' KHALIL-UR-REHMAN RAMDAY, J--- This is an appeal by one Muhammad Ashiq who was tried by the Punjab Special Court for Speedy Trials No,V, Multan, a Court constituted under the Special Courts for Speedy Trials Act, 1987.
2. Vide its judgment, dated 2-10-1988 the said learned trial Court found Muhammad Ashiq guilty of the offence punishable under section 302, P.P.C. And sentenced him to suffer death and also to pay a fine of Rs,10,000 and in default thereof to undergo rigorous imprisonment for two years. He was also directed to pay Rs,10,000 as compensation to the legal heirs of the deceased and in default in payment thereof to suffer another term of two years' R.I.
3. The prosecution commence in pursuance of an F.I.R. Bearing No, 257, dated 24-6-1988 of Police Station City, Vehari recorded under section 302, P.P.C. a' the instance of one Maqsood Ahmad.
4. Narrating the occurrence, the said Maqsood Ahmad P.W.7 alleged that his real younger brother, namely, Muhammad Salem deceased was S.D.O. In WAPDA and was posted at Vehari. According to him, the deceased who was aged about 30 years was a bachelor and had taken up residence in the upper storey of the WAPDA office which was situate in D-Block of Vehari City. Muhammad Ashiq appellant who was aged about 19/20 years was a personal servant of the deceased and had been employed by him as a cook.
5. The said Maqsood Ahmad P.W. Who is a Lecturer in Government Commercial College, Haroonabad in District Bahawalnagar and who is a resident of Chak No, 97/6-R of the said district had further alleged that on the day preceding the day of occurrence i,e, on 23-6-1988, he had come to Vehari alongwith his uncle Muhammad Hussain and had stayed for the night with his deceased brother. On the day of occurrence at about 8-00 a.m. Maqsood complainant and the said Muhammad Hussain had to go to Multan to make certain purchases and left Vehari telling the deceased to wait for them to return from Multan so that they could then go to Haroonabad together. He had further stated that at about 4-30/4-45 p.m. He alongwith Muhammad Hussain reached hack from Multan and, at the bus stand, they came across one Imran (P.W.6) who was a friend of Maqsood complainant and then the three of them went to the house of Saleem deceased.
On going up the stairs, just as they reached the courtyard of the residence of the deceased, the three found that Saleem deceased was lying on the floor and Ashiq convict armed with a Bugda P.2 was standing on top of him and within their sight, Ashiq convict inflicted injuries on the person of Saleem deceased.
6. Maqsood complainant added that he alongwith his aforesaid companions overpowered Ashiq convict and took over the said Bugda P.2 from him. The complainant also picked up a Purse P.3 containing currency notes valuing Rs,4,950 and a nail clipper P.4 from the place of occurrence and then took the convict to the police station and handed him over to the police alongwith the said Bugda P.2, purse P.3 together with the currency notes and the nail clipper P.4.
7. Maqsood complainant further alleged that on his inquiries, Ashiq convict divulged to him that while the deceased was asleep, the convict had picked up the purse P.3 from his room whereupon the deceased woke up and threatened the convict with being reported to the police. The convict entreated him for forgiveness but the deceased insisted on handing the convict over to the police.
The convict then went to the kitchen, picked up the Bugda P.2 from there and finding an opportune occasion, attacked the deceased with the same.
8. Muhammad Khan Niazi, Inspector/S.H.O., Police Station City, Vehari recorded the aforesaid F.1.R.
Took into possession Bugda P.2, purse P.3 containing the aforesaid currency notes and the nail clipper P.4. He arrested Ashiq convict and also took into possession the blood-stained shirt P.5 and bloodstained Shalwar P.6, which the convict was wearing at the time of his arrest, after removing the same from his person.
9. The post-mortem examination of Saleem deceased was conducted at 700 a.m. On the next morning i,e, on 25-6-1988 by Dr. Abdul Majid Sheikh. At the time of the trial, it was reported that the said doctor was admitted in the Mental Hospital at Lahore on account of some mental ailment and Riaz Hussain, Dispenser P.W.9 appeared to prove the post-mortem examination report of the deceased.
10. According to the said report there were three injuries on the person of the deceased. One was a big incised wound on the left side of the neck. The layrnx, the esophagus, all major blood vessels, the cervical vertebra and the spinal cord were found cut as a result of this injury. The second was a wound on the left shoulder where the skin was missing. The third was an incised wound on the parietal and lower occipital region of the skull. All these injuries had been found to have been caused with a heavy sharp-edged weapon.
11. The main witness of the occurrence is obviously Maqsood complainant P.W.7. He is a resident of another district and his place of work/place of residence is about 50/60 miles from the place of occurrence. He is thus, obviously not a natural witness of the occurrence and his presence at the spot at the relevant time will, therefore, have to be closely scrutinized.
12. The day of occurrence was a Friday. Maqsood P.W. Claims that he had come to Vehari on the day preceding the day of occurrence which was a Thursday and had stayed for the night with his deceased brother at Vehari alongwith his uncle Muhammad Hussain. He further . Claims that the next morning, he alongwith the said Muhammad Hussain, left for Multan from where he was to purchase certain books and Muhammad Hussain had to purchase certain medicines for his ailing wife. At Multan the hooks were purchased from Ghanta Ghar and the medicines were bought from in front of Nishter Hospital. During his cross-examination he was confronted with the fact that the day of occurrence being a Friday was a public holiday on which day, all shops were closed. His reply was that certain book shops and.Certain Chemists shops were open in Multan even on Fridays. This answer was not challenged by the defence any further. Needless to say that it is a known fact that Chemists' shops, especially the ones in the vicinity of big hospitals, are kept open round the clock and even on public holidays. Similar is the position of certain book shops which are open on Fridays especially for the benefit of persons coming from the Muffassil and the rural areas.
Even otherwise the story about the complainant and Muhammad Hussain going to Multan did not have to he introduced unless it was true. The day of occurrence was a week-end and even if Maqsood complainant had only stated that he had come to visit his younger brother in Vehari on a holiday, the same would not have been difficult to accept.
13. It is on record that the occurrence took place at about 5-00 p.m. And the F.T.R. Was recorded promptly at the police station at 5-40 p.m. This excludes the possibility of importing Maqsood complainant from Bahawalnagar to be planted as a complainant and as an eye-witness of the occurrence.
14. At this stage the plea taken by Ashiq convict may also be noticed. In reply to question No,3, whether Maqsood complainant and Muhammad Hussain had come to Vehari and had stayed for the night with Saleem deceased and had left for Multan the next day, the reply of Ashiq convict was:-- "No, There is no such evidence on the file and I was not there."
' It will thus be noticed that Ashiq convict, who was a personal servant of the deceased and who was expected to be at the house of the deceased, especially when the thee deceased had guests in the house, has not specifically denied. The presence of the complainant and Muhammad Hussain and their stay with the deceased on the night preceding the day of occurrence was, therefore, probable.
15. In reply to another question regarding his arrest etc., Ashiq convict stated that he had not been caught at the place of occurrence but was arrested later in the evening from his house at about 9- 10 p.m. As has been stated earlier, Ashiq convict was the personal servant of the deceased who was expecting Maqsood complainant and Muhammad Hussain come back from Multan the same evening and was then to leave for Bahawalnagar along with the said complainant and Muhamiriad Ilussain. Therefore, the absence of the cook from the house of his employer and his presence at his own place of residence, in these circumstances, does not appeal to reason.
16. But even if this plea of the convict was to be presumed correct, then his unexplained absence from his place of work where his master lay murdered, is a speaking circumstance which, very strongly, militates against his innocence and lends support to the prosecution case and secondly, the convict's claim that he was arrested at 9-10 p.m. Would, at least, demonstrate that the F.I.R.
Stood recorded before the said time which is within 4/5 hours of the occurrence and which is too short an interval to summon Maqsood complainant from a village in Haroonabad and to set him up as a complainant/eye-witness of the occurrence.
17. From the above discussion, it appears that Maqsood complainant was available in Vehari at the time of occurrence; had witnessed the occurrence as alleged by him and had caught the convict at the place of occurrence and handed him over to the police as claimed by him.
18. The testimony of Maqsood complainant thus inspires confidence and we accept the same as truthful account of the occurrence.
19. The prompt recording of the F.I.R., the apprehension of the convict red-handed on the spot, recovery of Bugda P.2 and Purse P.3 and of the blood-stained shirt P.5 and blood-stained Shalwar P.6 removed from the person of the convict, the motive and the testimony of Imran P.W. Lend further strength to the eyewitness account of the occurrence as narrated by Maqsood complainant. Nothing has been brought on the record to explain, why Ashiq convict, who was the solitary accused of the occurrence, had been falsely involved in this case?
20. We, therefore, maintain the finding of guilt recorded against Ashiq convict-appellant by the learned trial Court vide its impugned judgment, dated 210-1988.
21. It was next contended that Ashiq convict was 15/16 years of age at the time of occurrence which was a mitigating circumstance for not awarding death penalty to him. An entry of the Birth Register Exh.D.A. Was placed on record in support of the young age of the convict. According to this entry, a boy son of Nawab Din had been born on 11-12-1973 in a place called Muhammadpur of Tehsil Dipalpur of District Okara. It has nowhere been claimed by Ashiq convict that they were originally the residents of Muharnmadpur and that that is the place where he was horn. As against this, an extract from the list of voters of Municipal Committee, Vehari, was placed on record wherein Ashiq Ali son of Nawab Din has been described as 24 years of age as on 1-1-1986. Even in his statement under section 342, Cr.P.C., Ashiq convict has been described as 19/20 years of age. We, therefore, find it difficult to hold that Ashiq convict was 15/16 years of age at the time of occurrence. Moreover, such a brutal killing of the employer by a domestic servant and that too for the sake of money, persuades us against showing any leniency to the convict.
22. In the circumstances the 'judgment dated 2-10-1988 passed by the learned Special Court for Speedy Trials No,V, Multan, and the consequent conviction and sentences awarded, are hereby maintained except that the term of two years' R.I. Awarded by the learned trial Court in default of payment of compensation under section 544-A, Cr.P.C. Is modified to a term of six months' R.I.
23. With the above modification, this appeal is dismissed.