' Through this appeal filed under section 410, Cr.P.C. The appellant has called in question the legality of his conviction and sentence dated 23-5-1992 passed by Muhammad Siddique Garwah, Additional Sessions Judge, Dera Ghazi Khan whereby the appellant was convicted under section 302(b), P.P.C. Of Qisas and Diyat Ordinance, 1990 and sentenced to suffer imprisonment for life with a fine of Rs,15,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. In default to suffer six months' S.I.
2. The facts of the prosecution case in narrow compass giving rise to this appeal as narrated by Muhammad Ramzan complainant are that he was running a shop of goldsmith in Block 29, Dera Ghazi Khan and his son namely Arshad Hussain aged 18/19 years was working as a labourer on the shop of Ghulam Farid goldsmith situated in Rani Bazar. Today i,e, 22-9-1991 at evening time he left for Arshad Hussain on his shop and after sometime they left for their home. At about .7 p.m. When they reached at Chowk of street situated in Block No,.7, Dera Ghazi Khan they met Arshad Ali and Ashiq Hussain P. Ws. Who were riding on a motorcycle and they had conversation with him while Arshad Hussain his son went ahead. When he had hardly covered a few paces they heard an alarm raised by him and attracted towards the spot. They saw that Ghulam Mustafa alias Balo accused appellant while armed with Chhuri started inflicting Chhuri blows upon the right side of his abdomen whereupon Arshad Hussain was raising hue and cry and was also warding off the attack and then he fell down. Thereafter they tried to apprehend the accused appellant but he decamped away alongwith Chhuri from the spot. Then they escorted Muhammad' Arshad in an injured condition to hospital where he succumbed to the injury.
3. Motive for the commission of crime was that the accused who had a bad character used to force and persuade Arshad Hussain for having friendly relations for the purpose to commit sodomy with him. For this grudge the accused appellant had committed murder of Arshad Hussain deceased. Leaving the dead body of deceased with Ashiq and Arshad P.Ws. The complainant left to lodging the report.
4. Mohib Ali, S.-I. (Investigating Officer) after recording the statement of the complainant left to the hospital, prepared injury statement Exh.P.C. And inquest report Exh.P.D. Of the dead body of the deceased and dispatched the same under the escort of Manzoor Hussain constable for post- mortem examination and then left to the spot, visited the same, collected blood-stained earth from the spot, sealed it into parcel and took into possession vide recovery memo. Exh.P.F. He prepared a site plan without scale. All the drawings and notes are in his hand and bear his signatures.
5. Dr. Muhammad Shafi (P.W.4) on 23-9-1991 at 10-30 a.m. Conducted the examination of the dead body of the deceased aged 22 years identified by Zahid Hussain and Wahid Bakhsh P.Ws. He found the following observation:--- "A young man of normal built. Eyes 'were closed. Post-mortem staining were present on back. Rigor mortis was present on all the limbs. There was corresponding cut on shirt of injury No,l."
' Injuries
(1) An incised stab wound 1-1/4" x 1/2" going deep x chest situated 3" below left nipple.
(2) Three abrasions superficial one 3/4" x 1/8", 1/2" x 1/8"; 1/4" x 1/8" on the right lower chest.
' Thorax wall in 5th intercostals space and structures underneath were cut. 6th rib was partially cut.
Pleura was cut at corresponding place. Pericardium was cut in lower part and heart was also cut at apex and there was a pin-hold in the left ventricle. There was blood in the pericardium. Abdomen.
There was some blood in the peritoneum of abdomen. Diaphragm was cut in its right tomb.
Stomach contained digested food. Small intestines contained gases and digested food. Large intestines contained gases and faecal matter. A cut in left lobe through and through. Bladder was full of urine.
' In his opinion both the injuries were ante-mortem in nature. Injury No,1 was by any sharp-edged weapon. Injury No,2 was by any blunt weapon. Injury No,1 proved fatal. Injury No,
1. Was sufficient to cause death in an ordinary course of nature. Death was due to injury to heart and liver leading to haemorrhage, shock and death. Injury No,2 was simple in nature and was caused by any blunt weapon. Probable time . Between injuries and death was half an hour and duration between death and post-mortem was 20 to 30 hours. After post-mortem examination, police papers, post- mortem report and last-worn clothes of deceased were handed over to police. Exh.P.B. Is the correct carbon copy of his postmortem report and Exh.P.B./1 is the diagram showing the seats of injuries.
6. Mohib Ali, S.-I. Investigating Officer (P.W.8) on 22-9-1991 had taken into possession the last-worn clothes of the deceased shirt Exh.H. P.1, Shalwar Exh.P.2 vide recovery memo. Exh.P.A. Produced before him by Hazoor Bakhsh constable after the post-mortem examination. On 23-9-1991 he handed over the sealed parcel to Moharrir for keeping in Malkhana and for onward transmission to the office of Chemical Examiner. He got prepared site plans Exh.P.H. To Exh.P.H./2 from a Draftsman.
7. On 29-9-1991 Ghulam Mustafa accused was arrested by him. He while in the custody of the police led to the recovery of blood stained Chhuri. He also prepared the site plan of the recovery.
He handed over the sealed parcel of Chhuri for onwards transmission to the office of Chemical Examiner for analysis. He recorded the statements of the P. Ws. Under section 161; Cr.P.C. And after completing the investigation the accused was challaned.
8. At the trial, the learned trial Court framed a formal charge under section 302(b) of Qisas and Diyat Ordinance, 1990 on 17-5-1992 to which he pleaded not guilty and claimed to be tried.
9. In order to bring home the charge against the accused the prosecution produced as many as eight witnesses in support of its case. In other words the prosecution relied upon the evidence of ocular account and motive furnished by Muhammad Ramzan complainant and Arshad Ali P.W.
And the medical evidence furnished by Dr. Muhammad Shafi. In his statement recorded under section 342, Cr.P.C. The accused stated that he has been falsely implicated. However, he did not produce any witness in his defence. Consequently believing the prosecution version, the learned trial Court convicted and sentenced the accused appellant as mentioned above and passed the impugned order hence this appeal.
10. The learned counsel for the appellant by way of challenging the impugned conviction and sentence raised the following contentions:--
(i) That the impugned conviction and sentence passed by the learned trial Court is against law and facts;
(ii) that the prosecution miserably failed to prove allegation of motive against the appellant;
(iii) that the testimony of the eye-witnesses is full of contradiction which does not inspire confidence;
(iv) that the prosecution produced the interested as well as chance witnesses and their testimony cannot be safely relied upon;
(v) that the provisions of section 103, Cr.P.C. Have been violated at the time of recovery from the appellant, therefore, the prosecution failed to prove the recovery of Chhuri from the appellant.
11. On the contrary the learned State Counsel has strongly opposed the contentions raised by the learned counsel for the appellant contending that the impugned conviction and sentence awarded by the learned trial Court does not call for interference by this Court as such the prosecution has succeeded, in proving the charge against the appellant through the evidence available on the record beyond any shadow of doubt.
12. Arguments heard. Record perused.
13. I now deal with the contentions raised by the learned counsel for the appellant in the light of the evidence available on record.
14. Muhammad Ramzan (P.W.5) in brief deposed that the motive behind the occurrence was that the accused was trying to develop friendly relations with the deceased and used to persuade the deceased to allow him to commit sodomy but the deceased was not willing to do so. From the appraisal of the testimony of P.W.5 it emerges that the accused-appellant got strong motive against the deceased to commit his murder. In this view of the matter the contention of the learned counsel for the appellant that the prosecution failed to establish allegation of motive against the accused appellant is devoid of force.
15. The ocular account of the occurrence stands furnished through the testimony of Muhammad Ramzan complainant and that of Arshad Ali (P.W.6). The complainant in brief deposed that he alongwith deceased were going towards their house and when they reached near Chowk of Block No,7 Dera Ghazi Khan where they met Arshad Hussain and Ashiq Hussain P.Ws. The complainant started conversation with them while the deceased proceeded ahead. According to them all of a sudden the accused made an assault with Chhuri on the person of the deceased as such within their view and presence the accused gave Chhuri blows on the person of the deceased then the accused managed to escape from the spot alongwith weapon of offence. The learned counsel for the appellant assailed the credibility of these witnesses on the ground that the complainant being the real father of Arshad Ali closely related to the deceased are unworthy of credence. I am afraid the contention raised by the learned counsel for the appellant is devoid of any legal force. It is well- settled law that mere relationship of the eye-witnesses with the deceased, in the absence of any animus on their part against the accused cannot be made the basis of brushing aside their testimony which is otherwise convincing and natural. In this respect reference can be usefully made to PLD 1971 SC 751 and 1969 SCMR 64. As regards the plea of the learned counsel for the appellant that these witnesses are chance witnesses, it may be observed that by no stretch of reasoning they can be branded as chance witnesses. As observed above the complainant and the deceased were proceeding towards their house when Arshad Ali P.W. Met them in the way and it so happened when the accused armed with Chhuri suddenly came that way, approached the deceased and assaulted mortally. In view of these circumstances the presence of eye-witnesses near the venue of occurrence at that time was not just by chance but natural and in the common routine.. Be that as it may, as held in PLD 1971 Lah. 410 even a chance and interested witness may render truthful version and his testimony is believed in the circumstances of each case. In the instant appeal the appellant has not been able to suggest or prove any kind of hostility of these witnesses towards the accused which may be said to have promoted them to implicate the accused falsely in the instant case of heinous nature. Two ocular witnesses have given consistent, cogent and natural kind of occurrence despite lengthy cross-examination by the defence during the trial. Nothing material could brought out therefrom which may be said to have militated against then- credibility or veracity of the version put forward by them deserves full credence. The Medical Officer (P.W.4) has indicated above-noticed two injuries of different kind. Injury No,1 was from the sharp-edged weapon and injury No,2 was result of blunt weapon. Injury No,1 was proved fatal which caused death in the ordinary course of nature. In this view of the matter the ocular evidence finds full corroboration from the medical evidence. On no premises it can be urged by the appellant that the medical evidence is in conflict with the ocular evidence.
16. Although the learned counsel for the appellant challenged the recovery of blood-stained Chhuri yet the fact remain that Exh.P.G. Recovery of Chhuri corroborates the testimony of the eye- witnesses to this effect that the accused-appellant on the fateful night made the short work of the life of the deceased with Chhuri.
17. The upshot of the above discussion is that the impugned conviction and sentence passed by the learned trial Court does not call for interference by this Court which is hereby maintained.
Consequently, I find no merits in this appeal which is hereby dismissed.
18. Since the accused appellant is on bail. Let a copy of this judgment be sent to the Sessions Judge concerned for issuance of non-bailable warrants of the accused appellant for his arrest to serve out unexpired sentence imposed upon him.