Malik Shahzad Ahmed Khan, J.--This judgment shall dispose of Criminal Appeal No, 266-J of 2009 titled as "Sakhi Muhammad versus The State" filed by Sakhi Muhammad, appellant against his conviction and sentence and Murder Reference No, 376 of 2000 titled as "The State versus Sakhi Muhammad" submitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Sakhi Muhammad, appellant as both these matters have arisen out of the same judgment dated 31.07.2009 passed by the learned Addl. Sessions Judge, Daska, District Sialkot in case FIR No, 489 dated 10.10.2008, offences under Sections 302 and 34, PPC, registered at Police Station Mautra District Sialkot whereby, Sakhi Muhammad, appellant was convicted under Section 302(b), PPC and sentenced to death with the direction to pay Rs, 1,00,000/- (rupees one lac) as compensation to the legal heirs of deceased Faiz Ahmad, as envisaged under Section 544A of the Code of Criminal Procedure, which shall be recovered as arrears of land revenue and in default thereof to further undergo simple imprisonment for six months.
2. Brief facts of the case, as disclosed by Mst. Rahila Bibi, complainant (PW-2) in her Fard Biyan'
(Exh-PA), on the basis of which the formal FIR (Exh-PF) was registered, are that she (complainant) was resident of Mauza Sansera Goraya and was a cultivator by profession. Her husband had gone abroad to earn livelihood. She had 8/9 buffaloes at her Dera and used to sell their milk. She had a servant namely Sakhi Muhammad alias Ali Raza (appellant) to look after the buffaloes and for the sale of milk, for the last one year. On 09.10.2008 at about 06.00 p.m., Sakhi Muhammad (appellant) along with Faiz Ahmad (deceased) aged about 12/13 years went to the brick kiln of one Muhammad Iqbal Cheema to fetch the sale price of milk from the labour who used to work at the said brick kiln and when they did not return for about one or one and half hours, the complainant became worried. -Meanwhile, she (complainant) along with Zafar Iqbal (PW-6) and Muhammad Boota (PW-5) went out to search Faiz Ahmad (deceased) and when they reached near the Dera of one Ijaz Ahmad, they heard a shrick from inside the sugarcane crop situated on the eastern side.
They ran towards the sound and when they entered in the sugarcane crop of one Muhammad Yousaf, they saw that Sakhi Muhammad (appellant) along with one unknown person was causing injuries with Chhuri to the son of the complainant Faiz Ahmad (deceased). The appellant and the unknown person fled away from the spot on seeing the complainant party. They went near the deceased and saw that there were injuries on the neck and abdomen of the deceased, who succumbed to the injuries at the spot.
3. Sakhi Muhammad (appellant) was arrested in this case on 29.10.2008 by Muhammad Ilyas, S.I.
(PW-11). On 07.11.2008, Sakhi Muhammad (appellant), while in police custody, after making disclosure, got recovered Chhuri (P,3), which was taken into possession vide recovery memo. Exh- PG. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 16.04.2009, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced eleven witnesses, during the trial. Mst. Rahila Bibi, complainant (PW-2), Muhammad Boota (PW-5) and Zafar Iqbal (PW-6) furnished the ocular account of the case. Aman Ullah 751/C (PW-10) is the witness of recovery of Chhuri (P-3), allegedly recovered at the instance of Sakhi Muhammad (appellant).
The medical evidence was furnished by Dr. Abid Ali (PW-3), who conducted the post-mortem examination on the dead body of Faiz Ahmad (deceased).
Muhammad Ilyas, S.I. (PW-11) is the Investigating Officer of the case. Shakir Hussain 532/C (PW-1), Zulfiqar Ahmad, Moharrer (PW-4) Suhail Murad Goraya (PW-7), Mirza Tahir Tasleem, Draftsman (PW-8) and Muhammad Siddique (PW-9) are the formal witnesses. The prosecution also produced documentary evidence in the shape of 'Fard Biyan' of the complainant (Rxh-PA), post-mortem report of the deceased 'along with pictorial diagrams (Exh-PB, Exh-PB/1 & Exh-PB/2), recovery memo. of blood stained earth (Exh-PC), recovery memo. of last worn clothes of the deceased (Exh- PD), scaled site-plan of the place of occurrence in duplicate .(Exh-PE & Exh-PE/1), FIR (Exh-PF) recovery memo. of Chhuri (P-3) from the appellant (Exh-PG), injury statement of the deceased (Exh-PH), rough site-plan of the place of occurrence (ExhPJ), inquest report of the deceased (Exh- PK), rough site-plan of the place of recovery of Chhuri P-3 (Exh-PL), reports of the Chemical Examiner (Exh-PM & Exh-PN), report of the Serologist (Exh-PP) and closed its evidence.
The statement of the appellant, under Section 342 of the Code of Criminal Procedure, was recorded on 29.07.2009. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you?, the appellant replied as under: "Complainant and PWs have suppressed the true facts of occurrence and maneuvered a false story after due deliberation and consultation with each other. Inflict, complainant Mst. Rahila Bibi had illicit relations with Muhammad Boota PW and one day deceased Faiz Ahmad had seen them in an objectionable condition and deceased asked them that he will tell the whole story to his father. At this, Mst. Rahila Bibi complainant and Muhammad Boota PW threatened with dire consequences to the deceased that if he tells about the illicit relations of complainant, and. Boota PW to his father. It was the planed murder prepared by complainant and Muhammad Boota PW and deceased was murder with the connivance of Muhammad Boots PW, I have falsely been involved in this case according to the plan prepared by complainant and Boota PW. I am innocent."
The appellant neither opted to make statement on oath as provided under Section 340 (2) of the Code of Criminal Procedure, in disproof of the allegations levelled against him nor produced any evidence in his defence.
5. The learned trial Court vide its judgment dated 31.07.2009, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
6. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the eyewitnesses are chance witnesses and they have not been able to establish their presence at the spot; that the complainant is related to the deceased and as such, is interested witness; that there is delay in reporting the matte/ to the police as the occurrence took place on 09.10.2008 at 06.00 p.m whereas, the matter was reported to the police on 10.10.2008 at 12.50 a.m (night) and even the post-mortem examination was conducted on 10.10.2008 at 07.30 a.m, which clearly suggests that the matter was reported to the police after due deliberations and consultations; that the other eye-witness namely, Zafar Iqbal (PW-6) is also an interested witness being related to the deceased; that no motive for the occurrence has been alleged in the FIR or disclosed before the learned trial Court; that there was no reason for the appellant to commit the murder of Faiz Ahmad (deceased); that recovery of Chhuri (P-3) is inconsequential and it was recovered from an open place easily accessible to every one; that the place from where recovery of Chhuri (P-3) was effected was neither owned nor possessed by the appellant; that the complainant and other eye-witnesses have not described the total injuries on the person of the deceased; that along with the appellant, one unknown person was also implicated in this case but said unknown person was not traceable; that from angles, the prosecution case is of doubtful nature; that the persecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant may be acquitted from the charge.
7. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that at 06.00 p.m, the deceased left the house along with the appellant and thereafter, the complainant along with eye-witnesses started search of the deceased and it took considerable time; that if all the circumstances and distance of the place of occurrence and the police station is taken into consideration then there was no delay in reporting the matter to the police; that there was no reason for the complainant for false implication of the appellant in this case; that Muhammad Boots. (PW-5) is totally an independent witness and he is a school teacher; that said Muhammad Boota (PW-5) has no enmity with the appellant and has no relation with the complainant rather he was from other caste; that the appellant caused nine injuries to the minor son of the complainant who was just twelve/thirteen years of age; that the ocular account of the prosecution gets full support from the medical evidence and is further corroborated by the recovery of Chhuri (P-3) and positive report of the Chemical Examiner (Exh-PN); that it is not necessary to allege a motive because it is the state of mind of an accused to commit an offence; that the prosecution has fully proved its case against the appellant beyond shadow of doubt; that the sentence of death was rightly awarded to the appellant by the learned trial Court and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
8. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General and have also gone through the record with their able assistance.
9. The detail of the prosecution case, as set forth in the FIR (Exh-PF) has already been given in Paragraph No, 2 of this judgment, therefore, there is no need to repeat the same. On 09.10.2008 at 06.00 p.m, the son of the complainant namely, Faiz Ahmad (deceased) aged about 12/13 years along with his servant Sakhi Muhammad (appellant) . went to the brick kiln of one Muhammad Iqbal Cheema to collect the money of milk sold to the labourers of said brick kiln but they did not return for a period of one or one and half hours. The complainant Mst. Rahila Bibi PW-2 (mother of the deceased) along with her cousin Zafar Iqbal (PW-6) and tutor of the deceased namely, Muhammad Boota (PW5) went to search her son Faiz Ahmad (deceased) and it has been brought on the record that when at about 07.30 p.m, the above-mentioned eye-witnesses reached near the Dera of one Ijaz Ahmad son of Qadir, they heard a shriek from the nearby sugarcane crop, so they rushed towards the field of sugarcane where they witnessed the appellant while committing the murder of Faiz Ahmad (deceased) with Chhuri. Although the matter was reported to the police on 10.10.2008 at 12.50 a.m (night) with the delay of five hours and twenty minutes whereas, the distance between the place of occurrence, and the police station is six kilometers but the said delay has plausibly been explained by the complainant Mst. Rahila Bibi (PW-2) by stating that on seeing the murder of her son, she became unconscious. She has further stated during her cross-examination that she regained her senses at the spot. She has also stated in her cross- examine' won that the police reached at the spot and then she, got recorded her statement to the police. The explanation given by the complainant for the above-mentioned minor delay in reporting the matter to the place is convincing because it was quite natural that the complainant who was real mother of Faiz Ahmad (deceased), on seeing his brutal murder, became unconscious. Even otherwise, the occurrence took place ,after the sunset, in the fields of sugarcane of village Kot Ghuman whereas, the police station was at a distance of six kilometers, therefore, minor delay in reporting the matter to the police is not material. Considering all the above- mentioned facts, the place of occurrence, the time of occurrence and the distance between the place of occurrence and the police station, we are of the view that there was no delay in reporting the matter to the police.
10. The ocular account of the prosecution was furnished by Mst. Rahila Bibi, complainant (PW-2), Muhammad Boota (PW-5) and Zafar Iqbal (PW-6). The occurrence in this case took 'place in village Kot Ghuman. The above-mentioned eye-witnesses namely, Muhammad Boota (PW-5) and Zafar Iqbal (PW-6) both are residents of village Kot Ghuman. Although Mst. Rahila Bibi, complainant (PW-2) is resident of village Sehnsara Goraya but her house is at a distance of only 8/9 acres from the place of occurrence and this fact was brought on the record during her cross-examination. The complainant Mst. Rahila Bibi (PW-2) has stated that on the day of occurrence her son Faiz Ahmad (deceased) in the company of Sakhi Muhammad (appellant) went to the brick kiln of one Muhammad Iqbal Cheema and he did not return for about one hour, therefore, she got worried and she took along with her Muhammad Boota (PW-5) and Zafar Iqbal (PW-6) Sand went for the search of Faiz Ahmad (deceased). It has also been brought on the record that the place of occurrence was situated on the way which leads to the house of the complainant. The presence of eye-witnesses namely, Muhammad Boota (PW-5) and Zafar Iqbal (PW-6) at the place of occurrence is quite natural because they are residents of the same village where this occurrence took place. Similarly, the presence of Mst. Rahila Bibi, complainant (PW-2) at the place of occurrence is neither unnatural nor improbable because her house is situated at a distance of only 8/9 acres from the place of occurrence and the place of occurrence is situated on the way which leads to her house. The eye-witnesses have further explained that they had identified the appellant in the torch light. The appellant was earlier known to the 'eye-witnesses as he was employed with the complainant for the last about one year prior to the occurrence, therefore, there was no chance of any mistaken identity of the appellant. Muhammad Boota (PW-5) is an independent witness. He is a teacher by profession. He was also the tutor of the deceased. It has been brought on the record during his cross-examination that he was B.A, M.Ed. Although the above-mentioned eye-witnesses except Muhammad Boota (PW-5) are related to the deceased but their evidence cannot be discarded out rightly merely on the basis of their relationship with the deceased. It is by now well settled law that the evidence of a witness related to the deceased can be relied upon if the same is confidence inspiring and trustworthy. All the above-mentioned eye-witnesses were cross- examined at length but their evidence could not be shaken. They corroborated each other on all material aspects of the case. Their evidence is confidence and worthy or reliance.
There is another aspect of the case that the complainant Mst. Rahila Bibi (PW-2) is the real mother of Faiz Ahmad (deceased), it is highly improbable that she will falsely implicate the appellant for the murder of her son and will let off the real culprit. Substitution in such like cases is a rare phenomenon.
11. It was the case of the prosecution that the appellant committed the murder of Faiz Ahmad (deceased) by causing injuries on his person with the help of Chhuri. On Abid Ali (PW-3) on 10.10.2008 at 07.30 a.m, conducted the post-mortem examination on the dead body of Faiz Ahmad (deceased) and noted the following injuries on his person:--
(i) An incised wound 5 x 1/2 cm x bone deep extending from chin towards left side of check indirection 4 cm away from left ear. Under the dissection of this injury, skin, muscle alongwith their collateral blood supply, facias were badly crushed and under line borne was exposed.
(ii) An incised wound'14x8 cm x DNP transverse in direction on front of neck in lower part extending from right side of nock to left side of neck. This 14 x 8 cm injury crushed under line structures badly.
Under the dissection of this injury, skin, soft tissue, under line muscle, blood vessels minor and major (carotid blood vessels and jugular blood vessels) upper part of trachea, upper part of esophagus thyroid glands. All these structures in this neck area were badly cut down and damaged.
(iii) An incised wound 1.5 x 6 cm x DNP vertical in direction extending from epigastrium to middle of abdomen on front, Omentum and intestine were coming out from wound. Under the dissection of this injury, skin, facias under line abdominal muscle alongwith peritoneum and minor and major blood vessels of this area with lower part of stomach, small intestine were perforated and damaged under line this injury.
(iv) An incised wound 2 x 1 cm x muscle deep on palmer aspect of right hand/in direction 3 cm closed to base of right thumb. Under the dissection of this injury, the following structures were cut down under line skin, palmer muscle of this area alongwith facias and their collateral blood supply.
(v) An incised wound 3 x 1 cm, x muscle deep on paler aspect of left hand in middle extending to dorsum of hand/in direction. Under the dissection of this injury, following structures, skin, soft tissue, under line muscle alongwith their collateral blood supply damaged.
(vi) An incised wound 2 x 1/2 cm x muscle deep in inter digital space of left thumb extending to palmer aspect of left hand. Under the dissection of this injury, skin, super facial facias muscle alongwith minor and major blood supply badly crushed.
(vii) An incised wound 1/2 x 1/2 cm x muscle deep on palmer aspect of left thumb in distal part.
Under the dissection of this injury, skin, super facial facias under line muscle alongwith collateral blood supply was cut down.
(viii) An incised wound 2 x 1 cm x chest cavity deep on outer aspect and back of left chest in upper part 5 cm closed to left axilla. Under the dissection of this injury, skin, inter costal muscles with soft tissues, minor and major blood supply both layers of pleura and upper lob of left lung perforated.
(ix) An incised wound 1/2 x 1/2 cm x muscle deep on right side of lumber region 2 cm closed, to mid line. Under the dissection of this injury, skin, soft tissues with blood supply and under line muscles were cut down.
In his opinion, the cause of death was due to injuries No, 2, 3 and 8. All the injuries were ante- mortem and homicidal in nature and were sufficient to cause death in ordinary course of nature.
The time between the injuries and death was within few minutes and between death and post- mortem examination was eight to fourteen hours. We are, therefore, of the view that the medical evidence furnished by Dr. Abid Ali (PW-3) has fully supported the ocular account furnished by Mst.
Rahila Bibi, complainant (PW-2), Muhammad Boota (PW-5) and Zafar D Iqbal (PW-6). The time of occurrence, the kind of weapon used by the appellant and the nature of injuries, all these facts as stated by the aforementioned eye-witnesses, have fully tallied with the medical evidence furnished by Dr Abid Ali (PW-3).
12. The prosecution ease against the appellant is further corroborated by the recovery of Chhuri (P- 3) from the appellant, which was taken into possession vide recovery memo. Exh-PG. The said Chhuri was recovered after digging out the earth from a place situated out side the wall of a brick kiln. The place of recovery of Churri was in exclusive knowledge of the appellant. According to the report of the Chemical Examiner (Exh-PM), the Chhurri (PW-3) was stained with blood. Thus, the evidence qua recovery of Chhuri (P-3) and the report of the Chemical Examiner (Exh-PN) have further corroborated the prosecution case against the appellant.
13. No motive for the occurrence was alleged in the FIR by the complainant. It is by now well settled law that it is not necessary for the complainant to allege any motive for the occurrence in the FIR rather it is a state of mind of an accused who commit any offence.
14. The defence version of the appellant has already been reproduced in Paragraph No, 4 of this judgment. The appellant claimed that in fact, Mst. Rahila Bibi, complainant (PW-2) had illicit relations with Muhammad Boota (PW-5) and Faiz Ahmad (deceased) had seen them in an objectionable condition and he told the above-mentioned witnesses that he will tell the whole story to his father and due to this grudge, the complainant and Muhammad Boota (PW-6) committed the murder of Faiz Ahmad (deceased).
The above-mentioned version of the appellant is not convincing because he is unable to explain as to why the third eye-witness Zafar Iqbal (PW-6) has deposed against him. The appellant did not produce any evidence in support of his above-mentioned version. Even he himself did not bother to appear in the witness box in order to make statement on oath as envisaged under Section 340(2) of the Code of Criminal Procedure. It appears that he had taken the above-mentioned version in order to save his skin. We therefore, discard the aforementioned version of the appellant taken by him in his statement recorded under Section 342 of the Code of Criminal Procedure.
15.After considering all the aspects of the case, we have come to this irresistible conclusion that the prosecution has proved its case against the appellant beyond the shadow of any doubt.
Despite our best efforts, we are unable to find any mitigating circumstance in favour of the appellant. He committed a brutal and merciless murder of a voting boy (Faiz Ahmad deceased) of the age of 12/13 years by inflicting us many as nine incised wounds on his person with the help of a Chhuri, therefore, he does not deserve any leniency in respect of the quantum of sentence. In this backdrop of the situation, we hold that the prosecution has fully proved its case against Sakhi Muhammad (appellant) beyond the shadow of any doubt, therefore, there is no merit in Criminal Appeal No, 266-J of 2009, which is hereby dismissed and the conviction and sentence awarded to the appellant by the learned trial Court vide its judgment dated 31.07.2009 is maintained and upheld.
16. Murder Reference No, 376 of 2009 is answered in the AFFIRMATIVE and the sentence of death of Sakhi Muhammad (convict) is CONFIRMED.