CH. MUHAMMAD TARIQ, J.---Abid Ali, appellant-accused has filed Criminal Appeal No, 339-J of 2004 against his conviction and sentence in case F.I.R. No, 305 of 2002, dated 11-8-2002, for the offences under sections 302/324/334/337-A(1)/337-F(1), P.P.C., registered with Police Station Saddar Samundri while the complainant has filed Criminal Appeal No, 2105 of 2004 against acquittal of accused Ashiq Ali and Khadim Ali and Criminal Revision No, 1059 of 2004 for enhancement of sentence of Muhammad Farooq, accused-convict. All these criminal appeals as well as criminal revision shall be disposed of through this consolidated judgment as all these arise out of one and the same judgment dated 30-11-2004 passed by Mr. Shakeel Ahmad, learned Additional Sessions Judge, Samundri, Faisalabad, whereby the learned Sessions Judge acquitted accused Ashiq Ali and Khadim Ali while convicted and sentenced Muhammad Farooq accused and Abid Ali, appellant-accused as under:--
(i) MUHAMMAD FAROOQ (a)Under sections 302-b/34, P.P.C., life imprisonment as Tazir with payment of Rs,100,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default of payment of compensation, to further undergo six months' S.I.
(b)Under section 337-A(1), P.P.C., one year imprisonment with fine of Rs, 5,000 as Daman to injured Muhammad Nadeem.
(c)Under section 337-F(1), P.P.C., one year imprisonment with fine of Rs,5,000 to injured Muhammad Waheed.
' All the sentences were ordered to run concurrently. Benefit of section 302-B, P.P.C. was also awarded to accused Muhammad Farooq.
(ii) ABID ALI, ACCUSED-APPELLANT ' Under section 302(b)134, P.P.C., death with payment of Rs,100,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of failure in payment of compensation, to undergo six months' S.I.
2. Capital Sentence Reference No, 901 of 2004 sent by the learned trial Court under section 374, Cr.P.C. read with section 338-D, Cr.P.C. for confirmation of death sentence of Abid Ali, appellant- accused or otherwise will also be answered through this judgment.
3. Precisely stated the facts of the case as contained in F.I.R. lodged on the complaint of Muhammad Bashir recorded by Wali Muhammad S.I. on 11-8-2002 at 10-00 p.m. are that I am cultivator. Today, at about 9-00 a.m., when I, along with Muhammad Saleem and Muhammad Nadeem, was working in our paddy crop situated in Sq. No,22 killa No,11, all of sudden Muhammad Farooq, Abid Ali and Ashiq Ali, all armed with daggers while Khadim Ali empty handed came there.
Accused Khadim Ali, raised lalkara that Muhammad Saleem and others be killed today. Then Abid Ali gave dagger blow which hit on the left side of chest of Muhammad Saleem. Muhammad Farooq gave dagger blow to Muhammad Saleem hitting on his left arm, who fell down. Ashiq Ali gave dagger blow on Muhammad Salem hitting on his left shoulder. Abid Ali caused injury by dagger blow to Muhammad Saleem which hit on his left upper arm (dola). When Muhammad Nadeem and Muhammad Waheed moved forward to rescue Muhammad Saleem, Muhammad Farooq inflicted dagger blow hitting below the left eye of Muhammad Nadeem. Abid Ali gave dagger blow which hit on the right upper arm (dola) of Muhammad Waheed. Muhammad Farooq gave dagger blow hitting on the right side of chest of Muhammad Waheed. Ashiq Ali inflicted dagger blow hitting him on right arm of Muhammad Waheed. Khadim Ali kept raising lalkaras that kill all of them. According to complainant, he did not go near due to fear of his life and kept raising hue and cry whereupon Muhammad Nafees and javaid Rasul came at the spot and witnessed the occurrence. Thereafter, all accused persons decamped from the place of occurrence after extending threats of dire consequences. The injured were taken to Civil Hospital, Samundri where Muhammad Saleem succumbed to the injuries whereas Muhammad Waheed was referred to Civil Hospital, Faisalabad due to his precarious condition.
4. The motive of the occurrence as stated in the.F.I.R. is that 10/12 days before, a goat was stolen and the complainant party raised suspicion of the same upon accused persons who sought pardon in a punchayat but took it ill. Due to that grudge, all accused persons caused injuries to the sons of the complainant and Muhammad. Waheed.
5. After completion of investigation, the police submitted report under section 173, Cr.P.C. The copies of the challan were provided to all the accused, as required under section 265-C, Cr.P.C. The charge was framed which was denied by all the accused who pleaded not guilty and false implication in the case. In order to prove its case, the prosecution produced as many as 16 witnesses.
6. During the trial, the ocular account was furnished by Muhammad Bashir, complainant (P.W.10), Javaid Rasul (P .W.9), Muhammad Waheed, injured (P.W.11) and Muhammadl Nadeem, injured (P.W.12) who reiterated the contents of the F.I.R.
7. Wali Muhammad S.I./P .W.14 deposed that he after recording the statement of the complainant sent it to Police Station for registration of formal F.I.R., prepared injury statement and inquest report and sent the dead body for post mortem. He further deposed that he inspected the place of occurrence, secured blood-stained earth, prepared rough site plan, as well as scaled site plan from patwari and recorded the statements of P.Ws. According to him, he also took, into possession last worn clothes, shirt, shalwar and string. He stated that he arrested accused Muhammad Farooq and Abid Ali on 14-8-2002. He further submitted that on 21-8-2002, he got recovered daggers on the poination of accused Abid Ali and Muhammad Farooq which were taken into possession by him. Site plan of the places of recoveries was also prepared. P.W.14 deposed that he arrested Khadim Ali accused on 22-8-2002 and sent all accused persons to judicial lockup.. He also stated to get issued warrants of arrest of Ashiq Ali accused from learned Illaqa Magistrate on 24-8-2002 and subsequently, on 4-9-2002, obtained proclamation of said accused from learned Illaqa Magistrate. He said to have deposited case property with Moharrar.
8. Shaukat Ali, S.I. (P.W.15) deposed that he arrested Ashiq Ali accused on 20-9-2002 and on his pointation, got recovered a dagger on 27-9-2002. It also reveals from the statements of Muhammad Yousaf (P.W.1) and Liaquat Ali (P.W.4) that two sealed parcels containing daggers and one sealed parcel contained blood-stained earth were sent to the office of Chemical Examiner, Lahore.
9. Dr. Muhammad Akram (P.W.16) deposed that in wake of unanimous decision of the board, he conducted the amputation of right arm of Muhammad Waheed injured on 7-9-2002.
10. Dr. Akhtar Alam Basra (P.W.5), who conducted the post mortem of the deceased on 11-8-2002 at about 12.30 p.m. found the following injuries on his person:--
(1) An incised wound 4.5 cm x 2 cm on left nipple in vertical direction, deep going into chest cavity with profuse bleeding round about with corresponding holes in qameez.
(ii)An incised wound 3 cm x 1 cm in vertical direction on the upper back of left chest and was muscle deep with holes in qamees.
(iii)An incised wound 2 cm x 1 cm in transverse direction mid front left upper arm and muscle deep with corresponding holes in qameez.
(iv)An incised wound 14 cm x 6 cm in oblique direction on the mid front and inner side of left fore- arm with muscle cutting and massive bleeding round about.
' The doctor opined that the death in this case occurred due to haemorrhage and shock as a result of injuries Nos.1 to 4, particularly Injury No,1, which were sufficient in ordinary course of nature to cause death.
11. The other witnesses being formal in nature need not to be discussed here.
12. After close of prosecution evidence, the accused were examined under section 342, Cr.P.C., wherein all the accused denied their involvement in the case and pleaded innocence. Moreover, accused Ashiq Ali and Khadim Ali took the plea of alibi stating that they both were not present at the spot.
13.In reply to question "Why this case against you and why P.Ws. have deposed against you, Muhammad Farooq accused and Abid Ali appellant-accused stated that one of the P.Ws. namely Nafees (not produced) was annoyed with them and he got arrested Ashiq Ali accused in connivance with Wali Muhammad, S.I. on a false charge of theft and then released him. Both of them abused Nafees. P.W. who was a friend of Wali Muhammad S.I. and kept sitting in the poultry farm nearby. Nafees P.W. (not produced) sent vagabond, including deceased and P.Ws: to thrash them and they encircled their house. Abid Ali ran out from the house but was apprehended by assailants. They seriously injured him and thrashed him. When Abid Ali was thrown on the ground and deceased sat on him along with injured P.Ws., whereupon Abid Ali snatched dagger from one of the assailants and feeling himself in immense danger inflicted injuries in self-defence. 'During this scuffle, complainant party sustained injuries at the hands of Abid Ali. According to them, Abid Ali was detained by Wali Muhammad and was not got medically examined till the healing of his injuries. On the same day, an application was moved by defence for summoning Abdul Rehman Sial, D.S.P. as C.W. under section 540 of the Cr.P.C. which was allowed and Abdul Rehman Sial, D.S.P. appeared as C.W.1 and deposed that he was entrusted the investigation of this case by Inspector- General of Police. He further stated that he had verified the investigation of Zafar Abbas Luk, D.P.O., Faisalabad who had found accused Muhammad Farooq and Abid Ali guilty of the offence while Ashiq Ali and Khadim. Ali as innocent.
14.All of the accused neither opted to appear under Article 340(2), Cr.P.C. as their own witness on oath nor produced any evidence in their defence.
15.After conclusion of the trial, the learned trial Court acquitted accused Ashiq Ali and Khadim Ali and convicted and sentenced accused Muhammad Farooq and Abid Ali, appellant as mentioned in para 1 above.
16.Learned counsel for the appellant/ accused contends that the story contained in the F.I.R. is fictitious, fabricated and concocted one and the F.I.R. has been lodged in connivance with the police officials, in fact, the situation is reverse. According to learned counsel for the complainant, the complainant party has assailed the house of the appellant and when the appellant found no way, he used the right of self-defence. Further contends that the medical evidence does not corroborate the prosecution story. Learned counsel points out that the P.Ws. have made improvements in their statements, the alleged recoveries are planted, the motive could also not be established during the trial and the prosecution has failed to prove its case beyond any shadow of doubt as required under the law. He went on to contend that the learned trial Court has not given due consideration to the facts of the case and has passed an arbitrary judgment which be set aside, the appellant be acquitted of the charge and be released forthwith.
17.Learned Additional Prosecutor-General Punjab assisted by learned counsel for the complainant contends that the prosecution has proved its case beyond any doubt against all the accused and the motive stands fully proved from the unrebutted evidence adduced by the prosecution, however, the defence side has failed to appear as their own witness on oath under section 340(2), Cr.P.C. and also has not produced any evidence in disprove of the charge made upon them which prima facie proves guilt on their part. He contends that the learned trial Court has failed to appreciate of the oral as well as documentary evidence adduced by the prosecution and has wrongly acquitted Ashiq and Khadim Ali who be convicted and sentenced according to the prevailing law. He prays that Abid Ali and Muhammad Farooq have caused severe injuries to the deceased as well as the injured P.Ws., therefore, the appeal of Abid Ali against his conviction and sentence be dismissed while the sentence of Muhammad Farooq be enhanced from life imprisonment to death in the interest of justice.
18.We have anxiously heard the arguments advanced by the learned counsel for the parties as well as the learned Additional Prosecutor-General Punjab and have also gone through the entire evidence with their able assistance.
19.It is a daylight occurrence. The occurrence took place at 9-00 a.m. while the complaint was sent from Civil Hospital Samundri at 10-00 a.m. therefore, there is no chance of consultation or premediation in the F.I.R. The accused are nominated with specific roles. The ocular account is consistent and is in line with the medical evidence. In spite of lengthy cross-examination upon all the four eye-witnesses, the defence side has failed to put any dent in the ocular account. It is fully established that at the time of occurrence, the deceased as well as the injured were working in the paddy fields and were unarmed. None of the complainant party was having sickle or other tool of husbandry in their hands because of paddy crop, which grows in stemming water. During the course of examination-in-chief and cross- examination, all the P.Ws. have specifically nominated each accused for each of the injuries caused by them. According to medical evidence, accused Abid Ali and Muhammad Farooq inflicted dagger blows on the left side of the chest and on the left arm of the deceased Muhammad Saleem. Similarly, Abid Ali also inflicted a dagger blow on the left dola of Muhammad Waheed injured P.W.11 while Muhammad Farooq is attributed three dagger blows first on the left arm of deceased Muhammad Saleem, second blow to P,.W .12 Muhammad Nadeem injured which caused injury under the left eye of the said P.W. and third dagger blow on the right side of chest of Muhammad Waheed, P.W.11. Ashiq Ali accused gave a dagger blow to deceased Muhammad Saleem which inflicted on the left shoulder of Muhammad Saleem and gave second dagger blow on the right arm of Muhammad Waheed, P.W.11 and as a result whereof, the right arm of P.W.1 1 was amputated.
20.The occurrence and place of occurrence is admitted. The plea of the appellant that the complainant party was aggressor is misconceived as during the trial, the accused party has taken a specific plea that the complainant party was an aggressor but they have neither produced any evidence in support of their specific plea nor the appellants-accused have appeared as their own witnesses on oath under section 340(2), Cr.P.C. It is pertinent to mention here that P.W.9 Javaid Rasool and P.W.11 Muhammad Waheed injured are not related to the complainant party and they are independent witnesses. The recoveries of daggers have been effected on the pointation of the accused persons which stand fully proved. The daggers have been found stained with human blood. The report of Serologist is also positive. The contention of petitioner's counsel that Nafees P.W., who was given up, had no nexus with the stolen goat, therefore, the motive is not proved is misconceived. It is an established principle of law that weakness or non-existence of motive is not fatal to the prosecution case particularly when the ocular account is proved and has been corroborated by medical and other evidence.
21.On 10-1-2003, charge under sections 302/324/334/34/ 337-A(i)/337-F(i), P.P.C. was framed against all the four accused persons and in support of section 334, P.P.C., all the prosecution witnesses deposed that Ashiq Ali inflicted dagger blow which hit on the right arm of Muhammad Waheed P.W.11 and as a result whereof, his right arm was amputated from upper side of the elbow.
This factum was also corroborated by medical evidence but the learned trial Court has failed to appreciate the unrebutted evidence against Ashiq Ali accused and has acquitted him wrongly.
22.In the light of what has been stated above, we find no merit in Criminal Appeal No,339-J of 2004 filed by Abid Ali accused against his IE conviction and sentence, which is dismissed. The Murder Reference No,901 of 2004 sent by the learned trial Court for confirmation of death sentence of Abid Ali convict-accused or otherwise is answered in Affirmative.
23.Criminal Appeal No,2105 of 2004 filed by the complainant against the acquittal of accused Ashiq Ali and Khadim Ali is Accepted to the extent of accused Ashiq Ali who is convicted and sentenced to imprisonment for 10 years' R.I. with Arsh equivalent to one half of Diyat while it is dismissed to the extent of accused Khadim Ali accused.
24. Criminal Revision No, 1059 of 2004 filed by the complainant for enhancement of sentence of Muhammad Farooq accused is dismissed.