1. Syed Shahbaz Ali Rizvi, J.--This judgment shall dispose of Criminal Appeal No, 748-J of 2012 filed by Muhammad Nawaz, appellant against his conviction and sentence and Murder Reference No, 174 of 2011 sent by the learned trial Court for confirmation or otherwise of sentence of death awarded to the appellant under Section 374 of the Code of Criminal Procedure, 1898, being originated from the same judgment dated 9.12.2011 passed by the learned Sessions Judge, Khanewal in case FIR No, 357 dated 26.08.2010, offence under Section 302, PPC registered at Police Station Saddar Khanewal District Khanewal whereby the appellant was convicted under Section 302(b), PPC for committing the murder of Muhammad Faazil and sentenced to death with the direction to pay Rs, 1,00,000/- as compensation to the legal heirs of deceased as envisaged under Section 544-A of Code of Criminal Procedure, 1898 and in default thereof to undergo simple imprisonment for six months.
2. 2.Per prosecution case, the facts, as disclosed by Muhammad Shafi, complainant (PW-1) in his application (Exh-PA) on the basis of which formal crime report (Exh-PA/1) was registered, are that on 26.08.2010 at 12.30 a.m, Muhammad Nawaz (appellant) committed murder of Muhammad Faazil, brother of the complainant by inflicting three repeated blows of hatchet on his neck.
3. The motive behind the occurrence, as disclosed by the complainant, was that the appellant, was having suspicion that the deceased had illicit relations with his wife Mst. Ameeran Bibi.
4. 3.Muhammad Nawaz (appellant) was arrested in this case on 3.9.2010 by Shaukat Hussain, SI (PW- 10) who, on 14.09.2010, after making disclosure, got recovered hatchet (P-4) which was taken into possession vide recovery memo. Exh-PK. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial Court after observing all the pre-trial codal formalities framed charge against the appellant to which he pleaded not guilty and claimed trial.
5. 4.The prosecution, in order to prove its case, produced as many as twelve witnesses during the trial. Muhammad Shafi, complainant (PW-1) and Muhammad Suleman (PW-2) furnished the ocular account of the incident. Muhammad Suleman 151/HC (PW-12) is the witness of recovery of crime weapon at the instance of the appellant.
6. The medical evidence was furnished by Dr. Mahboob Ahmad Paracha (PW-4) who, on 26.08.2010 at 11.00 a.m, conducted post mortem examination on the dead body of Muhammad Faazil (deceased) and noted three lacerated wounds on his neck. In his opinion, the cause of death in this case, was Injuries No, 1 to 3, which were ante mortem, inflicted by sharp edged weapon and were sufficient to cause death in ordinary course of nature. The probable duration between injury and death, as observed by him, was 5 to 10 minutes whereas, between death and post mortem examination 8 to 10 hours.
7. Shaukat Hussain, SI (PW-10) and Muhammad Irshad, SI (PW11) are the Investigation Officers of this case. Raja Usman Yousaf, Draftsman (PW-5) prepared scaled site plan (Exh-PH) of the place of occurrence whereas, rest of the witnesses are formal in nature.
8. 5.The statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he admitted the occurrence and stated that he saw his wife Mst. Ameeran Bibi in compromising position with the deceased and he, due to sudden provocation committed the murder of the deceased. He further stated that he also tried to kill Mst. Ameeran Bibi but she ran to the `Bhaini' of one Rao Abdullah who informed the police. He neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him nor did he produce evidence in his defence.
9. 6.The learned trial Court vide its judgment dated 09.12.2011, found the appellant guilty, convicted and sentenced him as mentioned above.
10. 7.Learned counsel for the appellant, inter alia, contend that the appellant has falsely been implicated in this case; that both the eye-witnesses besides being related are chance witnesses; that there are material discrepancies in the statements of the prosecution witnesses; that the medical evidence is in conflict with the ocular account; that recovery of crime weapon at the instance of the appellant is doubtful; that prosecution could not prove motive part of the incident; that the prosecution remained fail to prove its case against the appellant beyond the shadow of a reasonable doubt; that this appeal may be accepted, the appellant be acquitted of the charge and the Murder Reference be answered in the negative.
11. 8.None appeared on behalf of the complainant spite service of notice on 15.01.2017. This case pertains to year 2012 and being so has become old one, therefore, this Court is left with no other option except to decide the same after hearing learned counsel for the appellant, learned Deputy Prosecutor General and going through the record.
12. 9.Learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellant on the grounds that complainant has no reason to falsely implicate the appellant in this case; that the appellant is nominated in the promptly lodged crime report with specific role of inflicting hatchet blows to the deceased; that the ocular account is fully supported by the medical evidence; that the prosecution case is also corroborated by the recovery of crime weapon at the instance of the appellant; that prosecution remained successful to prove motive alleged; that this appeal may kindly be dismissed and murder reference may very graciously be answered in affirmative.
13. 10.We have heard the learned counsel for the appellant, learned Deputy Prosecutor General and perused the record with their able assistance.
14. 11.Muhammad Shafi, complainant (PW-1) and Muhammad Suleman (PW-2), furnished the ocular account of the fateful occurrence. They consistently deposed against the appellant without any noticeable deviation from their earlier statements got recorded by them on the day of occurrence under Sections 154 and 161 of the Code of Criminal Procedure, 1898 respectively, within two hours of the incident as the occurrence that took place at 12.30 a.m. on 26.08.2010 was reported to the police at 02.00 a.m. through written application Exh-PA while the crime report was registered at 02:30 'a.m. Despite cross-examination by the learned defence counsel at a considerable length, no material discrepancy sufficient to dent the veracity of the testimony of the eye-witnesses could be obtained. Both the eyewitnesses remained stuck to their stance firmly. It is important to notice that none of the eye-witnesses Muhammad Shafi, complainant (PW-1), Muhammad Suleman (PW- 2) and Allah Ditta (given up PW) had any grudge against the appellant that could prompt them to falsely implicate him as a sole perpetrator for the murder of their near and dear one, deceased Muhammad Faazil. The witnesses have convincingly explained the reason for their presence at the place of occurrence when the incident took place. From the very inception of this case, the complainant got recorded in his statement recorded under Section 154 of the Code of Criminal Procedure, 1898 that the occurrence was witnessed by them in the light of electric bulb and the point where the same was glowing is also reflected in the scaled site plan (Exh-PH) in view of which no question arises qua misidentification of the appellant. We have also noticed that as per site plan (Exh-PH), the availability of four cots at the crime scene confirms the presence of three witnesses besides the deceased 'at the relevant time. The above-mentioned circumstances persuade us to hold that the prosecution remained successful in discharging its responsibility of proving its case against the appellant beyond the shadow of a reasonable doubt, through the confidence inspiring and credible ocular account furnished by the eye-witnesses (PW-1 & PW-2).
15. 12.The prosecution case against the appellant also finds support from the medical evidence as ante mortem sharp edged weapon injuries, on the person of deceased Muhammad Faazil attributed to Muhammad Nawaz, appellant are reflected in the post mortem examination report (Exh-PE) which became the cause of his unnatural death as opined by the Medical Officer Dr. Mahbob Ahmad Paracha (PW-4).
16. 13.As regards recovery of crime weapon hatchet (P-4) at the instance of the appellant, we have observed that the place of recovery was neither owned nor exclusively possessed by the appellant and it was the Bhaini' of one Rao Saif Ullah from where the recovery was allegedly made on the pointation of the appellant. After commission of such a heinous offence, the return of the appellant to the place of occurrence to conceal the crime weapon that too stained with blood is neither convincing nor believable and probable.
17. 14.So far as the motive part of the incident is concerned, no cogent evidence, in our view could be produced by the prosecution to prove the motive part of the incident and we find ourselves persuaded to hold that the real facts and circumstances leading to the fateful occurrence could not be unveiled during the trial.
18. 15.As far as the specific defence taken by the appellant is concerned, we have observed that the injuries available on the neck of the deceased without any injury on any other part of his body transpire that the injuries were caused to the deceased when he was lying in helpless condition or was asleep as is the case of prosecution. Had he been active and conscious of the assault being made by the appellant, he would have resisted or at least attempted to save himself from the fatal blows being inflicted by the appellant, that could have resulted into injuries on his hands, arms, chin etc. which as per medical evidence do not exist. Similarly, as per the version taken by the appellant, he under grave and sudden provocation after committing murder of Fazil deceased went to the Bhaini of Rao Abdullah to murder his wife and it was Rao Abdullah and his sei-vants who stopped him and took him to the police on the same day but neither the appellant nor anyone else including Rao Abdullah ever appeared on oath to substantiate the same stance that leads us to hold that the defence is neither corroborated by any other evidence nor is credible and confidence inspiring hence, the same is brushed aside.
16. From the detailed reappraisal of evidence available on record, we have come to an irresistible conclusion that the prosecution has proved its case against the appellant beyond the shadow of a reasonable doubt through the trustworthy ocular account furnished by Muhammad Shafi, complainant (PW-1) and Muhammad Suleman (PW-2) supported by medical evidence and the result of investigation. Hence, the learned trial Court has rightly convicted the appellant but to the extent of sentence awarded to him, we are of the view that our above observation regarding the evidence of recovery of crime weapon at his instance and the evidence of motive are mitigating circumstances persuading us to award alternate legal sentence of imprisonment for life provided under Section 302(b), PPC; to Muhammad Nawaz (appellant) that in our view shall meet the ends of justice. In this regard, guidance is respectfully sought from the case of Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCM R 1034).
19. 17.For what has been discussed above, the conviction of Muhammad Nawaz, appellant under Section 302(b), PPC is maintained but his sentence is altered from death to imprisonment for life.
20. The amount of compensation imposed upon him and sentence in default thereof is maintained. He is also awarded the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
21. 18.Consequently, with above modification in quantum of sentence of Muhammad Nawaz (appellant), Criminal Appeal No, 748-J of 2012 is hereby dismissed.
22. 19.Murder Reference No, 174 of 2011 is answered in the <u>Negative</u> and sentence of death awarded to Muhammad Nawaz (convict) is <u>Not Confirmed. </u>