ALLAH DITTA Versus THE STATE

MUHAMMAD NAWAZ ABBASI, J. ‑‑‑ The appellant, namely, Allah Ditta alongwith Muhammad Yar his brother and Riaz Ahmad son of Naseer Ahmad, acquitted accused was tried for the charge of committing the murder of Abbas real brother of Muhammad Sharif complainant. The appellant upon conviction under section 302, P.P.C. has been sentenced to death while giving benefit of doubt to his co‑accused, namely, Muhammad Yar and Riaz Ahmad were acquitted of the charge by the learned Additional Sessions Judge, Pakpattan, Sharif, vide judgment, dated 10‑3‑1993. The appellant has filed the instant appeal (Criminal Appeal No.96 of 1993) against his conviction and sentence and the learned trial Court has sent Murder Reference No.87 of 1993 under section 374, Cr.P.C. to this Court. The State or the complainant has not preferred any appeal or revision against the acquittal of Muhammad Yar and Riaz Ahmad. The appeal and the murder reference are being disposed of together through this judgment.

2. The facts of the prosecution case as contained in the F.I.R. Exh.P.D. registered on the report lodged by Muhammad Sharif P.W.5 at Police Station Saddar, Pakpattan Sharif recorded by Muhammad Rafiq, Inspector/S.H.O. P.W.10 on 28‑5‑1992 are to the following effect;‑‑

"That on 27‑5‑1992 at 7‑00 p.m. the complainant alongwith his brother Abbas deceased while proceeding towards the house of Muhammad Amin, their paternal‑cousin, through the Ahata of Allah Ditta Makin was suddenly attacked by the appellant and his co‑accused in the street. Allah Ditta Makin appellant is attributed infliction of hatchet blow on the backside of head of the deceased, whereas Riaz Ahmad allegedly took the deceased in his Jappha. Allah Ditta and Muhammad Yar allegedly caused successive hatchet blows to the deceased within the sight of the P.Ws. who alongwith some other residents of the village attracted to the scene of occurrence on raising alarm by the complainant. The accused extending threats to the complainant and the P.Ws., restrained them from interference. The deceased succumbed to the injuries at the spot."

3. The motive behind the occurrence as stated was the exchange of hot words, over the demand of money by Allah Ditta appellant from the deceased, who had purchased some articles of daily use from the shop of the appellant without any payment a few days earlier.

4. Muhammad Rafique, Inspector/S.H.O. P.W.10 having reached at the spot at 2‑30 a.m. during the same night conducted formal investigation at the spot and despatched the dead body for post‑mortem examination. The Investigating Officer after completing the formal investigation challaned the accused. The recovery of weapons of offence effected by him during the investigation, was not used as incriminatory evidence against the accused, therefore, the description of the same is not needed for the purpose of disposal of the appeal and the murder reference.

5. The prosecution case rests mainly on the testimony of eye‑witnesses in addition to the evidence of motive and medical.

6 ????????? Dr. Faqir Ahmad P.W.6 conducting the post‑mortem examination on

?? the deceased on 28‑5‑1992 at 2 p.m. in D.H.Q. Hospital, Pakpattan Sharif observed the following injuries on the dead body of Abbas deceased:‑‑

(1) An incised wound 6 c.m. x 1 c.m. cutting the bone through and through, blind deep on right anterior part of head, anterio posterior in direction.

(2) An incised wound 5 c.m. x 1 c.m. cutting the bone through and through upon left part of head, oblique in direction, about 10 c.m. above the left ear.

(3) An incised wound 6 c.m. x 1 c.m. cutting the right part of occipital bone on the right part of back of head, would was transverse in direction.

(4) An incised woutld 4 c.m. x 1 c.m. cutting the occipital bone on the middle part of back of head, would was transverse in direction.

(5) An incised wound 5 c.m. x 1 c.m. curring the left part of occipital bone on the left lower part of back of head, oblique in direction, about 4 c.m. behind the left ear.

(6) An incised wound 4 c.m. x 1 c.m. on the left side of head about 5 c.m about the left ear.

In the opinion of the doctor, all the injuries on the person of the deceased collectively causing damage to bring were fatal to life. He has described the age of injuries from 12 to 18 hours.

7. The eye‑witness account of the case has been furnished by Hanif P.W.4 and Sharif P.W.5, the complainant of the case. They confirming the prosecution story of the F. I. R. that Allah Ditta appellant and Muhammad Yar his co‑accused armed with hatchets attacked upon the deceased and caused him blows on his head and other parts of the body, whereas Riaz Ahmad the third accused has been ascribed the role of Japha to the deceased.

8. The appellant denying the charge pleaded innocence and false implication without bringing on record any circumstance negating the allegation and the prosecution story except that at the time of alleged grappling of the deceased with the appellant a few days before the present occurrence over the dispute of return of money the witnesses were not present.

9. Learned counsel for the appellant with reference to the admission of the eye‑witnesses contended that they were not present at the time of earlier quarrel between the deceased and the appellant or the direct knowledge of the money transaction and the dispute thereof did not support the motive part of the prosecution story. The second major contention raised by the learned counsel is that claim of Sharif P.W.5 of his reaching on a bicycle at 1‑00 a.m. (mid‑night) at the police station is contradicted with the medical evidence according to which the occurrence probably happened at about mid‑night. He argued that it was not humanly possible for the complainant to reach the police station at a distance of 24 k.m. from the place of occurrence within the given time. He contended that the occurrence having taken place in the night was unseen and the appellant was substituted for unknown culprits due to the previous incident. He next argued that both eye‑witnesses being closely related to the deceased were not independent to be relied upon without independent corroboration in addition to the medical evidence and that no such corroborative evidence available, the conviction on the sole evidence of the interested witnesses on capital charge is not safe. Lastly he argued that the motive having not proved the original fight being not known the extreme penalty of death is not proper.

10. Conversely, the learned A.A.‑G. assisted by Sh. Muhammad Raheem, Advocate for the State argued that there being no previous enmity between the parties, the mere relationship of the P.Ws. with the deceased is not a ground to exclude their evidence from the consideration and that the accused having killed the deceased cruelly the motive even if not proved would not provide a reason for lesser punishment.

11. We having thoroughly examined the evidence with the help of the learned counsel for the appellant as well as the learned A.A.‑G. have heard them at considerable length.

Undoubtedly, the eye‑witnesses are related inter se and also with the deceased but there being no background of enmity or grudge between the parties except the dispute over return of money the mere relationship of the witnesses with the deceased was not enough to discard their evidence raising the presumption of not telling truth. The evidence of a related witness if is confidence inspiring and free from the disqualification of any doubt, he is as good a witness to be relied upon as any other persons. The peculiar facts of the case do not suggest any reason for false implication and consequently, without looking for any other corroborative evidence, the ocular account in the present case absolutely independent has proved the guilt of the appellant beyond doubt. The evidence of the eye‑witnesses being confidence inspiring and unimpeachable, to the extent of the actual occurrence sufficiently satisfying the test of truthful witnesses receives full weight. However, the evidence of the eye‑witnesses to the extent of motive undeniably is of no use to the prosecution for want of direct knowledge and there being no other evidence to prove the motive given therein, the prosecution has not satisfactorily discharged the burden of proving the motive.

12. The factum of taking place of the occurrence during the night itself is not enough that it was unseen. According to the Investigating Officer, he reached at the spot at 2‑30 a.m. i.e. within two hours of the lodging of the report of occurrence which fact undoubtedly proved the time of reaching the complainant at the police station at about 1 a.m. (mid‑night) and the time consumed by him to cover the distance of 25 k.m. from the place of occurrence to the police station .on bicycle. The medical evidence also do not support the contention of the learned counsel that it was a blind murder as the maximum age of the injuries given therein amply corroborates the time of occurrence given in the F.I.R. the injuries with hatchet on the person of the deceased as described in the F.I.R. were traced by the doctor as such of the nature of incised wounds. The medical evidence except identifying the assailants provided full corroboration to the ocular account.

13. In a nutshell giving our anxious considerations to the contentions raised by both sides, we are of the considered opinion that occurrence was narrated in the manner it happened and find the prosecution case free of any describable infirmity creating a credible doubt or dent dislodging the prosecution story. The delay if any in lodging the report would have been material only if the culprit would be unknown but the appellant belonging to the same place was not stranger to the complainant and the P.Ws., therefore, the identity of the appellant being beyond doubt, there was no chance of substitution or false implication.

14. From the examination of the record and the scrutiny of the evidence, we are convinced with the view of the evidence taken by the trial Court and hold that the conviction of the appellant under section 302, P.P.C. is unexceptional. However, taking notice of the fact that prosecution has not been able to prove the motive set up for the commission of offence by the appellant and the actual cause of occurrence also not known, the possibility of happening something abruptly between the appellant and the deceased being not ruled out, the appellant deserves to be dealt leniently in the matter of sentence. We accordingly withholding our hands from confirming the death sentence awarded to the appellant by the learned trial Court alter the same into imprisonment for life and dismiss this appeal.

15. The mandatory provision of section 544‑A, Cr.P.C. having not given effect by the trial Court, we issue notice to the appellant through his counsel who accepting the same is agreed for payment of compensation of Rs.10,000 by the appellant to the legal heirs of the deceased. Order accordingly with the direction that in case of default in payment of compensation, the appellant will suffer simple imprisonment for 6 months and the amount of compensation will be recovered from him as arrears of land revenue to be paid to the legal heirs of the deceased.

16. With the above alteration in the sentence this criminal appeal is dismissed and the murder reference is answered in the negative.

N.H.Q./A‑2/L ????????????????????????????????????????????????????????????????????????????????????? Sentence reduced