SARDAR MUHAMMAD SHAMIM KHAN, J.---Ghulam Abbas alias Badshah son of Haji Muhammad, appellant, through the present appeal, has challenged the Conviction and sentence, passed against him in a case bearing F.I.R. No.169 dated 15-8-2005 for the offence under section 302, P.P.C., registered at Police Station City D.G. Khan. He was tried by learned Sessions Judge, Dera Ghazi Khan, who vide judgment dated 8-3-2006, convicted and sentenced the appellant to Death as "Tazir" under section 302(b) of P.P.C. With imposition of Rs.1,00,000 as compensation to be paid to the legal heirs of the deceased or in default to further undergo three years' R.I.
2. Murder Reference No.285 of 2006, filed by the State for confirmation of death, awarded to the appellant by the learned trial Court or otherwise, is also pending before this Court. Both these matters are being disposed of together through this single judgment.
3. Brief facts of the prosecution case are that complainant Jaffar Hussain along with Zulfiqar alias Tani aged about 37/38 years, was sitting on a wooden cot (Takhtpoosh), owned by Ashiq Hussain Jhanjhar on 14-8-2005 at about 11-30 p.m. In the area of Block-R, D.G. Khan and were discussing personal matters. In the meantime, Ghulam Abbas alias Badshah, accused resident of Block-R, armed with chhuri came over there. He raised Lalkara that he would teach a lesson to Zulfiqar for forbidding him from visiting the house of Mukhtar, husband of sister of complainant and he would not spare him alive. Accused inflicted Chhuri blow at Zulfiqar, which hit him on right side of his chest and he fell down on wooden cot (Takhtpoosh). On the hue and cry, raised by the complainant, Ghulam Akbar and Ejaz Hussain P.Ws. And other persons, reached the place of occurrence and saw the occurrence. They attempted to capture the accused but he ran away towards West. The occurrence was witnessed by the P.Ws. In the light of electric bulb. Zulfiqar was shifted to Emergency Ward in DHQ Hospital, D.G. Khan, where doctor informed that Zulfiqar had expired.
4. The motive behind the occurrence was that Zulfiqar, deceased, forbade Ghulam Abbas, accused, from visiting the house of Mukhtar and Ghulam Abbas, accused, felt annoyed and committed the murder of Zulfiqar, deceased.
5. After completion of investigation, challan was submitted against the appellant. Charge was framed, to which, he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 9 witnesses in all and also tendered documentary evidence.
6. Aman Ullah, ASI/PW1, deposed that he had recorded formal F .I. R. , Exh . PA/ 1 .
7. Jarar Haider, Constable/P.W.2/constable, deposed that he deposited two sealed parcels containing blood-stained earth and bloodstained chhuri to the Office of Chemical Examiner, Lahore.
8. Dr. Abdul Rehman, P.W.3, had conducted postmortem examination on the dead body of Zulfiqar deceased and observed the following injury:- "1. An incised wound 5.0 cm x 3.0 cm on the right side of the chest, 5.0 cm below and lateral to the right nipple, the injury was going deep into the chest cavity. Thorax well on the right side was injured. Right pleura and right lung was injured. Thorax vessels on the right side was injured. All other organs were healthy."
9. Tanver Hussain Jafri, P.W.4, deposed that he prepared site plan Exh.PE, Exh.PE/1 and Exh.PE/2.
10. Muhammad Afza, H.C/P.W.5, deposed that on 21-8-2005, he handed over the above said two sealed parcels to Jarar Haider, constable, for their delivery to the Office of Chemical Examiner, Lahore intact.
11. Abdul Shakoor, P.W.6/Constable, deposed that he escorted the dead body of Zulfiqar, deceased for postmortem examination.
12. Jaffar Hussain, P.W.7 was the complainant of this case and he deposed in line with the contents of co1nplaint Exh.PA and F.I.R., Exh. PA/1.
13. Muhammad Ejaz, P.W.8 was the eye-witness of the occurrence and narrated the story as mentioned in the F.I.R., Exh.PA/1.
14. Talib Hussain, S.-I./P.W.9 was the I.O. Of the case. However; P.W. Ghulam Akbar was given up.
15. After the close of prosecution evidence, statement of the accused Ghulam Abbas under section 342, Cr.P.C. Was recorded, wherein he had denied the allegation, as asserted by the prosecution.
The plea taken by the accused/appellant Ghulam Abbas, in his statement, under section 342, Cr .P .C, is reproduced as under: -- "Due to previous enmity I have been falsely involved in this case. All the P.Ws. Are closely related to the deceased and they have deposed against me. It was a blind murder and no P.W. Was present at the time of occurrence."
16. The appellant/accused Ghulam Abbas neither opted to appear under section 340(2) of Cr.P.C., nor he produced evidence in his defence.
17. After hearing learned counsel for the parties and going through the record, learned trial Court convicted and sentenced the accused Ghulam Abbas as mentioned above.
18. Learned counsel for the appellant argued that F.I.R. Was lodged after preliminary investigation; that ocular account in this case was furnished by Jafar Hussain, complainant, who was a real brother of the deceased and P.W.8 Muhammad Ijaz, who was maternal nephew of the deceased and both these witnesses were not residents of the locality where the occurrence took place; that prosecution in order to prove its case did not produce any independent witness in spite of the fact that occurrence took place in thickly-populated area; that the occurrence took place at night time, so, serious question of identification of the appellant was involved as the bulb, in the light of which, the P.Ws. Allegedly witnessed the occurrence was not taken in possession by the police during investigation; that PW8, Muhammad Ijaz, witnessed the occurrence from a distance of 16 feet and it was not possible for him to witness the occurrence from such distance at night time; that prosecution' did not prove the motive part of the prosecution story as Mukhtar was not produced before the police in order to establish the same; that recovery of blood-stained chhuri, P4, from the possession of the appellant, was planted against him as no person from the vicinity was joined in the recovery proceedings, rather, P.W.B. Muhammad Ijaz, was produced by the prosecutor in order to prove the recovery. It has lastly been contended by the learned counsel for the appellant that the prosecution has failed to prove its case beyond reasonable doubt, therefore, the appellant deserved to be acquitted.
19. Conversely, learned counsel for the complainant and learned D.P.-G. Have contended that the F.I.R. Was promptly lodged by the P.W.7. Jafar Hussain which excludes the chances of deliberations and consultations; that although prosecution has produced Jafar Hussain and Muhammad Ijaz, P.Ws., in order to prove the ocular account, who are relatives of the deceased but they have no malice or enmity against the appellant to falsely implicate him in this case; that the ocular account, furnished by the prosecution, finds corroboration from the medical evidence; that prosecution has also proved the motive part of the prosecution story and that police examined Mukhtar Ahmad during investigation; that blood-stained chhuri, P4, was recovered at the instance of the appellant and, according to the report of Chemical Examiner, as well as Serologist, chhuri, P4, recovered at the instance of the appellant, was stained with human blood; that prosecution has established its case beyond reasonable doubt. So, they have prayed for dismissal of this appeal.
20. We have heard the arguments of learned counsel for the parties and have perused the record with their able assistance.
21. It has been noticed that F.I.R. In the instant case, was lodged .With reasonable promptitude. The occurrence took place on 14-8-2005 at 11-30 p.m., whereas, Jafar Hussain, complainant, got his statement, Exh.PA, recorded at hospital, before the police at 12-20 a.m. On 15-8-2005, after about 50 minutes of the occurrence. Such, promptly lodged F.I.R. Excludes the chances of deliberations and consultations. The name of the accused/appellant, manners of occurrence, the seat of injury, the weapon used during the occurrence and P.Ws. Were mentioned by the complainant in the F.I.R.
22. The contention of learned counsel for the appellant that F.I.R. Was lodged after preliminary investigation, is mere his assertion which is without any force and without any evidence. The formal F.I.R. In this case was chalked out at police station at 12-40 p.m. On 15-8-2005.
23. In order to prove motive, the prosecution produced Jafar Hussain, P.W.7., who deposed that Zulfiqar, deceased, forbade Ghulam Abbas, appellant, from visiting the house of his sister, wife of Mukhtar, for which, he felt annoyed and committed the murder of Zulfiqar. During cross- examination, defence did not cross-examine P.W.7. Regarding the motive part of the prosecution story, so motive would deem to be admitted by the appellant. It was not even suggested to this witness that motive put forth by the prosecution was false. The contention of learned counsel for the appellant that the prosecution did not produce Mukhtar in order to establish the motive, is also falsified by the record as, according to the evidence of Talib Hussain, SI/P.W.9, Mukhtar was joined by him in the investigation on the very first day and his joint statement was recorded by him and that Mukhtar in his statement verified the prosecution version. Keeping in view the ocular account of the prosecution story, both the eye-witnesses have categorically stated that Ghulam Abbas, appellant, when reached at the place of occurrence, raised Lalkara that he would teach a lesson to Zulfiqar for forbidding him from visiting the house of Mukhtar, husband of sister of Zulfiqar. These eye-witnesses were not suggested by the defence, during cross-examination that no such Lalkara was raised by the appellant. In view of the aforementioned situation, we are of the considered view that the prosecution has proved the motive part of its B prosecution story.
24. This occurrence was witnessed by Jafar Hussain, complainant, P.W.7 and Muhammad Ijaz, P.W.B.
The complainant deposed that on 14-8-2005 at 11-30 p.m., he along with Zulfiqar alias Tart, his brother, were sitting on a "Takht Poosh" and were discussing about their personal matter. In the meanwhile, Ghulam Abbas, appellant, armed with chhuri came over there and raised Lalkara that he would teach a lesson to Zulfiqar for forbidding him from visiting the house of Mukhtar, husband of sister of Zulfiqar, deceased. Thereafter, Ghulam Abbas, appellant, inflicted chhuri blow which landed on the right side of chest of Zulfiqar, deceased, who fell down on the said "Takht Poosh". The occurrence was witnessed by him in the light of electric bulb. Zulfiqar was shifted to Emergency Ward of DHQ, Hospital, D.G. Khan where he succumbed to injuries. The other eye-witness of the occurrence, namely, Muhammad Ijaz, P.W.8., deposed on the same lines as Jafar Hussain, P.W.7 and corroborated him in all material aspects of the case. Both these eyewitnesses were cross- examined by the defence but their evidence was not shaken by the defence in any manner. These eye-witnesses have given a detailed account of events leading to the murder of the deceased and are unanimous on all material points. There was neither any contradiction nor any improvement in the evidence of both these eye-witnesses. Although the occurrence took place at night time but prosecution witnesses identified the appellant in the light of electric bulb. Talib Hussain, S.- I./Investigating Officer of this case, during cross-examination, stated that as it was night of 14th August, so, there were several bulbs available at the place of occurrence. During cross- examination, the P.Ws. Were even not suggested that electric bulb was not available at the time of occurrence. Perusal of site plan, Exh.PE, prepared by Patwari reveals that presence of electric bulb was shown at point No.3. The electric bulb was not taken into possession by the police during investigation but it would not adversely affect the prosecution case. Although Jafar Hussain, P.W.7, is a real brother of the deceased, whereas, P.W.B. Muhammad Ijaz, is maternal nephew of the deceased but their relationship with the deceased is not a valid ground for excluding their testimony from consideration as both these P.Ws. Are not inimical towards the appellant and they have no reason to falsely implicate the appellant in this case. The eye-witnesses are the natural witnesses whose presence at the time of occurrence is well explained. No enmity of the deceased with the appellant had been suggested by the appellant. This is a single accused case, so, the substitution of the accused in such situation is a rare phenomenon. It cannot be expected that Jafar Hussain, complainant, who is real brother of the deceased, would let off the real culprit in order to falsely implicate the appellant in the absence of any enmity. Although this occurrence took place in thickly populated area but according to the evidence of P.Ws., the people of the vicinity were attracted at the place of occurrence after the occurrence, therefore, they were not joined in the investigation.
25. The medical evidence which was furnished by Dr. Abdul Rehman Qaiserani, P.W.3, is in conformity with the eye-witness account and has provided necessary corroboration thereto.
According to the F.I.R., the appellant caused injury on the right side of the chest of Zulfiqar, deceased with chhuri, which fact is fully borne out from the statement, made by Dr. Abdul Rehamn Qaiserani, P.W.3 The injury observed by the doctor on the person of deceased noted as under:-- An incised wound 5.0 cm x 3.0 cm on the right side of the chest, 5.0 cm below and lateral to the right nipple, the injury was going deep into the chest cavity. Thorax well on the right side was injured. Right pleura and right lung was injured. Thorax vessels on the right side was injured. All other organs were healthy."
This injury was caused by sharp edged weapon and was ante mortem which went deep into chest cavity and was direct cause of death of the deceased. The time placed by the doctor between the death and postmortem examination was between 6 to 8 hours which also corroborates with the time of occurrence as narrated by the witness.
26. The other incriminating piece of evidence against the appellant was the recovery of blood- stained churri, P4, used by him, in the commission of murder which was recovered from the appellant by the Investigating Officer on 15-8-2005, the next date of the occurrence, vide recovery memo Exh.PH and witnessed by P.W.8 Muhammad Ijaz. According to the report of Chemical Examiner, Exh.PJ, this chhuri was stained with blood and report of Serologist Exh.PK, confirmed that chhuri, P4 was stained with human blood. Therefore, in view thereof, the factum of recovery of weapon of offence stands conclusively proved. The contention of learned counsel for the appellant that no independent D person from the vicinity was joined in the recovery proceedings of the chhuri, so prosecution has not established the same, is without any force as perusal of evidence of Talib Hussain, SI/I.O. Of this case reveals that he asked some persons to join the investigation in connection with the recovery of churri but they refused to become witness in the murder case.
Usually, independent people hesitate to become a witness in a murder case in order to avoid enmity with the accused persons.
27. In view of what has been discussed above, we have no hesitation in holding that the prosecution has proved its case against the appellant beyond reasonable doubt through motive, credible ocular account, corroborative medical evidence and evidence of recovery of weapon of offence. Consequently, the appeal filed by the appellant, fails and the same is DISMISSED. The conviction and sentence of death, awarded to him by the learned trial Court, is maintained.