SH. KHIZAR HAYAT, J.--- This Criminal Appeal (No. 28 of 1988) and the connected Murder Reference No.69 of 1988) arise from the judgment, dated 19-1-1988, by Additional Sessions Judge, Dera Ghazi Khan, whereby Ghulam Murtaza alias Mutta, aged 22 years, appellant herein, has been convicted under section 302, P:P.C. For the murder of Rashid Ahmad, aged 17/18 years, and sentenced to death and a fine of Rs.5,000 or in default to undergo 2 years' R.I. With a direction that half of the fine realised shall be paid to the heirs of the deceased.
2. The occurrence took place at 8 a.m. On 25-7-1985 in Mochianwali Street, Mohalla Chacha Qasba, Taunsa Sharif, District D.G. Khan, and F.I.R. (Exh. P.C.) about the incident \A as lodged by Nazar Abbas (P.W.4), a cousin of the deceased, at Police Station Taunsa Sharif, about 4 furlongs away from spot, the same day, at 8-30 a.m. Which was recorded by Ghulam Qadir Shah S.I./S.H.O.
(P.W.10).
3. Motive for the offence, as stated by Nazar Abbas, complainant (P.W.4), was that Rashid Ahmad (deceased) was a smart young boy of 17/18 years age. The appellant used to cast evil eye on him.
A week before the occurrence, at the bus-stand, the appellant asked the deceased to join his company, but the deceased refused to do so and had also restrained him from visiting his Mohalla for illicit purpose. The appellant took it as his insult, hence this occurrence.
4. Prosecution case is that on the fateful morning, Nazar Abbas, complainant (P.W.4), Shia by faith, after visiting the Astaana was going towards his shop when Qadir Bakhsh (P.W.5) and Ghulam Shabbir (P.W., not produced) met him on the way. While passing through Mochianwali Street they saw Rashid Ahmad (deceased) going a few paces ahead of them. In the meantime, Ghulam Murtaza (appellant) carrying a Kaati (Chhuri) suddenly appeared there and threatened Rashid Ahmad (deceased) with life for avenging his disgrace. The deceased in order to save himself started running raising hue and cry. The appellant chased him and inflicted two Chhuri blows on his back as a result of which he fell down. The appellant tried to decamp but was chased and captured by the P.Ws. At a distance of 50/60 feet from the spot, who brought him back where the deceased lay unconscious. Muhammad Nawaz, father of the deceased, arrived there and took the deceased to the hospital for treatment. Nazar Abbas leaving the appellant in the custody of Qadir Bakhsh and Ghulam Shabbir P.Ws. At the spot, went to the police station and lodged report (Exh.
P.C.) there under section 307, P.P.C. Recorded by Ghulam Qadir Shah S.I./S.H.O. (P.W.10) as stated earlier.
5. After registering the case the S.I. (P.W.10) reached the spot and arrested the appellant produced before him by Qadir Bakhsh and Ghulam Shabbir P.Ws: He recovered from Nefa of his Shalwar a blood-stained Chhuri (P.3) with a scabbard (P.4) and secured it under memo. Exh.P.E. He removed blood-stained clothes of the appellant (Shirt P.5 and Shalwar P.6) from his person and secured them under memo. Exh. P.F. He also removed blood-stained earth from the spot vide memo. Exh.
P.D. The S.I. Learning about Rashid Ahmad's death having occurred at Nishtar Hospital Multan altered the charge from section 307, P.P.C. To section 302, P.P.C. And reached Nishtar Hospital, Multan, for getting the dead body post-mortemed for ascertaining cause of death. He then prepared inquest report (Exh. P.K.) and sent the dead body for post-mortem examination. He also got prepared the site plan of the spot and completing the investigation submitted the challan to Court.
6. Dr. Nasir Ahmad, Senior Medical Officer, T.H.Q. Hospital, Taunsa Sharif (P.W.13) examined Rashid Ahmad (deceased) while he was still alive, at 8-30 a.m. On.25-7-1985 and found two stab wounds on his person, namely,-- (1)A stab wound about 1" x 1/2" x deep going on back of chest, right side just near the mid-line 5" below the root of neck, transverse in direction.
(2)A stab wound about 1" x 1/2" x deep going on back of left chest outer side just below the inferior angle of scapula oblique in direction.
His condition was serious as he was under extreme shock and was pulseless. His B.P. Was 80/?. He was extremely restless. The doctor found corresponding cuts and blood on the shirt of the injured which he handed over to the police. Both .The injuries were kept under observation. He opined them to be caused with sharp-- edged weapon within the duration of two hours. According to the doctor the injured was brought to him by his father. Muhammad Nawaz whom he admitted for treatment in the hospital but subsequently his junior Dr. Tahir Salim had referred him (deceased) to Nishtar Hospital, Multan. Dr. Muhammad Asif (C.W.1) admitted the deceased in Emergency Ward of Nishtar Hospital on 25-7-1985. He alongwith Dr. Imtiaz Chattha had operated upon him, the same day vide.
Operation notes Exh. C.W.1/A. According to him, the patient was operated upon to save his life although there were remote chances of his survival because there was a big tear in his lung. He (deceased) died on 29-7-1985. Dr. Mukikhar Hussain Qureshi (P.W.9) conducted post-mortem examination on the dead body of the deceased, and noted aforementioned injuries in the post- mortem report (Exh. P.H.). According to him, the stab entered into the chest cavity through the left 8th intercostal space and punctured the lower lobe of left lung on its posterior aspect. In his opinion the deceased had died of shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in ordinary course of life. Probable duration between injuries and death was about 4 days and between death and post-mortem examination was 24 to 36 hours. Dr. Muhammad Manzoor (P.W.11) reproduced operation notes on the death slip Exh. P.L.
7. The prosecution in order to prove its case examined 14 witnesses at the trial. Of them, Rub Nawaz (P.W.3) talked about the motive; Nazar Abbas (P.W.4) and Qadir Bakhsh (P.W.5) stated that in their presence the appellant having raised a Lalkara that he would not let the deceased go alive caused him two knife blows on his back while the latter was running to save his life. They also stated that they had captured the appellant alongwith his weapon near the spot. They attested the memo.
(Exh.P.E.) by which the S..H.O. Took into possession the Kaati (P.3) alongwith its scabbard.
8. When examined under section 342, Cr.P.C., the appellant denied the allegations. He also disowned the Kaati and the blood-stained clothes (P.5 and P.6). He himself appeared in disproof of the allegations as D.W.1 and stated that he was called from his house and was arrested and that he had no quarrel with the deceased nor did he attack or cause any injury to him on the day of occurrence. He produced Sultan Mahmood (D.W.2) in his defence who stated that 2-1/2 years ago at 12 mid-night he was asleep in his house when he heard alarm, he came out and saw that a person was lying injured and his assailant was running away on a bicycle towards east. He could not identify the fleeing person. He informed Muhammad Nawaz, father of the deceased, as desired by the deceased. Muhammad Nawaz came to the spot and removed the deceased to the hospital and that he appeared before the police when it visited the spot.
9. Learned trial Court believed the evidence of motive and the ocular testimony furnished by Nazar Abbas (P.W.4) and Qadir Bakhsh (P.W.5) who claimed to have seen the occurrence and captured the appellant on the spot, with weapon of offence and discarded appellant's plea that he had been substituted for the real assailant observing that evidence of Sultan Mehmood (D.W.) that he found the deceased lying injured in front of his house at mid-night was not believable. Accordingly, the trial Court convicted and sentenced the appellant, as stated earlier.
10. Learned counsel appearing on behalf of the appellant raised a legal objection saying that the impugned judgment suffers from illegality inasmuch as the learned trial Court dealt with and disbelieved the defence evidence first and thereafter discussed the prosecution evidence, which is violative of principle laid down in Zafar-ul-Haq's case PLD 1968 Lah. 437, hence the impugned judgment is vitiated and that the case must be remanded for retrial or at least for rewriting the judgment. About merits of the case, learned counsel submitted that the motive set up by the prosecution has not been proved through reliable evidence. Testimony of Rab Nawaz (P.W.3) on the point was not confidence inspiring as he appeared before the Investigating Officer months after the occurrence; that the eye-witnesses are chance-witnesses as they do not belong to the locality where occurrence took place, therefore, they cannot be believed without independent corroborative evidence which is lacking; that the place of occurrence is thickly populated area and the residents of the locality were admittedly present at that time yet nobody has come forward to support the prosecution which casts grave doubt on genuineness of prosecution story, hence the appellant deserves to be acquitted.
On the other hand, learned Additional Advocate-General appearing, for the State submitted that F.I.R. In this case was lodged promptly against the sole appellant who was captured red-handed alongwith weapon of offence, therefore, chances of his substitution for somebody else are excluded. The witnesses of occurrence have furnished reasonable explanation for their being present at the relevant time and their evidence inspires confidence. They have no enmity with the appellant whatsoever therefore, it can be safely acted upon without corroboration. He defends the impugned judgment saying that the defect pointed out at the most constitutes an irregularity, which is curable under section 537, Cr.P.C. He cited Islam-ul-Haq's case 1974 PCr.LJ 6 and Alim-ud- Din's case PLD 1982 Lah. 141 in support of his view.
11. We take up the objection as to the legality of the impugned judgment first. According to section 367, Cr.P.C., the essential contents of a judgment are the point or points of determination, the decision thereon and the reasons for the decision. Section 537, Cr.P.C., says that any error, omission or defect in the charge, the statements, the order or a judgment would not have vitiating effect unless such a defect has caused prejudice to the accused. The precedents cited by learned counsel of both parties are decided by D.B.'s of this Court and one of us (Khizar Hayat, J.) was a party to the judgment delivered in Alim-ud-Din's case (supra) relied upon by learned Additional Advocate-General wherein Zafar-ul---Haq's case (supra) relied upon by learned counsel for the appellant was noticed, and agreeing with the view expressed in Islamul Haq's case a similar objection was repelled observing as follows:-- "There is no doubt that the learned Additional Sessions Judge has discussed the defence evidence first and then considered the prosecution evidence in the present case and has thus deviated from the procedure normally followed by the Courts while deciding the criminal cases but this deviation has not adversely effected the appellant and he has not been prejudiced in any manner."
It is pertinent to note that in all the cases cited at the Bar the trial Courts had discussed the defence evidence before dealing with the prosecution case yet in none of the precedent cases the High Court had held that defect to be an illegality fatal to the-judgment and decided those cases on merits. As for the case in hand, we find that the prosecution evidence though considered after discussing the defence case yet no prejudice was caused to the appellant since the' prosecution evidence was considered by the trial Court independently and without being influenced by its findings recorded on defence evidence. The objection is consequently repelled.
12. As for the merits, the appellant has been convicted on the basis of evidence of motive and ocular testimony. The motive, if proved, of course lends support to the prosecution case but where ocular evidence does not inspire confidence tie motive though proved is rendered inconsequential because conviction cannot be recorded on the evidence of motive alone. The main question therefore is, whether the ocular evidence furnished by Nazar Abbas (P.W.4) and Qadir Bakhsh (P.W.5) has been correctly believed by the trial Court. Nazar Abbas (P.W.4) runs a grocery shop in Sadar Bazar and lives in Mohalla Chacha, Taunsa Sharif. Qadir Bakhsh (P.W.G) too is resident of Taunsa Sharif, who earns his livelihood by hunting Batairs (quails) and selling them in the market.
At the relevant time, Nazar Abbas, complainant (P.W.4), after visiting Astaana, situate about 200 feet distance from the spot, was going to his shop while Qadir Bakhsh (P.W.6) was going to the Bazaar for purchasing vegetables and they were passing through Mochianwali Street when the appellant within their view came armed with Kaati and threatening the deceased that he would not he spared for he had disgraced him at the bus-stand, chased him and inflicted on his back two knife blows as a result of which he fell unconscious. They captured the appellant after a short chase alongwith weapon of offence and then produced him before the Investigating Officer when he visited the spot. Blood was removed from Mochianwali Street, so the place of occurrence is fixed there. Both the eye--witnesses belong to the same town. Their destination was the Bazaar, so they were following the same route. Nazar Abbas was returning from Astaana, about 200 feet away from the spot, which he usually visits before going to his shop, therefore, the explanation given by the witnesses for their being present at the place of occurrence at the relevant time seems to be probable. Their claim that they saw the occurrence is confirmed by the fact that they captured the appellant red handed and it also finds mention in the promptly lodged F.I.R. The possibility of procuring the witnesses before lodging the F.I.R. Too is excluded. The doctor's statement that the deceased was brought to the hospital by his father is in line with the statements of eye-witnesses.
Again, immediate removal of the deceased to hospital indicates that it was a witnessed occurrence. If any person was to be procured as an eye-witness then Muhammad Nawaz, father of the deceased, could be easily set up as an eye-witness but it was not done. It means that the events were narrated by the P.Ws. As they happened in the normal and natural sequence.
13. Blood-stained earth was removed from Mochianwali Street where according; to the eye- witnesses, the occurrence had taken place. Sultan Mahmood (D.W.) stated that he found deceased lying injured in front of his house where the deceased lay for two hours yet he says that no blood was seen by him in front of his house. According to medical evidence, the deceased was bleeding profusely when brought to the hospital. Thus, Sultan Mahmood's statement that there was no blood in front of his house clearly belies his statement that the injured was seen by him lying injured there. His evidence is nothing but tissue of lies. He did not appear during investigation either and that is why the Investigating Officer did not name him among those whom he had examined.
14. It is true that Ghulam Rasool, in front of whose shop the occurrence' took place, was present there at the time of occurrence yet he has not appeared for the prosecution, but it is explainable as we know that people usually do not come forward and depose against accused of heinous offences to avoid incurring their enmity which of course is lamentable aspect of our society but it cannot be helped. For the reasons given above, we are satisfied that the ocular testimony has been rightly believed by the trial Court and that it furnishes safe and sufficient basis for conviction of the appellant.
15. The evidence of motive loses its significance as we have found the ocrular testimony quite reliable. Rab Nawaz (P.W.3) is the witness about motive. He stated that he had seen the deceased rebuking the appellant not to frequent his Mohalla. They exchanged an argument in his presence and that he separated them whereupon the appellant went away threatening the deceased. This witness admitted that a relative of the deceased was his driver. He admitted that he did not tell to any relative of the deceased about appellant's administering of threat to deceased and also to the police till he appeared before the Investigating Officer. According to the Investigating Officer the witness appeared before him on 30-10-1985, i.e. 3 months after occurrence. We are not therefore, impressed by his testimony and it merits to be ignored. But this does not mean, that there is no evidence about the motive in this case. We have believed the presence of eye---witnesses who saw the occurrence from start to finish. They have clearly stated that the appellant shouted a Lalkara at the deceased saying that he would not spare the deceased because he had insulted him at the bus-stand. This constitutes the evidence of motive. The appellant had been captured by the eye-witnesses alongwith the weapon and he was produced before the Investigating Officer at the spot. In the circumstances, Investigating Officer's statement that he recovered Chhuri (P.3) from Nefa of Shalwar of the appellant is something overdoing on the part of the Police Officer to show his Karawai, which is strongly deprecated.
16. For what has been stated above, we are convinced that the learned trial Court rightly believed the ocular evidence as well as the motive and the conviction was correctly recorded and we hereby maintain the same.
17. This brings us to the question of sentence. There are two injuries on the person of the deceased both are on the back. One of them proved fatal as it goes deep in the chest cavity injuring the pleura and the lungs of the deceased resulting in death. Depth of the injury shows that the blow was given with sufficient force, which indicates intention to kill. It is the prosecution case that the deceased had insulted the appellant. There is nothing on record showing that the appellant misbehaved with the deceased whereupon the latter insulted the former, therefore, we would say that act of the appellant was result of provocation hence the award of lesser sentence in the circumstances would amply meet the ends of justice. So, while maintaining the conviction of the appellant under section 302. P.P.C. We are disposed to commute his sentence to that of imprisonment for life and a fine of Rs.5,000 or in default of payment of fine to undergo 2 years' R.I.
With the direction that half of the fine if realised shall be paid to the heirs of the deceased as compensation.
18. In the result, the appeal is dismissed but the sentence is altered. Death sentence is not confirmed.