his carrier, it is, therefore, desired that all the Sessions Courts must be very specific in the matter of recording of conviction and passing sentence with reference to particular provision of Penal Code. .10. This appeal being without merit is, therefore, dismissed and, as there is no one present on behalf of the complainant to prosecute the revision petition filed by him in which notice was issued, the same is dismissed for want of prosecution. Even otherwise it is observed that the learned. Trial Judge had rightly adjudged the appellant to be entitled for mitigation in the matter of sentence on account of the fact that the deceased had refused to allow divorce to the sister of the appellant while the agony of status-quo as rukhsati also had not taken place and the relations had gone worse resulting into demand of divorce, therefore, the agony was persistent and on the increase, we are, therefore, of the view that even otherwise there was no scope of enhancement of the sentence.