MUHAMMAD SALEEM Versus State Masood Sadiq Mirza

KHAWAJA MUHAMMAD SHARIF, J .---This judgment will dispose of Criminal Appeal No.125/J of 2004 filed by Muhammad Saleem, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Faisalabad vide his judgment, dated 12-2-2004 to undergo imprisonment for life under section 302(B), P.P.C. with further direction to pay Rs.300,000 as compensation to the legal heirs of the deceased or in default thereof six months' S.I. with the benefit of section 382-B, Cr. P. C.

It may be noted here, that Mr. S.D Qureshi; Advocate, who was deputed to defend the appellant at State expenses by this Court, is not well-prepared with his brief, so depute Mr. Masood Sadiq Mirza, Advocate to argue this appeal on behalf of the appellant while Mr. S.D Qureshi, Advocate will appear on behalf of the State.

2. Brief facts of the case, as disclosed by Muhammad Ayub complainant are that on 14-1-2003 he came in Street No.6 Faiz-Abad behind Darbar Baba Qaim Saain, Faisalabad to see Bashir Ahmad his brother and was present in his house at about 8-30 p.m. and the electric bulb was on; that Muhammad Saleem accused who previously used to reside in the room adjacent to the room of his brother on rent, came there and asked from the accused that why was he asking about his brother, in reply he stated that he had to take some money from his brother Bashir Ahmad, that he asked the accused to sit and wait for his brother, who had gone in the morning on his work, that in the meanwhile, his brother came there seeing Saleem accused he asked the accused that why he had come in his house, while he had been forbidden from coming in his house, that hearing his Saleem accused stood up and caught the collar of his brother Bashir Ahmad and took out the dagger from the Naifa of his Shalwar and inflicted injury with his dagger on the left side of chest" of Bashir Ahmad near heart due to which Bashir Ahmad became grievously injured and fell down on the ground, that on his noise Asghar Ali and Naseer Ahmad' P.Ws. came there, which were his Mamoonzad and nephew respectively, that they saw the occurrence and saved Bashir Ahmad from the accused Muhammad Saleem while Muhammad Saleem accused fled away from the spot waving the dagger in his hand. Complainant along with P.Ws. took Basher Ahmad in an injured condition to Allied Hospital, Faisalabad but in the way he died due' to the injury.

Motive behind the occurrence was that Muhammad Saleem accused and Bashir Ahmad were living in two separate rooms in the same premises on rent, that in the meanwhile, Muhammad Saleem accused developed illicit relations with Mst. Irshad Bibi wife of Bashir Ahmad due to which a quarrel took place between them and on compromise through people of the Mohallah the house was got vacated from Muhammad Saleem due to which grudge Muhammad Saleem murdered Bashir Ahmad deceased.

3. Investigation of the case was taken over by Ahmad Abbas S.I. P.W.10. He after registration of the formal F.I.R., reached Allied Hospital, Faisalabad, examined the dead-body of the deceased, prepared injury statement Exh.Ph and inquest report Exh.PJ, then went to the place of occurrence, took into possession blood-stained earth vide recovery memo. Exh. PG, recorded the statements of the witnesses under section 161, Cr.P.C. On 27-1-2003 he arrested Muhammad Saleem accused, who while in custody got recovered dagger P.5, which was taken into possession vide recovery memo. Exh. PD. After completion of remanding formal investigation, the accused was challenged to face the trial.

4. At the trial, prosecution in order to prove its case produced 10 witnesses in all; thereafter, learned S.P.P. tendered in evidence report of Chemical Examiner Exh. PM and that of Serologist Exh. PN and closed the prosecution case then the statement of the appellant was recorded under section 342, Cr.P.C. in which he pleaded`. After conclusion of trial, the accused was convicted and sentenced as stated above by the learned trial Court.

5. Learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, submits that appellant was falsely implicated in this case, that occurrence took place in dark hours of night, that eye-witnesses were not present at the spot; that both the eye-witnesses are, very closely related to the deceased, that no independent witness was produced by the prosecution, that 'dagger was planted on the appellant and he is entitled to acquittal, as the prosecution failed to prove its case against the appellant beyond any shadow of doubt.

6. On the other hand, learned counsel for the State submits that appellant is the only accused in this case, that there was no question of substitution because substitution is a rare phenomenon, that ocular account is fully corroborated by medical evidence. He supports the judgment of the learned trial Court.

7. I have heard the learned counsel for the parties at a very, great length and have also gone through evidence available on record. Occurrence in this case had taken place on 14-1-2003 at 8-30 p.m. in the house of Bashir Ahmad deceased, where his brother Ayub (complainant) was already present in order to see him. In the meanwhile, appellant came there and asked about Bashir Ahmad deceased from him, who was not present, later on, Bashir Ahmad deceased came and on seeing Saleem accused he asked the accused that why he had come in his house while he had been forbidden from coming to his house, on which Muhammad Salemm accused stood up and caught hold of the deceased from his collar and then after taking the dagger from the Naifa of his Shalwar gave single injury on the chest near heart due to which Bashir Ahmad became grievously injured and fell down on the ground, thereafter, he was taken to hospital but in the way he died. Motive given in the F.I.R. was that both deceased and the appellant were tenant in two different rooms in the same house and Muhammad Saleem appellant had developed, illicit relations with the wife of deceased; on which, an altercation had taken place but due to intervention of the Mohalladar the said room was got vacated from Muhammad Saleem accused, due to which grudge Muhammad Saleem murdered Bashir Ahmad deceased. Matter was reported to the police on the same day at 12-5 p.m. on 15-1-2005 while the formal F.I.R. was recorded on the same day at 12-20 p.m., the distance between police station and the place of occurrence was two kilometers. The prosecution produced two eye-witnesses, namely, Muhammad Ayub, real brother of the deceased and Naseer Ahmad (P. W.9) nephew of the deceased. The learned trial Court while relying upon the testimony of Muhammad Ayub complainant convicted and sentenced the appellant to undergo imprisonment for life and the reason given by the learned trial Court for lesser sentence was that prosecution could not prove the motive in this case. It is a case of single accused, promptly lodged F.I.R., no question of substitution and neither it can be expected from. real brother of the deceased that he would leave the actual culprit and would falsely involve the present appellant, who was armed with dagger and caused single below on the left side of chest of the deceased near heart, which proved fatal. Ocular account in this is fully corroborated by medical evidence. Appellant was arrested in this case on 27-1-2003 he led to the recovery of dagger on 31-1-2003 already the learned trial Court has taken a very lenient view on the ground that prosecution failed to prove the motive in the instant case. There is no question of false implication of the appellant in this case. Court has to see the quality of evidence and not the quantity of evidence. I am satisfied with the prosecution case especially the statement of Muhammad Ayub complainant brother of the deceased. Resultantly, there is no merit in this appeal and the same is dismissed. The conviction and sentence recorded against the appellant by the learned trial Court is maintained in toto.

H.B.T./M-315/L Appeal dismissed.