MAZHAR IQBAL SIDHU, J. -This judgment will dispose of Criminal Appeal No. 312-J-2005 filed by Ghulam Sabir appellant through Superintendent of Jail who was convicted and sentenced by learned Additional Sessions Judge, Kharian in case vide F.I.R. No. 268, dated 09.09.2004 under Section 302, P.P.C. Registered at Police Station Sadar Lala Musa, District Gujrat vide impugned judgment dated 27.04.2005. Following conviction and sentence was imposed on the appellant:- GHULAM SABIR "Death under Section 302(b), P.P.C. And fine of Rs. 50,000/- as compensation under Section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo six months' S.I.
2. The above-said appeal filed by Ghulam Sabir convict-appellant against the judgment dated 27.04.2005 passed by the learned Additional Sessions Judge, Kharian against his conviction and sentence as well as the Murder Reference No. 616 of 2005 for confirmation of death sentence or otherwise have been disposed of through this judgment.
3. The facts in brief are that complainant Ghulam Haider
4. The investigation of this case was conducted by Walayat Khan, S.I. (PW-8) who on receipt of the.
Information about the occurrence, reached the spot alongwith police officials, where he recorded statement Ex.PB/1 made by complainant Ghulam Haider, which was read over to him, who thumb marked the same in token of its correctness. He then sent complaint Ex.PB/1 to the Police Station for formal registration of the case, over which F.I.R. Ex.PB was drafted. He prepared injury statement Ex.PG, inquest report Ex.PJ, took into possession blood-stained earth vide memo. Ex.PE, blood- stained hatchet P4 and made it into a sealed parcel vide memo. Ex.PF and also got prepared the site plans Ex.PA and Ex.PA/1 from the Draftsman. On 17.09.2004 he arrested the appellant and then on 18.09.2004 sent him to the judicial lock-up. He recorded the statements of the PWs under Section 161, Cr.P.C. And after completion of the investigation submitted the challan in the Court.
5. After observing all the pre-trial formalities charge was framed by the learned Trial Court to which the appellant did not plead guilty and the prosecution was asked to lead its evidence.
6. At the trial, prosecution in order to prove its case produced as many as eight witnesses in all.
The medical evidence was adduced through the statement of Dr. Ifat Shamas, W.M.O., T.H.Q, Hospital, Kharian PW-4. She on 09.09.2004 at about 1.45 p.m. Conducted post-mortem on the dead-body of Jamila wife of Ghulam Haider complainant and observed as under:- INJURIES:
(I) A deep lacerated wound on nape of neck 10 cm x 4 cm, 12 cm deep enough to section the spinal cord completely.
(II) A deep lacerated wound on middle of back 8 cm x 3 cm, 10 cm deep completely cutting the abdominal aorta and spinal cord.
According to the opinion of the doctor all injuries were ante-mortem in nature. Death was due to massive blood loss and shocks caused by injuries No. 1 and 2. The time between injuries and death was about 5 to 15 minutes, while between death and post-mortem it was 8 to 10 hours, Ex.PD is the correct carbon copy of the post-mortem report, while Ex.PD/1 is the diagram of the injuries, which bore her signatures.
Learned S.P.P. Gave up Ahmad Khan PW as having been won over by the accused party and by tendering in evidence reports of Chemical Examiner Ex.PL and Ex.PM closed the prosecution evidence. Then statement of the appellant was recorded under Section 342, Cr.P.C. In which he negated the charge and professed his innocence and claimed trial. However, appellant made a detailed statement while answering to a question why this case is against you and why the PWs deposed against you as follows:- "I have land dispute with my brother, who is complainant of the case. He in order to usurp my land has falsely involved me in this case. I was not present at the place of occurrence, neither any recovery has been taken place from me."
7. Conclusion of the trial resoluted in handing down the impugned judgment.
8. In support of this appeal learned counsel for the appellant has submitted that in fact the occurrence took place during the dark hours of night and nobody saw the occurrence, while the complainant Ghulam Haider PW-6 inclusion with the police has stretched the same towards day light. Moreover that the motive in this case, in fact is nonexistent because no evidence has been brought on the record in this respect. It has been further submitted that the presence of PWs Ghulam Haider being, complainant PW-6, Muhammad Azam PW-7 and Ahmad Khan is highly doubtful in the circumstances of the case for the reasons that similar assailant was not Captured by the PWs who had not held formidable weapon, and even none of them have tried to rescue the deceased. Learned counsel has further submitted that during the investigation nothing has been recovered from the appellant and the prosecution has miserably failed to prove its case.
9. Learned D.D.P.P. Has opposed the submissions on the ground that occurrence took place in the house of the complainant; presence of the PWs at that time is quite natural and appellant is the real brother of complainant whereas statement of Muhammad Azam (PW- 7) has gone unchallenged. Further submitted that it is inapprehensible that real brother of the appellant would make a false statement. Lastly it has been submitted that the prosecution has fully proved its case, therefore, appeal may be dismissed.
10. Hearkened and record scanned.
11. Occurrence took place on 09.09.2004 at 7.15 a m., the complainant Ghulam Haider PW-6 by leaving Ahmad Khan and Muhammad Azam PWs with the dead- body at the spot proceeded to Police Station to lay information but on the way Walayat Khan, S.I. PW-8 met him, the complainant made a verbal statement before him, the same was reduced into writing and the complainant thumb marked the same in token of its correctness. The statement Ex.PB was recorded at 8.30 a.m.
On the same day and on the basis of the same, F.I.R. Was registered on 09.05.2004 a.m. By Sarfraz Ahmad, Moharrir H.C. It is apprehensible that no delay has been caused by the complainant in reporting the incident to the police. Further that no exaggeration has been made by the complainant in his case. Deceased received two injuries and it would be easily possible for the complainant to involve any other person alongwith the appellant but he did not.
12. So far as the motive is concerned, neither it's a case of the prosecution nor that of the appellant that there was bloodshed between the parties. However, there was a dispute at home level and both the parties being related inter se it cannot be believed that a false motive has been set up by the prosecution. The motive has been brought on record by the statement of complainant Ghulam Haider PW-6 and no falsity has been found in the motive. Even otherwise, motive is not to be regarded as fact in issue as envisaged under Article 19 of Qanoon-e-Shahadat Order, 1984.
13. Presence of the PWs is quite natural at the place of occurrence. At the time of occurrence because in all probabilities the time suits to their presence as at that every is presumed to be present at his house. Ghulam Sabir appellant is the real brother of the complainant and Muhammad Azam PW-7 had knowing the appellant, his presence has otherwise not been challenged by the defence. The. Prosecution cannot be blamed that the PWs were imported to become false eye-witnesses. Occurrence took place during the daylight. Question of mistaken identity of appellant does not arise in this case. Both the PWs were cross-examined but the defence remains failed to bring any thing in favour of the appellant.
14. The medical evidence supports the ocular account; according to the doctor deceased Mst.
Jamila Bibi received two sharp-edged injuries and both collectively as well as individually were sufficient to take away the life of deceased.
15. The appellant threw hatchet, the weapon of offence at the spot, the police when visited the spot took the same into possession and found it blood-stained, made the same into a sealed parcel and memo. Ex.PF was prepared, the parcel of the hatchet was sent to the office of Chemical Examiner, Lahore and as per reports of the Chmical Examiner as well as Serologist throw up that the blood the hatchet was fount to be of homo origin.
16. After considering all prons and cons of the case, we have come to the outcome that prosecution has fully proved its case against the appellant beyond any shadow of doubt. In these circumstances, the instant appeal being shorn of force is dismissed. Death sentence of the appellant is confirmed. The Murder Reference is answered in the positive.