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Criminal Appeal No.162 and Murder Reference No.49 of 1983 decided on 28th June, 1987.

---S.302--First information report lodged promptly containing names of accused, his co-accused and eye-witnesses and nothing available on record showing that it was not prepared at time and place as it purported or case was registered after preliminary investigation- F.I.R. was a genuine document which could safely be used to corroborate statement of its maker--Eye-witnesses disinterested, though closely related to deceased, and having no previous enmity with accused to involve him falsely--Statement made by eye-witnesses not suffering from infirmities such 'as material contradictions, major discrepancies or dishonest improvements but going in conformity with medical evidence and in consonance of probabilities and materially fitting in with rest of evidence--Eye-witnesses giving plausible reason for their presence at spot at time of occurrence and standing test of cross-examination and defence unable to damage their veracity and integrity--Accused previously known to eye-witnesses and they were in a position to identify them and no case for substituting accused in place of real culprit made out--Location of injury, force with which injury was inflicted by accused to deceased and damage done under it clearly indicating that accused had no other intention but to kill deceased--Held, trial Court rightly convicted accused under S.302, Penal Codeen circumstances--Conviction and sentence maintained.

---S.302--Witnesses--Prosecution, held, not bound to produce each and every witness of occurrence.--[Witness].

---S.302--Sentence--Old age, by itself, is not mitigating circumstance for awarding lesser penalty.--[Age--Sentence].

Date of hearing: 28th June, 1987.

--This Criminal Appeal No.162/83 and the connected Murder Reference No.49/83 arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 2-4-1983 while acquitting Imdad Ali (26) and Siraj Ali (18) years, convicted Muhammad Bashir (70-75) under section 302 P.P.C. for the murder of Abdul Razzaq (30) and sentenced him to death and a fine of 86:3,000 or in default thereof to one year R.I. It was directed that the fine if realized half of it be paid to the legal heirs of the deceased.

2. The occurrence took place on 11-4-1981 at sunset time in a street of Mohallah Inaamabad, Pakpattan Sharif at a distance of six furlongs from Police Station Pakpattan Sharif. The FIR Ex.PB was lodged by Muhammad Ashiq P.W.5, brother of the deceased on the same day at 7.45 p.m., which was recorded by Muhammad Nawaz ASI, P.W.9.

3. The motive as alleged in the FIR was that two months before the occurrence, Muhammad Ashiq complainant, etc. had purchased the house of Bahadur Mochi situate in Mohallah Inaamabad, which the appellant and the acquitted accused wanted to purchase. On this the appellant and his co-accused extended threats to the complainant party, hence this occurrence.

4. As for the main occurrence, it has been stated that at the eventful time, Muhammad Ashiq P.W.5, Muhammad Bashir P.W.6 and Shaukat Ali P.W.7 were sitting in the house of Muhammad Ashiq P.W.5. On hearing the noise they came out of the house and saw Abdul Razzaq (deceased) being held in Japha by Imdad Ali and Siraj Ali, acquitted accused. In the meantime; Bashir Ahmad appellant came from his house armed with Chhuri. He raised lalkara that Abdul Razzaq should not be allowed to go and simultaneously inflicted chhuri blow on the right side of the chest of Abdul Razzaq, who fell down. The eye-witnesses tried to apprehend the appellant and his co-accused but they made good their escape. Abdul Razzaq was removed to Civil Hospital Pakpattan where he succumbed to the injuries on the same day before the FIR could be lodged.

5. On 12-4-1981 at 7.00 a.m. Dr. Ch.Mushtaq Ahmad P.W.4 conducted post-mortem examination on the dead body of Abdul Razzaq and found following injury:-

"A stab wound 3 x 1 c.m. x going deep into the chest cavity on the front of right side of chest."

On internal examination, he found that the chest cavity on the right was full of blood and right 4th and 5th ribs were cut. The right lung had a cut 3 x x c.m. The stomach was empty.

In his opinion, the death was due to shock and haemorrhage as a result of the injury to the right lung which was sufficient To cause death in the ordinary course of nature. The injury was caused by sharp-edged pointed weapon. The duration between injury and death was within one hour and between death and post-mortem examination was about 12 hours. In cross-examination, the doctor stated that the deceased had taken his last meals about six hours before his death.

6. The appellant and the acquitted accused were arrested by Muhammad Nawaz ASI, P.W.9 on 14-4-1981. Immediately after his arrest, Muhammad Nawaz ASI, P.W.9 removed blood-stained handkerchief Ex.P4 from the person of Muhammad Bashir appellant and took it into possession vide memo Ex.PF attested by Muhammad Bashir P.W.6 and Shaukat Ali P.W.7. On 18-4-1981 Muhammad Bashir appellant led to the recovery of blood-stained Chhuri Ex.P5 from his house which was taken into possession vide memo Ex.PG attested by Muhammad Zubair P.W.8, Muhammad Sadiq (not produced) and Muhammad Nawaz ASI, P.W.9. The Serologist Report Ex.PL reveals that the handkerchief Ex.P4 and Chhuri Ex.P5 were stained with human blood.

It may be noted that the trial Court has disbelieved the recovery of blood-stained handkerchief from the appellant.

7. To prove its case, the prosecution examined 9 witnesses, Muhammad Ashiq P.W.5, Muhammad Bashir P.W.6 and Snaukat Ali P.W.7 have fully supported the prosecution version of the occurrence; They claim to have seen the acquitted accused holding Abdul Razzaq (deceased) in Japha and Muhammad Bashir appellant causing fatal blow with chhuri on his chest. Muhammad Ashiq P. W.5 has also deposed about the alleged motive. Muhammad Bashir P.W.6 and Shaukat Ali P.W.7 have stated that blood-stained handkerchief Ex.P4 was removed from the person of appellant at the time of his arrest. Muhammad Zubair P.W.8 and Muhammad Nawaz ASI, P.W.9 stated that Muhammad Bashir Appellant had led to the recovery of blood-stained Chhuri Ex.P5 from his house on 18-4-1981. Dr. Ch.Mushtaq P.W.4 has proved the post-mortem examination report of the deceased. 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. He- raised the plea of false implication .on account of enmity and suspicion. According to him, the occurrence took place in the darkness of the night. It was an unseen murder. He and his sons were involved in the case due to suspicion. In defence no witness was produced.

9. The learned trial Court acquitted the co-accused by giving them benefit of doubt and while believing the motive, ocular evidence, medical evidence and recovery of blood-stained Chhuri from the appellant, convicted and sentenced him as stated above.

10. Learned counsel for the appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, inasmuch as, the appellant had no motive to kill Abdul Razzaq; that no sale-deed or copy of mutation of the house was produced by the prosecution; that neither Muhammad Sadiq, brother of deceased, the vendee nor Bahadur Mochi, the vendor was examined; that the eye-witnesses are closely related to the deceased; that although the occurrence took place in a thickly populated area yet no independent witness was produced by the prosecution; that Muhammaa Bashir P.W.6 and Shaukat Ali P.W.7 are chance witnesses in that Muhammad Bashir resided in Lahore and Shaukat Ali at Sahiwal at the time of occurrence; that the eye-witnesses could not have seen the occurrence from the place where they were allegedly present; that the recovery of blood-stained chhuri Ex.P5 from the appellant is doubtful because of meterial contradictions in the statements of Muhammad Zubair P.W.8 and Muhammad Nawaz P.W.9 in that Muhammad Zubair P.W.8 stated that the room wherefrom the chhuri Ex.P5 was recovered was locked and some resident o the house had provided the key of the house to the Investigating Officer and that the chhuri was lying on the ground and was picked up by a foot constable whereas Muhammad Nawaz ASI, P.W.9 stated that the chhuri was burried in the ground and that the room wherefrom chhuri Ex.P5 was recovered was not locked. In the alternative, the learned counsel prayed for lesser penalty on the grounds that the appellant was an old man of 70/75 years and 'that the origin of the occurrence was shrouded in mystry. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

11. We have anxiously attended to the arguments advanced by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements of the appellant and acquitted accused recorded under section 342 Cr.P.C. and the circumstances appearing in the case, very carefully. 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 promptly lodged FIR, which contains the names of the appellant, his co-accused, the part played by the appellant and his co-accused and the names of the eye-witnesses. The occurrence took place at sunset time in the month of April and the FIR was lodged at the police station at 7.45 p.m. There is nothing in evidence to show that the FIR was not prepared A at the time and place as it purports, so much so, no suggestion with regard to the registration of the case after preliminary investigation was given to the-complainant or to Muhammad Nawaz ASI P.W.9. This genuine document can safely be used to corroborate the statement of its maker i.e. Muhammad Ashiq P.W.5.

12. Adverting to the most crucial evidence Le the ocular testimony furnished by Muhammad Ashiq P.W.5, Muhammad Bashir P.W.6 and Shaukat Ali P.W.7, we find that they being brother, father-in-law and first cousin of the deceased, respectively, are closely related inter se as well as to the deceased. Their evidence, however, cannot be rejected on account of mere relationship. They had no previous enmity with the appellant to involve him falsely in the case. No animus has even been suggested to them. So, the 3 eye-witnesses cannot be termed as interested witnesses. The statements made by them do not suffer from infirmities such as material contradictions, major discrepancies or dishonest improvements. The statements made by them are also in conformity with the medical evidence. Their evidence is in consonance with probabilities and materially fits in with the rest of the evidence. The learned counsel has not been able to point out any legal infirmity warranting the rejection of their statements. Muhammad Ashiq P.W.5 having his house near the place of occurrence was a natural witness. No doubt, Muhammad Bashir P.W.6 and Shaukat Ali P.W.7 had their permanent residence at Lahore and Sahiwal, respectively yet the making of FIR with great Promptitude) gives rise to the conclusion that they could not have been procured and could not have been induced to because a false eye-witnesses of the occurrence within a short time and their names would not have appeared in the FIR if they had not witnessed the occurrence. Muhammad Bashir P.W.6 and Shaukat Ali P.W.7 have given plausible cause of their presence on the spot at the time of occurrence. They have stood the lest of cross-examination. The defence has not been able to damage their veracity and integrity. The occurrence took place at sunset time. The contents of the stomach support the time of occurrence as stated by the eye-witnesses. The appellant was previously known to them. Shaukat Ali P.W.7 has stated that the appellant and co-accused were his relatives. The eye-witnesses were thus in a position to identify the offenders. No case for the substitution of Muhammad Bashir appellant in place of the real culprit has been made out. Since the two co-accused were given benefit of doubt therefore, their acquittal will not adversely effected the veracity of the eye-witnesses. It seems to us that conviction can safely be sustained on the statements of the eye-witnesses without any corroboration. The motive has also been proved by Muhammad Ashiq P.W.5, who has already been found a confidence inspiring witness. Since the prosecution is not bound to prove incidental matters, therefore, the failure on the part of the prosecution to produce copy of the mutation of sale of the house of Bahadur Mochi or to produce the vendee and vendor, is immaterial and does not damage the prosecution case. As for recovery of blood-stained chhuri Ex.P5, from the appellant, we find that there are discrepancies between the statements of Muhammad Zubair P.W.8 and Muhammad Nawaz ASI, P.W.9 with regard to the place from where chhuri was recovered and whether the room wherefrom the chhuri was recovered was locked or not at the time of recovery. Since the statements of the eye-witnesses were recorded after about 2 years of the recovery, therefore, we feel that discrepancies of this type were but natural. It is common experience that unconnected persons seldom come forward to depose against the culprits, in this part of the country. The prosecution is also not bound to produce each and every witness of the occurrence. The learned trial Court has properly appreciated the evidence brought on record and has given sound and cogent reasons in support of the conclusions arrived at. The submissions made by the learned counsel do not carry any weight. The' location of the injury, the force with which the injury was inflicted and the damage done under it, clearly indicate that the appellant had no other intention but to kill the deceased. For all these reasons we are convinced that the trial Court has rightly convicted the appellant under section 302 P.P.C. for the murder of Abdul Razzaq.

13. This brings us to the question of sentence which always requires utmost care. Bearing in mind the circumstances surrounding his guilt, we do not sec any mitigating circumstance in favour of the appellant for lesser penalty in that old age, by itself, is not a mitigating circumstance and since the eye-witnesses had seen the appellant coming from his house armed with a Chhuri and had also heard him raising lalkara before inflicting injury to deceased, therefore, it cannot said that the origin of the occurrence was in any manner shrouded in mystry.

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 SENTENCE OF DEATH IS CONFIRMED.

M. Y. H. /M-395/L Appeal dismissed.

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