1. ' BASHIR A. MUJAHID, J.--- Azhar Munir son of Mazhar Khan has challenged judgment, dated 14-4- 1997 passed by learned Additional Sessions Judge, Sargodha, whereby he was convicted under section 302-A, P.P.C., for commission of murder of Muhammad Waqas son of Niaz Muhammad and sentenced to death and was imposed compensation of Rs,50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C., in default thereof, he had to undergo six months' R.I.
2. ' The occurrence which resulted into death of Muhammad Waqas took place at 9-00 p.m. On 13-9- 1995 in vicinity known as Muqam Hayat at a distance of 1-1/2 furlongs from Police Station City Sargodha and F.I.R. No,256 Exh.P.G., was lodged by Muhammad Ramzan Ali, P.W.8 at the Police Station at 9-45 p.m. On the same day recorded by Khan Muhammad, Inspector, P.W.10, wherein it was stated that the complainant alongwith his maternal nephew Muhammad Waqas (deceased) who was working as Assistant Development Officer in Industrial Development Department, Munir Ahmad son of Haji Amir Ahmad, P.W.9 and Muhammad Sharif son of Ali Muhammad were going to see Naveed Iqbal, friend of Muhammad Waqas after saying Isha prayers in Muqam Hayat locality, when at about 9-00 p.m., they reached near the house of Mehboob Hussain, Azhar Munir accused confronted and challenged that Muhammad Waqas would be taught lesson for his insult and accused/appellant took out a knife from his fold and inflicted two knife blows on Muhammad Waqas hitting on his back of thumb of right hand and chest who after receiving the injuries fell down and the accused fled away from the spot brandishing the knife. The occurrence was witnessed by the complainant, Munir Ahmed and Muhammad Sharif, P.Ws. In the light of the street lights. Muhammad Waqas was removed to the civil hospital in injured condition, but he succumbed to the injuries.
3. ' The motive for the occurrence was that a few days before Azhar Munir was wandering in the street of Qadir Bakhsh Colony, who was forbidden by Muhammad Waqas deceased and altercation took place and due to this, the accused committed instant offence.
4. ' Khan Muhammad, Inspector P.W.10 after recording the F.I.R., Exh.P.G. On the statement of Muhammad Ramzan, P.W.8 arrived at the Civil Hospital, Sargodha and took the dead body into possession and prepared injury statement vide memo. Exh.P.E. And inquest report Exh.P.F. And entrusted the dead body for post-mortem examination to Sikandar Zulqarnain, F.C. P.W.5 and he himself arrived at the place of occurrence and took into, possession the blood-stained earth from the spot vide memo. Exh.P.H. And prepared the rough sketch of the place of occurrence vide memo.
5. Exh.P.J., recorded the statements of Munir Ahmad and Muhammad Sharif, P.Ws. On 16-9-1995, he arrested Azhar Munir, accused, who on the same day while in police custody led to the recovery of blood-stained knife P.1 which was taken into possession vide memo. Exh.P.8 and got a separate criminal case registered under section 13 of Arms Ordinance, 1965 against the accused and he completed the investigation and challaned the accused.
6. ' The accused denied the allegations and claimed the trial.
7. ' During the trial, the prosecution examined as many as 10 witnesses to prove guilt of the accused, while Niaz Muhammad, father of the deceased was examined as C.W.1. The medical evidence was furnished by Dr. Wasim Jafri, P.W.7, who on 14-9-1995 at 1-30 p.m. Conducted the post-mortem examination on the dead body of Muhammad Waqas and found the following injuries on his persons:--
(1) Incised wound 3 x 1 c.m. Bone deep at palmer aspect of right thumb.
(2) Incised wound 3 x 2 c.m. Front of left upper chest 5 c.m. Above left nipple 4 c.m. From midline.
8. ' In his opinion, injury No,2 led to haemorrhage and shock and was sufficient to cause death in ordinary course of nature and the same was the result of sharp-edged weapon and was ante- mortem. According to the doctor the time between the injury and death was 5 minutes and between death and post-mortem examination about 16 hours.
9. ' The ocular account was furnished by Muhammad Ramzan, P.W.8 and Munir Ahmad, P.W.9.
10. Muhammad Ramzan, P.W.9 was complainant of the case. He supported the version of the F.I.R., and he also narrated the motive for the alleged occurrence. Munir Ahmad, P.W.9 supported the prosecution story as an eye-witness of the occurrence. His statement was in line of the statement of Muhammad Ramzan, complainant. Muhammad Shamsher, P.W.4 had attested the recovery memo. Exh.P.8 whereby the accused Azhar Munir got recovered the knife P.1 the weapon of offence and proved the recovery alongwith Khan Muhammad, Inspector/Investigating Officer P.W.10.
11. Muhammad Saleem, Draftsman was examined as P.W.3, who had prepared the site plan on the direction of the prosecution witnesses and of the police. Niaz Muhammad, father of the deceased was examined as C.W.1, who had identified the dead body of Muhammad Waqas, deceased at the time of post-mortem examination.
12. ' The remaining witnesses are of formal nature.
13. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner, Exh.P.K and Exh.P.L., and that of Serologist Exh.P.M and Exh.P.N.
14. ' The statement of the accused/appellant was recorded under section 342, Cr.P.C. Towards the end of the trial, who denied the charge and claimed his innocence and false involvement at the instance of his opponent and because of suspicion. He, in his defence, placed on record application moved to the Municipal Engineer dated 16-12-1996 alongwith certificate of Municipal Engineer that there was no street light in the locality Exh.D.C. Copy of judgment dated 20-10-1996 Exh.D.D. Whereby he was acquitted under section 249-A, Cr.P.C. In a case registered against him under section 13 of Arms Ordinance, 1965, for keeping the knife (weapon of offence in the instant case) and death certificate of Ch. Sardar Muhammad Exh.D.E. Who died on 2-5-1995.
15. ' The trial culminated into conviction of the accused/appellant as mentioned above. He has challenged his conviction and sentence through Criminal Appeal No,163 of 1997 while the trial Court has sent up Murder Reference No,106 of 1997 for confirmation of death sentence of the appellant under section 374, Cr.P.C. Both the matters are being decided by this single judgment.
16. ' Learned counsel for the appellant has argued that it was an unwitnessed occurrence took place during the night. The prosecution witnesses were not natural and chance' witnesses and their physical presence at the spot has not been proved; that the prosecution witnesses are closely related to the deceased and that ocular account has not been corroborated from any independent source; that there is the clear contradiction in the ocular account and the medical evidence as from the nature and seat of the injuries it is shown that it was a result of single blow but according to the prosecution witnesses, the appellant/accused has caused two injuries; that the alleged mutive has not been proved; that recovery of weapon of offence has been planted; that the delay in conducting post-mortem examination shows that the case was registered with an inordinate delay after consultation and deliberations; that the prosecution witnesses have been brought to depose falsely against the appellant.
17. ' Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment.
18. ' We have given due consideration to the arguments raised at the bar and also perused the record.
19. The alleged occurrence took place at 9-00 p.m. And the F.I.R. Was recorded at 9-45 p.m., the accused was nominated in promptly recorded F.I.R. The availability of the street lights was also shown at Point No,4 in the site plan prepared by Muhammad Saleem, Draftsman P.W.3 and he has not been cross-examined on this score, therefore, the argument of the learned counsel that there was no street light in the locality has no force and the certificate Exh.D.C. Has no legal value as the same has not been proved in accordance with law. The presence of the eye-witnesses at the place of occurrence has been proved. Niaz Muhammad, C.W.1 has clarified that he had gone to attend the funeral of his brother at Okara and returned back on 14-9-1995 after 'Qul' ceremony. It is not especial that all the relations should have gone to attend the funeral of their relative. Munir Ahmad, P.W.9 has no direct relations with the deceased. Both the eye-witnesses are resident of the same locality. Muhammad Ramzan, complainant is although maternal-uncle of the deceased but mere relationship is no ground to discard his testimony as he or Munir Ahmad have no previous enmity against the accused/appellant for his false implication or substitution, by letting off the real culprits. Their statements are confidence-inspiring. They stood to the test of lengthy cross- examination but no material discrepancy has been brought on record to discard their testimony.
20. The argument of the learned counsel that the post-mortem examination was conducted at 1-30 p.m. On 14-9-1995 when the occurrence took place at 9-00 p.m. On 13-9-1995 and the delay in conducting post-mortem examination creates serious doubt about the occurrence as alleged by the prosecution, has no force as no question in this regard has been put to the doctor as to why the post-mortem examination was delayed. The Investigating Officer has specifically stated that dead body was sent to the mortuary after necessary investigation before mid-night on the day of occurrence. We also do not find any contradiction in medical evidence and the ocular account.
21. The argument of the learned counsel that both the injuries on the deceased could be the result of one blow has no force as no such question was put to the doctor. The recovery of the blood- stained knife has also been proved by the prosecution corroborated by positive report of Chemical Examiner and that of Serologist and we do not find any lacuna in the recovery proceedings.
22. ' As far as the motive is concerned, it is settled law that absence or weakness of the motive is immaterial if the case of the prosecution has been proved against the accused by direct evidence.
23. Reliance can be placed on 1999 SCM R 1668 and 2001 SCM R 1334.
24. ' After deep re-appraisal of the evidence we are convinced that the prosecution has successfully established its case by ocular account, corroborated by medical evidence and the recovery of weapon of offence, therefore, we do not find any reason to interfere in the conviction recorded against the appellant and also do not find any mitigating circumstance to reduce the normal penalty of death, therefore, the appeal is dismissed. The death sentence of Azhar Munir appellant/accused is confirmed. However, to correct the record, the conviction be considered under section 302(b), P.P.C. Instead of section 302(a), P.P.C. Recorded by the learned trial Judge.
25. The sentence of compensation is also maintained.
26. ' Murder Reference is answered in affirmative.