SARDAR MUHAMMAD DOGAR, J.---Muhammad Shafique, aged 20/21 years, was tried by Additional Sessions Judge, Sargodha for having murdered Muhammad Ashraf on 11-6-1987 after Isha prayer near Darsgah of Haider Abad town at a distance of 9 Km. From Police Station Saddar Sargodha.
2. The learned trial Judge vide judgment dated 27-6-1988 convicted him under section 302, P.P.C.
And sentenced him to death plus to pay a fine of Rs.10,000, in default whereof to undergo R.I. For 2 years. Whole of the fine, on recovery, has been directed to be paid as compensation to Muhammad Rafique, father of the deceased.
3. The convict has filed appeal. Learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.
4. F.I.R. Exh.PA. Was registered at the Police Station by Muhammad Ramzan M.H.C. (P.W.1) at 11-45 p.m. On 11-6-1987 on receipt of statement Exh.PA./1 of Muhammad Rafique (P.W.5) recorded by Kalim Ahmad Sherazi S.H.O. (P.W.8) at Jhang Morre on the same day at 10-30 p.m.
5. According to F.I.R. Muhammad Shafique son of Muhammad Hanif and Muhammad Aslam alias Puppy (both youngsters) were friends. Muhammad Shafique suspected that Muhammad Ashraf (deceased) teases Muhammad Aslam alias Puppy, his friend.
6. On the day of occurrence, Muhammad Ashraf deceased was standing in the Bazar of Haider Abad town near Darsgah after Isha prayer. The complainant was also standing nearby talking to Muhammad Ashraf son of Ashiq Ali (P.W.3) and Muhammad Sarwar son of Ghulam. Street light bulb was on. Muhammad Shafique (appellant) came from the southern side holding a knife. He gave a Lalkara to the deceased that he should get ready for reward for teasing Muhammad Aslam alias Puppy. Simultaneously, he gave a blow with the knife on the chest of the deceased. He fell down. P.Ws. Tried to catch Shafique. However, he escaped and ran away. Muhammad Ashraf died at the spot soon after. After the occurrence many persons gathered there.
7. Kalim Ahmad Shirazi S.H.O. After despatching statement Exh.PA./1 to the police station for registration of the case visited the spot. He despatched the dead body for post-mortem after preparing injury statement Exh.P.C. And inquest report Exh.P.H. Thereafter he collected blood- stained earth from the spot vide memo. Exh.P.B.
Muhammad Shafique (appellant) was arrested by him on 13-6-1987. Bloodstained kinfe Exh.P.1 got recovered by Shafique from his house was taken into possession vide memo. Exh.P.B., Challan was submitted to Court after completion of necessary investigation.
8. Statements of 8 P.Ws. Were recorded at the trial.
Dr. Muhammad Ashraf who had performed autopsy at 8-00 a.m. On 12-6-1987 appeared as P.W.2.
He had noted a stab wound 2-1/2 c.m. x 1 c.m. On left second intercostal space, just latter to sternum. On dissection left pulmonary arteries and arota were found cut.
Death was opined to have occurred due to shock and haemorrhage resulting from the above injury which was sufficient to cause death in the ordinary course of nature. The injury was opined to have been caused by sharp--edged weapon.
Time between injury and death was opined to be immediate while time between death and post- mortem was opined to be about ten hours.
9. Ocular account was deposed to by Muhammad Rafique (complainant P.W.5) and Muhammad Ashraf son of Ashique Ali (P.W.3).
10. Muhammad Rafique while repeating the facts given by him in F.I.R. Also claimed to have witnessed the collection of bloodstained earth from the spot and recovery of bloodstained knife P.1 at the instance of appellant from his house. During cross-examination he stated that Ashraf P.W.
Was neither related to him nor belonged to his Birathery. He stated that he had met the P.Ws. While going to the house of the tailor. According to him the place of occurrence was surrounded by inhabited houses. He stated that the mosque was at a distance of 40/50 yards from Darsgah. He admitted that step uncles of appellant were not on speaking terms with him. He denied that Allah Ditta, Muhammad Azam, Rana Munir, and Aslarn Puppy were joined in the investigation. He expressed ignorance that Aslam Kachela M.N.A. Had got them released from police. He denied the suggestion that his son used to quarrel with him as he used to admonish him for his bad acts. He stated that the appellant had given the blow hurriedly after raising a Lalkara from a distance of 4/5 feet and so they could not catch him at the spot.
He stated that he had joined the recovery proceedings from the police station alongwith Ashraf P.W. Where they had gone to inquire about the progress of case. He admitted that the appellant was residing in the house alongwith his father and 3/4 brothers. He did not deny that some other persons had gathered at the place of recovery on arrival of the police. He denied the suggestion that he did not witness the occurrence.
11. Muhammad Ashraf (P.W.3) corroborated the statement made by P.W.5 about the occurrence, recovery of blood-stained earth from the spot and recovery of the blood-stained knife at the instance of the appellant. During cross-examination he declared that he is not a Faqeer by caste, but was a Oureshi. In answer to a question he stated that he learnt about the quarrel between the deceased and the appellant after the occurrence. He stated that he had seen the deceased and Puppy together on many occasions, but had never seen the deceased teasing him. He denied that the deceased was a Badmash. He expressed ignorance about the deceased having belaboured his father and having left the house. He admitted that police had joined Puppy, Azam and Rana Munir in the investigation.
He stated that he had accompanied Rafique P.W. To police station wherefrom he had accompanied the police for recovery of knife on the asking of the Investigating Officer. According to him the father of the appellant was a Patwari and was living alongwith his sons including the appellant in a rented house. He stated that neither the father of the appellant nor his brothers were present at the time of the recovery. He denied the suggestion that he had made a false statement.
12. Kalim Ahmad Shirazi S.H.O. Who had recorded statement Exh.P.A./1, had visited the spot, arrested the accused and submitted challan to Court after recovery of knife from him appeared as P.W.8 and gave those facts. During cross-examination he stated that the deceased, appellant, and Aslam alias Puppy were of bad character. However, he expressed inability to state as to who had deposed before him about the bad character of the appellant.
He admitted" that the place of recovery of knife was jointly possessed by the other members of the family of the appellant. He expressed inability to give any explanation for not having associated Muhammad Aslam alias Puppy during investigation. He denied the suggestion that he had falsely challaned Shafique.
13. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He denied to have led the recovery of knife P.1. He stated as follows, in answer to the question, "Why this case against you and why the P.Ws. Have deposed against you?": "I am innocent. All the P.Ws. Are interrelated. Muhammad Aslam alias Puppy and Farooq, Azam, Ditta and Rana Munir were the actual culprits, who were joined in the investigation of this case as suspects but by the assistance of Muhammad Aslam Kachela M.N.A. They were let off by the police.
I had election enmity against Muhammad Aslam Kachela M.NA. Because I was opposing him against my step-uncles who were siding Muhammad Aslam Kachela M.N.A."
14. Learned counsel for the appellant after having taken us through the evidence criticised the impugned judgment and contended that the prosecution had failed to prove the motive; that the ocular account is not worth placing reliance upon, and so also the evidence of recovery of knife.
Learned counsel contended that since the prosecution had failed to prove the motive it would not be a case for confirmation of death sentence even if the conviction under section 302, P.P.C. Is maintained.
15.Learned counsel for the State has defended the judgment of the learned trial Court.
16. The complainant was not in any way inimically deposed towards the appellant. Similar was the position of Muhammad Ashraf P.W.3. The appellant neither during examination of these witnesses suggested any such thing nor did he allege any mala fides against them while making statement under section 342 of the Cr.P.C. In the circumstances, it cannot be assumed for any reason that the complainant would have chosen the appellant as an accused if he had actually not seen him murdering his son. There is nothing on record from which it could be assumed that the appellant was substituted for anyone else. The stance of the appellant during the trial that some other persons were joined in the investigation and that in fact, they had committed the murder, is neither here nor there for the reason that he failed to bring anything on record, to consider even, that anyone of them would have murdered the deceased and that the complainant would have let them for any particular reason and instead would have chosen an innocent persons.
P.W.3 was an independent witness by all means. He was neither related to the deceased nor was inimical to the appellant. There could have been no earthly reason for him to have come up as a false witness.
17. The contention of the learned counsel that both the eye-witnesses were chance witnesses is also devoid of any force. The occurrence had taken place in the Abadi. The presence of both the eye-witnesses at the spot at the relevant moment stand explained. The question of identity also is of no importance as apart from the fact that the appellant was known to both the eye-witness, there was sufficient street light as well to identify the assailant.
18. The mere fact that the evidence of recovery of bloodstained knife was deposed to by the eye- witnesses is no ground to discard the evidence of recovery of crime weapon particularly so when the same is corroborated by the Investigating Officer as well who also had no bias against the appellant. In the circumstances, we find no weight in the argument of the learned counsel for the appellant that the prosecution had failed to prove that itwas the appellant who had murdered the deceased.
19. However, there is substance in the argument of the learned counsel for the appellant that the prosecution had failed to prove the motive for the occurrence. In that, neither the complainant nor the other eye-witness claimed at any stage that they had seen the deceased teasing Aslam Puppy. None of them stated that Aslam alias Puppy had ever complained of that. In fact, it is admitted that both the eye-witnesses came to know for the first time about that, from the alleged Lalkara raised by the appellant; before he had inflicted injury to the deceased. We do not think, that alone, can be taken as sufficient proof of the motive for the occurrence. The prosecution had ample chance to prove the motive for the occurrence. In that, the Investigating Officer could have examined during investigation Muhammad Aslam alias Puppy and enquire from him, he could also have been named as a witness to prove the motive. It is not the case of the prosecution that Aslam alias Puppy was not available. In fact, P.W.3 stated during cross-examination that he was at the spot when the police officer had come to spot for the first time. It is clear that the prosecution has not succeeded in proving the motive for the occurrence.
20. As a result of the above discussion, it stands proved that it was the appellant who had murdered the deceased. The appeal is, therefore, dismissed. However, as the prosecution has failed to prove the motive for the occurrence the sentence of death is not confirmed. The same is altered to imprisonment for life. Sentence of fine is maintained. Benefit of section 382-B of the Cr.P.C. j shall be given.