1. ' RAJA JALAL-UD-DIN, C.J.---This criminal appeal has been preferred under section 410, Cr.P.C.
2. Against the judgment/order dated 4-8-2011 passed by the Additional Sessions Judge Gilgit in Sessions case No,78 of 2007 whereby the appellant was convicted under section 302/34, P.P.C. And sentenced to death with a fine of Rs,1,00,000.
3. ' The prosecution story as narated in the F.I.R. Is that Inayat, the F.I.R. Lodger and one Mazhar were busy in construction of boundary wall of garden of Muhammad Faqir (deceased) situated at Murtazaabad. Hunza while the deceased was supervising the work. Meanwhile accused Karim Bakash appeared there, and asked them why they are erecting the boundary wall of the garden and to stop the work. Accused Khayaban and Haleem Bakash also appeared at the spot.
4. Muhammad Faqir (deceased) replied that he has got the said garden in exchange for his land. At this accused Karim Bakash assaulted Muhammad Faqir with knife stating that the said land has been exchanged without his consent. Mazhar caught hold of the accused Karim Bakash and in the meantime accused Khayaban and his son Haleem Bakash started beating Muhammad Faqir (deceased), P.W. Inayat and P.W. Mazhar with sottas, while accused Karim Bakash stabbed the deceased. As a result Muhammad Faqir (deceased) sustained slab wounds and became unconscious. All the three accused escaped from the place of occurrence. Inayat and Azhar took the injured Muhammad Faqir to Aliabad Hospital but he expired on the way.
5. ' F.I.R. Was lodged and investigation started and challan was submitted before the Court of Sessions Judge Gilgit. The prosecution produced six P.Ws. To prove its case against the accused.
6. On conclusion, the trial Court convicted the accused Karim Bakash and sentenced him to death.
7. Accused Haleem Bakash was admitted to bail while the other accused died during the trial.
8. ' Counsel for the convict/appellant argued that the trial Court has failed to appreciate evidence of the so-called eye-witnesses to substantiate their presence at the place of occurrence. No incriminating articles were recovered and taken into possessions from the scene of occurrence by the I.O. To show presence of P.Ws. At the spot. That the two P.Ws. Namely Inayat and Azhar have stated that they were assaulted and given danda blows by the co-accused Khayaban and Haleem Bakash, but neither were they examined by the doctor nor even a single scratch was found on their body to show their presence at the place of occurrence. That the convict/appellant opted to be examined on oath under section 340(2), Cr.P.C. And put forward his version of the case and in support he produced his mother as D.W. Counsel for the appellant pleads that the trial Court has failed to appreciate the solid defence put forwarded and disregarded the statement of the mother of appellant. He further pleads that the presence of his mother has not been denied by the prosecution in their cross-examination as D.W. That the recovery was also fake as the same was not witnessed by independent P.Ws. And only one inimical P.W. Was produced who has not in good terms with the appellant. That the findings of the trial Court are the result of misreading and non- reading of evidence. That the version of appellant is more probable as compared to the version of prosecution, but the benefit of doubt has been extended to the prosecution instead of extending in favour of the accused, setting the theory of benefit of doubt at naught, as such the impugned judgment/order is liable to be set aside. In support of his contentions, counsel for the appellant referred 2002 YLR 1743 (Lahore), PLD 1964 (W.P) Peshawar 194, PLD 1967 Karachi 233, 1991 MLD 1 (Lahore), PLD 1986 Lahore 159, 2003 MLD 1196 (Lahore), 1998 PCr.LJ 216 (Lahore), 1999 PCr.LJ 439 (Lahore), 1989 PCr.LJ 2179 (Peshawar), 2009 MLD 1450 (Lahore), PLD 1988 SC 25, NLR 1987 Criminal 791 and 1981 PCr.LJ 129 (SC(AJ& K)).
9. ' On the other hand Assistant Advocate General representing the State opposed the contentions raised by the counsel for the appellant with the submissions that the prosecution has fully proved its case against the appellant through eye-witness account, as the accused is directly charged in the promptly lodged F.I.R with specific role. That the occurrence has taken place in broad-daylight and two independent and impartial witnesses have witnessed the occurrence at the time of committing the murder of Muhammad Faqir (deceased). That the medical evidence also supports the prosecution case. That weapon of offence has beep recovered on the pointation of the accused Karim Bakash. That motive has also been proved by the prosecution. That the accused has not taken the plea of self-defence during the investigation and the accused has also failed to produce any independent witness in support of plea of self-defence. That the defence has badly failed to shatter the testimony of the P.Ws. As such the learned trial Judge has rightly convicted and sentenced the appellant, hence appeal being meritless is liable to be dismissed. To substantiate his contentions, A.A.-G. Referred 1999 PCr.LJ 1381 (Lahore).
10. We have anxiously given due consideration to the arguments advanced by the counsel for the appellant as well as A.A.-G. For the State and with their able assistance, we have carefully studied the statements of the P.Ws. Inayat (P. W.1) and Mazhar (P.W.2) who are eye-witnesses of this case.
11. Presence of both the eye-witnesses at the scene of occurrence is established because they were constructing boundary wall of the garden of deceased Muhammad Faqir as such they are the natural witnesses. P.Ws. Were thoroughly cross-examined by the defence counsel but their statements could not be shattered. The version of the two eye-witnesses is further supported by the medical evidence and the recovery of weapon of offence i.e,, knife recovered on the pointation of the accused Karim Bakash in the presence of marginal witnesses namely Abdul Karim Ex- member Union Council and Ehsan Ali Lumbardar. Abdul Karim Ex-Member Union Council has been examined as P.W.1 who fully supports the recovery memo Exh.P.W.4/A and P.W.4 Abdul Karim is a notable of the area, independent and impartial witness to the recovery of the weapon of offence.
12. The other corroboration in the case in hand is the motive. Perusal of statement of accused Karim Bakash recorded under section 342/340(2), Cr.P.C. Reveals that there was a dispute regarding a piece of land with the deceased, as such motive for the offence is also proved.
13. ' Counsel for the convict/appellant has mainly agitated an issue wherein he has taken the defence plea that on the day of occurrence his mother had been assaulted by the deceased and in retaliation he had come to the rescue and in defence has stabbed the deceased availing the right of private defence. The said contention has been elaborated by mother of convict/appellant S who was examined in defence by availing the opportunity granted under section 340, Cr.P.C. The said witness produced has disclosed that her son Karim Bakash (convict/appellant) had rushed to the scene of occurrence by hue and cry raised as she has become assaulted by the deceased. Seeing her in a desperate position her son (convict/appellant) .Rushed for help and stabbed the deceased with a knife which was in possession of the appellant to cut (Miswak) sticks. Counsel for the convict/appellant also pleads that the act of the convict/appellant was not premeditated or preplanned as the weapon of offence used was not intended from an assault but as a natural act for cutting of (Miswa k).
14. ' Secondly counsel for the convict/appellant has pointed out that a blood-stained dupatta was recovered and connects the said dupatta to be the property of his mother thereby tries to prove the presence of the mother of convict/appellant at the spot to avail concession of self-defence.
15. ' We have also minutely given thought to both the contentions of the counsel for the convict/appellant and perused the material available on record in this regard.
16. ' Firstly, the medical report of the doctor is examined wherein the external examination it is seen that three specific wounds are present on the body of deceased wherein the wound No,1 is said to be four inches long. The wound No,2 is two inches long and three inches towards the right side of the mid body and wound No,3 is stated to be three inches in length. It is the doctor's opinion that the weapon used for commission of offence is a knife which has resulted in death due to cardiopulmonary cist. The statements of witnesses regarding the recovery of the knife are examined who disclose that the blade of the sharp-edged weapon used is 6/7 inches long.
17. ' The contention regarding the knife being present in the hands of the convict/appellant as the time of occurrence for the reason of cutting (Miswak) seems out of place and unconvincing. Small pocket knifes are usually used by the people for cutting of Miswak and fruits but do not go around with blades of 6/7 inches long in their hands for the said purposes and that also at a very considerable distance from the house of convict/appellant to the place of occurrence. The only logical conclusion is that the convict/appellant had appeared at the place of occurrence with a considerate mind and motive to do away with the deceased as the motive of offence has been put forward by the prosecution. The medical report which is consistent with the recovered weapon of offence and gathered circumstances leave no doubt that it was a premeditated murder with a dire motive behind it.
18. ' Regarding the recovery of dupatta and the defence taken by prosecution is also minutely perused. It is found that at the time of postmortem a blood-stained dupatta has taken into custody and recovery memo prepared. Nowhere during the proceedings a single question regarding the blood-stained dupatta being the property of mother of appellant has been brought on record. If at all had belonged to the mother of appellant then the same should have been recovered from the place of occurrence and not at the hospital. It is definitely possible that the dupatta may have been used to close the blood of the victim borrowed from any of the family member of deceased.
19. ' The date of occurrence as per F.I.R. Is 22-12-1992 and the case has been concluded on 4-8-2011 after a period of approximately 19 years. The plea regarding the defence version as agitated and the recovery of blood-stained dupatta has not been brought on record in any from except at a very belated stage on recording of statement of convict/appellant under section 340, Cr.P.C. On 24-5-2010 and the statement of D.W.1 recorded on 7-6-2011. The delay in the defence version after a belated period of approximately 19 years can be termed as an afterthought and cannot be relied upon.
20. ' No doubt the court at any stage of proceedings in appeal can infer from the gathered evidence that the case may be according to the defence version put forward. If the same had not been taken at the trial stage but the material on record gives a slight impression that the taken defence plea may be true. The same can be taken into consideration. The defence version put forward should have a logical background and spelt out from the material on record.
21. The F.I.R. Has promptly been lodged and the question of false implication is ruled out. The statements of the witnesses of recovery as well as the prompt recording of the statements of eye- witnesses strengthen the prosecution case, hence the witnesses of the recovery of weapon of offence and the medical report leave no doubt that the deceased had been done away with the knife recovered.
22. ' The motive put forward by prosecution has also not been rebutted and no mitigating circumstances exist in favour of convict/appellant to alter the case of capital punishment and give the benefit of self-defence.
23. ' In the instant case we feel that the defence has failed to put forward and prove the stand taken.We completely disagree with the same.
24. ' From the material available on record; we have come to the conclusion that the trial Court has rightly appreciated the evidence and rightly convicted and sentenced the appellant. We also find no mitigating circumstances to alter/modify the sentence of appellant.
25. ' For the foregoing discussions, we find no substance in this appeal, which is hereby dismissed. The conviction and sentence awarded to the appellant is maintained.
26. ' Murder reference made by the Additional Sessions Judge Gilgit under section 324, Cr.P.C. Is confirmed in terms of section 376, Cr.P.C.