' The appellant was tried by the learned Sessions Judge, Jhang under section 302, P.P.C. On the allegation that he committed the murder of Muhammad Iqbal deceased by causing a head injury on 24-1-1989 at about 9-30 a.m. In the area of Chah Jand Wala, Village Naikokara, Police Station Garh Maharaja, Tehsil Shorkot, District Jhang and was convicted under section 302, P.P.C. And was sentenced to life imprisonment and a fine of Rs,30,000 and in default of payment of fine to further undergo R.I. For six months. Upon the recovery of the fine half of the same was ordered to be paid to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C.
' The appellant has filed Criminal Appeal No,887 of 1989 to challenge the above-mentioned conviction and sentence recorded against him.
2. Succinctly stated the case of the prosecution as narrated by Muhammad Ramzan complainant in F.I.R. Exh.P.E. Is that on 241-1989 Muhammad Iqbal deceased was ploughing land with tractor near the village belonging to the appellant. The complainant alongwith Muhammad Ramzan son of Mian Muhammad P.W.7 and Ahmad Bakhsh (given up P.W.) were sitting near that field and they were smoking Hukka. In the meantime the appellant came there and asked his son to stop ploughing the land in order to accompany him to his field for planting onion. The reply of the deceased that he would help the appellant after sometime infuriated the appellant who abused the deceased which was also retaliated by him. Appellant left the place saying that he would take revenge of the abuses and after about thirty minutes he came armed with a hatchet and challenged the deceased to be ready as he had come to take the revenge, and at the same time he gave two hatchet blows hitting the right and left side of the head of the deceased of which he fell down and was subsequently removed to the Civil Hospital Garh Maharaja where he succumbed to the injuries. After leaving the dead body in the hospital the complainant went to the police station to lodge the report.
3. Muhammad Aslam S.I. After recording the F.I.R. Exh.P.E. At the instance of Muhammad Ramzan, complainant on 24-1-1989 at 2-00 p.m. Went to Civil Hospital and prepared the injury statement Exh.P.G. Of the deceased and inquest report Exh.P.B. After collecting the blood-stained earth from the spot he recorded the statements of the P.Ws. And the dead body was sent for the post-mortem examination. On 30-1-1989 he arrested the appellant and upon his disclosure the blood-stained hatchet Exh.P.4 was recovered from his cattleshed which was made into a sealed parcel and was taken into possession vide memo. Exh.P.D. Rough site plan Exh.P.D./1 was also prepared by him.
' He also got the site plans of the place of occurrence Exh.P.C. And Exh.P.C./1 prepared through the Patwari and completed the investigation of this case and challaned the accused.
4. Dr. Ghulam Farid Khalid P.W.1 did the post-mortem on the dead body of Muhammad Iqbal deceased on 24-1-1989 at 3-30 p.m. And found two injuries on his person. The cause of death in the opinion of the doctor was due to haemorrhage and neuronal shock due to the above-mentioned injuries which were sufficient in the ordinary course of nature to cause the death. Both the injuries were found by him by sharp-edged weapon and grievous in nature. Duration between injuries and death was about 2 to 3 hours and probable duration between death and post-mortem was about three hours. Both the injuries were ante-mortem and were sufficient to cause death. Exh.PA. Is the post-mortem report and Exh.PA./1 is the pictorial diagram of the injuries.
5. The learned trial Court charge-sheeted the accused under section 302, P.P.C. Which he pleaded not guilty and the prosecution in order to substantiate the charge produced eight P.Ws. In all and tendered in evidence the report of the Chemical Examiner Exh.P.K. And report of Serologist Exh.P.L.
After the closer of the prosecution evidence the appellant denied all the allegations when examined under section 342, Cr.P.C. And professed his innocence. He also denied the factum of recovery of blood-stained hatchet Exh.P.4. At his instance. He took up the plea that he was innocent. It was an unseen occurrence and some thieves or unknown persons had murdered the deceased early in the morning and the complainant party falsely involved him in this case due to suspicion at the instance of Zafar Khan P.W. Anyhow he declined to make statement on oath as envisaged by section 340(2), Cr.P.C. He produced only a copy of Khasra Girdawari Exh.D.C. Of the land where the occurrence took place and closed his defence.
6. Canvassing acquittal for the appellant the learned counsel argued that he had been maliciously involved in the present occurrence on account of his enmity with Zafar Khan P.W., the deceased and the P.Ws. Being his servants and that the incriminating articles had been falsely planted on the appellant and finally that in the circumstances of the case the appellant deserves to be acquitted.
Lastly it was argued that the occurrence took place at the spur of the moment in this case without any pre-meditation, therefore, he should be convicted under section 304, Part II, P.P.C. And not under section 302, P.P.C.
7. The learned State counsel controverted all the arguments advanced by the learned counsel for the appellant and submitted that it is a day time occurrence and no enmity or ulterior motive has been shown by the accused against the P.Ws. To falsely involve him in this case and nor there is any old enmity between the parties and the statements of the eye-witnesses being consistent, the conviction and sentence should be maintained.
8. I have heard the learned counsel for both sides and have gone through the evidence very minutely with the able assistance of the learned counsel for the appellant.
9. Admittedly there existed no previous enmity between the accused and the deceased and it is also in evidence that the deceased was Mueen and that he was cultivating the land belonging to the accused. Muhammad Ramzan P.W.6 also states that in his presence the appellant abused the deceased and in return the deceased also abused the appellant and the appellant threatened him that he would take revenge of the insult. This statement of P.W.6 is corroborated by the statement of P.W.7 Muhammad Ramzan son of Muhammad Mian. Although it is not essential to prove motive in every case but in my view the testimony of P.W.6 stands fully proved as supported by P.W.7 and, therefore, it is established that a motive did arise for the appellant to commit the crime charge.
10. The ocular account of the prosecution version is furnished by P.W.6 Muhammad Ramzan, complainant and P.W.7, Muhammad Ramzan son of Mian Muhammad. The statements of both the eye-witnesses are consistent and cogent and they have given a natural narration of the occurrence. They have supported each other on all material particulars. The learned counsel argued that the F.I.R. In this case was lodged after the delay of about five hours after due deliberation and consultation which caused doubt in the prosecution version. I have looked into this point and find that the occurrence in this case took place on 24-1-1989 at 9-30 a.m. In the area of Chah Jandwala Mauza Naikokara which is situated at a distance of about 23 kilometres from Garh Maharaja. It is in evidence that the deceased had fallen on the ground after the receipt of injuries and he was removed to the hospital in an injured condition. Dr. Ghulam Farid P.W.1 admits that the deceased was alive when he was brought in the hospital at 12-15 p.m. On 24-1-1989 but was in a serious condition. He was pulseless and his B.P. Was not recordable and the blood was oozing out from both the skull wounds and he was unconscious and that he expired in the hospital at 12-35 p.m. This shows that the deceased was first removed to the hospital in serious condition for treatment where he expired at 12-35 p.m. And after that Muhammad Ramzan went to the police station and lodged F.I.R. Exh.P.E. Which was recorded at 2-00 p.m. On the same day. As the question of life and death was involved so the complainant remained busy there till 12-35 noon so in these circumstances I have no hesitation to show that the F.I.R. In this case was promptly lodged. It was also argued that the medical evidence contradicts the ocular account but I do not find any substance in this contention as well. Both the eye-witnesses have stated that the appellant inflicted two hatchet blows on the head of the deceased one hit the deceased on the right side of his head and the second on the left side of his head. The medical evidence furnished by Dr. Ghulam Farid Khalid P.W.1 fully corroborates this version of the eye-witnesses that the deceased received two injuries on his head with sharp-edged weapon one on the right and the other on the left side of his head so I do not agree with the learned defence counsel that the ocular account is not inconfirmity with the medical evidence. I further find that post-mortem report is confirmatory to the ocular account and fully corroborates the prosecution version as deposed by the eye- witnesses with regard to the time of occurrence, the weapon which was used in the occurrence and the seat of injuries sustained by the deceased. In these state of affairs the medical evidence is in full accord with the ocular account.
11. The argument that the deceased was done to death in the early hours of the morning when he was sleeping with the cattle in the field is belied by the medical evidence because the doctor gives the duration between the injuries and the death as two to three hours while the duration between death and post-mortem examination about three hours so the time of occurrence as stated in the F.I.R. Coincide with the medical evidence. I do not accept the argument that P.W.4 Salabat Khan has stated that the statement of the complainant was recorded at the spot so it gives support to the defence plea that the deceased was done to death by the thieves early in the morning. Salabat Khan P.W.4 has stated that S.I. Handed him over the dead body of. Iqbal deceased in the Rural Health Centre which he transferred to mortuary and produced intact before the doctor. He contradicts himself during cross-examination on this point. He has made some obliging confession with regard to the matter wholly unconnected with his part when P.W.8 Muhammad Aslam S.I. And Muhammad Ramzan P.W.6 contradicted him on this point. The obliging concession by police officials has always been disapproved by the learned Supreme Court of Pakistan.
12. It was also argued that both the eye-witnesses are closely related to the deceased and are, therefore, interested witnesses and the occurrence having taken place outside the village but not even a single independent person has been produced in support of the prosecution version which adversely affects the case of the prosecution. Admittedly both P.W.6 and P,W.7, are father and grandfather of the deceased but it is also admitted fact that there was no previous enmity of these P.Ws. With the appellant to falsely involve him in the case of capital punishment. There is no cavil with this legal proposition. It is a settled law that interested witness is one who has a motive to falsely implicate an accused. There cannot be an inflexible rule that the statement of an interested witness can never be accepted without corroboration. Although both the P.Ws. Are the relatives of the deceased but there is no previous enmity, so their statements can be relied upon in this case, because their depositions are truthful and confidence inspiring. Moreover, mere relationship of a witness with the deceased would not per se be good enough to lable him with interestedness unless the parties have previous background of hostility. It may be mentioned here that the complainant party appears to be the Mueen of the village. It is also in the evidence that the nearby Abadi consists of 15/20 houses belonged to a Qureshi family. The appellant also being a Qureshi nobody could be expected to come forward to appear as witness against him. Even otherwise it is a common knowledge that people refrain to associate themselves in the police investigation although they happen to be the actual witnesses of the occurrence. Due to the fear of the accused persons nobody wants to risk his life.
13. The discrepancies highlighted by the learned counsel for the appellant in the statements of both the witnesses are of minor nature and are not so material to discard their testimony. According to Muhammad Ramzan P.W.6 the house of Muhammad Ramzan P.W.7 is in the same Basti at a distance of about one mile and both the witnesses have fully explained the reason of their presence at the place of occurrence so they cannot be termed as chance witnesses.
14. In this case the ocular evidence furnished by P.W.6 and P.W.7 is fully corroborated by the medical evidence, the recovery of blood-stained hatchet at the instance of the appellant, the motive evidence as well as medical evidence. In view of these circumstances there is no doubt in my mind that it was not the appellant who committed this offence.
15. It was vehemently argued by the learned counsel for the appellant that the occurrence in this case took place at the spur of the moment without any premeditation so the conviction should be converted from section 302, P.P.C. To section 304, Part II, P.P.C. He also placed reliance on judgment of Supreme Court of Pakistan reported as Zafar Hussain v. Naukar Hussain and another 1990 SCMR 290 and Muhammad Yasin v. The State 1987 P Cr. L J 2211. I have gone through the judgment of the Supreme Court as well as of the High Court and find that the legal position and the facts were different in the above-cited judgments as compared to the facts of this case. In the Supreme Court judgment the occurrence had taken place at the spur- of the moment without any pre-meditation and the accused had not taken any undue advantage of the situation and in the High Court judgment none of the eye-witnesses had given the true facts as to how the incident had taken place but in this case both the eye-witnesses have fully narrated the start and end of the occurrence and has given the full details of the manner in which the incident took place. It is in evidence that the deceased was the Mueen of the appellant and was ploughing his field at that time. About thirty minutes before the occurrence there was an incident of exchange of abuses between the appellant and the deceased and the appellant had left the place while threatening the deceased that he would take revenge of the abuses. He was not holding the hatchet at that time with him and brought the same after half an hour and inflicted two repeated blows on the head of the deceased due to which he died. I, therefore, do not agree with the learned counsel for the appellant that the appellant did not take any undue advantage of the situation, and therefore, his case falls under section 304, Part II and not under section 302, P.P.C.
16. Consequently I find that no exception can be taken to the finding of guilt recorded against the appellant by the learned trial Court. The conviction under section 302, P.P.C. Is, therefore, maintained. The quantum of sentence awarded to the appellant by the learned Sessions Judge is also maintained with the addition that the appellant shall be given the benefit of section 382-B, Cr.P.C.