' FALAK SHER, J.--- We propose to dispose of Murder Reference No,8 of 1987, Criminal Appeal No,40 of 1987 and Criminal Revision No,138 of 1987 hereinbelow, having emanated out of the. Judgment of learned Sessions Judge, Gujranwala, dated 4-12-1986, upon conviction under section 302, P.P.C.
Awarding the appellant sentence of death with a fine of Rs,2,000 in default, to serve one year's R.I.
And compensating of Rs,2,000 to the legal heirs of the deceased in default whereof to undergo six months' R.I.
2. Complainant Muhammad Daud P.W.10, elder brother of Muhammad Naeem deceased (cab driver) aged 22 years on 23-3-1986, at 12-15 a.m. On his way down to Police Station Kotwali, Gujranwala from District Headquarters Hospital, at Chowk Sialkot, lodged complaint Exh.P.A. With Khizar Hayat A.S.I. P.W.13, on the basis whereof formal F.I.R. Exh.PA./1 was recorded at the police station, at 12-20 a.m. By Muhammad Younas, Moharrir A.S.I. P.W.1, initially under section 307/324, P.P.C., which charge was amended to section 302 consequent upon demise of the deceased on 27- 3-1986, alleging that at 10-35 p.m. Of the same night, the deceased, in the complainant's company at the sweetmeats shop of Zahur Elahi P.W.11 (Chowk Katcha Gate) after hurling of rebukes for being instrumental to the brotherhood's ex-communication was stabbed by the appellant Muhammad Asif alias Shauka aged 25 years, caste Gujjar (cab driver) with a dagger on the left and right of the rare of the chest as a consequence whereof he collapsed on the ground, where he was inflicted multiple injuries on various parts of the body, where after, upon the rescuing intervention of the complainant, Muhammad Ijaz and Talib Hussain (given up P.Ws.) who were also present at the shop, the appellant vanished away and the deceased, in precarious condition, was removed to District Headquarters Hospital, Gujranwala where the Casualty Medical Officer, after preliminary examination and first-aid, referred him to the Mayo Hospital, Lahore; in adherence whereto he was dispatched through the above-referred Ijaz and Talib while the complainant lodged the F.I.R.
' As to motive it was alleged that the appellant on account of objectionable character, was an ex- communicado of the brotherhood for which he suspected the deceased being the instigator.
3. Khizar Hayat, A.S.I. P.W.13 after recording of the complaint proceeded to the spot, collected blood- stained earth vide Exh.P.C. Attested by Nazir Hussain P.W.5 and Taj Din (given up due to uncertainty of return from abroad within the foreseeable future). He took into possession the last-worn clothes of the deceased, Shirt P.2 and Vest P.3 vide memo. Exh. P.K. Tendered by Abdul Hameed, Foot Constable of Police Post Civil Lines, Gujranwala to whom the same were entrusted by Dr. Manzur Hussain P.W.
7. He got prepared site plan Exh. P.B. From Arif Hussain Ayyaz, Draftsman P.W. 3, and with a view to recording statement of the deceased in the Mayo Hospital vide memo. Exh. P.N. Sought permission of the doctor which was declined for his being in unfit condition. After the deceased passed away, he prepared inquest report Exh.P.L., effected the appellant's arrest on 5-4-1986, who while in custody led to the recovery of crime weapon P.1 by digging it out from the rear of the public conveniences adjacent to Sheranwala Garden, which was taken into possession vide Exh.P.G., rough sketch whereof is Exh.P.G./1 attested by Saghir Ahmad P.W.12 and Muhammad Akram (given up).
4. Dr. Manzur Hussain P.W.7, Casualty Medical Officer, District Headquarters Hospital, Gujranwala on 22-3-1986 at 11 p.m. Examined the deceased in the emergency escorted by the complainant and vide medico-legal report Exh.P.E. Observing very serious condition, cold sweaty, blood pressure 70/nil, pulse 120 per minute and respiratory rate 28 per minute found the following injuries:--
(1) Incised wound 2 c.m. x 1 c.m. x going deep in right scapular region.
(2) Incied wound 2-1/2 c.m. x 1 c.m. x going deep back of right chest lower part, 2 c.m. From mid line.
(3) Incised wound 3 c.m. x 1 c.m. x going deep back of left chest middle part in posterior axillary line.
(4) Incised wound 3 c.m. x 1 c.m. x going deep 7 c.m. Below injury No,3 in the posterior axillary line.
(5) Incised wound 2 c.m. x 1 c.m. x going deep in mid axillary line opposite the left nipple.
(6) Incised wound 1 c.m. x 1/2 c.m. x muscle deep on the left side of abdomen lower part.
(7) Incised wound 1 c.m. x 1/2 c.m. x muscle deep on left index finger middle part on the palmer surface.
(8) Incised wound 1 c.m. x 1/2 c.m: x muscle deep left ring finger on palmer surface.
(9) Incised wound 1 c.m. x 1 c.m. x muscle deep left thumb middle part.
' Injuries 1 to 5 were kept under observation while 6 to 9 were declared simple, all with sharp-edged weapon with corresponding cuts on the clothes, opining the injuries to be fresh and advising X-ray of chest and abdomen, referred him to the Mayo Hospital after resustation. Reply question he stated that the deceased had historyia lit, and showed inability to spell out as to whether the injuries could be the result of two different weapons. Following the advice the deceased was shifted to the Mayo Hospital, where he was operated upon by Dr. Javed Gardezi P.W.6 on 23-3-1986, who vide operational notes Exh.P.D., noted the following:--
(1) 2-1/2 c.m. Incised wound 5 c.m. Deep just lateral to mid-line at the back near third thoracic vertebra.
(2) Incised wound 3 c.m. x 1 c.m. Deep near the mid-line at the back at the level of 11th thoracic vertebra left side.
(3) Incised wound 3-1/2 c.m. x 1-1/2 c.m. Muscle deep 6 c.m. Piece of omentum protruding through it situated at the posterior axillary line, left side at level of 7th thoracic vertebra.
(4) 3-1/2 c.m. x 1-1/2 c.m. Incised wound in mid axillary line left side 5 c.m. Deep.
(5) Incised wound 2-1/2 c.m. x 1 c.m., 5 c.m. Deep left side at the leval of 6th rib.
(6) Bruise 1 c.m. x 2 c.m. Close to wound No,3.
' Stab chest in the mid axillary line cutting through the diaphragm injuring splenic flexure and stomach. Lesser sack full of clots, peritonial cavity filled with blood."
"External wounds after exploration stitched, drains put in splenic flexure resected, end to end anastamosis done. Wounds in diaphragm and stomach repaired, saline wash given to peritonial cavity, transverse colostomy done on right side, chest tube put in, tube drain put in the abdomen, and after stitching the wounds in layers, antiseptic dressing was carried out. On 26-3-1986 colostomy opened, C.V.P. Line passed'. On 27-3-1986, the deceased expired at 10-18 a.m.
' Responding to a query he stated that all the injuries were satisfactorily repaired.
5. Dr. Shuaib Shah Demonstrator, Department of Forensic Medicine, King Edward Medical College, Lahore, on 28-3-1986 at 8-45 a.m., conducted the autopsy on the dead body of the deceased and vide post-mortem report Exh.D.F. Observed as under:--
(1) A stitched wound 4 c.m. Long with 3 intact silk sutures, and a rubber drain present at the right side of back of chest, 4 c.m. Away from mid-line.
(2) An obliquely placed stitched wound 5 c.m. Long with 4 intact silk sutures at the middle chest on back of right side 1 c.m. Away from mid-line.
(3) Obliquely placed stitched wound 6 c.m. Long with the rubber drain just below the lower border of left scapula, with 4 intact silk sutures.
(4) A healed superficial scar mark 4 c.m. Medial to injury No,3.
(5) A stitched wound 3 c.m. Long with a rubber drain 2 intact silk sutures in the middle of left armpit, lateral chest wall.
(6) A vertically placed stitched wound 6 c.m. Long with 4 intact silk sutures 8 c.m. Below injury No,5 on the left side of lateral chest wall.
(7) A left paranedian incision 16 c.m. Long with an adjacent limb going downwards and laterally on the left side with intact silk sutures and tube drain.
(8) Obliquely placed stitched wound 6 c.m. Long at the left lumber region 16 c.m. Away from umblicus with 4 intact silk sutures.
(9) A cut slash at the terminal phalynx of left ring finger on palmer surface of left hand.
(10) Two healed scar marks at the palmer surface of thumb and index finger of left hand.
' On exploration he noticed evidence of the repair of abdominal organs, abdominal cavity all smeared with foul smelling faucal matter with multiple adhesion with peritoneum. Injury No,6 from left lateral chest wall directed downwards damaging the chest wall diaphragm at the left side with other underlying organs. Upon opening the thoracic cavity, he observed pleura adhered with left lung, with tear about 5 c.m. Present at the left lung corresponding with injury No, 5 while rest of the organs were found healthy. On opening the abdomen, the peritoneum was found to be smeared with faucal matter and torn at the level of wounds description and the stomach contained about 50 c.c. Dark fluid.
' The cause of death was opined to the faucal peritonitis as a result of complication from injuries to stomach and splanic flexure of the colon, and probable time between death and post-mortem was opined to be 24 to 36 hours. Replying questions he stated that faecal peritonitis could be due to leakage of faucal of small and large intestines due to the injuries to the internal organs of the abdomen, however, showed inability from stating as to whether the leakage was due to surgery.
6. At the trial, the complainant P.W.10 deposed the ocular account by reiterating the prosecution version to which no dent could be caused by the cross-examiner and was meticulously corroborated on material particulars by Zahur Elahi P.W.11, the sweetmeat-seller, while the medical evidence was furnished by the three doctors referred to above. Khizar Hayat, A.S.I. P.W.13 testified to the investigation alongwith Saghir Ahmad P.W.12 as to the recovery of crime weapon dagger P.1, reports of the Chemical Examiner qua dagger and blood-stained earth respectively Exhs.P.M. And P.N. And that of Serologist Exhs.P.O. And P.P. Affirming their origin to be human blood were tendered in evidence by the Public Prosecutor whereas the rest of the evidence was of formal nature.
7. The appellant in his statement under section 342, Cr.P.C. As well as on oath under section 340(2), Cr.P.C. Denying the occurrence stated that he has been falsely implicated at the instance of Saghir Ahmad P.W.12, the recovery witness, who was a source of nuisance on account of disposal of filth and rabbish of animals in the street. However, frankly admitted that he entertained no grudge or enmity towards the deceased. Resultantly the appellant was convicted vide the impugned judgment.
8. Upon in depth examination of the entire evidence with the assistance of the learned counsel for the appellant, it clearly emerged that in the context of things the complaint was promptly lodged by the real elder brother of the deceased, who admittedly had no motive or inimical disposition towards the appellant whose testimony not only remair ed unimpaired during lengthy cross- examination but also stood corroborated by the deposition of Zahur Elahi P.W.11 an butterly independent witness from the locality against whom no motive has been alleged, credence whereto is lent by the unimpeachable medical evidence, as well as by the recovery of crime weapon, concerning one of the witnesses whereof, (Saghir Ahmad P.W.12) though feeble theory of false attribution has been postulated but in view of its firm repulsiveness and his equal relationship to both, does not inspire confidence. Even assuming for the sake of arguments that the evidence as to recovery of the weapon of offence is excluded from consideration, the prosecution case stands fully proved beyond any manner of doubt by the ocular testimony of the complainant, who has no reason to let the solitary real murderer of his younger brother go scot free and rope in the innocent appellant, corroborated by the deposition of an independent witness of the locality and the medical evidence; therefore, realizing the insurmountable task the learned counsel for the appellant rightly confined his submission qua the quantum of sentence alone by canvassing that motive set up by the prosecution has not been proved, origin of the fight has been withheld in that the deceased must have returned the compliments of rebukes of which the appellant got flared up and retaliated, thus requested that the sentence of death may be converted to that of imprisonment for life; to which we are not persuaded for the reason that the appellant approached the deceased with pre-determined mind, equipped with a lethal weapon, and acting with utmost cruelty in a merciless brutal manner committed cold-blooded murder of the deceased by repeatedly causing injuries on vital parts.
9. Resultantly, the appeal fails, and upholding the conviction, the sentence of death is hereby confirmed. No case for enhancement of sentence of fine is made out, likewise the revision follows the suit.