' MUHAMMAD ANWAR BHAUR, J.---The appellant, namely, Muhammad Afzal alias Mithu son of Muhammad Ishaq along with Muhammad Haroon, Muhammad Shafi and Muhammad Abdullah sons of Peer Khan was indicted for the murder of Muhammad Irshad and murderous assault on Shoaib Akhtar in case F.I.R. No,42, dated 14-3-2003, registered with Police Station Raja Jang, District Kasur for offences under sections 302, 324, 337F(ii)/34, P.P.C. The trial was before learned Additional Sessions Judge, Kasur, who by virtue of his judgment dated 21-4-2004 found him guilty of the said charge, convicted and sentenced him as under:-- I UNDER SECTION 302(b), P.P.C.
' To death with further direction to pay Rs.1,00,000 to legal heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default thereof to undergo imprisonment for six months. II UNDER SECTION 324, P.P.C.
To undergo rigorous imprisonment for ten years with a fine of Rs.25,000, or in default thereof to suffer rigorous imprisonment for one year for committing murderous assault on Shoaib. Akhtar, injured P.W.
III UNDER SECTION 337-F(ii) P.P.C.
' To pay Daman of Rs.25,000 to Shoaib Akhtar alias Nomi for causing him injury and to remain in custody till payment thereof.
' The learned trial Judge by giving benefit of doubt to Muhammad Haroon, Muhammad Shafi and Muhammad Abdullah acquitted them of the charge.
2. The appellant by filing Criminal Appeal No,652 of 2004 has called in question the conviction and sentence awarded to him vide the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No,286 of 2004 seeking confirmation or otherwise of the death sentence awarded to the appellant. We propose to dispose of both these matters together through this single judgment.
3. Occurrence in this case had taken place on 14-3-2003 at 1-30 p.m. Near Railway Station Raja Jang, located at a distance of two furlongs from police station Raja Jang, District Kasur. The said occurrence was reported by Najam Naseer son of Nazir Ahmad complainant (P. W.12), brother of Muhammad Irshad-deceased, on the same day at 2-20 p.m. At the police station to Muhammad Akram, S.-I. (P.W.15) who as per his dictation drew up F.I.R. (Ex. PF) without any addition or alteration on his part.
4. The prosecution story as enunciated in the F.I.R. (Exh. PF) by the complainant was that his brother was running a shop of photography; adjacent to his shop, there was a shop of Shoaib Akhtar alias Nomi Butt; in the morning time, the girls of the area used to assemble at the Bus Stand in order to go to schools and colleges; Muhammad Afzal and Muhammad Haroon accused used to tease the girls by reaching there; they were reprimanded by his brother Muhammad Irshad and Shoaib Akhtar alias Nomi Butt at a number of occasions, whereupon both the accused extended them threats of dire consequences; three days prior to the occurrence, Muhammad Shafi, brother of Muhammad Haroon and maternal uncle of Muhammad Afzal was informed about the aforesaid threats by the complainant and Sajid Butt son of Abdul Rashid; on the fateful day, at about 1-30 p.m., when the complainant along with Muhammad Irshad. Shoaib Akhtar alias Nomi Butt, Muhammad Anwar and Sajid Butt were on their way to Station Wali Mosque for offering Jumma prayer, all of a sudden, Muhammad Shafi, armed with a .12-bore gun, Muhammad Abdullah, armed with a .30-bore pistol, Muhammad Haroon, armed with a Chhurri and Muhammad Afzal alias Mithuappellant, armed with a dagger, who were sitting in ambush in the street, emerged and Muhammad Afzal alias Mithu-appellant delivered a dagger blow on the heart of Muhammad Irshad; thereafter the appellant inflicted a blow with his dagger on the left ribs of Shoaib Akhtar alias Nomi Butt; then Haroon caused a Chhurri blow on the left armpit of Shoaib alias Nomi; Muhammad Shafi and Muhammad Abdullah aimed their respective weapons on them and stated that they will kill all of them; thereafter, they decamped from the scene while raising Lalkaras; Muhammad Irshad succumbed to the injuries instantaneously; besides the complainant, the occurrence had been witnessed by Sajid Butt, Muhammad Anwar P.Ws. Leaving Sajid Butt and Muhammad Anwar to guard the dead body, the complainant along with Shoaib Akhtar alias Nomi, in injured condition, left for the police station and got recorded the F. I. R.
' 4-A. After registration of the case, investigation into the crime commenced and Muhammad Akram, SI (P.W.15) after completing the same prepared challan against the appellant and his co- accused, namely, Muhammad Haroon, Muhammad Shafi and Muhammad Abdullah, placing the latter three in column No,2 as they were found innocent during the course thereof and submitted the same before the Court for their trial in accordance with law.
5. On receipt of challan, the trial Court took cognizance of the case and after observing all the legal formalities framed charge against the accused, which was put to them, however, they emphatically denied correctness of the allegations and claimed to be tried. In order to prove its case, the prosecution was called upon to adduce evidence and in response thereto it produced as many as fifteen witnesses, namely, Dildar Ahmad, constable (P.W.1), Muhammad Ashraf, constable (P.W.2), Muhammad Rafique (P.W.3), Muhammad Boota, constable (P.W.4), Akhtar Ali, MHC (P.W.5), Dr.Muhammad Afzal (P.W.6), Muhammad Saleem, constable (P.W.7), Muhammad Nasrullah, Draftsman (P.W.8), Dr.Ashfaque Muhammad Akhtar (P.W.9), Rana Munir Ahmad (P.W.10), Muhammad Safdar (P.W.11), Najam Naseercomplainant (P.W.12), Shoaib Akhtar alias Nomi, injured (P.W.13), Muhammad Anwar (P.W.14) and Muhammad Akram, SI (P.W.15).
' Out of the whole lot, evidence of Dr.Muhammad Afzal (P.W.6), Dr.Ashfaque Muhammad Akhtar (P.W.9), Rana Munir Ahmad (P.W.10), Najam Naseer-complainant (P.W.12), Shoaib Akhtar alias Nomi, injured (P.W.13), Muhammad Anwar (P.W.14) and Muhammad Akram, S.-I. (P.W.15) is of great significance, whereas that of rest of the witnesses is of formal nature.
' Dr. Muhammad Afzal, Senior Medical Officer (P.W.6) medically examined Shoaib Akhtar alias Nomi, injured (P.W.13) and observed following injury on his person:- "1. An incised wound 8 x 2 cm (depth not probed due to bleeding from the wound) on the lateral wall of the left chest on the upper most part cutting of the skin subwanious tissue and flesh."
' P.W.9 Dr. Ashfaque Muhammad Akhtar, M.O. Conducted postmortem examination on the dead body of Muhammad Irshad and observed following injury on his person:-- "1. A two stitched wound 3 cm in length on left lateral side of chest 13 cm anterior lateral to left nipple. On opening. The stitches, the wound was found 3 x 1 cm in size and deep going. Margins of the wound were seen clean."
' He opined that the cause of death was shock due to haemorrhage caused by injury No,1, which was sufficient to cause death in the ordinary course of nature. According to him, duration between injury and death was within fifteen minutes approximately and that between death and postmortem was within twenty hours approximately. He prepared postmortem examination report Exh. PD.
' Rana Munir Ahmad (P. W.10) appeared to testify the factum of recovery of dagger (P6) at the instance of the appellant, which was secured through memo Exh. PE.
' Najam Naseer-complainant (P.W.12), Shoaib Akhtar alias Nomi, injured (P.W.13) and Muhammad Anwar (P.W.14) are eyewitnesses of the occurrence. They in a nutshell reiterated story of the F. I. R.
6. Learned Prosecutor gave up remaining witnesses as being unnecessary and after tendering in evidence report of the Chemical Examiner (Exhs.PO and PP) regarding blood-stained earth and dagger and those of Serologist (Exhs.PQ and PR) regarding blood-stained earth and dagger, closed the prosecution case.
7. The trial Court put all the incriminating material to the appellant and his co-accused (since acquitted) when they were examined under section 342, Cr.P.C., who claimed their innocence in the matter, however, the appellant while answering question No,2 admitted the occurrence, but in a different manner, which will be discussed in the later part of the judgment. He opted to make statement on oath under section 340(2), Cr.P.C. And also to adduce evidence in his defence, whereas his co-accused did not opt either to make statement under section 340(2), Cr.P.C. Or to adduce evidence in defence. The appellant got recorded his statement on oath and also produced Muhammad Amin as D.W.1.
8. The trial Court after considering facts and circumstances revolving around this matter delivered verdict of guilt against the appellant and punished him as aforementioned.
9. Learned counsel for the appellant in support of this appeal argues that in this case the ocular account has been furnished by Najam Naseer-complainant (P.W.12), Shoaib Akhtar. Alias Nomi (P.W.13) and Muhammad Anwar (P.W.14), out of those, two namely, Najam Naseercomplainant (P.W.12) and Muhammad Anwar (P.W.14) are not natural witnesses of the occurrence, but are chance witnesses as they both in their statements have deposed that they were going to offer Jumma prayer and witnessed the occurrence, whereas during their cross-examination stated that there is a mosque close to their house, as such the reason given by them for their presence at the spot is neither believable nor probable; that the motive alleged by the prosecution has not been proved because the complainant of this case has categorically admitted during cross- examination that he himself had not witnessed the accused teasing the girls and none of the close relatives of any of the girls had complained before him in this regard and, as such, the trial Court has disbelieved the motive part of the story; that the appellant has not denied the incident, but has stated that he caused injury to the deceased as well as the injured P.W. In self-defence because both of them along with six other persons wanted to abduct him for taking him to the Dera of Rana Munir Ahmad in order to murder him and in these circumstances the version of the appellant, which is duly supported by the statement of Muhammad Amin (D.W.1), is more probable if both the versions are put to juxtaposition; that the dagger (P6), which has been shown to be recovered at the instance of the appellant, was never recovered from him and was planted upon him by the complainant side in connivance with the police; that it is mentioned in the report of the Chemical Examiner (Exh.PP) that parcel of dagger was brought by one Muhammad Arshad, constable, who did not appear in the witness box, whereas Muhammad Boota, constable appeared as P.W.4 and claimed that he had delivered said parcel in the office of Chemical Examiner, as such, recovery of the alleged weapon of offence is not proved. The learned counsel in the alternate submits that if the appellant fails in his appeal, then it is not a case of capital sentence because of the following reasons:--
(a) that the motive behind the occurrence has been disbelieved by the trial Court and immediate cause of the occurrence in the peculiar circumstances of the case is not known;
(b) That the appellant as per F.I.R. Has inflicted one injury each to the deceased as well as the injured P.W. And did not repeat the same, as such, deserves leniency in the quantum of sentence.
' In support of his contentions, he has placed reliance on the cases of Abdul Rehman v. The State (2004 YLR 778) and Muhammad Ayaz ' Khan v. Murtaza and others (2008 SCM R 984).
10. Learned Additional Prosecutor-General Punjab for the State opposed this appeal on the grounds that the prosecution has proved its case against the appellant through reliable confidence inspiring evidence and even the case of the prosecution is supported by injured P.W. Namely Shoaib Akhtar alias Nomi, whose presence at the spot is not denied; that even presence of other witnesses cannot be disputed or doubted because the occurrence took place at 1.30 p.m., which is the time of Jumma prayer; that the ocular account furnished by the prosecution witnesses is duly supported by the medical evidence and is also corroborated by recovery of dagger (P6) at the instance of the appellant, the report Whereof by the Serologist is in the positive, so the plea of the appellant that the recovery is planted upon him is not plausible and that there is no mitigating circumstance in favour of the appellant.
11. We have consciously heard and soberly considered the respective arguments addressed at the bar by both the sides. We have also gone through the evidence with their able assistance.
12. In this case, occurrence took place on 14.3-2003 at 1-30 p.m. Near Railway Station Raja Jang and the matter was reported at 2-20 p.m. On the same day by Najam Naseer-complainant (P.W.12), who is real brother of the. Muhammad Irshad deceased. The ocular account has been furnished by Najam Naseer-complainant (P.W.12), Shoaib Akhtar alias Nomi (P.W.13) and Muhammad Anwar (P.W.14). They fully supported the prosecution case and remained stick to their stance taken by them in the F.I.R. As well as in statement under section 161 Cr.P.C. Insofar as contention of the appellant with regard to presence of two witnesses, Najam Naseer-complainant (P.W.12) and Muhammad Anwar (P.W.14) is concerned, the perusal of record reveals that they have given the reason for their presence at the venue of crime i,e, that they were going to offer Jumma prayer, when they had witnessed the occurrence, so they cannot be termed as chance witnesses because they have given sufficient reason for their presence at the spot. Although story of the prosecution has been disbelieved by the trial Court qua acquitted accused, namely, Muhammad Haroon, Muhammad Shafi and Muhammad Abdullah, but the presence of Shoaib Akhtar alias Nomi (P.W.13) at the spot is not disputed by the appellant because he had suffered an injury in this occurrence and on the same day at 3.00 p.m. Was medically examined by Dr. Muhammad Afzal, SMO (P.W.6), who found an incised wound, as aforementioned, on his person. Therefore, if the testimony of other two witnesses (P.Ws.12 and 14) is excluded from consideration, then there remains statement of the injured witness i,e, Shoaib Akhtar alias Nomi (P.W.13), who fully supported the prosecution case on all material aspects of the matter and his testimony is duly supported by the medical evidence.
Moreover, dagger (P6) was recovered on the pointation of the appellant and report of the Serologist is in the positive. It is settled principle of law that conviction in any murder case can he based on the testimony of a single witness, if the Court is satisfied that the witness is reliable and in other words, the 'emphasis" is on quality of evidence and not on its quantity. Reliance can profitably be made to the cases of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) and Farooq Khan v.
The State (2008 SCM R 917).
13. Even otherwise, the occurrence is admitted by the appellant but in a different manner. He while answering question No,2 when examined under section 342, Cr.P.C. Stated as under:-- "The whole story in the F.I.R. Is false and twisted. The allegation teasing ladies/school girls by me and Haroon co-accused is false as I am the son of the sister of Haroon and he is my real maternal uncle (Mamoon). It is not conceivable that a Mamoon and Bhanja combinedly tease the girls and commit immoral acts. On 31-3-2003 I was produced before the police by my other Mamoon namely Muhammad Shafi co-accused and I had told the police that one Gulzar Ahmad alias D.C. Is my friend and we have become so close that we treat each other as brothers. Said Gulzar Ahmad was not paid his "Committee" amount by Shoaib alias Nomi Butt alleged injured witness and he also insulted Gulzar. I had declared that I will render help to said Gulzar alias DC and this fact was known to Nomi Butt etc. On the fateful day of occurrence, Sajid Butt, Amjad Butt, Aslam Butt, Irshad deceased, Shoaib alias Nomi Butt injured, Asif Butt, and Waqas Rehmani, etc. Had threatened my Mamoon Muhammad Shafi co-accused and told him that they will murder me. In this regard, they called Rana Munir Ahmad, and he was consulted and he ordered them to kill me wherever they could get a chance to do so. On 2-4-2003, when my Mamoon namely Muhammad Shafi co- accused joined the investigation, he had got recorded his statement before the Investigating Officer to this effect. On the fateful day, I was present in the Saloon of Ameen for the purposes of shave and bath, when the deceased Irshad Rehmani, Sajid Butt, Shoaib alias Nomi, injured witness, Aslam, Asif Rehmani, Rafique alias Hakeem, Maqbool, Pervaiz son of Jhandoo Machhi, and Waqas Rehmani, dragged me from the said saloon and started beating. Shoaib alias Nomi, asked his companion to carry me to the place of Rana Munir to get rid of me, forever. Whereupon, I succeeded to free myself from the clutches of the assailants and I grabbed a Chhurri meant for cutting vegetables, from the shop of Ameen barber and when Irshad deceased wanted to take me in Jappha, I gave him a blow in my defence and the fell on the ground. Then Shoaib alias Nomi wanted to catch hold of me and I also gave him a Chhurri blow and fell on the ground. Other assailants retreat themselves for some distance and I made my good escape. I came to know that Irshad had died and due to fear I ran away and threw the Chhurri in River Ravi. I am the political worker, of Ch. Riaz and Ch. Altaf who twice defeated Rana Munir Ahmad P.W. In the elections and Rana Munir Ahmad was on the look out to arrange my murder and finding this opportunity he had instigated and encouraged the assailants to abduct me upto his Dera and then kill me. Due to the fear of said Munir Ahmad and of his influence, the barber and other shop-keepers did not come forward to narrate the real facts. I am innocent and was under compulsion to defend myself. 1 had no intention to either kill or injure any one. My three Mamoons have also been falsely implicated by the complainant party on the instigation of Rana Munir Ahmad P.W. Muhammad Anwar and Najam Naseer complainant were not present at the time of occurrence and they have deposed falsely against me."
Therefore, his case is that an attempt was made to abduct him by eight persons and he in his right of self-defence caused injuries' to the deceased as well as the injured P.W. After picking up a Chhurri from the nearby shop of a barber. This plea of the appellant in the circumstances of the case is highly improbable because if eight persons tried to abduct him, how could he avoid the attempt and more so there was no allegation that any one of them was carrying any weapon. It is also not understandable that how could he become successful in picking up a Chhurri, causing injuries to the deceased as well as the injured P.W. And then escaping from the scene without any scratch on his body. Muhammad Amin, who appeared in his defence as D.W.1, admitted that he did not know from where a Chhurri came in the hand of the appellant, thus, belied the plea of the appellant that he picked up a Chhurri from his shop. Even otherwise, this is an afterthought story. If the versions of the prosecution and the appellant are put in juxtaposition, the story of the prosecution is more probable, as it got support from the other circumstances, such as medical evidence, statement of the injured P.W. And recovery of dagger on the pointation of the appellant, the report whereof is in the positive, therefore, we have no hesitation in holding that the prosecution has proved its case against the appellant beyond any shadow of doubt.
14. Accordingly, we maintain convictions of the appellants under sections 302(b), 324, 337-F(ii)
P.P.C.
15. Insofar as quantum of sentence awarded to the appellant for the murder charge is concerned, the motive part of the story of prosecution has been disbelieved by the trial Court. Even it is not known as to what exactly happened prior to the occurrence, which resulted into death of the deceased and causing of injury to the P.W. No premeditation or deliberation was involved in the occurrence, which appears to have taken place at the spur of the moment. It is on record that the appellant has caused only one injury to the deceased and did not repeat the same and this fact sufficiently provides a mitigating circumstance for awarding lesser punishment to the appellant.
16. For what has been discussed above, we while maintaining conviction of the appellant under section 302(b), Cr.P.C. Altered his sentence of death into imprisonment for life. However, the compensation and sentence in lieu of non-payment thereof shall remain intact. The sentences awarded to the appellant under section 324 and 337-F(ii), P.P.C. Are also maintained. Benefit of section 382-B, Cr.P.C. Shall be extended to the appellant. All the sentences shall run concurrently.
17. Death sentence awarded to the appellant is not confirmed and murder reference is answered in the negative.