Tanvir Ahmed Khan, J.--Leave to appeal is sought against the judgment dated 3.7.2003 whereby a learned Division Bench of the Peshawar High Court, Abbottabad Bench, Abbottabad, dismissed the appeal filed by the petitioner and answered the murder reference sent by the learned Additional Sessions Judge-II, Haripur, under Section 374 Cr.P.C. in affirmative, maintaining the determination of the learned trial Court dated 11.1.2002, convicting the petitioner under Section 302 P.P.C. sentencing him to death. He was also ordered to pay compensation of Rs, 100,000/- to the legal heirs of the deceased.
2. The present petition has emanated out of F.I.R. No, 479 of 1995 which was registered at the instance of PW-7 Haji Muhammad Taj on 23.4.1995 for the murder of Seth Muhammad Iqbal at the Police Station City, Haripur under Section 302 P.P.C.
3. Facts briefly for the disposal of this petition are that the aforesaid FIR. was got recorded alleging therein that the complainant alognwith Seth Muhammad Naeem was present in the showroom of his brother Seth Muhammad Iqbal, deceased. situated in Naseem Plaza, G.T. Road, Haripur. The petitioner/accused was having a shop in the name of "Italian Wheel balancing' in the same Plaza.
He called Seth Muhammad Iqbal, deceased, towards his shop. Thereupon, the complainant alognwith Seth Muhammad Naeem followed the deceased who went towards the shop of the petitioner/accused. The petitioner thereupon asked the deceased, as to why his brother-in-law namely Seth Muhammad Naeem was not installing the Transformer in the Plaza. In reply the deceased stated that Transformer would be installed very soon. Thereupon, altercation took place between the two. Meanwhile, the petitioner took out a .30 bore pistol from the fold of his Shalwar and fired a shot which hit the deceased on his face who succumbed to the injuries there and then.
The petitioner/accused having pistol in his hand succeeded in escaping from the place of occurrence in a red colour motor car. According to the F.I.R., the complainant as well as Seth Muhammad Naeem, Jang Zeb and Baber witnessed the incident.
4. The motive according to the complainant was non-installation of the Transformer in the market and an altercation between them a week earlier on the same issue.
5. The investigation in this case was conducted by PW-10 Khan Muahmmad, A.S.I. and the challan was submitted by PW-6 Muhammad Nazir Khan, Sub-Inspector, who at that time was posted as S.H.O. at Police Station City, Haripur. The petitioner/accused was arrested on 24.4.1995 and he led to the recovery of incriminating unlicensed 30 bore pistol from a place near the Degree College, Haripur, wrapped in a hand-purse in the presence of Muhammad Afsar Khan, PW-5. The postmortem examination was conducted by PW-3 Dr. Muhammad Nasim, Medical Officer on the day of occurrence at 1.20 p.m. who found the following three injuries on the person of the deceased:-- "1. A fire-arm entry wound at the angle of mouth above 1/2" below that on the left side of the face.
Size (1/3) x (1/4)" x through and through the exist wound at the level of cervical 2 & 3 on the back of neck.
2. Fire-arm exit wound at the level of cervical 2 & 3 at the back of neck. Size (1/2)" x through into through the entrance wound on the left side of the face.
3. Two abrasions on each on dorsum of left elbow joint as well as dorsal aspect of left palm.
6. The confessional statement of the petitioner/accused was also recorded by PW-9 Mr. Inamullah Khan, Magistrate of 1st Class, Haripur on 30th April, 1995 who thereafter handed over custody of the petitioner to the Naib Court for his onward lodgment in the judicial lock-up.
7. After usual investigation, as already stated, the challan was submitted by PW-6 Muhammad Nazir, Sub-Inspector, S.H.O., Police Station City Haripur. The prosecution in order to establish its case examined ten witnesses. The petitioner in his statement under Section 342 Cr.P.C. denied his involvement and put up seven defence witnesses; pleading alibi and claiming his presence in the Court of Mr. Mushtaq Hussain, Civil Judge/Section 30 Magistrate at Islamabad in another murder case of one Capt. Asif.
8. The learned Additional Sessions Judge-IL Haripur, after thrashing the entire evidence, convicted the petitioner under Section 302 P.P.C. and sentenced him to death as mentioned above. Feeling aggrieved, he filed Criminal Appeal Bearing No, 2 of 2002 which was dismissed by a learned Division Bench of the Peshawar High Court, Abbottabad Bench, Abbottabad through the impugned judgment dated 3.7.2003 and answered the murder reference in affirmative. Hence, this petition for leave to appeal.
9. We have considered the contentions raised by the learned counsel for the petitioner and have gone through the documents appended with this petition with his assistance. We have noticed that the learned counsel for the petitioner before the learned Division Bench of the Peshawar High Court, Abbottabad Bench, Abbottabad, mainly argued on the quantum of punishment as he was of the view that the occurrence had taken place at the spur of the moment. However, before this Court, Dr. Babar Awan, learned counsel for the petitioner has pointed out certain irregularities in the conduct of investigation particularly that of inquest report and has also argued the case on merits.
He stated that the learned Division Bench of the Peshawar High Court while confirming the death sentence did not consider the defence version.
10.Both of his arguments are devoid of any force as we have noticed that the F.I.R. in this case was recorded with promptitude. The occurrence as already stated had taken place on 23.4.1995 at 12.10 noon while the complainant reported the police officer at 12.20 noon with all details which factum completely rules out the possibility of any deliberation or consultation. The ocular account in this case has been stated in its material particulars by the complainant Haji Muhammad Taj PW-7 and Seth Muhammad Naeem PW-8. It is true that both the eye-witnesses are related to the deceased but their testimony cannot be discarded simply for their relationship if it otherwise confidence inspiring. They have in clear terms substantiated their presence at the spot. The defence side in spite of lengthy cross-examination could not succeed to shatter their testimony. The plea that non-appearance of Seth Muhammad Naeem, the owner of the Plaza, took out the motive for the occurrence is devoid of any force. Both the eyewitnesses in their testimony have stated that Seth Muhammad Naeem went to the house of one Yousaf Khan in connection with a meeting and did not witness the occurrence. In these circumstances, no adverse inference can be drawn from the non-appearance of Seth Muhammad Naeem.
11.Apart from this, the motive part has also been substantiated by the aforesaid two witnesses. PW- 7 Haji Muhammad Taj has stated in categorical terms that the petitioner was making grouse to the deceased respecting the non-installation of the Transformer. He has also stated in his testimony that even one week prior to the occurrence an altercation took place between the deceased and the petitioner/accused respecting the non-installation of the Transformer. The medical evidence is also in line with the ocular account. The recovery of the incriminating unlicensed pistol has also been substantiated beyond and reasonable doubt by the prosecution. According to the Expert report the empty recovered from the spot matched with the aforesaid pistol. The blood-stained earth as well as dead-body of the deceased was taken into possession from the shop of the petitioner/accused. The judicial confession of the petitioner before PW-9, Mr. Inamullah Khan, on 30.4.1995 has also been substantiated. He was arrested on 24.4.1995 by PW-10 and his remand was obtained for five days. Thereafter, on 30.4.1995 the investigation officer made an application before the Illaqa Magistrate who recorded his confessional statement strictly by following the dictates of law and rules. After recording the confessional statement, the petitioner/ accused was handed over to the Naib Court for his onward lodgment to the judicial custody. The confession made by the petitioner corroborated the prosecution evidence in all material points. The reading of the evidence of PW-9 bring us to the irresistible conclusion that the concerned Magistrate not only complied with all the requirements of law in recording the confessional statement but the confession itself was-of voluntary nature.
12.The plea of alibi taken by the petitioner appears to be an after thought as he has failed to substantiate the same. His plea that on the day and time of occurrence he was present in the Court of Mr. Mushtaq Hussain, Civil Judge/Section 30 Magistrate, Islamabad, was not substantiated by any convincing evidence. Even Mr. Mushtaq Hussain, Civil Judge/Section 30 Magistrate was neither examined nor he came in the witness box.
13.The argument of the learned counsel that the investigation was not conducted in a proper manner as in the inquest report the number of the F.I.R. was not mentioned would not be of any avail to him. The Rule 25.35 of Chapter XXV of the Police Rules, 1934 has provided for the recording of Inquest Report by the Investigating Officer. The Investigating Officer, according to the same is to mention the cause of death and the description of any mark of violence and the use of weapon. In the case in hand, the Investigating Officer in the Inquest Report has clearly mentioned the nature and place of the injuries and recovery of the dead-body from the petitioner's shop. It has been stated time and again that the entries in the inquest report are not substantive evidence. The mere omission of the number of the case in the inquest report which may either be due to inadvertence or inefficiency of the Investigating Officer would hardly discredit its authenticity or adversely effect the investigation. Apart from this, the rule is merely a directory in nature. Reliance in this respect is placed upon the cases reported as Muhammad Tariq v. State (NLR 1982 Cr. LJ 452), Tariq Aziz v.
State (1982 P. Cr. L.J. 396), Amjad v. State (1987 P.Cr.L.J. 1773), Ibrahim v. State (1968 SCM R 1240) and Allah Baksh v. State (PLD 1978 SC 171).
14.Another argument of the learned counsel for the petitioner that the occurrence has taken place at the spur of the moment is not reflected from the evidence brought on the record. The learned Division Bench of the Peshawar High Court, Abbottabad Bench, Abbottabad, has nicely dealt with the same and their determination is as under:-- "Admittedly, every case has got its own peculiar facts. In the instant case it cannot be said that the occurrence took place at the spur of the moment for the reasons that the accused came to this shop duly armed with a loaded pistol. He called the deceased to his shop and asked from him explanation for the non-installation of the Transformer. A similar incident had already taken place one week prior to the occurrence. The firing of the accused seems deliberate and not at the spur of the moment. As far as motive is concerned, motive in the present case is provided that even for the arguments sake if the motive is not proved even then in the presence of strong ocular version supported by other factors the prosecution case cannot be shattered. The apex Court in so many cases has up-held the sentence of death even if the matter is proved to have taken place at the spur of the moment although in the present case the matter cannot be stated to have taken place at the spur of moment and the action of the accused-appellant was deliberate and intentional. He had some thing in his mind as the facts of the case show that when he arrived at his shop with the loaded pistol in his trouser fold calling of the complainant at that, the altercation and then commission of the offence. So without further discussion as that would be wastage of time, the present occurrence has not taken place at the spur of moment and as the prosecution case is proved from all corners of ocular, medical, circumstantial evidence supported by recovery and confessional statement we are hesitant to interfere in the conviction and sentence recorded by the trial Court."
15. Resultantly, for what has been stated above, the instant petition being devoid of any force is hereby dismissed and leave to appeal declined.