RIAZ AHMAD Versus THE STATE Khalid Ranjha , Saeed Akhtar, Kh. M. Asghar for the State.

MUHAMMAD MUNIR KHAN, J. ‑‑ This Criminal Appeal No. 196 of 1983, connected Murder Reference No. 169 of 1984 and Criminal Revision No. 54 of 1984 by Niaz Ahmad complainant for the grant of compensation under section 544‑A, Cr.P.C. arise from the judgment of learned Additional Sessions Judge, Multan whereby he on 25‑8‑1983 convicted Riaz Ahmad appellant under section 302, P.P.C. for causing the death of Bashir Ahmad and sentenced him to death and a fine of Rs.10,000, in default thereof two years' R.I. It was directed that the fine when realized, Rs.6,000 be paid to the heirs of the deceased. I propose to dispose of them through single judgment.

2. The occurrence took place on 26‑6‑1982 at 8‑00 p.m. in the area of Chak No. 170/10‑R, P.S. Khanewal. The distance between place of occurrence and the police station is 6 miles. The F.I.R. Exh.P.C. was lodged at police station by Niaz Ahmad P.W.5, the brother of the deceased on the same day at 10‑00 p.m. which was recorded by Ghulam Farid, S.I., P.W.9.

3. The motive as alleged by the prosecution was that Sohnay Khan, father of Riaz appellant had taken land on lease for a period of 5 years from Niaz Ahmad complainant. Two years before the expiry of lease period, the possession of‑ the land was taken back by Niaz Ahmad and Bashir Ahmad deceased. The appellant had been asking for the return of the lease money of two years. In this connection Panchayats were convened to settle the dispute but the matter could not be settled and as such Riaz appellant bore grudge against the deceased, etc., hence this occurrence.

4. As far the main occurrence it has been stated that at the eventful time, Bashir Ahmad deceased, Niaz Ahmad complainant, brother of the deceased were going towards their Dera. They saw Riaz appellant sitting in front of his Bethak. They passed in front of him. When they reached village Chowk, Riaz Ahmad appellant came armed with a knife from behind. He raised Lalkara that he would teach lesson for taking the possession of the land from them. He inflicted knife blow on the left side of the chest of Bashir Ahmad who fell down and died immediately. The alarm also attracted Faqir Muhammad P.W.6 and Abdul Salam (given up) to the spot. The appellant made good his escape taking away knife with him.

5. On 27‑6‑1982 at 10‑30 a.m. Dr. Muhammad Iqbal, P.W.7 conducted post‑mortem examination on the dead body of Bashir Ahmad deceased. He found following injury on his body:‑

"A stabbed wound 3 c.m. x 1 c.m. x chest cavity. Over the left interior side of chest in the region of heart, 3.5 c.m. inner to left nipple."

On internal examination, the doctor found:

"Left side of chest was perforated on the anterior side, left third rib was cut near its sternal end, in cartilganeous. Chest was congested. Left side of chest was full of blood.

Heart and its membrane was congested and perforated on the anterior side. Right atrium was perforated and congested. Heart contained blood clots. Left side of pleura was congested. Left lung was mildly congested. Larynx and trachea was congested. All other organs were found healthy and pale. The stomach was full of undigested food."

In his opinion the death was due to shock and haemorrhage which was produced by extensive and fatal heart injury i.e. injury No. 1, which was sufficient to cause death in the ordinary course of nature. The injury was caused by sharp‑edged weapon. The death was immediate. The time between death and post‑mortem was 14 to 15 hours. In cross‑examination, the doctor stated that in view of the nature of the injury, the blood must have come out of the wound. The injury must have profusedly bleeded because the seat of the injury was the heart.

6. The appellant was arrested on 28‑6‑1982 by Ghulam Farid, S.I., P.W.9. He led to the recovery of blood‑stained knife Exh.P.3 from his house which was taken into possession vide memo. Exh.P.D. attested by Niaz Ahmad, P.W.5 and Faqir Muhammad P.W.6. The recovery was effected by Ghulam Farid, S.I., P.W.9. It may be noted that the learned trial Court has not acted upon this recovery because the recovery witnesses are also the eye‑witnesses of the case and no independent person of the locality was joined in the recovery proceedings. The trial Court observed that the recovery of blood‑stained knife Exh.P.3 from the appellant was not proved satisfactorily and could not be‑treated as corroborative piece of evidence.

7. To prove its case prosecution has produced 8 witnesses. Dr. Muhammad lqbal, P.W.7 has proved the post‑mortem report of the deceased. Niaz Ahmad, P.W.5 and Faqir Muhammad, P.W.6 have given the ocular account of the occurrence. They claim to have seen the appellant giving knife blow to Bashir Ahmad resulting in his death. They have also supported the recovery of blood‑stained knife Exh.P.3 from the appellant. Ghulam Farid S.I., P.W.9 also stated that the appellant had led to the recovery of blood‑stained knife Exh.P.3 from his house. The Serologist Report Exh.P.J. reveals that the knife Exh.P.3 was stained with human blood. Niaz Ahmad has also deposed about the background of the occurrence. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. In reply to the question, as to why the case against him? He stated:‑

The complainant party was inimical towards me and my family. My father abondoned the possession of the lease land prior to the expiry of the lease period and demanded for the lease amount for the remaining period and in this regard there was dispute between my father and the complainant party. I have been siding my father. My father left for Libya as stated above and made arrangements for my departure to Libya. Few days after the occurrence I was expected to leave for Libya in connection with my earning of livelihood. The complainant party because of animosity, when heard, involved me in this case falsely as the occurrence was not witnessed by anybody. The night of occurrence was dark. The dead body of Bashir deceased was detected late in night and later on the police and the complainant party, in connivance with each other, falsely involved me in this case. In the village society the opponents do not bear the opposite group and the members of the opposite group to proper and to become financially sound person. The complainant party was feeling jealous of my leaving to Libya and also for my father having left for Libya. Deceased was a bad character. He was having illicit relations with the family of one Jamil Bazigar. He also used to visit the fields where the womenfolk of the village used to go to ease themselves in the late hours in the evening. These fields are situated towards the west of the village. Male population never go to that side. I am innocent."

In defence Salim Iqbal, Patwari was produced as D.W.1. He stated:‑

"According to the Akis Shajra Parcha and the Register Haq Daran Zameen, the residential Ihatta located in south‑eastern corner of the place of occurrence belongs to Muhammad son of Fatta. The number of its residential Ihatta is 53/2."

The witness also stated that:‑

"The residential Ihatta located in south western corner of the place of occurrence belongs to Lal son of Muhammada I share and Chiragh son of Boota and Miran Bux son of Khaira I share in equal shares."

The witness further stated that:‑

"There was a Katcha road on all the four sides of Square No. 34. 10 Acres of Chiragh locates on the west of Square No. 34, which is adjacent to it. The Akis Shajra Parcha Zari did not show any sanctioned path from Abadi Dehy towards the west. The complainant owned 15 Acres of land. The Acres No. 94 belong to the father of the complainant which was et a distance of 143 feet from the road on the southern side. This road directly leads to the land of the complainant."

The witness stated that according to Akis Shajra Parcha there was no Behani of the complainant on this land.

9. The trial Court has disbelieved the version of the occurrence given by the appellant. Believing the motive and the ocular evidence, it has convicted and sentenced the appellant as stated above.

10. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubts, inasmuch as, the ocular account has been furnished by related, inimical and chance witnesses; that the occurrence did not take place on the spot alleged by the prosecution; that no blood was taken into possession from the spot; that the witnesses did not make any attempt to catch hold of the appellant /accused; that there was no light at the place of occurrence, therefore, it was not possible for the witnesses to identify the culprit; that in fact it was an unseen murder; the appellant has been involved by the complainant with the connivance of the police on account of enmity and jealousy; that the deceased had other enemies also as he had illicit relations with the family of Jamil Bazigar; that the recovery of knife Exh.P.3 from the appellant has already been disbelieved by the trial Court and that there is a reasonable possibility that the version of the occurrence given by the appellant might be true. The learned counsel also prayed for the alternative sentence provided under section 302, P.P.C. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court. Learned counsel for the petitioner in the connected revision has requested for the grant of compensation under section 544‑A, Cr.P.C.

11. We have considered the arguments advanced by the learned counsel for the parties with care. After having appreciated the evidence in accordance with the guidelines given by the superior Courts for the appreciation of evidence in such like cases, we have not been able to persuade ourselves to agree with the learned counsel for the appellant. We find that it is a case of prompt F.I.R. The report was recorded after about 2 hours of the occurrence. The names of the witnesses, the name of the appellant, the weapons used by him and the manner of the occurrence are detailed therein. There is nothing on record to doubt that the F.I.R. Exh.P.C. was not written at the time and place as it indicates. So this valuable document can be used to corroborate the statement of Niaz Ahmad, complainant, P.W.5. The motive as alleged by the prosecution is almost admitted by the appellant. In his statement recorded under section 342, Cr.P.C., he stated that his father had obtained land on lease for 5 years from the complainant party but he had abandoned the possession before the expiry of the lease period and had demanded for the lease money for the remaining period and in this regard there was dispute between his father and the complainant, party and that he had been siding his father. It is thus, very much obvious that the motive, if any, was with the appellant and not with the complainant party who had not only received the lease money fort the whole period of lease but also had got back possession of the land before the expiry of the lease period. The two eye‑witnesses namely Niaz Ahmad, P.W.5 and Faqir Muhammad, P.W.6 have given probable cause of their presence at the time and place of occurrence. The occurrence having taken place near the village Chowk, the two eye‑witnesses cannot be termed as chance witnesses. Niaz Ahmad is, no doubt, real brother of the deceased but mere relationship is no ground to reject his testimony. Faqir Muhammad, P.W.6 is quite independent witness. He is not related to the deceased. Both the eye‑witnesses had no animosity against the appellant. They have successfully faced the cross‑examination. Nothing advantageous to the defence would be elicited from them. They have involved single accused. The number of the injuries and the number of the accused named by them do commensurate. Their statements are in consonance with probabilities and fit in with other evidence. We do not see any conflict between the statements of the eye‑witnesses and the medical evidence. It is in the evidence that before the infliction of the injury, the appellant had raised Lalkara on which the deceased had stopped and as such, the natural probability was very much there that when he turned his face to see as to who he was, the appellant stabbed him on the chest. To our mind, the two eye‑witnesses have given confidence, inspiring statements. The occurrence took place at 8‑00 p.m. It is in' the F.I.R., statement of the eye‑witnesses and the statement of Salim Iqbal, Patwari, D.W. 1 that there were light arrangements near the place of occurrence, so there was no difficulty in the identification of Riaz appellant by the two eye‑witnesses, who knew him previously. The appellant has not been able to lay down any foundation for his substitution in place of real culprit. The defence evidence does not rebut prosecution case and its evidence. So far as the criticism relatable to the place of occurrence is concerned, the non‑collection of blood by the Investigating officer from the place of occurrence would not lead to irresistible conclusion that the occurrence had not taken place there. In his statement recorded under section 342, Cr.P.C. the appellant has not disputed the place of occurrence. The Investigating Officer was also not cross‑examined with regard to the non‑collection of the blood from the place of occurrence. No doubt, the Doctor has stated that the injury must have profusedly bleeded and the blood must have come out of the wound, yet the possibility in the instant case of the blood not falling on the ground is very much there because on opening the chest cavity, the doctor found that the left side of the chest was full of blood. For all these reasons, the arguments addressed by the learned counsel for the appellant do not hold any water. We are convinced that the trial Court has rightly convicted the appellant under section 302, P.P.C. for the murder of Bashir Ahmad.

12. This brings us to the question of sentence. We have attended to it with utmost care and caution. We do not see any extenuating/ mitigating circumstance in favour of the appellant for lesser penalty.

13. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is dismissed and the sentence of death awarded by the learned trial Court to Riaz Ahmad appellant is, thereby, confirmed. Since the trial Court has already directed that out of the fine of Rs.10,000, an amount of Rs.6,000 be paid to the heirs of the deceased, we do not see any reason to entertain revision, which is also dismissed.

M.Y.H.

Appeal dismissed.