RIAZ AHMAD, J.--Appellant Muhammad Aslam son of Sama was tried by the learned Sessions Judge, Okara on the charge under section 302 of the Pakistan Penal Code for having committed the murder of Muhammad Yar deceased, vide judgment dated Ist of April, 1986, the learned Sessions Judge Okara found the appellant guilty on the aforesaid charge, and accordingly convicted and sentenced him to death, and to pay fine of Rupees ten thousand, or in default whereof, to suffer rigorous imprisonment for a term of six months. It was further directed, that in the event of recovery of fine, the same shall be paid to the heirs of the deceased under section 544-A Cr.P.C.
2. Aggrieved by the aforesaid conviction and sentences, the appellant has preferred this appeal, while the case has also been referred to us under section 374 Cr.P.C. This judgment- shall dispose of both the appeal as well as the Reference.
3. The unfortunate occurrence resulting into the death of Muhammad Yar deceased took place at 2-1/2 a.m. During the night of 24th/25th of July, 1984 outside the shop of the deceased situated in village Kandoo Wal in tehsil Depalpur district Okara situated at a distance of six miles from police station Depalpur. First Information Report was lodged at the police station Depalpur at 7 a.m. On 25th of July, 1984 by Rahim Bux PW 1 father of deceased. F.I.R. Was recorded by Liaqat A.I Muharrir Head Constable PW-8. In brief, the first informant in the F.I.R. Stated that he was a resident of Mauza Kandoo Wal, and. Was a tenant of Chaudhari Falak Sher. His son Muhammad Yar was running a Karyana shop of Chaudhari Muhammad Sharif in the aforesaid village. On the fateful night between 24th and 25th of July, 1984, the deceased slept on a cot in front of his shop. The first informant and his other son namely, Zulfiqar hack gone to take the turn of water at the tubewell, at about 2-1/2 a.m. The first informant and his son Zulfiqar were coming back after irrigating the land, when they reached near the shop of the deceased, they heard the voice of the deceased, and saw, that the appellant was inflicting Chhuri blows to the deceased Muhammad Yar. The first informant and his son reached to intervene, but the appellant on their sight, ran away. While running, the appellant left his shoes at the spot. Hue and cry raised by the first informant and his son attracted other residents of the village. According to the first informant, the deceased received injuries on the chest, arm and neck.
4. Motive for the commission of crime as stated in the F.I.R. Was, that sister of the appellant, namely, Zikran Bibi was married to another son of the first informant namely Ahmad Din. In exchange of the aforesaid marriage, the first informant had agreed to give the hand of his daughter Allah Rakhi in marriage to Muhammad Akram younger brother of the appellant. Since Muhammad Akram had become a vagabond, therefore, the first informant had married his daughter to Allah Rakhi somewhere else. The deceased was also against the marriage of his sister Allah Rakhi with Muhammad Akram. Appellant had grouse that the deceased was responsible for breaking of the engagement of Allah Rakhi with Muhammad Akram, therefore, on account of this grievance, the appellant had killed the deceased Muhammad Yar.
5. On 25th July, 1984 at 4.00 p.m. Dr. Nawab Din Medical Officer Civil Hospital Depalpur conducted the post-mortem examination on the dead body of the deceased, and noticed the following injuries on his person:
(1) Incised wound 7 cm x 1/2 cm x muscle deep on right side of front of neck.
(2) Incised wound 3-1/2 c.m. x 1 c.m. x deep going on left side of middle of chest 3-1 /2 c.m below the left nipple.
(3) Incised wound 2-1/2 c.m. x 1 c.m. x deep going to right side of left chest 3 c.m. Below injury No.2.
(4) Incised wound 2 c.m. x 1/4 c.m. x skin deep on outer and middle of right upper arm.
(5) Incised wound 1 c.m. x 1/4 c.m. x skin deep on front and middle of right forearm.
9th and 10th ribs were fractured. Left lung was punctured at the base through and through. Heart was punctured under injuries Ivos.3. In the opinion of the doctor, the death had occurred due to shock and haemorrhage as a result of injuries No.2 and 3 which was sufficient individually, to cause death in the ordinary course of nature.
6. On 12th of August, 1984, the appellant was arrested by PW-11 Mulazim Hussain, Inspector/SHO Police Station Depalpur. On 15th of August, 1984 the appellant while in custody led the-police and got recovered a blood stained Chhuri P 5 from his residential house, which was taken into possession, vide Memo. Exh. PG attested by Allah Yar (not produced) besides the Investigating Officer PW-11. The Churri was sent to the Chemical Examiner and the Serologist. According to the report of' Serologist, the said Churri was found to be stained with human blood. Shoes left by the appellant at a distance of five feet from the cot of the deceased were also taken into possession vide Memo. Exh.PD attested by Muhammad Usman PW-3, Muhammad Irshad (not produced) besides the Investigating Officer PW-11.
7. To support its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Rahim Bux PW-1 father of the deceased and Zulfiqar PW-2 a brother of the deceased.
In addition to the ocular testimony, reliance was also placed upon the recovery of the blood- stained Chhuri at the instance of the appellant and also evidence as to the motive.
8. Appellant when examined under section 342 Cr.P.C. Admitted that his sister Mst. Zikran Bibi had been married to Ahmad Din, but denied that Mst. Allah Rakhi had been betrothed to Muhammad Akram his younger brother. The appellant denied the charge as well, and stated that he was falsely involved on account of enmity. He further stated that the deceased was a man of bad character and had many enemies, and was therefore, murdered by some unknown person.
9. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the evidence on the record, anti we have also heard the various contentions raised by both sides. It was vehemently contended that no independent witness had been produced by the prosecution to prove the charge against the appellant. The ocular testimony consists of tile statements of the father and brother of the deceased, who are interested witnesses, therefore, their testimonies were of no avail to the prosecution.
10. It was next argued, that according to both the witnesses i.e., the complainant and his son, one Muhammad Sharif had also reached the scene of occurrence, but the prosecution withheld the aforesaid witness, therefore, an adverse inference could be drawn against the prosecution.
11. It was further contended that the recovery of blood-stained Chhuri at the instance of the appellant was unworthy of belief.
12. Learned counsel for the appellant further contended that it was a night occurrence, therefore, both the eye-witnesses were chance witnesses, and there was hardly any occasion for them to have seen the occurrence with their own eyes. They had only noticed the dead body lying on a cot, and both the witnesses implicated the appellant on account of enmity.
13. We have carefully considered all the above-mentioned contentions raised on behalf of the appellant. We regret to agree with the learned counsel for the appellant. As far as motive in this case is concerned, both the eye-witness; had categorically stated that betrothal of Allah Rakhi with Muhammad Akram a younger brother of the appellant was broken, and the appellant was having grudge over the conduct of the deceased, because according to the appellant, main role in breaking of the engagement was played by the deceased. After anxious consideration of this aspect, we arc of the view, that the parties, are closely related, and thus, m the absence of any background of previous enmity, the evident: as to the motive rings true. To the contrary, nothing has been brought on the record to disbelieve the version as to the motive. Accordingly, we hold that the motive in this case has been proved by the prosecution.
14. As far as ocular account is concerned, we are of the view that both the eye-witnesses had seen the incident. Had they not seen it, they would not have named the appellant as the culprit because of the close relationship, and particularly so, when there is no enmity worth the name between the complainant; and the appellant. We find no substance in the argument that no independent witness had been produced, although many persons including Muhammad Sharif had reached the scene of occurrence. We are of the view that in the dead hours of the night none could have seen the occurrence, except the father and brother of the appellant who were coming back to their village after having irrigated their land. Other villagers had gathered there on the hue: and cry raised by these two witnesses, therefore, we find no substance in this argument, because all other persons had collected after the incident had taken place. Furthermore, we are not prepared to believe that it is a case of mistaken identity or substitution because a real father and brother would not have allowed the real culprit to go scot free. Ocular account in this case is also amply corroborated through the recovery of bloodstained Chhuri at the instance of the appellant, and also of his shoes which were left by the, appellant at the spot. Our attention was also drawn to certain discrepancies. Which in our view are minor in nature, and do not in any manner demolish the prosecution case. As already observed, the ocular account is consistent and inspires confidence. Resultantly, this appeal must fail. Accordingly, the appeal preferred by the appellant is hereby dismissed. Death sentence is confirmed. Sentence of fine as awarded by the trial Court is also maintained. Reference is answered in the terms noted above.
S.A./M-1597/L