MANZOOR HUSSAIN SIAl, J.---Allah Ditta son of Ghulam Sarwar, caste Jat Virk, aged 18 years, resident of Chak No. 202/E. B. Police Station Saddar Vehari, vas tried by the learned Sessions Judge Vehari, for the murder of his co-villager Muhammad Aslam son of Martzoor Ahmad. The learned trial Judge vide his judgment dated 23rd September, 1979 convicted him under section 302, P. P. C.
And sentenced him to death and fine of Rs. 2000 or in default thereof to suffer R. I. For two years.
The amount of fine, if realised, half of the same was directed to be paid ; as compensation to the heirs of the deceased.
The convict assailed, the order of his conviction and sentences in appeal and the case is also before us on reference under section 374; Cr. P. C. For the confirmation of his death sentence. This judgment will dispose of both these matters.
2. The prosecution case as disclosEd by Manzoor Ahmad P. W. 9 in his statement Exh. P. E. Made at 2 a. m. On 4th April, 1979 at Police Station Saddar Vehari and recorded by Malik Tassadaq Hayat Sub- --Inspector P. W. 11 is as follows :- It was the fateful evening of 3rd April, 1979 that Manzoor Ahmad, the first informant accompanied by his son Muhammad Aslam (deceased) Nawab P. W. 10 and one Jindwada (not produced) was coming to his dwelling place situated in square No. 44 of Chak No. 202/E B. Muhammad Aslam was ahead of others by ten or fifteen karams. The moment Muhammad Aslam reached the boundary line `Watt' of killa No, 19, the appellant armed with Toki Exh. P. 5 emerged from under shisham tree in the wheat field and hurled lalkara that he would deal with him for teasing Mst. Khan Bibi, his maternal coasin. He launched attack on Muhammad Aslam and gave fatal blow which landed on the left back side of his neck. Muhammad Aslam fell down and started bleeding. The complainant and his companions tried to apprehend the assailant but he ran towards southern side and made good his escape with the weapon of offence. In the meantime Muhammad Aslam succumbed to the injury.
3. The alleged motive for the commission of the crime was teasing of Mst. Khan Bibi maternal cousin of the appellant sometime prior to the occurrence ; regarding which he complained to Manzoor Ahmad P. W. 9 and asked him to forbid Muhammad Aslam ; otherwise he would face dire consequences.
4. Malik Tassadaq Hayat S. 1., P. W. 11 after recording F. I. R. Exh. P. E. Reached the place of occurrence; found the dead-body of Muhammad Aslam there ; prepared injury statement Exh. P. G. Held inquiry and drew up report Exh. P. H. And despatched the dead body to the mortuary for post-mortem examination. He inspected the spot and took into possession blood-stained earth vide memo Exh.
P. A.
On the same day at 1 p. m. He arrested the appellant, and while in custody the appellant led to the recovery of blood-stained toki P. 5 from inside the chappar lying on a wall of his house which was taken into possession vide memo Exh. P. C. It may be stated that the above said toki recovered at the instance of the appellant was found by the Serologist to be stained with human blood.
5. Dr. M. A. Saleemi (P. W. 7) on 5th April, 1979 at 8.00 a. m. Performed autopsy on the dead-body of Muhammad Aslam deceased and found an incised wound 12 c. m. x 5 c. m. Between second and third cervical vertebrae ; on the back of neck ; slightly on left side cutting spinal cord underneath the injury. He also noticed that the stomach was full the small intestines contained chyme and large intestines faecal matter. In, his opinion death occurred due to shock and haemorrhage as a result of the aforesaid injury which he declared ante-mortem and sufficient to cause death in ordinary course of nature. He however, admitted in cross-examination that there were greater chances of the infliction of injury ; from the left side of the victim. He further admitted that he did not mention the date and time of death in the relevant column of the-post-mortem report due to the over-sight.
6. At the trial the appellant denied all the prosecution allegations against him and professed his innocence: He stated that the deceased had number of enemies and mentioned the names of Walia Sipra, Naik Ahmad Kharal, Allah Yar Virk and Muhammad Ali among them, According to him Muhammad Aslam was murdered by some unknown assailant in the darkness of the night and he was involved in the case due to mere suspicion. The appellant, however, led no evidence in defence.
7. The prosecution case mainly rests on the ocular evidence given by Manzoor Ahmad P. W. 9, the complainant, Nawab P. W. 10, the motive ; the recovery of blood-stained toki P. 5, at the instance of the appellant and finally the medical evidence.
8. The learned trial Judge accepted the prosecution version in its entirety ; relied on ocular account of the occurrence ; used incriminating recovery of toki P. 5 for corroboration, believed motive set up by the prosecution ; held the appellant guilty on the charge of murder; convicted and sentenced him as aforementioned.
9. We have heard learned counsel for the appellant as well as the State and the complainant. We have also gone through the record with their assistance.
10. Learned counsel for the appellant raised three main contentions in support of the appeal on the first place ; he argued that the occurrence bad taken place in the darkness of night and had gone un-witnessed and the appellant was made the scapegoat due to suspicion. The next contention of the learned counsel was that the F. I. R. In this case was recorded after preliminary investigation, which was indicative from the delay occurred in post-mortem examination of the deceased. His third contention was that the eyewitnessess were related to the deceased and their evidence lacked corroboration from other reliable evidence on the record. He also argued that medical evidence did not go in accord with ocular evidence ; as much as that stomach of the deceased was found full with food, but as per statement of Manzoor Ahmad P. W. 9, they did not take food before they started from Chak No. 198/E B to Chak No. 202/EB. His last submission was that the appellant was under eighteen years of age at the time of occurrence. The circumstances of this case and his youth would make outca se for not awarding extreme penalty for the offence.
11. Learned counsel for the State assisted by Mr. M. S. Baqir, learned counsel for the complainant, on the other hand argued that it was clear case of murder. The prosecution witnesses had no special enemity against the appellant to involve him falsely in the case. The ocular evidence found sufficient corroboration from evidence of blood-stained toki recovered at the instance of the appellant ; the motive and the medical evidence. The appellant acted brutally in causing murder of Muhammad Aslam and the learned trial Court correctly awarded capital penalty for his gruesome action.
12. At the trial the prosecution examined two witnesses, namely, Manzoor Ahmad P. W. 9, and Nawab P. W. 10, to give ocular account of the occurrence. The substance of their evidence is that on the fateful evening they along with the deceased, on way to Manzoor Ahmad's abode had reached near the place of occurrence ; that in their view ; appellant armed with toki emerged from under shisham tree ; raised lalkara to the deceased that he would deal with him for teasing Mst. Khan Bibi ; his maternal cousin and gave fatal blow on his neck and disappeared with the weapon of offence.
It is true that the above-mentioned eyewitnesses of the occurrence are related to the deceased as much as that Manzoor Ahmad P. W. 9 is father of the deceased and Nawab P. W. 10 also belongs to the same brotherhood ; but their relationship with the deceased alone, is not enough to discard their evidence. Manzoor Ahmad P. W. 9 who had lodged the F, 1. p,, at the Police Station and narrated details of the occurrence ; ably stood the test of the searching cross-examination. His presence on the scene of occurrence at the relevant time cannot be doubted. His testimony inspires confidence. Nawab P. W. 10, who is distant relation of the deceased and resident of another Chak of Tehsil Khanewal. Supported the statement of Manzoor Ahmad P. W. 9 on all material points. . He stated that he had arrived in Chak No. 202/E.B. In the house of the complainant for the recovery of loan from him two days prior to the occurrence and had gone with the complainant and that deceased to Chak No. 198/E.B. Where he was paid Rs. 500 by Lal Din. He did not go back to his house after recovering the amount and instead accompanied them on their way to Chak No. 202/E.B. And witnessed the occurrence. Lal Din was neither examined by the investigating officer nor produced at the trial to prove the prosecution version in this behalf. In these circumstances if the presence of Nawab P. W. 10 on the scene of occurrence is rendered doubtful and also because he is neither resident of Chak No. 202/E B nor the story of recovering loan proved without producing Lal Din ; whether other evidence on the record is sufficient to connect the appellant with the crime.
In others words ; whether the testimony of Manzoor Ahmad P. W. 9, the only other eye-witness needs corroboration from other evidence ; if sci whether there is independent evidence available on the record to provide necessary corroboration. As noticed above Manzoor Ahmad P. W. 9 is father of the deceased ; his evidence in our view would necessarily require careful appraisal and corroboration from other evidence. For this first of all we revert to the evidence of the recovery of toki P. 5 at the instance of the appellant. He got the same recovered from underneath the Chappar of his house lying on the wall. It would indicate that the appellant had exclusive knowledge of the place where weapon of offence was kept by him. The recovery of toki P. 5 was witnessed and attested by Muhammad Nawaz P. W. 6 besides Malik Tassadaq Hayat S. 1. P. W.
11. Muhammad Nawaz; although distantly related to the deceased, proved the recovery of toki effected at the instance of the appellant. The toki was subsequently found to be stained with human blood. This piece of evidence provided, sufficient corroboration to the eye-witness account furnished by Manzoor Ahmad P: W.
9. Muhammad Nawaz P. W. 6 was not inimical towards the appellant and bad no axe to grind by becoming fake witness of the recovery of toki P.
5. The appellant was arrested at 1 p. m. On the day of occurrence and immediately thereafter the recovery of toki was made at his instance.
13. This brings us to motive part of the prosecution case. The complainant who is father of the deceased stated that the appellant had complained to him about the misbehaviour of the deceased -who bad teased Mst. Khan Bibi, and required him to forbid the deceased otherwise he would face dire consequences ; and further he heard lalkara raised by the appellant before giving fatal blow to the deceased. This shows that the appellant complained against the conduct of the deceased to his father who was the right person in the matter and that he had motive to kill. On finding opportune time he attacked the deceased but could not repeat blows on witnessing the complainant. Even otherwise motive along is not sine qua non to bring home the guilt of the appellant.
14. As already noticed the nature ; dimension and, seat of the injury establish that it was caused by weapon like toki recovered at the instance of the appellant: The ocular evidence, therefore, finds corroboration from medical evidence as well.
15. We have considered the submissions made by learned counsel for the appellant and find ourselves not persuaded to accept them. The contention that occurrence had taken place in the darkness of night and had gone unseen ; runs counter to the fact that it was 5th day of the lunar month and the moon must have appeared on the horizen in the early hours ; followed by moon-lit night. The eyewitnesses also categorically stated that it was moon-lit night. Further more the distance from where Manzoor Ahmad P. W. Had witnessed the occurrence, being about 55 feet ; was not too far, to identify his co-villager. The next submission that stomach of the deceased being full with food indicated that occurrence did not take place in the evening, but at different time than asserted by the prosecution also cannot be accepted for the valid reason advanced by the learned trial Judge that there was nothing on the record to show that the deceased did not take food on the way to Chak No. 202/E.B.
We are of the view ; that there is nothing unusual about the deceased to have accompanied his father at the relevant time and place. We are, therefore, unable to doubt the presence of Manzoor Ahmad P. W. At the spot. He lodged the F. I. R. Promptly at 2 a. m. Although he had to take journey on foot in the night ; the Police party visited- the place in the morning and despatched the dead-body to mortuary for post-mortem. The post-mortem examination was conducted on the next day. The mere fact that it was conducted on the next day does not impair the evidentiary value of the other material brought on the record ; which connects the B appellant with the commission of the crime beyond reasonable doubt.
16. It is well settled that in a case of single accused substitution of the real culprit is phenomenon of rare occurrence, and particularly the witnesses .Who are related to the deceased do not normally allow actual murderer to escape, by involving innocent person. There is no enmity nor any other cause for the complainant tar involve the appellant falsely on capital charge. We are, therefore, satisfied that the offence that has been successfully brought home to the appellant is clearly one under section 302, P. P. C. The order of the trial Court convicting the appellant under section 302, P.
P. C. Is, therefore, maintained.
We have taken into consideration the pre-planning of the appellant to lay in ambush ; and the force with which he gave blow with formidable weapon near the neck of the deceased and feel that the appellant had acted dastardly. We, therefore, find no extenuating circumstance in his favour and repel the contention of the appellant's learned counsel to D consider his youth as a ground for taking lenient view in the circumstances of this case. In the result we maintain the conviction and sentences of the appellant and dismiss the appeal.