' M.A. SHAHID SIDDIQUI, J.--- Allah Rakha alias Rakhi appellant has been convicted by the learned Sessions Judge, Kasur in case F.I.R. No,86 of 1996, dated 20-3-1996 Police Station Mustafa Abad, District Kasur under section 302(b), P.P.C. For committing Qatl-iAmd of Muhammad Tufail and section 337-U, P.P.C. For removing the tooth of Muhammad Ashiq complainant. Under section 302(b), P.P.C. He has been sentenced to death and directed to pay Rs,50, 000 as compensation under section 544-A, Cr.P.C. In default of payment thereof he was to suffer further rigorous imprisonment for six months, whereas, he has been directed to pay Rs,27,300 to Muhammad Ashiq complainant as 1/20th of Diyat amount on two counts under section 337-U, P.P.C.
2. There is also a reference (Murder Reference No,149 of 2001) made by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of the death sentence awarded to the appellant which we intend to dispose of through this consolidated judgment.
3. The occurrence took place on 20-3-1996 at about 10-30 a.m. In a field owned by Sardar Muhammad Gujjar and cultivated by Muhammad Ashiq complainant and his deceased father Muhammad Tufail under a lease. At the relevant time the complainant and the deceased were cutting fodder when Allah Rakha alias Rakhi appellant armed with a .12 bore double-barrel gun arrived there and shouted that he would give them a taste for accusing him in respect of a cart (Rehri). Allegedly the appellant then fired a straight shot hitting Muhammad Tufail deceased on his chest. Muhammad Ashiq tried to catch hold of the appellant upon which he (the appellant) gave two blows with the butt of his gun on the right side of head and face of the complainant as a result of which the complainant lost his two teeth. The hue and cry raised by the complainant attracted Ghulam Ali (P.W.5) and Muhammad Shafi (P.W.6) to the scene of occurrence. These two P.Ws.
Challenged the appellant and raised Lalkara. The appellant again opened fire at the P.Ws. And decamped.
4. The motive for the offence was that one month prior to the occurrence the appellant was suspected by the complainant party for committing theft of their donkey-cart. As per decision of the respectables of the village, Allah Rakha appellant was required to return the cart or to pay a sum of Rs,4,700 to Muhammad Tufail deceased. Muhammad Ashiq complainant in his statement (Exh.P.D.) maintained that his father had been done to death by the appellant due to said grudge.
5. After the registration of the case, Nasim Ahmad Bhatti, the then, Inspector/S.H.O. Took up the investigation of the case. It can be gathered from the statement of Muhammad Ishaq, A.S.-I.
(P.W.13) that Nasim Bhatti, Inspector had visited the spot on the same day and completed the formalities. During the investigation of the case he had recovered a .12 bore double-barrel gun at the instance of the appellant from his house on 7-4-1996. After the completion of the investigation the appellant stood challaned.
6. At the commencement of the trial the appellant was formally charge-sheeted for offences under sections 302 and 324, P.P.C. For causing murderous assault on the lives of Muhammad Ashiq, Shafi and Ghulam Ali P.Ws. The appellant pleaded not guilty to the charge and claimed trial. The prosecution examined as many as 13 P.Ws. In order to bring home the charge against the accused.
7. Dr. Aslam Pervaiz (P.W.7), who had medically examined Muhammad Ashiq complainant on 20-3- 1996, testified his reports (Exh.P.F. And Exh.P.F./1). Dr. Mian Abdul Rauf (P.W.9) had conducted the autopsy on the dead body of Muhammad Tufail on 20-3-1996. He testified Exh.P.G. To be the correct carbon copy of postmortem examination report. Haroon-ur-Rasheed (P.W.3) deposed about the recovery of .12 bore gun (Exh.P.1) along with five cartridges (Exh.P.2/1-5). Muhammad Ashiq (P.W.4) besides giving ocular account of the occurrence deposed about the motive as well. Ghulam Ali (P.W.5) and Muhammad Shafi (P.W.6) also gave the ocular account of the occurrence. The statements of the remaining witnesses are more or less of formal nature.
8. The appellant in his statement under section 342, Cr.P.C. Denied the allegation. He in answer to question No,5 admitted to have caused the death of Muhammad Tufail by causing a fire-arm injury with a .12 bore gun but in different circumstances. It would be advantageous to reproduce his plea as under:- "The P.Ws. Are interring se related to each other and inimical towards me. In fact on the day of occurrence, I went in the fields to ease myself. I saw a gun .12 bore lying in the fields. I picked up the gun and started to check it. It was not in my knowledge that the said gun is loaded. When I was checking the gun, I pressed the trigger unintentionally when all of a sudden Muhammad Tufail emerged from the fields and the fire hit to him. I was frightened and started weeping there and made hue and cry. I threw the gun there and after sometime Muhammad Ashiq P.W. Came who saw his father and he started to put his head with a tree in a mourning position who received injuries, then he ran afterwards me. I fled away and reached the police station and narrated the whole story to the Investigating Officer, who apprehended me. Then he concocted a false motive of a donkey-cart against me. I am a poor person. My father was an old man who produced the respectables of the locality before the Investigating Officer in order to prove it that it is an accidental murder."
' In the above statement the appellant also tried to explain the. Injuries found on the person of Muhammad Ashiq P.W. He declined not only to produce any evidence in his defence but also to appear in disproof of the charge under section 340(2), Cr.P.C. The learned trial Court after taking into consideration the entire material brought on the record came to the conclusion that the prosecution had succeeded in establishing its case against the appellant to the hilt. Accordingly, the trial ended in the conviction of the appellant and was sentenced as mentioned and detailed in the opening paragraph of this judgment. Hence, this appeal.
9. The learned counsel for appellant while assailing the conviction argued that the P.Ws. Were not present at the time of occurrence and their testimonies cannot be accepted without any independent corroboration. The appellant also pleaded for lesser punishment on the sole ground that a single shot has been fired by the appellant.
10.. On the other hand the learned counsel appearing on behalf of the State supported the judgment. He maintained that the occurrence has taken place in a broad-daylight and the accused in his statement under section 342, Cr.P.C. Has not disputed the presence of Muhammad Ashiq, complainant (P.W.4). The F.I.R. Was lodged promptly and the P.Ws. Have no motive absolutely to falsely implicate the appellant.
11. We have made reappraisal of the entire record in the light of arguments advanced from both the sides. In view of the statement of the appellant/accused under section 342, Cr.P.C. The date, time and place of occurrence has not been disputed. The cause of death has also not been questioned in any manner. The appellant also admitted that Muhammad Ashiq P.W. Had also reached the spot, but after the death of his father Muhammad Tufail. A perusal of police record shows that the plea taken up by the appellant in his statement under section 342, Cr.P.C. Was never taken up by him during the investigation of case. It was also not suggested to any of the P.Ws.
Above all, the appellant had neither appeared in the witness-box in disproof of the charge nor did he produce any evidence whatsoever in support of his case. Whereas the prosecution story remained consistent. Muhammad Ashiq, P.W.4, though happened to be son of the deceased, gave a consistent account of the occurrence. He had also received injuries on his face at the hands of the appellant. His presence at the spot cannot be disputed in any manner. Ghulam Ali P.W.5 is also witness of the locality. He was also cutting fodder at the relevant time near the place of occurrence. He is Pathan by caste. He appears to be most independent and truthful witness of the occurrence. Similarly, Muhammad Shafi, P.W.6, had also no direct relationship with Muhammad Tufail, deceased. He has also no reason to depose falsely against the appellant. The statements of P. Ws. Are fully supported by the medical evidence. The learned trial Court rightly came to the conclusion that the prosecution's case stood established beyond any doubt. We find no reason to take any exception. Muhammad Tufail, deceased, was working in his field, when Allah Rakha, appellant went there with 12 bore double-barrel gun and opened fire hitting Muhammad Tufail on the most vital part of his body. The appellant has committed the murder of Muhammad Tufail deliberately. He has been awarded penalty of death. We find no reason to take lenient view. We, therefore, maintain his conviction and sentence. The death sentence awarded to the appellant by the learned trial Court is hereby confirmed.
12. As sequel to the above discussion Criminal Appeal 131/J of 2001 is dismissed and Murder Reference No,149 of 2001 is answered in affirmative.