' MUHAMMAD FARRUKH MAHMUD, J.--- Muhammad Irshad, his brother Muhammad Nazir, father Mehdi Khan and Muhammad Shafi were booked in case F.I.R. No,215 registered at Police Station Pahrianwali on 5-10-1996 for offences under sections 302/34/109, P.P.C. Muhammad Shafi, co- accused, was declared P.O. And is still absconder. However, the appellant Muhammad Irshad, along with Muhammad Nazir and Mehdi Khan, was tried by the learned Additional Sessions Judge, Mandi Bahauddin for the aforesaid offences. Vide judgment, dated 17-12-1999, the learned trial Judge, while acquitting the aforesaid co-accused, convicted the appellant for offence under section 302(b), P.P.C. For having caused the death of Khizar Hayat alias Mukhtar and sentenced him thereunder to death.
2. Aggrieved by his above noted conviction and sentence, the appellant has brought the instant appeal, while Ghulam Muhammad/ complainant-petitioner has filed Criminal Revision No,103 of 2000 against the convict/appellant for grant of compensation to the legal heirs of the deceased, whereas the learned trial Court has made a reference bearing Murder Reference No,10 of 2000 seeking confirmation or otherwise of death sentence. All these matters are being decided through this consolidated judgment.
3. The facts of the prosecution, in brief, per statement Exh.P.H./1 of Ghulam Muhammad, complainant/P.W.6, recorded by Muhammad Hanif, Inspector, S.H.O./P.W.10, at Ada Sainthal on 5- 10-1996, on the basis of which formal F.I.R. Exh.P.H. Was registered by Sikandar Hayat, H.C./P.W.4, on the same date, are that on 5-10-1996 in the morning, the complainant and his son Khizar Hayat alias Mukhtar Ahmad (deceased) were going to the Dera and when at about 6-30 a.m. They reached near the paddy crop of Sharif on the bank of Saim Nala, Muhammad Irshad/appellant and Nazir Ahmad/acquitted accused, both sons of Mehdi Khan, while armed with .7 mm rifles, who were hidden behind the heap of earth, came across them. Nazir Ahmad raised Lalkara that Khizar Hayat alias Mukhtar Ahmad should not go alive, whereupon Muhammad Irshad fired from his rifle, hitting Khizar Hayat on his left flank. The fire caused by Nazir Ahmad hit Khizar Hayat on his right thigh. Then Muhammad Irshad fired, hitting Khizar Hayat just below his right flank. Khizar Hayat fell down. Then Irshad fired hitting him on his left arm. Nazir Ahmad fired hitting Khizar Hayat on his left leg. Then the fire made by Irshad hit Khizar Hayat on his right leg. Due to fear of life the complainant did not go near Khizar Hayat and started raising hue and cry which attracted Muhammad Abbas/P.W.7 and Muhammad Akram at the spot. Both the accused ran away from the spot. Khizar Hayat succumbed to the injuries at the spot.
' The motive as alleged in the F.I.R. Was the old enmity and criminal litigation between the parties.
Due to that grudge, Muhammad Irshad and Nazir Ahmad had committed the murder of the deceased at the abetment of Mehdi Khan and Muhammad Shafi (proclaimed offender).
4. After recording and sending the statement Exh.P.H./1 to the police station for formal registration of F.I.R., Muhammad Hanif Inspector (Retd.)/P.W.10 inspected the place of occurrence, prepared injury statement Exh.P.J. And inquest report Exh.P.K. Of the deceased. He also prepared rough site plan of the place of occurrence (Exh.P.L.). He took into possession blood-stained earth from the spot through memo. Exh.P.F. Six empty cartridges were taken into possession from the spot vide memo. Exh.P.G. After post-mortem examination, he also took into possession the last-worn clothes of the deceased and one sealed phail through memo. Exh.P.E. On 20-4-1997, Imtiaz Ahmad Gondal, A.S.-I./ P.W.13, arrested the appellant from Bus Stand Rasulpur and recovered 7 mm rifle P.6, containing five live bullets P.6/1-5, from his possession, which were taken into possession vide memo. Exh.P.O. After completion of investigation, the appellant along with his aforesaid co- accused was challaned to face the trial, while Muhammad Shafi, co-accused, as stated earlier, was declared proclaimed offender, who is still absconder.
5. In order to substantiate its version at the trial, prosecution produced sixteen witnesses. Ocular account was furnished by Ghulam Muhammad/P.W.6 and Muhammad Abbas/P.W.7. In addition to that, P.W.6 also stated about the motive. Bashir Ahmad son of Ata Muhammad/P.W.3 attested the recovery memo. Exh.P.G., with regard to the recovery of six empties of .7 mm rifle from the spot.
Muhammad Hanif, Inspector/P.W.10, stated about the drafting and sending of statement/complaint (Exh.P.H./1), which based the registration of formal F.I.R. (Exh.P.H.) and the investigation thereafter.
Imtiaz Ahmad Gondal, A.S.-I./P.W.13, stated. About the arrest of the appellant and recovery of .7 mm rifle, along with five live bullets, from his possession. Zafar Iqbal constable/P.W.15 also attested the recovery memo. Exh.P.O. Pertaining to the recovery of crime weapon from the possession of the appellant. Iftikhar Ahmad constable/P.W.14 deposited the sealed parcel containing .7 mm rifle with the Forensic Science Laboratory. Qaiser Abbas constable/P.W.5 deposited the sealed parcel containing blood-stained earth and empties with the concerned office on 10-10-1996. Dr. Shakeel Ahmad/P.W.11 conducted post-mortem examination on the dead body of the deceased and found six lacerated wounds on his person. In the opinion of the doctor, all the injuries were caused by fire- arm weapon. The death had occurred due to injuries Nos.1 and 2, which were sufficient to cause death in ordinary course of nature. Duration between injuries and death was spontaneous, while the duration between death and post-mortem examination was 8 to 9 hours. The rest of the evidence was formal in nature and need not be discussed. After placing on record the reports of Chemical Examiner Exh.P.Q., Serologist Exh.P.R. And Forensic Science Laboratory Exh.P.S., the prosecution closed its side. Thereafter, the statement of the appellant under section 342, Cr.P.C.
Was recorded, wherein he pleaded his innocence and false implication and took specific plea of alibi.
6. Learned counsel for the appellant submits that both the eyewitnesses are related to the deceased; that Muhammad Abbas was not resident of the place of occurrence and he was imported as a witness, being relative; that both the witnesses have been disbelieved qua Muhammad Nazir/acquitted co-accused; that according to prosecution, Muhammad Irshad and Muhammad Nazir, both, had fired at the deceased; so the case of Muhammad Irshad was not distinguishable from that of Nazir; that Muhammad Abbas P.W.7 did not specify the injuries to the appellant and his brother, the acquitted co-accused; that the statements of both the eye- witnesses could only be believed against Muhammad Irshad if the same were corroborated by some strong independent evidence which was lacking in the instant case; that the recovery of rifle was planted at the appellant and it was most unlikely that the appellant would carry the rifle with him at a Bus Stand as claimed by the prosecution; that Exh.D.A. Which was issued by a responsible Army Officer proved the alibi of the appellant; that the learned trial Court has declared the document of alibi as fake without going into the provisions of Article 90 of the Qanun-eShahadat Order.
7. Learned counsel for the complainant as well as the learned A.A.-G., assisted by Syed Fazal Hussain Jaffery, Advocate, for the State, have submitted that ocular account furnished by P.Ws. 6 and 7 is fully supported by the medical evidence and is corroborated by the recovery of weapon effected at the instance of the appellant and that empties recovered from the spot tallied with the rifle recovered at the instance of the appellant; that Muhammad Nazir has been acquitted, as the learned trial Court has acted on the principle of safe administration of justice and he has been given benefit of doubt because the empties recovered did not tally with the weapon recovered at his instance and, thus, his acquittal, in no case, would benefit the appellant; that the appellant claimed to be an army personnel but no service record was produced before the learned trial Court in the shape of Service Book etc; that the appellant was arrested from Bus Stand and at the time of his arrest; he was not in possession of any document showing him to be an army personnel; that the certificate relied upon by the appellant was not admissible in evidence; that the stance taken by the appellant that the rifle was taken from the possession of his mother was totally baseless, as even the mother was not produced to substantiate this assertion and for the reason that the empties recovered from the spot were sent to the Forensic Science Laboratory through Qaisar Abbas/P.W.5 on 9-10-1996, after four days of the occurrence; that no question was asked from Qaisar Abbas that, in fact, he was never given the empties on that date or that he was telling a lie before the Court; that no mitigating circumstances existed in favor of the appellant, who has taken the life of an innocent citizen by repeatedly firing at him. In support of the revision, the learned counsel for the complainant has submitted that by not awarding compensation, the learned trial Court has ignored the mandatory provisions of section 544-A of the Cr.P. Code.
8. We have heard the learned counsel for the parties at great length and have also scanned the entire record.
9. The occurrence took place at 6-30 a.m. On 5-10-1996 when the light was available and the assailants could easily be seen, who were, otherwise, very well-known to the P.Ws. Within 1-1/2 hours statement of the complainant was recorded and within two hours the F.I.R. Was registered at the police station which was at a distance of six miles. Ghulam Muhammad and Muhammad Abbas appeared as P.Ws. In this case. Ghulam Muhammad is father of the deceased but no specific relationship of Muhammad Abbas is available on the record. However, he himself stated that he was closely related to the complainant party. As far as the occurrence is concerned, both have given a very consistent account and have supported each other almost on all the material points. The learned counsel for the appellant argued that Muhammad Abbas/ P.W.7 was not the resident of the area and was an outsider. He referred to the relevant portion of the F.I.R. As well as the address given by the witness while appearing in the witness-box, wherein it was stated that Muhammad Abbas was resident of Sheikh Alipur and was then (presently) residing in Rajoyia. The learned counsel has failed to take notice of the fact that Muhammad Abbas in his examination-in- chief stated that he was going towards his Dera and this fact was clarified by the witness in his cross-examination by suggesting "It is correct that my Dera is situated at the southern side of village". The argument of the learned counsel for the appellant that Muhammad Abbas was not reliable, as he did not specify the seat of the injuries and also did not attribute specific injuries to Muhammad Irshad and the acquitted accused Muhammad Nazir is also devoid of any force.
Muhammad Abbas had seen the occurrence from a distance of one Kanal. Rapid fires were being caused and non-mentioning of the seat of injuries rather leads to the conclusion that Muhammad Abbas was a truthful witness. However, during his cross-examination he was questioned about the seat of injuries and he correctly replied. There is nothing on record to show that any personal or deep-rooted enmity existed between Muhammad Abbas/P.W. And Muhammad Irshad/appellant.
The statements of the two eyewitnesses are fully supported by medical evidence as well as by the factum that the matter was reported to the police promptly and postmortem examination was conducted on the same date at 3-15 p.m. Within 8/9 hours of the death of the deceased, which rules out the suggestion given by the appellant that the occurrence had taken place at Sehriwela.
Dr. Shakeel Ahmad/P.W.11, who conducted post-mortem examination on the dead body of Khizar Hayat, was cross-examined on this point and he stated that it was incorrect to suggest that occurrence might have taken place at 3-00/4-00 a.m. It was also suggested to the doctor that injury No,1 was caused from a long distance, probably from one acre. The doctor rejected this suggestion. It was also suggested to the doctor that injuries Nos.5 and 6 were caused from a distance of 1-1/2 acres and this suggestion was also rejected by the doctor and rightly so, as blackening was present around the wounds mentioned at serial Nos.5 and 6. The ocular version is fully corroborated by the recovery evidence against Muhammad Irshad appellant. Qaisar Abbas constable/P.W.5 stated on oath that he was handed over the empties on 9-10-1996 which he deposited with the Forensic Science Laboratory on 10-10-1996. It is pertinent to note that no question was asked from Qaisar Abbas that he was not handed over the empties on 9-10-1996 or that he was telling a lie that the same was deposited with Forensic Science Laboratory on 10-10- 1996. Exh.P.S. Report of the Forensic Science Laboratory reveals that the empties, which were six in number, were received in the Laboratory on 10-10-1996. The appellant has not challenged that he was arrested by P.W.13 on 20-4-1997. However, according to him, he was arrested from the house of one Shana in village Miana Chak and not from Rasulpur Bus Stand. He also denied that at the time of his arrest, he was holding a rifle along with five live bullets. However, the fact remains that it has not been denied that the rifle belonged to the appellant. The rifle was received at the Forensic Science Laboratory on 25-4-1997. Iftikhar Ahmad constable was produced as P.W.14 on that regard, who stated that he was handed over one sealed parcel of rifle .7 mm on 25-4-1997 which he deposited with the Laboratory on the same date. He was not cross-examined, which means that his statement was accepted as a whole. Now according to report of Forensic Science Laboratory Exh.P.S., all the six empties C.1 to C.6 tallied with the rifle recovered from the possession of the appellant. In the above noted circumstances, it cannot be said that the empties were procured after the arrest of the accused. It is the most independent reliable corroboratory evidence available against Muhammad Irshad. The learned counsel for the appellant repeatedly argued that the case of Muhammad Nazir and Muhammad Irshad was at the same footing and, thus, Irshad also deserved acquittal. The argument of the learned counsel is not well-founded. The learned trial Court has acquitted Muhammad Nazir while following the principle of safe administration of justice, as none of the empties tallied with the weapon recovered at his instance.
In these circumstances, no benefit would accrue to the appellant on that score. The appellant made bald allegation that the rifle was recovered from his mother but there is no evidence to substantiate this allegation. Neither the appellant appeared as a witness under section 340(2), Cr.P.C. Nor he produced any other evidence. Even he did not produce his mother in support of his contention. In his statement recorded under section 342, Cr.P.C., the appellant took the plea of alibi and stated that he was present in his Unit at the time of occurrence at Skardu under the control of Capt. Sagheer Hussain Shah. He placed on record Certificate Exh.D.A. Which was objected to by the prosecution. The onus of proof of alibi lied squarely on appellant. However, he chose not to appear as a witness. The scribe of the certificate was also not produced. The Certificate Exh.D.A. Is addressed to Superintendent of Police and it has been signed by a Captain for the Commanding Officer. The Certificate is not supported by any official record. The learned trial Court has rightly rejected the Exh.D.A., as the same did not qualify under the provisions of Article 90 of the Qanun-e- Shahadat Order. It may also be noted here that it was neither suggested to P.W.6 nor to P.W.7 that on the date of occurrence, the appellant was in Skardu. Though the point of minority has not been pressed by the learned counsel for the appellant but in the interest of justice, we have considered the same. For his own reasons, the appellant mentioned his age as nineteen years while his statement under section 342, Cr.P.C. Was recorded on 11-9-1999, which meant that the appellant was about sixteen years of age at the time of occurrence. However, no document was produced in support of the point. This was done deliberately, as School Leaving Certificate of acquitted accused Muhammad Nazir was brought on the record as Exh.D.B. Had there been any document in support of the appellant on that regard, he would not have failed to place the same on the record of the case. The learned trial Court has held that the age of the appellant appeared to be 26/27 years in para.20 of its judgment but the most relevant document in the circumstances was the age recorded by the police at the time of the arrest and that reveals that at the time of arrest, the appellant was 25/26 years old. The lie of the appellant about the mentioning of age is exposed from the stance taken by the appellant himself that he was serving in army when the occurrence took place.
10. The upshot of the whole discussion is that we are fully convinced that the prosecution has proved its case against the appellant beyond doubt and no mitigating circumstance exists in his favor. The appeal is dismissed. The judgment passed by the learned trial Court is upheld. The death sentence is confirmed. The Murder Reference is answered in the affirmative.##TE#
11. It has been noticed by us that while passing the impugned judgment, the learned trial Court inadvertently failed to comply with the mandatory provisions of section 544-A, Cr.P.C. Hence, Criminal Revision No,103 of 2000 filed by the complainant on that behalf is allowed and the compensation of Rs,50,000 is imposed upon the appellant, which, in the event of realisation or payment would be paid to the legal heirs of the deceased or in default thereof the appellant would be dealt in accordance the provisions of section 544-A, Cr.P.C.