' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,416 of 2000 filed by Muhammad Mushtaq alias Bao, who was convicted and sentenced by the learned Additional Sessions Judge, Lahore, vide his judgment, dated 1-4-2000 as under:--
(i) Death under section 302, P.P.C.
(ii) Seven years' R.I. Under section 324, P.P.C.
' Murder Reference No,109 of 2000 for confirmation or otherwise of death sentence of appellant shall also be replied through this single judgment.
2. Brief facts of the case as narrated in F.I.R. Exh.P.A./1 by Muhammad Ali/complainant (P.W.2) at'e that on 24-1-1997 at about 9-00 p.m. He along with his brother-in-law Noor Hussain went to the house of Muhammad Mushtaq alias Bao in order to inquire about his health as Mushtaq was sick.
In the house of Mushtaq his mother Mst. Taj Bibi and his brother-in-law Niamat Ali told that Muhammad Mushtaq is sleeping whereupon they went into the room of Muhammad Mushtaq and awakened him. Noor Hussain deceased asked Muhammad Mushtaq to be admitted him in the hospital to which Muhammad Mushtaq refused and again lied down on the bed. Muhammad Ali further stated that he along with Noor Hussain intended to come back but Muhammad Mushtaq asked them to sleep there whereupon the complainant and Noor Hussain both went to sleep on one cot. Noor Hussain put his pistol beneath his pillow. At the time of Sehri, mother of Muhammad Mushtaq awoke them up for Roza. The complainant stated that he took Sehri for the purpose of Roza. However, Noor Hussain did not take Sehri. Thereafter, the complainant lied down on a separate cot from Noor Hussain while they, both went to sleep. Muhammad Mushtaq took up the pistol from beneath pillow of Noor Hussain. It was about 6-30 a.m. When Muhammad Mushtaq fired a shot upon Noor Hussain with his own pistol which hit Noor Hussain on his chest. After hearing the noise of fire shot the complainant got up and tried to go out of the room. The gate of the room was bolted from inside. He tried to open the gate Whereupon Muhammad Mushtaq fired shot upon him which hit him on his left leg on the thigh and he fell down. However, he got up and opened the door.
Muhammad Mushtaq in his presence fired 3/4 shots upon Noor Hussain which hit on his arms, chest and back. After hearing the noise of fire shots Manzoor Hussain real brother of Noor Hussain and Abdul Rehman came there. After seeing them Muhammad Mushtaq went into the other room and shut the room from inside. The complainant along with Noor Hussain was shifted by Manzoor Hussain, Munir Ahmad and Abdul Rehman upon a trolley to Shalimar Hospital where Noor Hussain succumbed to the injuries, while the complainant was shifted to Mayo Hospital, Lahore on Ambulance.
' The motive behind the occurrence was that wife of Muhammad Mushtaq had taken divorce from him and he suspected that she had taken divorce at the instance of Noor Hussain and Muhammad Mushtaq had many a times expressed his grievance to Noor Hussain.
3. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Nawaz, S.-I./P.W.12. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.M. And inquest report Exh.P.L. He took into possession blood through cotton from the spot vide memo. Exh.P.D. He also took into possession four empties with lead of bullets from the spot, cot P.9, Chappal P.8 vide memo. Exh.P.C. On 27-1-1997 he arrested Muhammad Mushtaq appellant and recovered pistol P.10 along with six bullets in its chamber, one bullet P.11 along with Patta, one empty magazine P.13, vide memo. Exh.P.E. After completion of investigation, the accused was sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 13 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.Q., Forensic Science Laboratory Exh.P.S. And Exh.P.T. And that of Serologist Exh.P.R. Closed its case. The appellant in his statement recorded under section 342; Cr.P.C. Pleaded innocence. However, he did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that the sole eye-witness of the case was complainant himself and his testimony was not corroborated by any independent evidence; that the recovered weapon and empties were sent together and the possibility of fabrication could not be ruled out; that the prosecution miserably failed to prove the motive, which was set down in the F.I.R.; that through supplementary statements the prosecution tried to introduce another motive, which also could not be proved; that the supplementary statements were recorded for the purposes of fabrication and to fill in the lacunas in the prosecution case; that it was not a case of capital punishment, as except for Muhammad Ali nobody has seen the genesis of fight and it would not be said with certainty as to what transpired between the parties prior to the occurrence especially when the motive initially set down was not proved; that mere fact that Muhammad Ali also injured during the occurrence would not term him a truthful witness; and that shifting from one motive to another and the fact that both the motives could not be proved, was sufficient mitigating circumstance in favor of the appellant.
6. The learned A.A.-G. Assisted by the learned counsel for the State has submitted that it was a daylight occurrence; that identification of the appellant was not doubted; that it was a case of single accused; that there was no reason for substitution, which even otherwise is a rear phenomenon; that the statement of Muhammad Ali is fully supported by the medical evidence corroborated by the fact that he was injured during the occurrence and also by the fact that the empties tallied with the weapon recovered at the instance of the appellant; and that the appellant was a trigger-happy man, who fired repeated shots and thus, deserves no leniency. They support the judgment of the learned trial Court.
7. We have heard the learned counsel for the parties at length and scanned the entire record of the case.
8. The occurrence took place inside the room of the house of appellant. The place of occurrence and time of occurrence have not been challenged at all. P.W.2 Muhammad Ali/complainant, who was 17 years old at the time of occurrence, also received fire-arm injury during occurrence and his presence has neither been challenged nor can be denied. He had no previous grudge or enmity with the appellant, so as to involve him in a false case. His statement is straightforward and confidence-inspiring. He stood the test of cross-examination. As far as the occurrence is concerned, no dent could be caused in the veracity of his statement despite lengthy cross- examination, spread on ten pages. His statement is fully corroborated by the statement of Manzoor Hussain P.W.3, who is real brother of the appellant. He rushed towards the house of appellant after hearing the noise. When he entered the house, he saw Muhammad Hanif, Mst. Salma, Riaz and other neighbours there. At that time Noor Hussain and Muhammad Ali both were injured and it was Manzoor Hussain who took both of them to Shalimar Hospital, where doctor informed him that Noor Hussain had died. It is also in his examination-in-chief that he heard the noise at 6/6-30 a.m. And when he entered the house the appellant raised Lalkara that he would kill him. He being brother of the appellant has made certain concessions on the point of recovery and time of arrest etc. During cross-examination. But the fact remains that he has corroborated the statement of the complainant to the extent of time of occurrence, place of occurrence and presence of appellant in the room along with complainant and Noor Hussain, both of whom had received injuries. Similarly, Muhammad Hanif P.W.4, who is shopkeeper and independent witness, has also corroborated the story of Muhammad Ali. His presence was admitted by Manzoor Hussain P.W.3 himself in his examination-in-chief. According to this P.W., when he rushed to the spot he saw Muhammad Mushtaq alias Bao appellant armed with fire-arm sitting on a cot, whereas Noor Hussain and Muhammad Ali were injured and blood was oozing out from their bodies. He also stated that the appellant raised Lalkara that he would not spare him and so he fled back to his shop.
9. The ocular account is also fully supported by the medical evidence, as Dr. Muhammad Maqsood/P.W.11, who had conducted the post-mortem examination on the dead body of Noor Hussain, observed three fire-arm injuries on the body of deceased. Injury No,1-A was on front of right chest above the right nipple. Injury No,1-B was exit wound. Injury No,2-A was on the left front of chest below left nipple. Injury No,2-B was exit wound. Injury No,3-A was on the back of left forearm above left wrist joint, while injury No,3-B was exit wound. According to his opinion, Noor Hussain lost his life within 15/30 minutes after receipt of the injuries. P.W.8 Dr. Muhammad Abaidllah, C.M.O.
Emergency Department, Mayo Hospital, Lahore, examined Muhammad Ali complainant on the date of occurrence at 8-20 a.m. He has mentioned the age of the complainant as 17 years. He observed three injuries on the person of Muhammad Ali. Injury No,1 was on the lower part of front left thigh above left knee. Margin of the wound burnt and inverted. Injury No,2 was swelling on the back of the upper part of left thigh with marked tenderness. Injury No,3 was described that "whole left lower limb is medial rotated and patient is not able to move it". Of course according to doctor, the injuries were caused by fire-arm. Not even bald suggestion was given to the doctor that injury could be the result of friendly hands or could be self-inflicted.
10. The occurrence took place at 6-30 a.m. It is in evidence that the deceased and the complainant were taken to Shalimar Hospital first, where Noor Hussain was pronounced dead and Muhammad Ali was taken in Ambulance to the Emergency Ward, Mayo Hospital, Lahore, by Maneer Hussain, and others. It has also been noted above that at 8-20 a.m. Muhammad Ali was examined by P.W.B.
Thereafter Muhammad Nawaz S.-I./Investigating Officer/P.W.12 reached the hospital and moved application seeking permission to record statement of Muhammad Ali. This permission was grated by the Dr. Luqman Usman P.W.9. He also verified during his testimony that Exh.P.H. Was application, which was allowed by him. He was not cross-examined. So delay in recording Tard Beyan' at 10-15 a.m. Stands fully explained.
11. The prosecution story is also corroborated by the factum of recovery of pistol from the possession of appellant and tallying of empties C.3, C.5 and C.6 (collected from the spot) with the weapon, as is evident from the report of Forensic Science Laboratory Exh.P.S. The objection of the learned counsel for the appellant that both, the empties and the pistol were sent together is devoid of any force, as the occurrence took place on 25-1-1997 and the empties and the weapon were received in the Laboratory on 30-1-1997 within five days of the occurrence. More so though P.W.12 Muhammad Nawaz S.-I./ Investigating Officer was subjected to very lengthy cross-examination yet the defence failed to bring on record that the empties were procured after recovery of the pistol. It is also pertinent to note that if the empties would have been procured after recovery of pistol then all the empties would have matched.
12. As far as the motive is concerned, it is true that during trial and during investigation, the prosecution tried to introduce another motive but weakness of motive or non-proving of motive would be of no consequence when murder stands proved from the direct evidence and other circumstances of the case. Reliance is placed on the case of Syed Hamid Mukhtar Shah v.
Muhammad Azam and 2 others 2005 SCM R 427.
13. The defence plea taken by the appellant is simply absurd. The complainant was not involved in any criminal case previously and for taking life of his brother-in-law there was no need to choose room of the appellant. It has already been noted above that the complainant himself received a very serious injury during occurrence. The appellant has not uttered a word in his plea as to how Muhammad Ali got injured.
14. Upshot of the whole discussion is that we are of the considered opinion that the prosecution has proved its case against the appellant beyond doubt. The appellant has taken the life of an innocent person by repeated fires at him. He also caused serious injury to the complainant. No mitigating circumstance exists in his favor and normal penalty of death has been imposed upon him correctly. Resultantly, this appeal is dismissed. The judgment passed by the learned trial Court is upheld. However, the learned trial Court did not follow the mandatory provisions of section 544-A, Cr.P.C. Thus, we direct the appellant to pay compensation Rs,50,000 to the legal heirs of the decease and in default of realization or payment thereof the appellant would suffer six months' S.I.
15. Murder Reference is answered in affirmative. Death sentence is confirmed.