' TARIQ SHAMIM, J.---The appellant, namely, Muhammad Younis son of Muhammad Latif along with his co-accused was tried by the learned Additional Sessions Judge, Depalpur, in case bearing F.I.R.
No . 572/2000, registered with Police Station Basirpur, for offence under sections 302, 324, 452 and 34, P.P.C. The learned trial Judge by virtue of his judgment dated 13-11-2002 found him guilty and convicted and sentenced him as follows:--
(i) Under section 302(b)/34, P.P.0 to death with a further direction to pay a sum of Rs,50,000 to the legal heirs of the deceased by way of compensation under section 544-A, Cr.P.0 and in default thereof to undergo simple imprisonment for six months.
(ii) Under sections 324/34, P.P.0 and sentenced to rigorous imprisonment for ten years. A fine of Rs,20,000 was imposed upon and in default thereof he was ordered to undergo rigorous imprisonment for one year.
(iii) Under sections 337-D/34, P.P.C., with a direction to pay an amount of Rs,50,000 as Arsh to Muhammad Ramzan alias Jan. Muhammad, injured PW and in default thereof to undergo simple imprisonment for six months. He was also sentenced under the above mentioned section to rigorous imprisonment for five years as Ta'zir.
(iv) Under section 452/34, P.P.C., and sentenced to rigorous imprisonment for five years with a fine of Rs,10,000 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 sentences awarded to him vide the impugned judgment, whereas the learned trial Judge has sent Murder Reference No,809 of 2002 for confirmation of death sentence.
3. Precisely the allegations against the appellant, according to the F.I.R. (Exh.PA) which was got registered by Khurshid Ahmad complainant (PW.2), are that on 5-11-2000 at 6-45 p.m. The complainant along with his father Muhammad Ramzan alias Jan Muhammad, mother Hanifan Bibi, Muhammad Rafi and Muhammad Shafi brothers of the complainant, were present in the house.
Light was on in the courtyard. Suddenly, Muhammad Younis alias Kali, Muhammad Yousaf, Muhammad Azam sons of Muhammad Latif armed with Chhuris and Muhammad Latif empty handed came there. They raised Lalkara that they be taught a lesson for restraining Younis from playing deck loudly. Muhammad Younis inflicted a Chhuri blow on the left side of chest of Muhammad Rafi. Muhammad Azam caused two blows with his Chhuri to Muhammad Rafi which hit him on the left arm near the elbow. Muhammad Rafi fell down. Muhammad Yousaf gave a Chhuri blow to Ramzan alias Jan Muhammad, the father of the complainant, which hit him on his abdomen. Mother of the complainant came forward to rescue the injured but was given a Chhuri blow by Muhammad Azam which hit on the finger of her left hand. On their alarm, Sardar Ali son of Ghulam Muhammad the neighbours of the complainant came there who witnessed the occurrence. Meanwhile, other residents of the Mohallah also arrived at the spot and managed to rescue them from the accused. However, Muhammad Rafi succumbed to the injuries and died at the spot.
4. At the trial the prosecution examined as many as 12 witnesses. Khurshid Ahmad, complainant, appeared as P.W.2 and averred on the same lines as the F.I.R. Tariq Aziz Constable appeared as P.W.1 to whom three parcels containing Chhuris and two containing blood stained earth were handed on 4-1-2000 at 11-00 p.m. By the Moharrar of the Police Station for onward transmission to the office of Chemical Examiner, Lahore which he deposited in the said office on 5-1-2000 at 8-00 a.m. Muhammad Ramzan alias Jan Muhammad and Mst. Hanifan Bibi, injured eye-witnesses, appeared as P.W.3 and P.W.4 respectively and narrated the story as mentioned in the F.I.R.
Muhammad Sadiq Constable appeared as P.W.S. Zahoor Ahmad Constable appeared as P.W.6.
Sardar Ali appeared as P.W.7. Muhammad Ishaq Nasir Draftsman appeared as P.W.9 and on 7-11- 2000 he visited the place of occurrence in the presence of the PWs and prepared rough notes. He, on 10-11-2000, prepared scaled site plan Exh.P.H. And Exh.PH/1 and handed over the same to the Investigating Officer. Javaid Akbar, A.S.-I, appeared as P.W.11. Mukhtar Ahmad, Sub Inspector, appeared as P.W.12 and deposed that on 5-11-2000 at about 7.20 pm while he was posted at Police Station Basirpur Khurshid P.W.2 appeared before him and made a statement on which he recorded F.I.R (Exh.PA); after registration of the case he along with other police officials reached the spot and inspected the place of occurrence; he also inspected the dead body of Muhammad Rafi; Muhammad Ramzan (P.W.3) and Mst. Hanifan Bibi (P.W.4) injured witnesses were present there and after their examination he prepared injury statement of Ramzan (Exh. PL) and of Mst. Hanifan Bibi (Exh.PL/1); he sent both the injured to the hospital for treatment and prepared the inquest report (Exh.PM) of Muhammad Rafi deceased; he prepared application for postmortem examination (Exh.PM/1) and handed over dead body to Zahoor Ahmad Constable for escorting the same to the mortuary for postmortem examination; he recorded the statements of the witnesses under section 161, Cr.P.0 and secured blood stained earth from the place of occurrence; prepared sealed parcel and took the same into possession vide memo. Exh.PE; he also secured blood stained earth from the place where Ramzan was injured and prepared sealed parcel and took the same into possession vide memo. Exh.PF; he also prepared rough site plan Exh.PN of the place of occurrence; he went to the hospital and prepared applications Exh.PP and Exh.PP/1 regarding Hanifan Bibi and Ramzan injured respectively regarding their fitness to make statements; the doctor gave certificate of fitness of Mst. Hanifan Bibi Exh.PP/2; Ramzan injured was reported to be unfit for making statement; he recorded statement of Mst. Hanifan Bibi under section 161, Cr.P.C; he recorded the statement of Muhammad Ramzan on 6.11.2000 when he was fit to make a statement; after postmortem examination he took into possession last worn clothes of Muhammad Rafi deceased, kameez P-3, bunyan P-4 and chadar P-5 vide momo Exh.PB; he got prepared scaled site plan of the place of occurrence Exh.PH and Exh.PH/1; on 16-11-2000 he arrested Lhe accused Yousaf, Younis and Azam and obtained their physical remand; during investigation on 24-11-2000 Muhammad Younis led to the recovery of Chhuri P-1 from his residential house which was taken into possession vide memo. Exh.PC; on the same day Yousaf accused got recovered Chhuri P-2 which was taken into possession vide memo. Exh.PD; on the same day Azam accused also got recovered Chhuri; he prepared rough site plan of the place of recoveries (Exh.PQ); he recorded the statement of recovery witnesses under section 161, Cr.P.C; the accused were sent to judicial lock up on 25-11- 2000; Muhammad Latif was arrested on 1-12-2000 and sent to judicial lock up on 2-12-2000; after investigation he prepared the challan; Latif accused was found innocent during his investigation; the age of Azam accused was only 14/15 years and consequently his challan was prepared separately as juvenile under the direction of the learned Sessions Judge. Dr. Rai Niaz Ahmad, Medical Officer, T.H.Q. Hospital Depalpur, who appeared as P. W . 8, conducted the postmortem examination on the dead body of Muhammad Rafi deceased. The dead body was identified by Muhammad Yasin and Khurshid Ahmad and brought by Zahoor Ahmad constable. He examined the dead body on 6-11-2000 at 11-00 a.m. Dr. Munir Ahmad, Medical Officer, THQ Hospital Depalpur appeared as P.W.10 who on 5-11-2000 at 8-15 p.m. Examined Muhammad Ramzan alias Jan Muhammad and Mst. Hanifan Bibi.
5. At the conclusion of the prosecution evidence, statements of the accused under Section 342, Cr.P.0 were 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 Younis alias Kali appellant replied:--- "All the P.Ws. Are closely related inter se, and are inimical towards me and my co-accused due to family friction, therefore, the P.Ws. Have made a false statement against me and my co-accused.
The real facts are that occurrence had taken place at 11-00 p.m. Night but the time of occurrence had been changed by the police and doctor and showed at evening time to involve me and my co-accused in connivance with the complainant. Some unknown persons entered in the house of complainant for committing theft at night on resistance by Ramzan, Mst. Hanifan Bibi and Rafi deceased. Those unknown persons caused injuries to them. Rafi injured, subsequently died.
Complainant Khurshid Ahmad and Shafi were not present at the time of occurrence. I and my co- accused have been falsely involved in the present case on the basis of concocted story."
'The appellant did not appear as his own witness in terms of section 340(2), Cr.P.0 and also did not produce any evidence in his defence.
6. The learned counsel for the appellant has argued that the motive as set up by the prosecution was not proved at the trial; that the eye-witnesses are closely related and, therefore, no reliance can be placed on their testimony without corroboration from some independent source which is not forthcoming; that the medical evidence is in conflict with the ocular account; that the eye- witnesses in their statements have made contradictions and improvements, thus, no reliance can be placed thereon; that Muhammad Latif, a co-accused, was declared as innocent by the police during investigation which has a negative bearing on the prosecution case and that the recoveries were not proved by the prosecution at the trial, therefore, the appellant deserves to be acquitted.
7. The learned Deputy Prosecutor-General while representing the State has contended that the eye-witnesses have furnished an unimpeachable ocular account of the occurrence; that their presence at the spot is not disputed; that Muhammad Ramzan P.W.3 and Mst. Hanifan Bibi P. W .4 are injured witnesses whose presence at the spot cannot be doubted; that the motive was duly proved at the trial; that weapon of offence was recovered by the police in the course of investigation on the pointation of the appellant which was blood stained and was affirmed to be so by the Chemical Examiner and that the prosecution in view of unimpeachable evidence produced at the trial has proved its case beyond a shadow of doubt.
8. We have heard the learned counsel and have gone through the paper book with their able assistance.
9. In the instant case the occurrence took place on 7-11-2000 at about 6-45 pm whereas the F.I.R.
Was lodged on the same day at 7-20 p.m. i.e, after about 35 minutes of the occurrence. According to the Investigating Officer the distance between the place of occurrence and the Police Station was one and a half kilometers. Thus, the F.I.R was lodged with promptitude which excludes the possibility of consultation or substitution of the accused which even otherwise is a rare phenomenon. The defence has not been able to bring on record any evidence to show that strong enmity existed between the parties which could have promoted the complainant and the witnesses to falsely implicate the appellant in the crime. Insofar as the motive is concerned, the complainant and the other witnesses have fully corroborated each other with respect thereto in their statements made before the learned trial Court. Even in the site plan prepared by Muhammad Ishaq Nasir, Draftsman, P.W.9 the location of the house of the appellant is shown opposite the house of the complainant in the courtyard of which the murder of the deceased had been committed by the appellant and others.
10. The ocular account in this case was furnished by Khurshid Ahmad P.W.2 who is the complainant and brother of the deceased, Muhammad Ramzan, father of the deceased P.W.3 and Mst. Hanifan Bibi, his mother P.W.4. According to the said witnesses the appellant and others while armed with Chhuris attacked the complainant party while they were preparing to have their dinner in the courtyard of their house. The appellant inflicted a Chhuri blow on the left side of the chest of Muhammad Rafi who on receiving the same died at the spot. CO-accused of the appellant namely Muhammad Yousaf who is an absconder and Azam inflicted injuries on the persons of Khurshid Ahmad P.W.2 and Mst. Hanifan Bibi P.W.4. The presence of these witnesses at the spot cannot be disputed as they are residents of the house where the occurrence had taken place. The account furnished by these witnesses leading to the murder of the deceased and injuries to P.W.3 and P.W.4 are consistent with each other in all material aspects. Minor contradictions have been pointed out by the learned counsel for the appellant which in our view are trivial in nature and do not in any way reflect negatively on the prosecution case. Although the eyewitnesses are closely B related to the deceased, however, their testimony cannot be discarded on that score alone. In our opinion the witnesses have furnished a credible account of the occurrence which is fully corroborated by other independent pieces of evidence available on the record including medical evidence furnished by Dr. Rai Niaz Ahmad P.W.8 and Dr. Munir Ahmad P.W.10. According to Dr. Niaz Ahmad, who had conducted autopsy on the dead body of the deceased on 5-11-2000, he had suffered the following injuries:---
(1) An incised wound 2 x 1 cm going deep on the left side of the chest 5 x 1/2 cm away from the left nipple and seven 'o' clock position, 5 cm away from midline.
(2) An incised wound 1.5 cm x 1/2 cm, back part of left elbow joint going deep (entry wound).
(3) An incised wound 1.5x 1/2 cm, the back and lower part are going deep 3 cm away from injury No,2 (exit wound of injury No,2).
(4) An incised wound lcm x 1/2 cm on the front and upper part of left arm.
11. The time between receipt of injury and death was declared as immediate whereas between death and postmortem examination was fixed between 14 to 16 hours approximately. According to the doctor the cause of death was due to severe haemorrhage and shock on account of injury No,1 which had penetrated the heart and paricordiam, thus, sufficient to cause death in the ordinary course of nature. This injury is ascribed to the appellant by the complainant in the F.I.R. As well as by all the eye-witnesses in their statements before the learned trial Court. In his cross-examination the doctor stated that the deceased might have taken his last meal five hours before his death which implies that the time of taking the last meal was about 1-45 p.m. Which is a reasonable time for taking a mid-day meal. This further confirms the time of death as stated by the witnesses. The medical evidence in our opinion is in conformity with the eyewitness account and is conclusive as to the time of occurrence, the seat of injuries suffered by the deceased and the -weapon used in the occurrence.
12. The other piece of evidence relied upon the prosecution is recovery of Chhuri P1 blood stained from the appellant. The witnesses of recovery are Khurshid Ahmad P.W.2 and Mukhtar Ahmad, S.-I.
Investigating Officer P.W.12 in whose presence, while being interrogated on 24-11-2000 the appellant disclosed that he could get recovered Chhuri with which he had committed the murder of the deceased. Consequently, on the said date he led the witnesses to his house and on his pointation blood stained Chhuri P-1 was recovered from the bathroom of his house which was taken into possession by the Investigating Officer vide memo. Exh.P.C. We are not impressed with the evidence of recovery of weapon of offence from the appellant for the reason that it was effected after 19 days of the occurrence and that too on the last day of the remand. Further, the witnesses are none other than the complainant P.W.2 and the Investigating Officer although admittedly there were residential houses around the house of the appellant. However, none from the locality was associated by the police with the recovery proceedings. In the circumstances the possibility of weapon of offence being planted by the police cannot be ruled out.
13. Now adverting to the plea taken by the appellant at the trial of the deceased being murdered by some unknown persons who had also caused injuries to the injured P.Ws., suffice it to say that the appellant has failed to bring on record strong enmity with the complainant which could have promoted him to falsely implicate the appellant and his co-accused. There is no plausible reason for the witnesses to falsely implicate the appellant while letting off the real culprits who had committed the murder of the deceased and caused injuries to Muhammad Ramzan P.W.3 and Mst.
Hanifan Bibi P.W.4. Although it is stated by the appellant that the occurrence had been committed at 11-00 p.m. At night by some unknown persons but the fact remains that the eye-witnesses have placed the time of occurrence at 6-45 p.m. Which fact is duly affirmed by Doctor Rai Niaz Ahmad P.W.B.
14. It is argued by the learned defence counsel that since the co-accused namely Muhammad Latif had been acquitted by the learned trial Court, therefore, the appellant also deserves acquittal from the charge. We C are afraid the argument is devoid of any force as the role ascribed to co- accused Muhammad Latif is distinguishable from that of the appellant who has been ascribed fatal injury to the deceased. In the course of investigation also Muhammad Latif was declared, innocent by the police. Even otherwise, the Courts are required to sift grain from chaff in orde- to arrive at the truth.
As a sequel w the above, we dismiss this appeal and maintain the conviction and sentence of the appellant as recorded by the learned trial court. The sentence of death is confirmed and the murder reference is answered in the affirmative.