MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.---Appellant Muhammad Aslam alias Billa son of Ghulam Akbar was tried by learned Additional Sessions Judge, Rajanpur for the murder of one Tahir Abbas son of Dost Muhamamd; who vide order dated 4-7-1998 convicted the appellant under section 302, P.P.C. And sentenced him to death with fine of Rs.50,000 or in default whereof to further undergo R.I. For three years. It was also directed that in the event of recovery of fine, an amount of Rs.40,000 as compensation under section 544-A, Cr.P.C. Would be paid to the legal heirs of deceased.
Being aggrieved by the impugned judgment, the appellant preferred a Criminal Appeal bearing No.239 of 1998 against his conviction and sentence whereas the learned trial Court also sent a reference bearing Murder Reference No.274 of 1998 for the confirmation of death sentence awarded to the appellant. Both these matters shall be decided by this single judgment.
2. Case F.I.R. No. 117 of 1994 (Exh.PF) was got registered at Police Station Fazalpur by Dost Muhammad -P.W.7 complainant with regard to the murder of his son namely Tahir Abbas. This occurrence took place in the area of Fazalpur about two Kms. Away from the police station.
According to the F.I.R., deceased Tahir Abbas was a student of F.C. College, Lahore, who had come home during his Eid-ul-Azha holidays. On the day of occurrence, he was scheduled to go back to Lahore. As he was not present in the house, complainant inquired from the children in the house about his whereabouts. The complainant was informed that Tahir Abbas had gone to Awan Ice Factory to take bath in the cold water of a tank. The complainant, in order to fetch the above said Tahir Abbas (his son) went to Awan Ice Fctory where his son Tahir Abbas after taking bath was wearing clothes. The complainant asked his son that he had to go to Lahore and he was getting late so he should hurry up and make preparation of his departure. Statedly, when both of them were passing in front of a deserted Khota near the Ice Factory at about 12-00 noon, Muhammad Aslam alias Billa (the appellant) suddenly came at the spot being armed with Khanjar Type Chhuri and shouted Lalkara that he had come to take revenge of his insult from the son of the complainant and that he would not spare him alive. The complainant raised alarm which attracted Muhammad Iqbal son of Gulzar Ahmad and Zafar Iqbal son of Ghulam Muhammad to the scene of crime. Within the view of these witnesses, Muhammad Aslam appellant gave two successive blows to Tahir Abbas on his chest as a result of which he (Tahir Abbas deceased) fell down on the ground and expired. The witnesses tried to apprehend Muhammad Aslam appellant but he vanished from the scene of crime while brandishing his weapon.
The motive for this occurrence as narrated in the F.I.R. Is that Muhammad Aslam was a vagabond, who used to pass through the street and was in the habit of uttering indecent remarks whereupon son of the complainant namely Tahir Abbas had prevented him from passing through the street but he did not desist from doing the above said act. On the day of Eid-ul-Azha, Muhammad Aslam, as usual, passed through the street and made filthy remarks whereupon Tahir Abbas deceased quarrelled with the appellant. To avenge the above said insult, Muhammad Aslam had slain Tahir Abbas deceased.
After the occurrence the complainant reported the matter to the police and F.I.R. Exh.PF, was recorded by Munir Hussain, P.W.10 S.-I. After the same. Munir Hussain, S.-I. P.W.10 reached at the spot alongwith the complainant and after examining ale dead body prepared injury statement, Exh.PD, and inquest report, Exh.P.C. And sent the dead body to the mortuary for the purpose of post- mortem examination. During the spot inspection, he collected blood-stained earth vide recovery memo. Exh.PG. He also prepared rough site-plan of the place of occurrence. Exh.PJ, as well as recorded the statements of the witnesses at the spot. After the post-mortem exanunation, last worn clothes of deceased were produced before the Investigating Officer which were taken into possession vide recovery memo. Exh.PH. During the investigation, Munir Hussain, Investigating Officer/S.-I. P.W.10, arrested Muhammad Aslam, appellant on 30-5-1994 and on the same day, above said Muhammad Aslam appellant led to the recovery of blood-stained Khanjar, P.1, which was taken into possession vide recovery memo. Exh.PE, Investigating Officer also got prepared site- -plan of the place of occurrence i.e. Exh.PA, Exh.PA/1, Exh.PA/2 through the Halqa Patwari and after completing the investigation submitted the challan before the learned trial Court.
3. In order to prove the charge against the appellant, prosecution produced ten witnesses in toto.
Dost Muhammad, P.W.7 complainant and Zafar Iqbal P.W.8 narrated about the ocular account, who had supported the prosecution case in verbatim. Zafar Iqbal also witnessed the recovery of different articles from the spot during the investigation. Ghulam Mustafa P.W.6, witnessed the recovery of Khanjar; P-1, at the instance of the appellant.
Post-mortem Examination on the dead body of Tahir Abbas was conducted by Dr. Ghulam Yaseen, P.W.5, who observed following injuries on his person:-- (1)An incised wound 1.5 c.m. x 0.5 c.m. x chest cavity deep obliquely placed, margins clearly cut on the right side of front of the chest 1.5 c.m. From the midline, near to the ephesternum.
(2)An incised would 1 c.m. x o.5 c.m. x muscle deep on front of right side of chest, just below to the medial end of right clavial, horizontally placed.
(3)An abrasion of 1/2 c.m. x 1/4 c.m. On back of right side of chest on lower 1/3 of chest 2 c.m. Above the lower border of the ribs.
(4)An abrasion 1 c. m. x 1 c. m. On front of left knee joint.
(5)Multiple abrasions with blushed disclaration of margins of skin in front of all the toes of right foot.
Investigation of this case was conducted by Munir Hussain, S.-I./P.W.10, as narrated earlier. Rest of the witnesses being of formal nature, need not be discussed.
Learned A.D.A. Tendered in evidence reports of Chemical Examiner, Exh.PL and Exh.PM regarding earth and dagger respectively and that of Serologist Exh.PL/1 and Exh.PM/1 respectively and closed the prosecution case.
4. Learned trial Court, after recording the prosecution evidence, examined the appellant under section 342, Cr.P.C. Wherein he while answering to the question as to why this case against him and why the P.Ws., deposed against him, replied as under:-- "This case is concocted against me due to political local rivalry, P.W.7 is real father of the deceased and P.W.8 is his near relative and other P.Ws. Are interested in the deceased and complainant. "
The appellant neither made any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
5. Learned trial Court after appropriate appraisal of evidence available on record, vide judgment dated 4-7-1998 convicted and sentenced the appellant as narrated in the earlier part of this judgment:
6. Learned counsel for the appellant submitted that it was an unseen occurrence. The witnesses were introduced later on to strengthen the prosecution case and the present F.I.R. Was lodged after preliminary enquiry at the spot. This occurrence took place near Ice Factory where independent witnesses were available but unfortunately none of them was made to join the investigation and this fact itself was sufficient to shatter the credibility of prosecution case; that the recovery relied upon by the prosecution was later innovation and the motive part of the prosecution case was never proved during the trial. Conversely, learned State counsel had vehemently opposed the contentions raised by the learned counsel for the appellant.
7. Heard. Record perused.
8. The charge against the appellant is that on 28-5-1994 at about 12-00 noon, he committed the murder of Tahir Abbas by giving him two dagger blows. The prosecution had relied upon the statements of Dost Muhammad (father of the appellant/complainant of this case) and Zafar Iqbal and sought corroboration from the evidence of recovery, motive and medico-legal report.
Both the eye-witnesses who had come forward in support of the prosecution case were subjected to searching cross-examination but the defence had failed to establish any enmity of these witnesses qua the appellant for his false implication in this case. The presence of both the witnesses at the spot was very much natural. Zafar Iqbal, P.W.8, used to reside at the place six Karams away from the place of occurrence and his presence at the time of occurrence could not be doubted. Similarly, the conduct of Dost Muhammad being father of the deceased was very natural and possibility of his presence at the time of occurrence, in the circumstances of this case, also could not be ruled out. This matter was promptly reported to the police and this fact itself eliminates the possibility of concoction and fabrication. It is a case of daylight murder committed by a single accused and substitution in such-type of cases by the real kith and kins of the deceased is a rare phenomenon. The arguments advanced by the learned counsel for the appellant that the complainant exonerated the real culprit and impleaded the appellant falsely because of his previous quarrel with the deceased have not impressed us and no weight can be given to the same in the circumstances of this case. The ocular account stands corroborated by the medical evidence which proves the fact that the deceased died because of two sharp edged injuries allegedly attributed to the appellant. The recovery of blood-stained Khanjar, P-I, at the instance of the appellant and report of chemical examiner in this regard also render ample corroboration to the prosecution case. In our view, the ocular account narrated by the above said eye--witnesses, can safely be relied upon to uphold the conviction.
9. The motive for- this occurrence as narrated in the F.I.R. Was that a few days prior to the occurrence, deceased and appellant had a quarrel over the issue that Muhammad Aslam appellant used to utter indecent remarks while passing through the street. We have observed that only Dost Muhammad, P.W.7, had narrated about this piece of evidence before the learned trial Court but it is not clear from his statement whether he was present at the time of above said incident or not. Similarly, during the investigation, no independent witness of the locality had come forward in support of this piece of evidence relied upon by the prosecution thus, in the absence of any reliable piece of evidence, it is difficult to say that the prosecution has succeeded in proving this part of the case.
10. We have given our anxious consideration with regard to the quantum of sentence. Since the prosecution had failed to prove the motive part of this case, valid ground for reduction in the sentence is made out. Accordingly, while dismissing the appeal of the appellant and maintaining his conviction; the sentence is reduced to the imprisonment for wife with the direction to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default of payment, to further undergo S.I. For six months. The appellant is also entitled to get the benefit of section 382-B, Cr.P.C.
With this modification, instant criminal appeal stands disposed of.
11. The murder reference is answered in the negative.