M. JAVED BUTTUR, J.---The appellant, Muhammad Saeed (19 years) was tried by the Additional Sessions Judge, Faisalabad, for the charge under section 302, P.P.C., in case F.I.R. No.422, dated 2- 10-1988, registered at Police Station Sadar, Faisalabad, for having caused the intentional murder of Rasheed Ahmad Aasi with Churri/knife. The learned trial Court believing the prosecution evidence, vide its judgment, dated 31-7-1990 convicted the appellant under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs.5,000. He was further ordered to pay a sum of Rs.20,000 as compensation to the legal heirs of the deceased under section 544-A, P.P.C. And in default in the payment of the same to further suffer six months S.I.
2. The appellant has challenged his conviction and sentence through Criminal Appeal No.574 of 1990. The complainant, Ghulam Mohy-ud-Bin, through his Criminal Revision No.422 of 1990 has sought the enhancement of the appellant's sentence to the sentence of death and has also prayed for the enhancement of compensation. The revision was admitted to regular hearing and the appellant, Muhammad Saeed, was given notice in the revision by this Court on 13-10-1990. Both these matters are being disposed of by this judgment.
3. The perusal of the various documents available on the record shows that at the time of the filing of the appeal, the appellant was lodged in Central Jail, Faisalabad. We have also noticed that the sentence of appellant was never suspended by this Court and it is believed that the appellant may have been released from jail after having undergone his entire sentence. Learned counsel for the appellant has, however, maintained that he has no instruction in this regard and he has to argue the appeal on merits and asked for acquittal of the appellant.
4. We have heard the learned counsel for the appellant and the State and have seen the entire record.
5. Nobody has turned up from the complainant side in the above said connected revision. We have considered the merits of the revision as well.
6. The prosecution, version as contained in the F.I.R. (Exh.P.C.) lodged on the statement of the complainant, Ghulam Mohy-ud-Din (P.W.4) is that at the time of occurrence, he was employed in the Deputy Commissioner's Office as Auditor, Zikat and Usher and used to live with his paternal uncle, the deceased Rasheed Ahmad Aasi and on 2-10-1988 (the day of occurrence) when he was present in the sitting room/Baithak as usual at about 7.30 a.m. In the morning, the deceased, the complainant's paternal uncle, took out his bicycle from the door of the sitting room, in the street, to take his eight years old son Muhammad Asif to school and at that very moment, the appellant, a resident of the locality, came running from the side of his house while holding a Churri with his right hand and while abusing the deceased raised a Lalkara that he would teach him a lesson for casting charms/Taveez and inflicted five Churri blows in quick succession, on the person of the deceased, hitting him on the front of his neck towards the left side, on the chest towards the left side and on the left side of his hip. The deceased fell down, besmeared with blood and died on the spot soon thereafter. The occurrence was witnessed by the complainant, Muhammad Asif minor son of the deceased, Mst. Naseem Akhtar, wife of the deceased and Muhammad Iqbal. The motive of the occurrence as mentioned in the F.I.R. Is that the accused believed that the deceased was trying to create rift in his family life through charms/Tanveez and one day before the occurrence, on 1-10-1988, in the evening the accused had threatened the deceased in the presence of the complainant that a lesson would be taught to him for casting the charms.
7. The Investigating Officer, Amanullah Khan, S.I. (P.W.9) recorded the statement of the complainant (Exh.P.C.) at 8-30 a.m. On 2-10-1988, reached the spot at 9.30 a.m. Prepared the inquest report (Exh.P.H.), Injury statement (Exh.P.I.), sent the dead body to the mortuary (Civil Hospital, Faisalabad), took the blood-stained earth from the place of occurrence (Exh.P.D.), recovered Bicycle (P.4) vide memo. Exh.P.E., inspected the place of occurrence, prepared the rough site plan (Exh.P.J.), took into possession the last worn clothes of the deceased i.e. Shirt P.1, Vest P.2 and Shalwar P.3 produced before him by Pervaiz Iqbal, Constable, vide memo. Exh.P.B. Pervaiz Iqbal, Constable also produced post mortem examination report and other relevant papers before him. On the next day, he arrested the appellant who while in police custody got recovered blood-stained Churri P.5 (Exh.P.F.). The recovery memos. Of blood-stained earth, Bicycle and the blood-stained Churri were attested by the complainant Ghulam Mohy-ud--Din. The right hand of the accused was found to be injured and the Investigating Officer got him medically examined from Civil Hospital, Faisalabad by Dr. Muhammad Yasin through application (Exh.P.K.). The Investigating Officer also got prepared the site plans through P.W.1 Aurangezeb, Draftsman (Exh.P.A. And Exh.P.A./1). The site plan of place of recovery is Exh.P.L. The parcels of blood-stained earth and Churri were handed over to Moharar Head Constable on 3-10-1988. He also recorded the statements of the P.Ws. Under section 161, Cr.P.C. And after usual investigation, challaned the accused/appellant.
8. The prosecution, in all, produced nine witnesses. P. W.1, Aurangezeb, Draftsman prepared the site plans as mentioned above. P.W.2 Pervaiz Iqbal escorted the dead body. To the mortuary, produced the last worn clothes of the deceased before the Investigating Officer P.W.3 Muhammad Saleem identified the dead body at Civil Hospital, Faisalabad. P.W.4 Shahdat Khan, Constable delivered the sealed parcels containing blood-stained earth and blood-stained Churri to the office of Chemical Examiner, Lahore, P.W.8, Amir Ahmad, Moharar Head Constable was handed over the above sealed parcel on 3-10-1988 by the Investigating Officer which were kept by him in the Malkhana and on 8- 10-1988, these parcels were handed over by him to Shahadat Khan, Constable for onward transmission to the office of Chemical Examiner, Lahore.
9. The complainant Ghulam Mohy-ud-Din (P.W.4) narrated the version as contained in his statement Exh.P.C. He is also witness of the recoveries of blood-stained earth, bicycle and blood- stained Churri, as mentioned above.
10. Muhammad Asif (P.W.5) is son of the deceased. He was examined by the trial Court after ascertaining the fact that he was capable of making the statement. His statement is similar to that of the complainant.
11. Dr. Muhammad Yasin, Medical Officer conducted the post-mortem examination on 2-10-1988. He died during the pendency of the trial and in his place, the prosecution produced Dr. Abdul Sattar, S.M.O., D.H.Q. Hospital,, Faisalabad as P.W.7, who deposed that he knew Dr. Muhammad Yasin as he worked with Dr, Muhammad Yasin in the D.H.Q. Hospital, Faisalabad in the year 1988 and Dr. Muhammad Yasin died in the month of December, 1988 and he was fully conversant with his handwriting. The witness stated that the post-mortem examination report (Exh.P.G.) was in the handwriting of Dr. Muhammad Yasin and bore his signature and he identified the same. According to the post-mortem examination report, following five injuries were found on the person of the deceased: INJURIES.
(1) An incised wound 6 c.m. x 1-1/2 c.m. On the left front upper most part of neck cutting the muscels then cutting the larynx, the wall of oesophagus is partially cut laterally.
(2) A stab wound 3 c.m. x 1 c.m. On the left front of chest 4 c.m. Front the nipple at 9 O'clock position going deep and forward in cutting the sternum on its right side near 4th rib perforating the pleura and then perforating the inner border of right lung at its middle.
(3) An incised wound 3 c.m. x 3/4 c.m. x muscle deep on lateral part of lower most abdomen, which is continuously in it.
(4) An incised wound 2-1/2 c.m. x 1 c.m. Muscle deep on the outer side of right buttock on upper part 7 c.m. Apart.
(5) An incised wound 3-1/2 c.m. x 2 c.m. x muscle deep, I c.m. Lower and back to injury No.4.
12. In the opinion of Dr. Muhammad Yasin, as given by him in Exh.P.G:, the cause of death was due to shock and haemorrhage caused by injuries Nos.1 and 2, which were sufficient to cause death collectively and individually in the ordinary course of nature. All the injuries were ante--mortem, caused by sharp-pointed weapons. Exh.P.G. Is the carbon copy of the post-mortem report and Exh.P.G/1 is the sketch of injuries, both written and signed by Dr. Muhammad Yasin, duly identified by Dr. Abdul Sattar (P. W .7).
13. Aman Ullah Khan, (P.W.9) conducted the investigation as mentioned above. .14. P.Ws. Muhammad Amin, Mst. Nasim Akhtar and Muhammad Rafique were given up as unnecessary and P.W. Muhammad lqbal was given up as having been won over. After the tendering in evidence report of Chemical Examiner (Exh.P.M.) and report of Serologist (Exh.P.N.), the prosecution closed its case.
15. The accused/appellant in his statement under section 342, Cr.P.C. Denied the allegations and stated that the P.Ws. Had deposed against him due to suspicion and Mohallah polities. He, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And did not produce any evidence in defence.
16. It is contended by the learned counsel for the appellant that it was an unseen occurrence, the ocular account has been furnished by highly interested, inter se related witnesses requiring strong corroboration which is missing, the complainant Ghulam Mohy-ud-Din (P.W.4) is a chance witness as it has not been established that he was residing with the deceased, the complainant did not know the general directions of the residential area, which shows that he was not the resident of the area, the complainant himself is the witness of recoveries of blood-stained earth, blood-stained Churri and Bicycle which is violative of section 103, Cr.P.C. And the recoveries in this regard cannot be believed and are doubtful. Reliance in this regard has been placed on Mirza Shah v. The State (1992 SCM R 1475) wherein it has been held that the non-compliance of section 103, Cr.P.C. Has to be explained by the prosecution. Reliance has also been placed on Mushtaq Ahmad v. The State (PJ.D 1996 Supreme Court 574) to contend that the alarming increase of violation of section 103, Cr.P.C. Should be crushed. Learned counsel has also placed his reliance on Muhammad Hussain and Muhammad Akhtar v. The State (1993 SCM R 1614) wherein it has been held that the complainant should not be joined as a recovery witness. It is argued next that the medical evidence shall be totally excluded from the consideration because. Dr. Muhammad Yasin who conducted the post-mortem examination was never produced as a witness and in the absence of the report of the Process Server, the prosecution has failed to establish the death of Dr. Muhammad Yasin, therefore, the post-mortem report is merely a secondary evidence and not a primary evidence. Reliance in this regard has been placed on Sajjad Ahmad and another v. The State (1992 SCMR 408) and State through Advocate---General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 Supreme Court 1).
17. The learned trial Court while repelling such arguments advanced before it by the learned defence counsel placed its reliance upon Qazi Sirajud Din v. Misbahul Islam and 3 others (PLD 1977 Supreme Court 14) in which it has been held that the post-mortem report of the Doctor who is not available can be proved by examining some one who is acquainted with his handwriting and signature. Learned counsel for the appellant has tried to distinguish the above said judgment delivered by the Supreme Court by arguing that in the said case the Process Server had appeared as a witness and had proved the death of the Doctor who had conducted the post-mortem examination report whereas in the present case, no Process Server has been produced to prove that in answer to the issuance of process against the Doctor who had conducted the post-mortem examination, it was reported to the Court by him that he had been informed that the said Doctor had died. It is submitted next that the motive has not been proved and the same has remained shrouded in mystery and the trial Court, has correctly disbelieved the same and the absence of any motive on the part of the appellant points towards the innocence of the appellant. It is submitted next that the statements of P.W.1 to P.W.7 were recorded on S.A. And not on oath as required under the Oaths Act, 1873, as amended by Ordinance XXVII of 1981 and only the statements of P.W.8 and P.W.9 were recorded on oath, therefore, the statements of P.W.1 to P.W.7 cannot be read in evidence against the appellant. It has also been argued that the wife of the deceased, the alleged eye-witness of the occurrence, was given up by the prosecution as unnecessary whereas the minor son of the deceased who was merely 8 years old at the time of the occurrence was produced as an eye-witness (P.W.5) and in the presence of a major witness, child witness cannot be considered to be a competent witness. Reliance in this regard has been placed on State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 Supreme Court 1) wherein it has been held that the evidence of the child witness is to be assessed with care and caution and it is not safe to rely upon his evidence unless corroborated and great care has to be taken in, the evidence of child that the element of coaching is not involved. Learned counsel for the appellant has also argued that the medical evidence qua the time of occurrence does not support the ocular account. In the end it has been argued that the injuries on the hand of the accused have been suppressed by the prosecution. Learned counsel for the appellant while summing up the arguments, has submitted that the motive was far-fetched and shrouded in mystery, the medical evidence was in conflict with the ocular account, eye--witnesses were interested being related to the deceased, inimical towards the accused, therefore, their testimony did not inspire confidence, the independent witness was not examined at the trial arid all these circumstances show that the appellant was innocent and is entitled to be acquitted in the circumstances. Learned counsel has also placed his reliance on Khuda Bukshh v. The State (1996 PCr.LJ 1967 (Lahore)):
18. Learned counsel for the State while opposing the appeal has submitted that the F.I.R. Was promptly lodged within one hour at a distance of four kilometers from the place of occurrence, thus, there was no chance of substitution or of false implication, the P.Ws. Produced by the prosecution are natural witnesses and due to the absence of any previous enmity, they cannot be held to be interested' in the appellant's conviction, prior to the present occurrence, therefore, their testimonies do not require further corroboration, no deep rooted enmity or for that matter any existed between the parties prior to the occurrence, trial Court had rightly believed the recoveries, the Doctor who conducted the post-mortem examination had died and, therefore, the D.D,A. Gave an application for proving the post-mortem examination report through another witness who recognized the handwriting and signature of the Doctor who had conducted the post-mortem examination and the application of the D.D.A. Was not opposed which shows that the factum of death of the said Doctor was admitted by the defence and admitted fact need not be proved by the prosecution. The learned counsel for the State has, however, conceded that the motive as alleged by the complainant is highly improbable, the same has not been proved and it has remained shrouded in mystery but the trial Court has already given the benefit to the appellant in this regard by not awarding him normal punishment of death and by awarding him the lesser punishment of imprisonment for life. Learned counsel for the State, under the circumstances, has not supported the revision of the complainant through which the complainant has sought the enhancement of the sentence of life .Imprisonment to death.
19. P.W.4, the complainant, is the nephew of the deceased and P.W.5, Muhammad Asif, is the son of the deceased. Both of them are natural witnesses. The complainant has stated that he was living with the deceased in his house and nothing has come out in the evidence to cast doubt in this regard. The arguments of the learned counsel for the appellant that the complainant is a chance witness, has thus, no force. No doubt it is the duty of the Investigating Officer to comply with the requirements of section 103, Cr.P.C. And he should make efforts for the attestation of the recovery memos. By involving members of the locality in the recovery proceedings but keeping in view the tendency of people in not volunteering to become witness, the Courts do not insist on the strict compliance of the provisions of section 103, Cr.P.C. And examine the other evidence produced by the prosecution to prove recovery with care and caution. Adoption of such a course is permissible and the evidence of the police official or Investigating Officer is to be accepted like other prosecution witnesses and cannot be discarded merely because the same has been given by a police officer and the same would be accepted if it does not otherwise suffer from any infirmity.
Reliance in this regard can be made to the guidelines provided by the Hon'ble Supreme Court in Mirza Shah v. The State (1992 SCM R 1475) and Mushtaq Ahmad v. The State (PLD 1996 Supreme Court 574), the judgments which have been relied by the learned counsel for the appellant himself.
In toe present case, the complainant and the police officer are the recovery witnesses and there is no reasons to disbelieve them. We are of the view that the police officer failed to involve any independent witness from E the locality because of the tendency of the general public to not to volunteer. It may also be mentioned here that the witness Muhammad Iqbal had been given up as having been on over. The argument of the learned counsel for the appellant that the medical evidence should be totally excluded from the consideration of the Court because Dr. Muhammad Yasin who conducted the post-mortem examination was not produced by the prosecution to prove the post-mortem examination report, has also no force because it has con-d in evidence that during the pendency of the trial, the said Doctor died and the D.D.A. Gave an application for proving of the post-mortem examination report through mother witness who recognized the handwriting and signature of Dr. Muhammad Yasin and the application was not opposed by the defence which show., that the factum of death of Dr. Muhammad Yasin stood admitted by the defence and the prosecution thereafter produced Dr. Abdul Sattar, S.M.O. UHQ Hospital, Faisalabad (P.W.7) who recognized the handwriting and signature of Dr. Muhammad Yasin. The order dated 24-1 1990 passed by the trial Court shows that the defence counsel had not opposed the application moved by the prosecution in this regard. Dr. Abdul Sattar, S.M.O., DHQ Hospital, Faisalabad (P.W.7) got recorded his statement on 7-2-1990 and stated that he knew Dr. Muhammad Yasin as Dr. Muhammad Yasin was working as Casualty Medical Officer at DHQ Hospital, Fasialabad with him in the year 1988 and Dr. Muhammad Yasin died in the month of December, 1988 and P.W.7 was fully conversant with his handwriting. This witness further stated that the post-mortem examination report (Exh.PG) was in the handwriting and bore the signature of Dr. Muhammad Yasin as he identified the same. Interestingly enough, he was not cross-examined by the defence counsel, although he had stated that Dr. Muhammad Yasin had died in the month of December, 1988. It is, thus, held that the prosecution complied with all the formalities in proving the post-mortem examination report (Exh.PG) and the injuries on the person of the deceased have thus been proved.
20. We agree with the learned counsel for the appellant that the motive in this case has not been proved by the prosecution and the same has remained shrouded in mystery. However, the same is not of any avail to the appellant because the absence of 'the motive cannot necessarily lead to acquittal and the appellant has already been given the benefit on this score by the trial Court by not awarding him normal penalty of death.
21. In regard to the objection that the evidence of the P. W:1 to P. W.7 was not recorded by the learned trial Judge on oath, it may be stated that it is not such a fatal flaw which may vitiate the whole trial. The irregularity is certainly curble under section 13 of the Oaths. Act, 1873. In Sajjad Ahmad and another v. The State (1992 SCMR 408) such an objection was overruled by the Supreme Court as the irregularity is curable under section 13 of Oaths Act, 1873. The Hon`ble Supreme Court, however, directed that all the Courts are bound under the law to administer oath to the witness in the latest form of oath as amended by the High Court. We may mention here that the irregularity of recording of the statement of the prosecution witness on solemn affirmation and not on the oath prescribed by the High Court was neither pointed out nor objected to*by any body at the trial stage, in the year 1990 and we are not inclined to order retrial after 10 years merely due to irregularity of the administration of oath by the trial Court which is curable under section 13 of the Oaths Act.
22. The argument of the learned counsel for the appellant that an inference is to be drawn in favour of the accused due to failure of the prosecution to produce the wife of the deceased as a witness, has also no force. The prosecution gave up the wife of the deceased as unnecessary because it had produced the other eye-witnesses of the occurrence and it is not obligatory for the prosecution to produce each and every eye-witness of the occurrence. No doubt the evidence of the child witness is to be assessed with care and caution and it is not safe to rely upon his evidence unless corroborated and great care has to be taken in this regard. However, we have noticed that the trial Court before recording the statement of Muhammad Asif (P. W.5) was cautious enough and put him certain questions to determine as to whether he was capable of rational-answers to the questions to be put to him in the cross-examination and the trial Court has recorded its observation that the witness answered the questions put to him by Court almost correctly and in the opinion of the trial Court the witness was capable of making statement and the trial Court proceeded to record his statement only after having satisfied itself in regard to the capability of the child witness to make the statement before a Court of law. We have gone through the statement of Muhammad Asif (P.W.5) including the answers given by him in the cross-examination. The answers given by him show that he understood the questions put to him and answered them intelligently and he denied the suggestion, that the story of occurrence narrated by him was tutored. We have, however, noticed that he was not cross-examined at any length by the learned counsel for the defence and; therefore, we do not rely solely on his deposition and hold that even if the statement of the child witness is not read in the evidence still the eye-witnesses account given by the complainant Ghulam Mohy-ud-Din in his statement as P.W.4, if we believe him read with other evidence available on record, is enough to prove the prosecution case.
23. The eye-witness account narrated by the complainant Ghulam Mohy-ud-Din (P.W.4) is straightforward, consistent and confidence inspiring. We have already held that he is not a chance witness. He was living in the house of the deceased. He is a natural witness. His statement is fully corroborated by the medical evidence qua the number of injuries, nature of injuries and the time when these were inflicted to the deceased and by the recovery of weapon of offence i.e. Churri (P.5) which was found to be stained with human blood, as per reports of the Chemical Examiner (Exh.P.M.) and Serologist (Exh.P.N). The statement of complainant Ghulam Mohy-ud-Din cannot be discarded merely because he is close relative of the deceased because there was no previous enmity between the parties and the complainant had no motive to falsely implicate the appellant.
It is a day time occurrence and the argument of the learned counsel for the appellant that it was an unseen occurrence, has no force and there is no question of substitution. The F.I.R. Was lodged promptly. The prosecution had therefore, fully established its case and had successfully brought home the guilt against the appellant beyond any shadow of doubt. He was, therefore rightly convicted under section 302, P.P.C.
24. We have also seen no merit in the revision petition of the complainant in view of the fact that the prosecution failed to prove the motive of occurrence, the trial Court, in our view, correctly awarded lesser punishment of imprisonment for life because in our view the prosecution has intentionally suppressed the real motive.
25. In view of the above discussion, we find no merit in the appeal as well as in the revision and both are, therefore, dismissed. The appellant shall, however, be given the benefit contemplated under section 382-B, Cr.P.C.