' JUSTICE ABDUL MAJID TIWANA MEMBER-II.--- This judgment shall also deal with and dispose of Cr1.
Appeal No,4/SAC/93 filed by the State against the acquittal of Zulfiqar Habib co-accused, both arising out of the judgment dated 30-12-192, by which the learned Judge, Special Court for Speedy Trials, Lahore, convicted Faisal Habib appellant.
(1) Under section 302, P.P.C. For the murder (Qatl-e-amd) of Muhammad Sarwar, sentenced him to imprisonment for life as Tazeer and also directed him to pay compensation of Rs,50,000 to the heirs of the deceased under section 544-A, Cr.P.C. Or in default to further undergo imprisonment for 6 months; and
(ii) Under section 379, P.P.C. For committing theft of motor-bike of the deceased, sentenced him to 3 years' R.I.
' Both the substantive sentences were directed to run concurrently and the convict was given the benefits of section 382-B, Cr.P.C. Zulfiqar Habib co-accused was, however, acquitted on benefit of doubt.
2. The prosecution case, as it gleans out from the evidence led by it, was that Muhammad Sarwar (deceased) being a resident of Block No, 14, Bagh-eUmar, Sargodha was running a juice shop in the Chowk of New Urdu Bazar, Block No,11, opposite Government High School No,1, Sargodha. Faisal Habib appellant and his brother Zulfiqar Habib acquited accused, were residents of Street No,5 of Muhammadi Colony, Sargodha.They were studying in the aforesaid school and used to visit the deceased's shop for drinking juice and in this way they became intimately known to him (deceased).
3. On 7-1-1992 at about 10-30 a.m When Muhammad Sarwar (deceased) was present in his house alongwith his Phuphizad Khalid Mahmood Faisal Habib appellant and his brother Zulfiqar Habib acquitted accused, both came there and asked him (deceased) to accompany them for an outing on the Canal Bank as it was a pleasant day. In order to oblige Them Muhammad Sarwar (deceased) took out his new Honda motor-bike and making both the brothers sit behind him, drove it away on the bank of Lower Jhelum Canal towards Bhalwal. Continuing the journey, when they reached in the area of Chak No,34/N.B at a deserted place, Faisal Habib appellant asked Muhammad Sarwar (deceased) to stop the motor-bike as they wanted to have a stroll. He obeyed but no sooner as he came down from the motor-bike, than Faisal Habib appellant pulled out his revolver from the pocket of his shirt and on revolver point asked him (deceased) to hand over the motor-bike to him, Muhammad Sarwar (deceased) resisted his demand but meanwhile Faisal Habib appellant started firing at him, hitting his right shoulder in the vicinity of left ear and left eye, right side of back and waist, as a result of which he fell down. When he was so lying, Zulfiqar Habib acquitted accused snatched away the key of the motor-bike from him and both the brothers drove away his motor-bike on the Canal Bank towards Bhalwal. The occurrence was witnessed by Muhammad Razam complainant the real brother of the victim, as also by Muhammad Yasin P.W., who were incidentally coming from the direction of Bhalwal on a motor-bike. They gave him support and on their query he (injured) told them that he had been brought by Faisal Habib appellant and his brother Zulfiqar Habib acquitted co-accused from his house in the presence of Khalid Mahmood P.W. On the pretext of a walk and, after causing him injuries with fire-arm, they had snatched away his motor-bike worth Rs,38,000. Meanwhile Doctor Abdul Rehman, Farm Superintendent of Live Stock, Khizar Abad, came on a jeep from the direction of Bhalwal and the injured was transported by him to Civil Hospital, Sargodha, where he was admitted.
4. Muhammad Ramzan complainant (P.W.12), after getting him injured brother medically examined and obtaining his medico-legal report, went to Police Station (Saddar) Sargodha where he lodged the report (Exh.P.T.) at about 12 noon, incorporating the above facts therein.
5. After the registration of the case, S.I. Matiullah (PW 14) accompanied the complainant to the place of occurrence where he prepared its rough sketch, collected blood-stained earth and recorded the statements of P.W.s. He then went to Civil Hospital, Sargodha and tried to record the statement of the injured after obtaining the opinion of the doctor about his fitness to make statement, but the doctor opined that the injured was not in a position to make statement. He then recorded the statements of some other P.Ws.
6. In order to arrest the accused, he, accompanied by Muhammad Ramzan complainant and A.S.I.
Muhammad Nazir, went to Muhammadi Colony, Sargodha and reaching Street No,5 thereof, he, on the pointing of the complainant, arrested Faisal Habib appellant who was coming on the snatched-away motor-bike of the injured. On the identification of the motor-bike by the complainant that it was snatched away motor-bike of the injured, he seized it, vide memo.
(Exh.P.V.) which was attested by the complainant and A.S.I. Muhammad Nazir. On the personal search of Faisal Habib appellant he recovered an unlicensed revolver (P.5) which he seized vide recovery memo. (Exh.P.X.) attested by the same set of witnesses. He arrested Zulfiqar Habib co- accused on 8-1-1992 when he was produced by his father. He went on frequently visiting Civil Hospital from 8-1-1992 to 17-1-1992 for recording the statement of Muhammad Sarwar injured but the doctor did not certify his ability to do so. Eventually on 18-1.1992 the doctor, on his application (Exh.P.0.), opined that Muhammad Sarwar injured could make a statement and he accordingly recorded his statement (Exh.P.CC.), duly signed by the injured. On 31-1-1992, on the receipt of an intimation that Muhammad Sarwar injured had died in the hospital, he went there and, after preparing the inquest report, sent the dead body to the mortuary for post-mortem examination.
Then he was posted out and the challan was submitted by his successor on the basis of the investigation already completed by him.
7. On the commencement of trial in the Special Court for Speedy Trials, Lahore, Faisal Habib appellant and his brother Zulfiqar Habib acquitted accused both were charged for the murder of Muhammad Sarwar and also for snatching away his motor-bike in furtherance of their common intention. They pleaded not guilt and the prosecution led evidence against them by producing as many as 15 witnesses. To be a little more precise, Dr. Muhammad Aslam Chaudhry, Medical Officer, D.H.Q. Hospital Sargodha (P.W.1) deposed that on 7-1-1992 at 11-30 a.m Muhammad Sarwar aged about 32 years resident of Block No, 14 Sargodha was brought to the Emergency Ward by Dr. Abdul Rehman, Superintendent, Khizar Abad Livestock Farm, who was a passerby. According to him, the injured was suffering from five injuries caused by a firearm first, with inverted margins and slight blackening around 1-1/2 c.m. x 1 c.m. On the top of right shoulder passing through the skin; second, with inverted margins having slight blackening around 1/2 c.m. x 1/2 c.m. On the left cheek 1 c.m.
Below and lateral from outer angle of left eyc having an exist just below the tragust with averted margins 1/2 c.m. x 1/2 c.m. On the left ear; third, an entry wound 1/2 c.m. x 1/2 c.m. With blackened margins about 4 c.m. Towards the left of second injury, also having an exit wound 3/4 c.m. x 3/4 c.m. In the pinna of left ear; fourth, an entry wound 1/2 c.m. x 1/2 c.m. With blackened margin on the middle part of right side of chest 3 c.m. Below right scapular angle travelling downward upto the right frontal chest 4 c.m. Below the right nipple with lead of the bullet stuck below the skin; and fifth, an entry wound 1/2 c.m. x 1/2 c.m. With blackened margin on the right renal area 12 c.m. Lateral from midline from back. In the opinion of the doctor, injury No,1 was jurrh-Diamahya while the rest were kept under observation all caused within the duration of one hour. He proved his medico- legal report (Exh.P.A.) and diagram of injuries (Exh.PA/1).
8. The next witness was Doctor Abdul Latif, Surgical Specialist, D.H.Q. Hospital, Sargodha (P.W.2). He testified that on 7-1-1992 Muhammad Sarwar injured was referred by the Emergency Ward of, the Hospital to him at 11-30 a.m. As it was a case of multiple fire-arm injuries needing immediate surgical operation of abdomen. According to him, he operated upon him and round that his abdomen was full of blood and there was rupture of right lobe of live, multipal perforation of small intestine, rupture of misenary and retroperitoneal haemotoma. He deposed that he repaired the liver and the parts of the small intestine whereafter he closed the abdomen, leaving two drains. He stated that the injured remained admitted to the hospital of his Ward up to 31-3-1992 during which he was given proper post-operative treatment. However, he succumbed to his fire-arm injuries on 31-1-1992 despite proper operation and treatment. He proved the bed head ticket and the surgical notes prepared by the House Surgeon on his dictation.
9. In reply to a question of the defence counsel, he stated that he could not tell exact cause of death as he did not conduct post-mortem examination. In reply to another question he deposed that he could not controvert the suggest that some time the death occurred due to operational errors or on account of the negligence of the Surgeon or Doctor.
10. Dr. Muhammad Iqbal, Medical Officer, D.H.Q. Hospital, Sargodha (P.W.3) proved operation notes (Exh.P.B.) consisting of 72 pages. He stated that these notes also bore his signatures as he was medical officer working in the Surgical Ward with Dr. Abdul Latif Chaudhry, the Surgeon Specialist.
He deposed that on 7-1-1992 the police had enquired from him through a Rukka (Exh.P.C.) about the fitness of Muhammad Sarwar injured about his ability to make statement and he had replied in negative. Similarly, according to him, the police went on enquiring from him about the injured's ability to record his statement from 9th to 17th of January, 1992 through Rukkas (Exh.P.E. To Exh.P.N.) and he always opined in negative and eventually on 18-1-1992 he expressed his opinion in affirmative. This witness was recalled and again cross-examined on 29-12-1992 and in reply to a question of the learned defence counsel he testified that, as per operation notes (Exh.P.B.), the kidney had not been toughed or repaired by the Surgeon.
11. Yet another doctor examined in this case was Dr. Farooq Niazi (P.W.4). He deposed that on 31-10- 1992 when he was posted as Medical Officer in the Casualty Ward of D.H.Q. Hospital, Sargodha, he had conducted post-mortem examination on the dead body of Muhammad Sarwar and noticed 10 healed scars of some of injuries suffered by him and the others of surgical wound on its different parts. According to him, on dissection he had found right chest cavity full of blood with a hole in the lower lobe of right lung, a tear in the posterior superior surface of liver which stood stitched. There was anstomsis and in it a mild leakage in the small intestine. He added that he also noticed multiple adhesions in the small intestines and there was damage anteromcdically near the hilum with subscapulae hacmotoma alongwith pus formation in the right kidney. Death, in his opinion, occurred due to septicemia and plural effusion caused by injuries Nos.1 and 7 leading to cardiorespiratory failure. According to him, injuries Nos. 1 and 7 was caused by fire-arm and were ante-mortem and injuries Nos.8, 9 and 10 were surgical wounds. He stated that injury No,5, which had damaged the liver and caused plural effusion, and injury No, 7, which had damaged the kidney, were sufficient even individually to cause death in the ordinary course of nature, while injuries Nos.1 to 4 and 6 were simple in nature. He proved post-mortem report (Exh.P.B.) and diagram of injuries (Exh.P.P./A).
12. Zahur Ahmad (P.W.5) had identified the dead body of Muhammad Sarwar at the time of post- mortem examination, Constable Bashir Ahmad (P.W.6) had transmitted a sealed parcel from the Police Station to the Office of Chemical Examiner. Constable Abdul Qayyum (P.W.7) had escorted the dead body of Muhammad Sarwar from the Surgical Ward of the hospital to the mortuary and after the post-mortem examination had delivered the clothes of the deceased to the Investigating Officer; Head Constable. Muhammad Afzal (P.W.8) had kept sealed parcels pertaining to this case in safe custody in the police Malkhana before handing them over to Muhammad Bashir Constable for carrying the same on the relevant officer at Lahore. Muhammad lrshad Patwari (P.W.9) had prepared the site plan of the place of occurrence. Inspector/S.H.O. Abdul Sattar (P.W.10) had got prepared the site plan from the Patwari and did nothing else. All these were formal witnesses. Their statements need no detailed discussion.
13. Khalid Mahmood (P.W.11) had testified that on 7-1-1992 at 10-00 or 10-15 a.m. When he was present in the house of Muhammad Sarwar (deceased), who was his Phuphizad, he, in response to a bell-call, went outside the house and saw the two accused, namely, Faisal Habib and Zulfiqar Habib, standing outside and asked him to call out Muhammad Sarwar. According to him, he delivered their message to Muhammad Sarwar (deceased) who went out and in his presence Faisal Habib appellant asked him to accompany them to the Canal Bank as the weather was pleasant and to oblige them, he took out his motor-bike and they all the three went away on it. He further deposed that he already knew both the accused as he had a shop in the Chowk near the School and they used to visit his shop.
14. Muhammad Ramzan complainant (P.W.12) and Muhammad Yasin (P.W.13) gave the eye-witness account of the occurrence. Their testimony, by and large, finds reflection in the above narration of the prosecution case and the same might be subjected to detail appraisal, where necessary.
15. The next witness was S.I. Matiullah (P.W.14). The part played by him as an Investigating Officer had already been outlined.
16. The last witness was Dr. Abdul Rehman Khan (P.W.15). He had not been cited as a prosecution witness in the calendar of witnesses and had been examined as such on the request of prosecution made during the trial. He testified that during the days of occurrence he was posted as Farm Superintendent, Livestock Farm, Khizar Abad, District Sargodha and on 7-1-1992 when he was coming in his official jeep on the bank of Lower Jhelum Canal for attending a meeting with the Deputy Commissioner and reached in the area of Chak Subedaran at 11 a.m. He saw a person lying injured on the Canal Bank and another person present with him. He deposed that he stopped his vehicle near the injured, whose name he later came to know as Muhammad Sarwar, and the person present near him, was a Sub-Engineer of Irrigation Department and was already known to him by face, told him that the injured had been fired at and he should be taken to the hospital.
According to him, the injured himself told him that two brothers, who were sons of an Advocate of Sargodha, had fired at him and injuried him. He added that the injured had told their names to him but he could not recollect the same (at the time of making statement). Anyhow, he placed the injured in his jeep and after taking him to the Emergency Ward of Civil Hospital, Sargodha, left him there. He further stated that the Sub-Engineer and other person, who was present in the nearby field, had also accompanied the injured in his jeep to the hospital. He, however, expressed his inability to recollect if the injured had told the name of his assailant as Faisal Habib but at the same time failed to contradict that the injured had told him that the person who had fired at him with pistol was Faisal Habib. In reply to another question, he categorically repudiated that the injured had told him that Zulfiqar Habib had snatched away the key of motorbike from him and drove it away from the spot. In the cross-examination he stated that after attending the official meeting he again went to the hospital in the afternoon on the same day where Majid Ullah D.S.P.
Had told him that the injured had been operated upon whereafter he went to his Farm. In reply to a question of the defence counsel, he stated that he never appeared before the police and nothing transpired between him and D.S.P. Majid Ullah except what he had already stated. He denied the suggestion of the defence that he made a false statement that Muhammad Sarwar injured had told him on the spot that the sons of Habib Ullah Advocate had caused him fire-arm injuries. He admitted that he was serving in the Livestock Department which was under the charge of Provincial Minister Ch. Aamer Cheema, M.N.A. Sargodha. However, he denied the suggestion that he was deposing at their instance or under their pressure.
17. The appellant and the acquitted co-accused, in their respective statements recorded under section 342, Cr.P.C., denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence. They declined to appear as their own witnesses and to make statement on oath under section 340(2), Cr.P.C. Faisal Habib appellant, however, brought on the record certified copy (Exh.P.B.) issued by the College Authorities, indicating the fact that he had been student of Government College, Sargodha from 1990 to 1992, copy of birth certificate (Exh.D.C.), showing that he was about 17 years old on the day he was making statement. He also placed on the file to certified copy of birth entry of his brother Zulfiqar Habib (Exh.D.D.) indicating that he was 14 years old.
18. On the conclusion of the trial, the learned trial Judge, by the judgment now under challenge, after acquitting Zulfiqar Habib co-accused on benefit of doubt, convicted and sentenced Faisal Habib appellant in the manner aforesaid. Aggrieved by his findings, where the convict had filed appeal against his conviction, the State has preferred appeal against the acquittal of Zulfiqar Habib. Both the appeals are being disposed of together.
19. It was argued on behalf of Faisal Habib appellant that:
(i) the eye-witnesses, namely, Muhammad Ramzan complainant (P.W.12) and Muhammad Yasin (P.W.13) besides being closely related to Muhammad Sarwar (deceased), were chance witnesses and they were unworthy of reliance;
(ii) the dying declaration (Exh.P.CC.) was a fabricated piece of evidence, having been written by the Investigating Officer himself despite the fact that the deceased had remained alive in the hospital for a number of days and some local Magistrate could conveniently be called for recording the same but this course was not adopted;
(iii) Dr. Abdul Rehman (P.W.15) was never cited as a prosecution witness in the calendar of witnesses and his deposition suffered from many legal informities;
(iv) the recovery of the motor-bike of Muhammad Sarwar (deceased) from Faisal Habib appellant was fake, it was not witnessed by any independent witnesses;
(v) the "last seen" evidence of Khalid Mahmood (P.W.11), who was also a near relation of the deceased, was a cooked up affair and was altogether devoid of substance as there was no possibility of his being present in the house of deceased when the appellant and his acquitted accused allegedly took him out of his house on a pretext; and
(vi) Faisal Habib appellant was hardly a little more than 16 years old at the time of occurrence, as per his birth certificate (Exh.D.C.), and since he was minor within the meaning of section 229, P.P.C.
And in view of the provisions of section 306, P.P.C. Read with section 308, P.P.C, even if he committed the murder of Muhammad Sarwar under some compelling circumstances, he was, at the most, liable to pay only Diyat and no other sentence could be awarded to him.
20. On the contrary, it was argued on behalf of the State in opposition of the appeal of Faisal Habib appellant and in support of the State appeal against acquittal of Zulfiqar Habib co-accused that the case against both the brothers stood amply proved by reliable ocular evidence, supported by circumstantial evidence of "last seen", statement of Dr. Abdul Rehman (P.W.15) who was an independent witness by all standard, and evidence of recovery of stolen motorbike of the deceased as further corroborated by the dying declaration of the deceased, and both the accused being liable for the murder of Muhammad Sarwar, Faisal Habib appellant was rightly convicted and his acquitted co-accused should now be convicted.
21. As regard the first contention of the learned counsel for Faisal Habib appellant, we do not agree with him that the testimony of the eye-witnesses is to be discarded on account of their relationship with the deceased. This was not a legal infirmity in this case because the eye-witnesses had not previous animosity, spite or illwill against the appellant and his acquitted co-accused, rather, the prosecution case was that the deceased and the accused were on friendly terms and for that reason they went out together for an excursion. So the relationship of the witnesses with the deceased by itself does not nullify their testimony. However, we are inclined to agree with the second limb of his argument that both the eye-witnesses were chance witnesses and their deposition did not inspire confidence on that account. They claimed that on the day of occurrence they had gone to Chak No,19/N.B. For the purchase of a fruit garden and when they were returning home in Sargodha Town on the bank of Lower Jhelum Canal, they happened to see the occurrence resulting in a fatal injury to Muhammad Sarwar (deceased) at the hands of Faisal Habib appellant on his refusal to hand over the motor-bike to him and Zulfiqar Habib acquitted accused snatching away the key from the injured, drove it away alongwith his brother toward Bhalwal. When cross- examined on the purpose of their visit to Chak No,19/N.B. They stood exposed. Muhammad Ramzan complainant (P.W.12), who had lodged the report, when confronted with the contents of the F.I.R, had to cut a sorry figure, particularly on the factum of his accompanying his injured brother in the official jeep of Dr. Abdul Rehman (P.W.15) who had transported him from the spot to D.H.Q. Hospital, Sargodha and had got him admitted. The record of the hospital indicated that Muhammad Sarwar injured was brought to the hospital and got admitted by Dr. Abdul Rehman (P.W.15) and not by Muhammad Ramzan complainant (P.W.12) which he falsely claimed. Had he been present at the time of occurrence alongwith Muhammad Yasin (P.W.13), they would have made some effort to save the victim, so nearly related, from the assailants, and in that process they might have even suffered some injury but they did not appear to have displayed any such conduct. Similarly, had the complainant accompanied the injured to the hospital in the official jeep of Dr. Abdul Rehman (P.W.15), his name would have found mention in the medico-legal report and not that of Dr. Abdul Rehman (P.W.15) who was stranger and a bypasser and had brought the injured to the hospital out of human sympathy. We, therefore, hold that neither of the two eye-witnesses had seen the occurrence and discard their testimony as such.
22. So far as the second contention of the learned counsel is concerned, we are of the view that the dying declaration of Muhammad Sarwar (deceased) was neither fabricated nor untrue. It may be noted that the dying declaration of the deceased was oral as well as in writing. Dr. Abdul Rehman (P.W.15) had deposed about his oral dying declaration, while the written one (Exh.P.CC.) was proved by Si. Matiullah (P.W.14). Learned counsel for the appellant had tried to whittle down the testimony of Dr. Abdul Rehman (P.W.15) by contending that in the first instance he was not cited as one of the prosecution witnesses and when his name was included in the calendar of the witnesses on the request of the prosecution, he had to depose under the influence of certain high-placed political personalities of the District due to the political affiliations of the appellant's father with the opposite political party and for that reason he went on wavering throughout his statement. We have already given the gist of his statement in paragraph No, 16 ibid and without repeating the same in extenso, consider it suffice to say that he, with reference to the statement of the injured, whom he was transporting in his official jeep from the spot of D.H.Q Hospital, Sargodha, deposed that he had been injured with fire-arm by two brothers who were sons of an Advocate of Sargodha. According to the witness, the injured had even told him the names of his assailants but he had forgotten the same. Anyhow, he could not at the same time contradict that, as per statement of the injured the name of the person who had fired at him with pistol was Faisal Habib. He, however, categorically repudiated the suggestion that the injured had told him that Zulfiqar Habib had snatched away the key of motor-bike from him and drove it away. In other words, he, with reference to the statement of the injured, substantially implicated Faisal Habib appellant for his fatal injuries but altogether exonerated his brother Zulfiqar Habib whose role, according to the prosecution, was that he had snatched away the key of deceased's motor-bike from him when he was lying injured at the hands of his co-accused. Dr. Abdul Rehman (P.W.15) was an impartial, independent and truthful witness and since his testimony did not suffer from any legal drawback, we place full reliance on it to the extent of involvement of Faisal Habib appellant for the murder of Muhammad Sarwar. Likewise, his dying declaration recorded by S.I. Matiullah (P.W.14) on 18-1-1992 was, by and large, a genuine piece of evidence despite the fact that it had been recorded by the Investigating Officer himself. He had been making continuous efforts from 8-1-1992 to 18-1-1992 for recording the dying declaration of Muhammad Sarwar injured in the hospital, where he stood admitted, and from 8-1-1992 to 17-1- 1992 he was consistenly told by the doctor that the injured was not in a position to make statement.
It was only on 18-1-1992 that he opined in positive and the Investigating Officer wrote the statement of the injured. In this dying declaration too the injured had implicated Faisal Habib appellant and his brother Zulfiqar Habib acquitted co-accused as his assailants and, with ignorable variations or additions, it was substantially in line with his previous dying declaration made before Dr. Abdul Rehman (P.W.15). The mere inclusion of the name of the two eye-witnesses, whose presence we have doubted, would not imapair its evidentiary value.
23. While discussing the second contention of the learned counsel we have also considered the third contention in some detail and without walking over the same ground again, we would like to observe only this much that the omission of his name (P.W.15) from the calendar of witnesses by the police was without any justification and by allowing the prosecution to examine him as a witness, the learned trial Judge had rectified the mistake of the police in the interest of the justice with a view to bring on the record a good piece of evidence for the fair decision of the case. The deposition of this witness, as already observed, does not suffer from any legal infirmity.
24. Learned counsel for the appellant has tried to show that the recovery of the motor-bike was planted on his client with a view to strengthen the prosecution case. According to him, a brother of the deceased was dealing in motor-bikes and the police, by picking up a new motor-bike from his shop, showed it as a fake recovery and for that reason there was no proof of its registration in the name of the deceased, nor any such evidence was collected by the Investigating Officer. He contended that the recovery was witnessed by Muhammad Ramzan complainant (P.W.12), who was a false witness and in any case he could not corroborate his own statement which he made as an eyewitness.
25. While discussing the ocular evidence we have doubted the presence of Muhammad Ramzan complainant (P.W.12) at the time of occurrence but it does not mean that whatever he has said or done in this case was all false and he should be disbelieved in toto on every fact which he has deposed. It is not necessary that if a person on a particular fact has told a lie, he should necessarily tell a lie on another fact. Therefore, if we have doubted the presence of Muhammad Ramzan complainant at the time of occurrence, it does not mean that he was not present at the time of recovery of the motorbike. We are not inclined to believe that the Investigating Officer had picked up a new motor-bike from the shop of the deceased's brother and planted it on the appellant, merely to strengthen the prosecution case. The occurrence had taken place on the bank of a canal, quite a few miles away from Sargodha Town. The prosecution case is that the deceased and his two assailants had travelled up to that place on his motor-bike. From the spot the injured was picked up by a passerby and he brought him in the official jeep to the hospital. There was no motor-bike on the spot when he picked him up, nor it was found there by the Investigating Officer when he went there for spot inspection. In a situation like this, if the accused had not taken away the motor-bike of the deceased from the spot, then where it had disappeared and who had taken it away? The obvious conclusion is that it was taken away by his assailants and evidence produced by the prosecution is leading us towards them but even if we exclude the testimony of Muhammad Ramzan complainant (P.W.12) as a witness of recovery, the prosecution is still in possession of the statement of S.I. Matiullah (P.W.14) whose deposition on the factum of recovery of deceased's motor-bike from the custody of appellant cannot be lightly ignored.
26. For various reasons stated above, we are therefore, of the opinion that the snatched away motor-bike of Muhammad Sarwar (deceased) was recovered from the custody of the appellant and this recovery serves as a good piece of corroborative evidence.
27. The next contention of the learned counsel for the appellant was also without force. Khalid Mahmood (P.W.11) was a cousin of the deceased. Both were residing in the same town though in different localities but not far away from each other. The stress of the learned counsel for the appellant in his effort to undermine the testimony of this witness was that he being a petty shopkeeper, at 11-00 a.m., when he claimed himself to be present in the house of the deceased, he should have been at his shop for doing his business instead of being present in deceased's house for no valid reason. He also attacked his testimony on account of his relationship with the deceased. As already remarked, the mere relationship of a witness with the victim in the absence of his previous enmity with the accused party is not a reason to discard his testimony. So the evidence of this witness does not suffer from any infirmity on this account. Similarly, his presence in the house of the deceased at the time the appellant and his acquitted co-accused came and took him away from an outing, was not improbable. Therefore, we accept his deposition on the factum of last seen.
28. The last contention of the learned counsel also proceeded on a wrong premises. It is not disputed that Faisal Habib appellant was about 17 years old at the time of occurrence and he was a minor within the definition of section 299(a) read with (i), P.P.C. Has recently substituted. Under section 306(a), P.P.C. a minor is not liable to Qisas for Qatl-e-Amd. Similarly, under section 308, P.P.C. An offender guilty of Qatl-e-Amd not liable to Qisas under section 306, P.P.C. Is liable only to pay Diyat but if the offender is minor and he has attained sufficient maturity to be able to realise the consequences of his act, then he can also be imprisoned for a period which may extend to 14 years as Tazeer.
29. The entire contention of the appellant's counsel in this regard was based on the assumption as if the appellant being minor was liable to Qisas and since he was minor, he was not liable to Qisas for the commission of an offence of Qatl-e-Amd. `Qisas', as defined in section 299(k), P.P.C., means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim, or by causing his death if he has committed Qatl-e-Amd, in exercise of the right of victim or a Wali. He had perhaps altogether forgotten that this case was not a case of Qatl-e-Amd liable to Qisas and neither the appellant was tried nor he was convicted as such. He was convicted under section 302, P.P.C. Qatl-e-Amd and was sentenced to imprisonment for life as Tazeer because the proof, as required under section 304, P.P.C., was not available. This being so, the appellant can neither avail of the benefits of section 306, P.P.C. Nor of section 308, P.P.C.
30. Before parting with this judgment we would like to observe that the main contention urged before us on behalf of Faisal Habib appellant and his brother Zulfiqar Habib acquitted accused throughout the hearing of appeal has been that they had no contacts with Muhammad Sarwar (deceased), rather, they were not even known to him but the following passage in the cross-examination of Muhammad Ramzan complainant (P.W.12) goes a long way, not only to contradict the above stance but also, to some extent, to supply the real motive for the crime which the prosecution could not bring it on the record in its true perspectives:- - "Muhammad Sarwar (deceased) was aged about 28/30 years. It is incorrect to suggest that Muhammad Sarwar (deceased) was the person of bad character and was sodomist. It is incorrect to suggest that the deceased used to go to Mohammadia Colony to follow Zulfiqar Habib accused with the nefarious design before the present occurrence. It is incorrect that two/three days before the present occurrence Faisal Habib accused had given beating to the deceased for passing in front of his house to chase Zulfiqar accused."
31. From the suggestion made, though denied, in the above passage, one can easily make out as to why the deceased was taken out of his house to a deserted place on a pretext and why he was killed. This suggestion, rather, supplied a missing link of real motive in the prosecution story. The purpose of the appellant and his acquitted co-accused, as the prosecution tried to give out, was not to rob the motor-bike from the deceased, rather, the real purpose was to teach a lesson to him for his efforts to establish sexual liaison with the acquitted co-accused, a situation which his elder brother, the appellant herein, could not tolerate.
32. In view of the above, we have come to the conclusion that the prosecution has succeeded in proving the guilt of Faisal Habib appellant beyond any shadow of doubt that he committed the murder (Qatl-e-Amd) of Muhammad Sarwar, on the day, time, place and in the manner alleged by it, by producing reliable evidence, consisting of dying declaration of the deceased, oral as well as written; recovery of the stolen motor-bike of the deceased from him; and the evidence of 'last seen' coupled with the evidence of motive supplied by the defence itself by putting the above suggestions, and he was rightly convicted under section 302(b), P.P.C.
33. As regards his sentence, the learned counsel for the appellant, as a last resort, in view of the minority of the appellant coupled with the suggested motive, requested for further reduction of his sentence in case his conviction was to be upheld but we are unable to accede to it, as he has already obtained sufficient concession by way of lesser sentence. The appeal of Faisal Habib appellant is, therefore, dismissed.
34. So far as the State appeal is concerned, Zulfiqar Habib acquitted co-accused does not seem to have played any major role. It appears that he was made to accompany by his elder brother as a bait of drawing the deceased out of his house to a deserted place as he (deceased) was interested in him on account of sexual liaison. Anyhow, in the circumstances of the case we are not inclined to interfere in his acquittal and the State appeal is also dismissed.