' ASIF SAEED KHAN KHOSA, J.---Mazhar alias Kaka appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 25-11-1999 handed down by the learned Additional Sessions Judge, Toba Tek Singh and was sentenced to death and to pay a sum of Rs.20,000 to the heirs of Ghulam Farid deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. The appellant has challenged his conviction and sentence before this Court through the present appeal which has been heard by us along with Murder Reference No.517 of 1999 seeking confirmation of the sentence of death passed against the appellant by the learned trial Court. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Habib Ullah complainant was a resident of Chak No.191/G.B. Situated within the area of Police Station Rajana, District Toba Tek Singh and he had installed a saw-machine as well as a wheat-grinding machine at his house. During the night between 12/13-7-1998 the complainant's father namely Ghulam Farid was sleeping in the street in front of the complainant's saw-machine and an electric bulb was alight at that time above the outer wall of the room where the saw-maching was installed. At about 3-15 a.m. On 13-7-1998 the complainant along with his son namely Muhammad Hanif and a brother namely Nazir Ahmad alias Nazar were returning to their house after attending a fare in Chak No. 258/G.B. And when they reached the tubewell of Syed Nawazish Ali Naqvi the present appellant emerged there with a rifle .7 MM and woke up the complainant's father and told him that he would be taught a lesson for insulting the appellant. The appellant then fired a shot at the complainant's father hitting him on the left side of his chest and the fire crossed his body. The complainant and the other witnesses rushed to the spot but the appellant managed to flee from the same while brandishing his rifle. The complainant's father succumbed to his injuries at the spot. The motive set up in the F.I.R. Was that a few days prior to the said incident some women-folk belonging to the complainant's family were washing their clothes at the tube-well of Syed Nawazish Ali Naqvi and the appellant had teased them whereupon Ghulam Farid deceased had reprimanded and abused the appellant and had also slapped him. At that occasion the appellant had warned that he would avenge his insult.
Leaving the dead body of his father at the spot Habib Ullah complainant went to Police Station Rajana, District Toba Tek Singh whereat he lodged F.I.R. No.258 at 4-15 a.m. On 13-7 1998 for an offence under section 302, P.P.C.
3. The investigation of this case was conducted initially by Sultan Ali, S.-I. (P.W.10) and then by Khalid Mehmood, A.S.-I. (P.W.11) who got the dead body of Ghulam Farid deceased subjected to postmortem examination, arrested the appellant, recovered a rifle from his possession, completed the other formalities and then submitted a challan against the appellant.
4. At the commencement of the trial the learned trial Court framed a charge with one head under section 302, P.P.C. Against the appellant to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced eleven witnesses in support of its case against the appellant. Habib Ullah complainant (P.W.8) and Nazir Ahmad (P.W.9) furnished the ocular account of the incident in question. The complainant also deposed about the motive. Ijaz Iqbal (P.W.7) stated about the recovery of a rifle from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Fateh Din Shad (P.W.6). Sultan Ali, S.-I. (P.W.10) and Khalid Mehmood, A.S.-I. (P.W.11) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He maintained that he had been falsely implicated in this case on account of suspicion entertained by the complainant party. However, he neither made any statement on oath under section 340(2), Cr.P.C. Nor produced any witness in his defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the connected murder reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, the conviction and sentence of the appellant recorded by the learned trial Court ought to be set aside and the appellant may be acquitted. He has also maintained in the alternative that there are sufficient mitigating circumstances available in this case so as to withhold the sentence of death from the appellant. As against that the learned counsel for the complainant as well as the learned Assistant Advocate-General appearing for the State have maintained in unison that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the conviction and sentence of the appellant recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record we have found that the case in hand is one of a single accused and the F.I.R. In respect of the alleged incident had been lodged with reasonable promptitude wherein the appellant had duly and specifically been nominated as the sole perpetrator of the alleged offence. The parties to this case were quite well known to each other as they lived in the same village and the house of the appellant was situated about 200/250 feet away from the house of the complainant. It may be true that the occurrence in this case had taken place during the dead of a night but at the same time it is equally true that the night in question was not only a moonlit night but availability of an electric bulb and its light had been mentioned in the F.I.R., shown in the site-plan and deposed about by Habib Ullah complainant (P.W.8), Nazir Ahmad (P.W.9) and Muhammad Ashraf, Draftsman (P.W.4). Even otherwise the saw-machine as well as the wheat-grinding machine of the complainant needed electricity for their running and, thus, availability of an electric connection as well as light at the spot could reasonably be expected.
10. Habib Ullah complainant (P.W.8) and Nazir Ahmad (P.W.9) are both sons of Ghulam Farid deceased and they all lived together at the house of the complainant which also was the place of occurrence. In these circumstances these eye-witnesses were the most natural witnesses and their availability at or near the spot at the relevant time could not be seriously doubted. There was absolutely no background of or bitterness between these witnesses and the appellant so as to prompt the former to falsely implicate the latter in a case of this nature. No earthly reason has been shown to exist as to why these witnesses would substitute the present appellant for the real culprit and let the actual murderer of their father off the hook. These witnesses had made consistent and straightforward statements before the learned trial Court which statements had withstood the test of cross-examination and had emerged from the said test with flying colours. We may add here that even if the stand taken by these witnesses regarding their going to attend a fare during the fateful night is suspected as exaggeration still the said witnesses admittedly had their home at the place of occurrence and they were expected to be at or around the said place at 3-15 a.m. Apart from that the site-plan of the place of occurrence shows that the said place was an inhabited place with different houses around the same and, thus, it has been found by us to be rather unlikely that the actual assailant could have left the spot unnoticed or unidentified.
11. The motive set up in the F.I.R. Was proved before the learned trial Court through the statement of Habib Ullah complainant (P.W.8) who had claimed that he was himself present during the incident forming the motive. The claim made by this witness regarding his personal presence during the said incident had not been questioned or doubted by the appellant through his cross-examination of the complainant.
12. In the absence of any crime-empty having been recovered from the place of occurrence the alleged recovery of a rifle .7 MM from the appellant's possession during the investigation of this case was legally inconsequential as the said weapon had never been connected with the alleged offence and, thus, the alleged recovery could not provide corroboration to the ocular account.
However, the eye-witnesses had received sufficient support from the medical evidence as the same not only confirmed the date and time of the alleged occurrence but also the weapon used and the locale of the injuries described by the eye-witnesses.
13. For what has been discussed above we have felt no hesitation in concluding that the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt and the learned trial Court was quite justified in recording his conviction. The matter of sentence has also received our anxious consideration but we have failed to find any mitigating circumstance favouring reduction of the appellant's sentence. There was absolutely no background of animosity between Ghulam Farid deceased and the appellant except that a few days prior to the present occurrence the deceased had reprimanded and chastised the appellant for teasing the ladies belonging to the complainant's family. Instead of mending his ways and shunnig his immoral and unethical activities the appellant had chosen to launch a dastardly assault upon the eighty years sold victim at night making short shrift of his depleting span of life, Such a conduct displayed by the appellant depicted a streak of desperation in him disentitling him to an exercise of discretion in his favour in the matter of sentence.
14. Pursuant to the discussion made above this appeal is dismissed and the conviction and sentence of the appellant recorded by the learned trial Court are upheld and maintained.
15. Murder Reference No.517 of 1999 is answered in the affirmative and the sentence of death passed against Mazhar alias Kaka appellant by the learned trial Court is hereby confirmed.