MUHAMMAD ASHRAF Versus THE STATE

RIAZ HUSSAIN, J.------ Muhammad Ashraf alongwith Abid son of Saifullah were tried under section 302/34, P.P.C. by the learned Sessions Judge. Sahiwal for the murder of WAN Muhammad who vide his judgment, dated 11-3-1992 convicted and sentenced him to death and a fine of Rs.20,000 or in default of payment of fine to undergo rigorous imprisonment for five years. The fine was to he paid to the legal hers of the deceased as compensation. Abid was acquitted of the charges. The appellant/convict has filed this appeal. Learned trial Court has referred this case under section 374, Cr.P.C. for confirmation of death sentence. We propose to dispose of both the matters by this judgment.

2. The facts of the case succinctly were to the effect that on 30-11-1989 at 8 a.m. complainant's brother Wali Muhammad left the house riding his bicycle. His brother Qutab Ali complainant, Muhammad Sharif and Muhammad Jaffar proceeded to their land which was towards the south of their village. They were at a some distance from the deceased who was ahead of them. When they reached village pasture in Killa No.23, Square No.27 situate in the area of Chak No.38/12-L, Ashraf appellant and Abid who were in ambush suddenly emerged on the scene of occurrence. The appellant was armed with a dagger while Abid was empty-handed. The appellant exhorted that the deceased would not go alive. Abid took Wali Muhammad in his elapse while appellant Ashraf gave him three dagger blows. The first blow hit him on his chest and the second one landed on his right elbow and pierced it through and through, and third blow inflicted with the handle of the dagger on his head. The complainant and the witnesses tried to apprehend him but he made escape from the scene of occurrence. Wali Muhammad deceased succumbed to the injuries on the spot

3. The motive as disclosed in the F.I.R. was that about 5 or 6 months prior to the occurrence deceased Wali Muhammad and appellant Muhammad Ashraf picked up a quarrel in the village.

4. Muhammad Akram, Inspector Police P.W.9 recorded the statement of Qutab Ali complainant. He after recording the F.I.R. Exh.P.G, went to the spot, prepared the injury statement Exh.P.H. and inquest report Exh.P.I. of the deceased and sent the dead body for post-mortem examination. During the spot inspection he collected the blood-stained earth, vide memo. Exh.P.C took into possession from the spot a bicycle Exh.P.5 and a phial Exh.P.6 from the spot vide memo. Exh.P.D. He got prepared the site plans Exhs.P.A., P.A./1 and P.A. /2 from the Halqa Patwari.

5. The appellant and Abid acquitted accused were arrested on 12-12-1989. The appellant while in police custody led to the recovery of blood-stained dagger Exh.P.7 from his Dera situate within the area of Chak No.38/12-L which was taken into possession vide memo. Exh.P.E. He recorded the statements of the witnesses under section 161, Cr.P.C. He submitted the challan after the completion of necessary investigation.

6. On 30-11-1989 P.W.6 Dr. Sajid Latif, Medical Officer Tehsil Headquarter Hospital, Hazro, District Attock conducted the autopsy on Wali Muhammad and noted the following injuries:--

(1) A lacerated wound 4 c.m. x 2 c.m. x bone deep right side of head 10 c.m. above right ear.

(2) An incised wound 4 c.m. x 1 c.m. x going deep on anterior axillary line 6 c.m. above and outer to left nipple.

(3) An incised wound 6 c.m. x 3 c.m. through and through on front of right elbow joint. This was entry wound.

(4) An incised wound 1 c.m. x 1/2 c.m. x through and through and back of right elbow joint corresponding exit wound of injury No.3.

On opening the thorax, the second rib beneath injury No.2 was found fractured. Left pleura was also found cut. Left lung was cut through and through. In the upper lobe inlet wound was on the front side while there was outlet wound on the right side on the back. Both the ventricals of the heart were empty. In the opinion of the doctor the death was occurred due to shock and haemorrhage, collapse of the left lung and injury to vital organs i.e. to left lung. The injury No.2 was found grievous and sufficient to cause death in the ordinary course of nature.

7. To support its case at the trial the prosecution placed reliance upon the ocular testimony furnished by P.W.7 Qutab Ali brother of the deceased and P.W.8 Muhammad Jaffar. Ali Muhammad who had witnessed the recovery of weapon of offence appeared as P.W.5. When examined under section 342, Cr.P.C. the appellant denied the charge and stated that he had been falsely implicated in the case on account of previous enmity. He also denied the recovery of dagger. He also did not appear in his own defence as provided under section 340(2), Cr.P.C.

8. Learned counsel for the appellant argues that the eye-witnesses were closely related with each other and as well as with the deceased and therefore, no implicit reliance can be placed upon them. It is also submitted that the medical evidence did not corroborate the ocular version. It is further argued that the factum of recovery of weapon of offence was not witnessed by any independent person. It is vehemently contended that the complainant did not know as to what actually happened before the occurrence and it was for that reason that the complainant at the time of lodging of F.I.R. narrated the motive part of the story in a wishy-washy way.

9. We have carefully examined the entire evidence on the record with the assistance of the learned counsel for the appellant and the State and have also heard them at length.

10. Mete relationship of the witnesses inter se and with the deceased was no ground to disbelieve them especially when no serious enmity with the appellant was brought on the record. Admittedly under these circumstances they could not be termed interested witnesses because an interested witness is that who has motive to falsely implicate the accused. The fact of the matter is that the statement of the witnesses were consistent on material points. Even in cases where evidence was furnished by the interested witnesses, the same could be believed because the requirement of the corroboration in such circumstances was only a rule of prudence. Reliance can be placed on Niaz v. The State PLD 1960 SC (Pak.) 387 wherein it was observed as follows:--

"Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborate their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of such case. However, the circumstance itself must be proved beyond all reasonable doubt. This rule of prudence requiring corroboration of partisan evidence has generally been accepted by Courts and was accepted by all the Judges of Federal Court of Pakistan in Ashraf and others v. The Crown 1955 FCR 93 = PLD 1956 FC 86 although the learned Judges were not in agreement as to what constituted corroboration. "

11. There is also no inconsistency between the medical evidence and the ocular version. Plea of the learned counsel that since the deceased died on the spot, therefore, the statement of the doctor that time between the injuries and death could be within one hour was of no consequence because that statement on the face of it did not damage the prosecution evidence regarding the time of death of the deceased.

12. The contention of the learned counsel that since recovery was not witnessed by an independent person and therefore, it was dubious was not tenable. It was the appellant himself who led to the recovery of dagger Exh.P.7 from his Dera. When it was so, the provisions of section 103, Cr.P.C. were not attracted which necessitated the presence of the respectable persons of the same locality. Reference can be made on Ballia and others v. The State 1985 SCMR 854 which is as follows:--

"In the first instance, the applicability of that section to a recovery made at the pointing of an accused was not clearly established. The late Tufail Ali A. Rehman, C.J. in Abdul Rashid v. State PLD 1975 Kar. 92 had in a similar situation expressed: ' I am in the first place at least doubtful whether section 103 has any application to this case at all...' Section 103 is applicable to a search made under Chapter VII of the Code of Criminal Procedure in pursuance of a search warrant. The recovery in the instant case was not made in pursuance of any such warrant. Moreover, the stress under section 103 is rather on the respectability of the witness and if he be found to be respectable, he may not be disbelieved merely because he did not hail from the locality. Nothing had been brought out to detract from the respectability of Bagga as a witness. The other recoveries were rightly believed on the basis of the evidence of the Investigating Officer in the absence of the public witnesses who had not been produced as they had been won over., His evidence is not to be discarded merely because he was a Police Officer but it is open to test in the same manner as the evidence of any other witness. "

We are not unmindful of the fact that it is not necessary for the prosecution to set up the motive. However, once it is set up, the prosecution is allegedly obliged to prove it. The complainant described the venue of altercation between the complainant and the deceased a Chak (village) in the F.I.R. whereas P.W.7 he described the same a School but added that the deceased subsequently slapped the appellant in the village Chowk. This subsequent improvement appears to be an afterthought. It can, therefore, be safely concluded that the complainant was not aware as to what immediately preceded the occurrence which incensed the appellant to commit the murder of Wali Muhammad deceased.

14. From the resume of the above facts we hold that the prosecution has been able to prove the case beyond any reasonable doubt.

15. We are, however, not inclined to confirm the- death sentence of the appellant, the same is converted into life imprisonment but we maintain the sentence of Rs.20.000 (Rupees twenty thousand) or in default of payment of fine) he shall undergo rigorous imprisonment for five years. In case the said amount of fine is realised from the accused, the same shall be paid to the legal heirs of the deceased as compensation as ordered by the learned trial Court. The appellant shall also be given the benefit of section 382-B, Cr.P.C.

16. The appeal under these circumstances is, therefore, dismissed with the above modification.

17. The death sentence is not confirmed

N.H.Q./M-67/L Sentence reduced.