Riaz Ahmad, J.- Appellant Nisar Ahmad alias Booti son of Muhammad Nazir aged 17 years was tried by the learned Sessions Judge Gujranwala on the charge under section 302 PPC and 13 of the Arms Ordinance for having caused the murder of Danial Aziz. The learned Sessions Judge vide his judgment dated 24.11.1985 found the appellant guiIty on both the said charges. Accordingly, on the charge under section 302 PPC, the appellant was convicted and sentenced to undergo life imprisonment, and to pay a fine of Rs.Five thousand only or in defauIt, to suffer rigorous imprisomnent for an other term of six months. Under section 544 A Cr.P.C., the appellant was directed to pay Rs.Twenty thousand as compensation to the heirs of the deceased, or in defauIt thereof, to suffer rigorous imprisonment for a term of six months. On the charge under section 13 of the Arms Ordinance, the appellant was sentenced to suffer rigorous imprisonment for three months.
2. Aggrieved by his convictions and sentences, the appellant has preferred two appeals. Through Criminal Appeal No.31/86, the conviction under section 302 PPC has been assailed, while Criminal Appeal No.32/86 is directed against the conviction under section 13-Arms Ordinance. Complainant has also filed a revision petition bearing No.31/86 praying that the sentence of the appellant be enhanced to death. This judgment shall dispose of both the appeals and the Criminal Revision filed by the complainant for the enhancement of sentence.
3. The unfortunate occurrence resuIting into the death of Danial Aziz took place on 27.1.1985 at 4.00 p.m. In a street near Dera Zeldaran in Eminabad town situated at a distance of eight miles from police station Kamoki. On the receipt of the information of the said occurrence, Muhammad Yousaf ASI PW-10 reached Civil Hospital Gujranwala, where the deceased had been taken for medical treatment, and thus the occurrence was reported to him by Abdul Rashid PW-5 uncle of the deceased, vide statement Exh.PC which was recorded by said ASI in the Civil Hospital Gujranwala.
This statement Exh.PC was sent to the police station Kamoki, where on the basis of the said statement, formal FIR Exh.PC/I was drawn at 5.50 p.m. By PW-9 Muhammad Hussain Muharrir-ASI.
4. In brief, the prosecution case as stated by PW-5 Abdul Rashid in his statement Exh.PC was that on the fateful day at about 4.00 p.m., the complainant was proceeding to his own house via Bazar Kalan through Galla late Muhammad Hussain Bhandari, while deceased was also proceeding to his house ahead of the complainant at a distance of 30/35 yards, when the deceased reached near Tabella Zeldaran, the appellant from the front of the deceased also reached there, and inflicted a Chhuri blow on deceased, who warded off the same on his left hand which received an injury. Thereafter, the appellant inflicted two further blows on the chest of the deceased, as a resuIt of which, Danial Aziz fell down. The complainant reached near the deceased and the appellant, but the appellant, leaving Chhuri there, ran away In the meanwhile Nadeem Aziz and Khwaja Muhammad Ilyas had also reached there, and had seen the occurrence. Complainant with the help of Nadeem Aziz and Muhammad Amin took the deceased to the Eminabad hospital, where the doctor was not available, and thus, the complainant took the deceased to Civil Hospital Gujranwala, where Danial deceased succumbed to his injuries.
5. Motive for the commission of crime as narrated by the complainant was that the deceased was running a general store in main bazar Eminabad, and the appellant used to make purchases on credit. Few days before the occurrence, the deceased had demanded the money from the appellant, which resuIted into aItercation between the appellant and the deceased. Deceased had abused the appellant, and the appellant had threatened the deceased to teach a lesson for the abuses. On account of the said grouse, it was stated, that the appellant had killed the deceased.
6. On 28th of January, 1985 Dr.Manzoor Hussain, Medical Officer DHQ hospital Gujranwala conducted the postmortem examination on the deadbody of the deceased, and found the following injuries on his person: 1) . Incised wound 2cm x 1cm going deep in the left middle chest in the third intercastal space 1cm from sternum.
2) . Incised wound 1-1/2 cm x 3/4 cm going deep 1cm lateral to inj No.1.
3) . Incised wound 1cm x 1cm going through and through on the left thenar eminance of left hand.
Injuries No.1 and 2 had damaged the chest wall, plura and lungs Injury No.1 had also injured the heart. Ribs, plura and left lung were injured. Pericardium was also injured. Death in the opinion of the doctor had occurred due to shock and haemorrhage as a resuIt of injury No.1 and 2 which collectively and individually was sufficient to cause death in the ordinary course of nature.
7. On 28th of January, 1985, ASI Muhammad Yousaf PW-10 reached the scene of occurrence, where the appellant was produced before him, and thus, the said ASI arrested the appellant on the same day.
8. Nadeem Aziz a given up eye witness produced bloodstained Chhuri P4 which was left by the appellant at the spot, and the same was taken into possession on 28th of January, 1985 vide Memo. Exh.PE attested by Abdul Rashid PW-5, Muhammad Ilyas PW-8 and Muhammad Yousaf ASI PW-10. On 29th of January, 1985, bloodstained shirt P6 and blood-stained Shalwar P5 worn by the appellant at the time of the commission of crime, were got removed, and were taken into possession by Muhammad Yousaf ASI.Vide Memo.Exh.PK attested by Niamat Ali PW-1, Manzoor Ahmad a Foot Constable PW-3 besides the ASI PW-10.
9. There is nothing on the record to show that the bloodstained clothes of the appellant, which were got removed and taken into possession were sent to the Chemical Examiner. However, bloodstained Chhuri was sent to the Chemical Examiner and the Serologist. Vide report of the Serologist Exh.PM/I the said Chhuri P4 had stains of human blood.
10. When examined under section 342 Cr.P.C., the appellant denied the charge, and stated that he had been falsely involved on account of enmity.
11. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Abdul Rashid PW-5 uncle of the deceased, PW-8 Muhammad Ilyas who is not related to the complainant in any manner. The prosecution also placed reliance upon the recovery of Chhuri and the stains of human blood on it as corroborative evidence. Medical Evidence also was relied upon to show that the deceased had in fact received the injuries with Chhuri.
12. With the assistance of the learned counsel for the appellant, complainant and the State we have carefully perused the record of this case, and we have also heard all the learned counsel at length.
13. It was contended by the learned counsel for the appellant that motive as sought to be set up by the prosecution in this case had not been proved, therefore, involvement of the appellant in this occurrence, was highly doubtful.
14. It was further argued by the learned counsel for the appellant that FIR in this case was not a genuine document, in asmuchas, the same was recorded after preliminary investigation.
15. In respect of the eye-witnesses, it was contended that Abdul Rashid PW-5 was not present at the scene of occurrence, and as far as PW-8 Muhammad Ilyas was concerned, he was a chance witness, and was carrying his business at Gujranawla more, and therefore, had no occasion to be present at the scene of occurrecne. It was further argued that PW-8 Muhammad Ilyas had failed to render any satisfactory explanation about his presence, and after the occurrence, during the preliminary investigation, he was imported from Gujranwala to be cited as a witness. Learned counsel for the appellant also criticized that the prosecution had faild to produce Nadeem Aziz a witness cited in the FIR, who had produced the bloodstained Chhuri left by the appellant at the scene of occurrence.
16. As far as criticism as to the motive is concerned, we find force in the same. Motive for the commission of crime as stated by the complainant at the trial was that the deceased was running a general store, and the appellant had made purchases on credit from the deceased, and when the deceased demanded money due to him, an aItercation had taken place, in which, the deceased had abused the appellant, and the deceased was threatened by the appellant, that he would avenge his insuIt. As far as intrinsic worth of the deposition as to the motive is concerned, at least it is clear that the complainant was not a witness of this incident. Furthermore, such aItercation in a small town like Eminabad would have attracted other shopkeepers to know about such aItercation, therefore, number of witnesses would have been available to depose about it had the prosecution made efforts to collect evidence to establish the motive. In the absence of any such direct evidence to establish motive, knowledge of the complainant amounts to hearsay, therefore, we are not prepared to believe the motive as sought to be established by the prosecution. It is well settled that if the prosecution seeks to set up a motive and fails to prove it, then it must suffer. Hence, we are of the view that the learned trial Judge took correct view to hold that motive stands unproved on the record of the case.
17. As far as criticism as to the ocular testimony is concerned, we find no substance in the contention raised by learned counsel for appellant, because in the first instance PW-5 Abdul Rashid is a resident of the same Bazar and his house also situates there, it was evening time when the occurrence took place. There is nothing odd for a witness to proceed to his house at that time.
Similarly, statement of PW-5 Abdul Rashid that the deceased was also proceeding to his own house ahead of him cannot be disbelieved. Furthermore, PW-5 had no rancour or animosity with the appellant so as to involve him falsely on a capital charge. No enmity worth the name has brought on the record so as to shake the credit of this witness. Accordingly, we are satisfied that this witness had seen the occurrence, and the mere fact, that he happened to be an uncle of the deceased is aslo no ground to reject his evidence.
18. Adverting to PW-8 Muhammad Ilyas, we are of the view that this witness had also seen the occurrence, and had rendered a satisfactory explanation about his presence at the sopt. We are not prepared to believe that he was imported to be cited as a witness after the occurrence had taken place. In fact, Gujranwala from Eminabad is not far off place, and people frequently travel between these two places. PW-8 stated that he had gone on his car to meet one Abdul Ghani, and had stopped his car near the Dera Zeldaran, and then had gone to see Abdul Ghani and saw the occurrence.
The witness is a factory owner. Though, the social status of a witness is hardly a factor relevant for judging the intrinsic worth of the testimony of a witness, yet in this cases, we find that Muhammad Ilyas PW-8 would no involve himself into this affair unless he had seen the occurrence. In fact, he was persuaded by civic sense t, come forward to depose about it, which we appreciate. Narration of the occurrence by both the witnesses is consistent and natural, therefore, we are not prepared to believe that the witnesses had not seen the occurrence.
19. Upshot of the above discussion is that the prosecution has brought guiIt home to the appellant, therefore, this appeal has no merits, and the same is hereby dismissed. Conviction and sentences of the appellant are hereby maintained.
20. Adverting to the appeal filed by the appellant assailing his conviction under the Arms Ordinance, we find no substance in the same, because the witnesses to the recovery are truthful witnesses, and the appellant after having killed the deceased had left the Chhuri at the spot, and the same was produced befroe the Investigating Officer by Nadeem Aziz, which was taken into possession by the Investigating Officer. In this view of the matter, we find no merits in the same, accordingly, the said appeal is also dismissed. However, sentences on both the charges shall run concurrently.
21. Adverting to the Revision Petition, it was vehemently argued that the normal penaIty of death for the commission of offence under section 302 PPC in the circumstances of the case was unjustifiably not imposed, and the lesser penaIty awarded to the appellant on the basis of his young age was unwarranted. In this respect number of judgments were cited by the learned counsel that the age of the appellant was no ground to award him lesser penaIty. After anxious consideration, we think that question of age is not relevant in this case, because, motive in this case is shrouded in mystry, and we do not exactly know what preceded before the appellant attacked the deceased. It is now well settled that in such like cases, extreme penaIty is not imposed. In this view of the matter, we are not prepared to interfere with the sentence as awarded to the appellant by the learned trial Court. Hence, this revision petition stands dismissed.