' Nadeem Akhtar appellant aged 26 years having been indicted in the case registered vide F.I.R.
No,201 of 9-12-1990 under section 302, P.P.C. Police Station Bhagtanwala, District Sargodha for the murder of his paternal uncle's spouse Mst. Munawar Fatima (55) culminating into his conviction and sentence under section 302 (b) ibid to imprisonment for life as Tazir by the learned Sessions Judge, Sargodha vide the impugned judgment, dated 14-4-1992 has preferred the captioned appeal (Crl. A. No,372/92) to whom the complainant has joined by virtue of Criminal Revision No,292 of the same year for seeking enhancement of the sentence emanating out of the following facts.
2. Mansab Ali P.W.3 husband of the deceased and paternal uncle of the appellant on 9-12-1990 got F.I.R. Exh.P.B. ,registered with Amir Abdullah Khan, S.-I., S.H.O. P.W.9 at the Police Station at 12-15 p.m., 3 K.M. Away from the venue situated in Chak No,73-Janoobi alleging that an hour ago i,e, around 11- 15 a.m. Accompanied by co-villagers Akhtar Hayat P.W.4, Iqbal Hussain given up while he was sitting at the Baithak of Nazar Abbas Khan, the deceased passed by en-route to her daughter Zubeda Khanum's place of abode adjoining the Baithak of the latter, where the appellant equipped with a Toka suddenly emerged and exhorting to teach her a lesson for taking the hand of his sister Nighat administered her a Toka blow on her head which was supplemented with four more injuries in quick succession on her head and neck to whose rescue the complainant along with the cited witnesses rushed in whereupon the appellant brandishing the Toka vanished away while the deceased succumbed to the injuries.
' Spelling out the motive it was averred that couple of months ago appellant's sister Nighat was wedded to the complainant's son Gul Haider with the blessings of the deceased against the appellants wishes which he avenged.
3. Amir Abdullah Khan, S.-I., S.H.O., P.W.9 after recording the F.I.R. Proceeded to the spot, prepared the deceased's injury statement Exh.P.E., inquest report Exh.PH; des-patched the dead body under Dost Muhammad, F.C. P.W.S's escort for postmortem examination who, the same day tendered her last worn blood-stained clothes shirt P.2, vest P.3, Burka P.4, Jersy P.5. Brassiere P.6, Shalwar P.7 and Dopatta P.8 secured into possession vide memo. Exh.PD; collected blood-stained earth from the venue vide memo. Exh.P.F; arrested the appellant on 10-12-1990 who 3 days later i,e,, 14-121990 led to the recovery of blood-stained Toka P.1 from his house stored in a trunk reduced into possession vide memo. Exh.P.C. Attested by the complainant, Iqbal Hussain given up P.W. In addition to the Investigating Officer and got site plan Exh.P.E. Prepared from Muhammad Saleem Draftsman P.W.6.
' Replying to question vehemently refuted the suggestion as to appellant being mentally drained qua which no evidence was adduced before him by his father as to his admission in the Mental Hospital or being under the treatment of Dr. Capt. Bashir affirming to have not conducted any independent investigation as to the asserted motive save for the complainant's statement.
4. Dr. Muhammad Zahid Shah (P.W. 1) Medical Officer, Rural Health Centre Bhagtanwala on the day of occurrence i,e, 9-12-1990 at 2-30 p.m. Conducted autopsy on the deceased's body observing the following vide post-mortem report ' ' ' 'Exh.PA:--
(1) An incised wound 8 c.m. x 1 c.m. On the back of scalp. Bone was cut underneath.
(2) An incised wound size 10 c.m. x 1 c.m. On the back of scalp and was transverse. Brain matter was coming out of the wound.
(3) An incised wound size 6 c.m. x 1 c.m. On the back of scalp 2 c.m. Below injury No,2 and was bone deep.
(4) An incised wound size 6 c.m. x 1 c.m. On the back of scalp below injury No,3 and was bone deep.
(5) An incised wound size 5 c.m. x 1 c.m. On the back of neck. Muscles were cut under it."
' Opined cause of death was shock and hemorrhage resulting from the injuries sufficient to cause death in the ordinary course of nature; anti-mortem of sharp-edged origin to which death immediately ensued and within 3 to 4 hours thereof the post-mortem was conducted.
5. Mansab Ali complainant P.W.3 testifying the prosecution story affirmed that there was no enmity between his and the appellant's family save for the grudge against matrimony of Nighat by the latter which was bartered with his daughter Tasawar Khanum's with the latter's brother Shamim Gul 8 years ago though Nikah of the appellant's sister Nighat was registered subsequently i,e, on 14-2-1986 upon her coming of age, proof whereof had to be furnished by his son to his unit being an Army Personnel for claiming family allowance; there are two political groups in the village one of Imtiaz Khan Baloch and the other led by Sultan Mehmood a retired S.P. And honorary Magistrate to whose party he belonged, so was the appellant's father (factum whereof was duly affirmed by Muhammad Akhtar Khan P.W.7) through Nazar Abbas at whose Baithak they were sitting at the time of assault belonged to the opponents group of Imtiaz Khan Baloch but was a close relation as well since his sister was married to the appellant's brother and was also his next door neighbour towards north of whose his house is located while that of Akhtar Hayat P.W.4 was hardly 66 yards away from the venue. Rest of the evidence was of formal nature.
6. Whereas the appellant entered the "plea of denial and false involvement due to party faction acclaiming to be a schizophrenic recording statement contemplated by section 342, Cr.P.C. Opting not to depose on oath in terms of section 340(2) (ibid) in the following terms:--- "I am a mental patient for the last many years. I have been under the treatment of Captain Dr. Bashir. I have also remained admitted in Mental Hospital, Lahore in 1989 on two occasions. Even in December, 1990 I was suffering from fits of schizophrenia and I do not know how this occurrence took place. The police did not investigate with impartiality and independently. They were under the influence of S.P. Retired Sultan Mehmood who is leader of his party faction in the village and Mansab Ali complainant is his partyman. On that account he has been helping Mansab Ali."
7. Examining Tahir Ahmed, D .W.1, a record keeper of Mental Hospital, Lahore tendering record tending to vouch the appellant's admission in the Hospital on 16-1-1989 to 25-1-1989 and readmission on 2-7-1989 from where he escaped on 21-7-1989.
' Responding to query pleaded ignorance as to the nature of ailment affirming to have not personally seen him.
8. And Dr. Capt. Bashir Ahmed D.W.2, a local private practitioner of "heart and brain diseases" deposing that the appellant had remained under his treatment for about 5/6 years for mental disorder leading to schizophrenic for which he was administered medicines, injections and electric shocks vouching the certificates issued on 18-1-1990, 15-9-1990 and 25-3-1990 (during the period while he was under arrest in this case).
' Upon question frankly admitted that the original certificates are not there; he is not possessed of the prescriptions nor he maintained any file or register at his clinic-nor does he remember as to how many times the appellant had visited him, nor his identity card he has ever seen he doesn't have indoor facilities though a private mental hospital styled as Nausherwan Hospital which is well-equipped for this kind of treatment is located nearby with indoor facility; showing inability to recollect as to whether on the dates of the certificates referred to supra the appellant had visited him or not though he had advised his hospitalization but does not remember the date of rendering such an advice affirming that the appellant then was not in an aggressive mode.
9. Whereupon the verdict under appeal was returned legality whereof has been assailed by the learned counsel contending that the appellant having asserted the plea of unsound mind being incapable of making his defence was not amenable to trial of the case which should have preceded with a trial as to the asserted effect of lunacy in terms of section 465 of Cr.P.C., presence of the complainant as well as that of Akhtar Hayat P.W.4 is purely a matter of chance who have deposed only on account of party faction; the recovery of crime weapon has been disbelieved and the spelt out motive is too weak to furnish impetus for the murder.
10. With which I am not impressed having considered the entire evidence with the assistance of the learned counsel because the first plea patently seems to be a convenient afterthought for the same having not been canvassed before the Investigating Officer rather was urged for the first time before the Court at the time of framing of the charge through a written application, dated 20- 8-1991 which was turned down on 4-11-1991 recording a detailed finding within the contemplation of section 465 of the Cr.P.C. That the appellant did not appeal to the Court to suffer from any diminished sense of responsibility rendering him incapable of making his defence with which the appellant felt contented since the same was not pursued any further; additionally even at the trial denied his exposer to cross-examination for elucidating the truth by opting not to depose on oath in terms of section 340(2) (ibid.).
11. While veracity of both the defence witnesses doesn't inspire confidence since Tahir Ahmed, D. W.1 the record keeper only produced a register tending to manifest admission of a person by the appellant's name to whom he could not identify nor any other record vouching particularization of the ailment he was suffering from the treatment he was administered and by whom were not narrated; further what is more intriguing is that despite recording his escape from the hospital nothing was said as to whether it was followed up with the authorities concerned or not and was also silent as to under whose direction, order or reference he was admitted there.
' Likewise Dr. Capt. Bashir D.W.2 could not furnish any recorded history of the appellant's ailment and particulars of the treatment administered; rather himself created doubt as to the genuineness of the certificates by showing that he did not remember whether the appellant had personally visited him or those were procured by somebody else on his behalf which even otherwise seems to be highly paradoxical since despite his defence and availability of indoor patient facility in a local hospital the appellant was not treated there.
12. Conversely, the prosecution case stands duly proved beyond the realm of doubt by ocular account furnished by the complainant through a confidence-inspiring testimony, veracity whereof remained un-impeached of a broad daylight occurrence promptly reported at the Police Station having no motive to falsely implicate the appellant as a substituted sole culprit (keeping in view the latitudinal affinity viz. Being his paternal nephew with whose sister and brother has bartered his son and daughter's matrimonies subsisting smoothly and admittedly with no persistent enmity preceding the incident) letting the real murderers go scot free whose presence at the venue i.e, Nazar Abbas's Baithak (close relation of the appellant as well as that of the complainant) sandwiched between the appellant's house and that of the complainant's daughter at the spelt out time is perfectly natural in the village life having a political stint.
13. Corroboration whereto has been furnished by Akhtar Hayat P.W.4 hailing from the same vicinity and likewise with no motive to falsely implicate the appellant on a capital charge and the medical evidence to which the deceased was soon exposed.
' In which scenario no premium could be reaped on account of the urged plea of party faction because as per Muhammad Akhtar Khan P.W.7 the appellant as well as the complainant belonged to the same party i,e, of Sultan Mehmood retired S.P.
14. Consequently the appellant's conviction and sentence is unexceptionable; resultantly, the appeal being devoid of any substance fails and is hereby dismissed.
15. Adverting to Criminal Revision No,292 of 1992 it suffices to observe that the reasons recorded for the awarding of lesser sentence viz. The, spelt out motive remained unsubstantiated, having remained un-dislodged no case for the sought for enhancement of the sentence is made out thus, the same follows the suit.
16. However, since, the statutory requirement as to awarding of compensation to legal heirs of the deceased contemplated by section 544-A, Cr.P.C. Seems to have escaped notice of the learned Sessions Judge, therefore, putting the learned counsel for the appellant on notice he is ordered to defray Rs,1,00,000 as compensation or in default 6 months' S.I.