Raja Fayya z Ahmed, J.--By this Jail Petition leave to appeal has been sought for against the judgment dated 16.10.2003 of the Division Bench . of the Peshawar High Court, Peshawar passed in Criminal Appeal No, 491/2003, whereby the appeal filed by the petitioner namely Muhammad Nisar convicted by the learned Additional Sessions Judge, Mardan under Section 302(b) PPC respectively sentenced to death and to five years R.I. with a fine of Rs, 25,000/- under Section 324 PPC and in default of payment of fine to further undergo six months S.I which if recovered be payable to the victim as compensation under Section 544-A Cr.P.C., has been dismissed and the Murder Reference answered in affirmative by confirming the death sentence awarded to the petitioner.
2. The brief facts of the case are that on receipt of murasila Ex. PW1/A, containing Fard-e-Bayan of injured Ikram son of Fazal Qadir, case Crime No, 892/2001 was registered with PS B-Division, District Mardan on the same date at 4:50 p.m. under Sections 302/324/34 PPC against the nominated accused person namely Abdul Raziq, Usman and Nisar (petitioner), wherein; it has been disclosed by PW Ikram to the Incharge Police Post ASI Abdul Qadeer that on the above said date at 4:15 p.m. he alongwith his deceased brother Ghulam Qadir and a neighbour Liaqat (PW-11) were present at the place of incident and in the meanwhile Abdul Raziq, Usman and Nisar sons of Taza Khan started firing at them, as a result whereof; he (Ikram/complainant) suffered serious injuries and his brother Ghulam Qadir died at the spot and the accused persons fled away from the scene of occurrence. Motive of the crime was disclosed to be that about 2/3 days ago there was a row between them. In the note recorded below the Fard-e-Bayan by PW-8 ASI Abdul Qadeer Khan; it has been noted that the complainant in injured condition brought the dead body of his brother Ghulam Qadir in a private vehicle to the Causality Department of DHQ Hospital, Mardan, who narrated to him about the incident mentioned above, has been reduced into writing by him, which he read over to the complainant, who in acknowledgement of the correctness of his statement inscribed his signature below his statement/report. Further note of the Police Officer shows that he prepared the inquest and injury report of PW Ikram and handed over the relevant papers to the doctor for the postmortem of the dead body of the deceased and sent murasila to the Police Station through constable Fayyaz for registration of the case.
3. ASI Muhammad Iqbal (PW-15) on the date of incident at about 4:15 p.m. received information about the incident from the people and rushed to the spot and found that the injured and deceased have already been shifted to the hospital, he however, arrested accused Abdul Raziq and Usman from near to the place of incident after a chase, so he took them to the police station.
He is also musheer to the recovery of the empty, bloodstained earth and blood-stained clothes of injured and in his presence seizure memos: Ex. PW-3/1 and Ex. PW-3/2 were prepared by the Investigating Officer on which he inscribed his signature as a co-musheer. PW-13 Zarif Khan SI P.P.
Hoti on 21.11.2001 was appointed to investigate the case and received murasila and copy of the FIR whereupon he proceeded to the place of incident, inspected by him, he secured blood-stained earth and took into possession .30 bore empty, emitting fresh discharge smell vide memo: Ex. PW- 3/1. He also took into possession the blood-stained shirt, shalwar and banayan of deceased Ghulam Qadir and shirt of injured Ikram, produced to him by FC Sajid, vide memos: prepared by him in presence of Musheers. The blood-stained earth, clothes of the deceased and shirt of the injured were produced as articles. He prepared the site map of the place of wardat as Ex. PW-3 at the instance of PW Liaqat and interrogated Abdul Raziq and Usman arrested on the same date, whereas; accused Muhammad Nisar was since absconding after the incident therefore, he obtained his arrest warrants from the Magistrate by submitting application produced as Ex. PW- 13/1. He also produced the unexecuted arrest warrants of the accused Nisar and thereafter, proclamation under Section 87 Cr.P.C. was procured by him as Ex. PW-13/2 vide murasila Ex. PW- 13/3. The blood-stained articles were sent to the FSL fqr chemical examination and received the result produced by him as Ex. PW-13/4 to the effect that the articles were stained with human blood. He recorded the statements of PWs and after completion of investigation submitted the case papers to the SHO for submission of incomplete challan for trial of the offence against accused Abdul Raziq and Usman and for proceedings under Section 512 Cr.P.C. against PO Muhammad Nisar (petitioner), who was arrested on 17.9.2002, accordingly; complete report/challan was submitted in the trial Court. All the three nominated accused persons were indicated in view of the accusation and incriminating material produced with the challan by the learned trial Court, to which they did not plead guilty.
4. The prosecution to substantiate the accusation produced 14 witnesses namely Abdul Qayyum Khan, the then SHO/PS B-Division Mardan, who after completion of invetigation submitted challan in the Court. PW-2, Khan Ghalib Khan, SI/PS B-Division Mardan, arrested the proclaimed offender/accused Muhammad Nisar and submitted supplementary challan. PW-3 Muhammad Khan, FC, in whose presence the Investigating Officer took into possession an empty of .30 bore, emitting smell of fresh discharge vide memo: Ex. PW-3/1, produced by the witness and a co- musheer to seizure memo of blood-stained earth, shirt, shalwar and Banyan of deceased Ghulam Qadir and blood-stained shirt of injured Ikram produced to him by FC Sajid. These articles according to the witness were sealed into separate parcels. He also produced memo: Ex. PW-3/2 in respect of the blood-stained articles, on which he inscribed his signature as a co-musheer.
According to PW-4 Alam Zaib Khan, ASI/PS B-Division Mardan, accused Nisar was arrested on 14.9.2002 in case Crime No, 197/2001 under Section 13-E of the Arms Ordinance, 1965 of PS Wari and on .information about the arrest of the proclaimed offender, he obtained his custody and arrested him in connection with the murder case Crime No, 892/2001 of PS B-Division on 17.9.2002. During course of interrogation the accused led PW-4 to the place of occurrence and the pointation memo: Ex. PW-4/1 was prepared by the witness in presence of co-musheers. On completion of investigation from accused Nisar he handed over the case file to the SHO for submission of challan.
PW-4 Sajid Ali FC escorted the dead body of the deceased to the hospital and to him, the medical officer after conducting post-mortem of deceased Ghulam Qadir, handed over the clothes of deceased, which he delivered to the Investigating Officer. PW-6 Farman Ali has identified the dead body of his deceased brother Ghulam Qadir before the Police Officer and Medical Officer. PW-7, Usman Gul is the witness of the pointation memo: Ex. PW-4/A in whose presence accused Muhammad Nisar pointed out the place of wardat to the Investigating Officer. PW-8, Abdul Qadeer Khan, ASI deposed that he was on duty at the police post, Causality Department DHQ Hospital, Mardan on 21.11.2001, when the complainant Ikram in injured condition was brought to the hospital alongwith the dead body of deceased Ghulam Qadir by the co-villagers and in his presence, the injured made report to him which he recorded vide murasila Ex. PW-1/A on which the complainant inscribed his signature, attested by Mushtaq and PW Liaqat. He sent the murasila to the police station for registration of the case through FC Fayyaz Khan, he also prepared the injury-sheet produced as Ex. PW-8/2 and Ex. PW-8/3 of deceased Ghulam Qadir and the dead body was sent in escort through Sajid FC for post=mortem examination. PW-9, Shamsher, Moharir/HC registered the FIR in the case, produced as Ex. PW-PA on receipt of murasila from Abdul Qadeer. PW-10, Ikram, brother of the deceased and PW-11 Liaqat have been produced as ocular witnesses of the crime, out of whom Ikram suffered gunshot wounds on his person. PW-12 Itebar Shah HC was entrusted with the arrest warrants of the absconding accused Muhammad Nisar (petitioner) for execution but due to wilful concealment of the accused, he failed to execute his arrest warrants and submitted his report to such effect produced by the witness as Ex. PW-12/1. After that, proclamation under Section 87 Cr.P.C. was issued and handed over to him, he completed the required formalities in such behalf and produced the same Ex. PW-12/2 alongwith his report. PW-13, Zarif Khan SI/PS PP Hoti conducted the investigation of the case mentioned hereinabove. PW-14, Dr. Zakirullah, Medical Officer, DHQ Hospital Mardan examined the injured Ikram and also performed autopsy of the dead body of deceased Ghulam Qadir, he produced the MLC of the injured as Ex. PW-14/3 and the post- mortem report of the deceased Ex. PW-14/4 and the inquest report containing remarks as Ex. PW- 14/5.
5. Mr. M. Zaman Bhatti, learned ASC has been heard at length. He contended that in view of the evidence produced by the prosecution, the possibility of something serious having erupted/taken place immediately preceding the incident cannot be ruled out and the solitary injury caused on the person of the deceased, however, lends support to the above aspect of the case, hence nothing precluded the petitioner to have subjected the deceased to further firing, therefore, in such view of the matter keeping in view the medical evidence, which render support to the contention raised by him that the petitioner never intended to cause death of the deceased. According to the learned counsel, the over all facts and circumstances of the case do give rise to the assumption that there must have been reasonably some cause of provocation between the petitioner and the deceased, which led consequently to the unfortunate incident hence according to the learned counsel sentence of penalty of death in view of well settled principles of safe administration of criminal justice in such like cases is unwarranted and not to be sustained. The learned counsel pointed out that as regards alleged aerial firing, the report lodged by the ocular witness Ikram (PW-10) is silent but in such behalf material improvement has been made to strengthen the case of the prosecution for some reasons best known to the brother of the deceased and the question of absconsion of the petitioner after. the incident in view of his submissions becomes insignificant, which in no way resulted in improving the case of the prosecution. Learned counsel vehemently argued that there existed reasonable probability of something having happened causing abrupt provocation, as it emerges from the case of the prosecution, to the petitioner, which resulted into the alleged incident, hence the same militates against the extreme penalty to which according to the learned counsel, the petitioner has not been exposed. The learned counsel pointed out that only one empty was seized from the place of wardat, although as per medical evidence and version of PW Ikram he also sustained gunshot wounds nor even the investigating officer was able to recover the fire-arm, which factor has due adverse effect on the prosecution case. The learned counsel in support of above noted submissions placed reliance on the reported judgments i,e, (1)
Fazle Malik and another v. the State (1969 P.Cr.LJ. 908) (2) Muhammad Bashir v. The State (PM 1982 SC 238) (3) Zahid Parvez and another v. the State (PLJ 1991 SC 309), (4) Khalid Javed v. Ansar Khan and others (1995 SCM R 1846) (5) Ali Muhammad s/o Noor Muhammad v. Ali Muhammad s/o Wali Muhammad (PLJ 1996 SC 831) (6) Tayyab Hussain Shah v. The State (2000 SCM R 683) and (7)
Bashir Ahmed v. the State (PLJ 2000 SC 1091).
6. We have carefully gone through the judgments passed by the learned High Court and the trial Court in the light of the record of the case and have also considered the case law cited by the petitioner's learned counsel in support of his contentions scrutinized in view of the entire evidence.
7. From the contentions put forth on behalf of the petitioner, it is quite clear that the learned counsel candidly conceded that the commission of crime is not disputed by the petitioner and that he attempted to convince about the extreme penalty of death awarded to the petitioner being unwarranted and not sustainable in the given facts and circumstances of the case, which reasonably according to the learned counsel gave rise to conclude from the prosecution's evidence that something having occurred/took place between the deceased and the petitioner causing an abrupt provocation which allegedly motivated the petitioner to resort to firing, who undisputedly fired a single shot on the person of the deceased, which proved to be fatal. Such a contended aspect, has been considered and examined in the light of the evidence of ocular witnesses namely Ikram (brother of the deceased) and PW Liaqat, an, independent witness and unconcerned person including the medical evidence adduced at the trial. From the medical evidence of Dr. Zakirullah M. 0. DHQ Mardan (PW-14), who conducted the post-mortem of the deceased Ghulam Qadir, it has been proved by the prosecution that the deceased suffered fire- arm entrance wound on the left orbit destroying left eye, exposing brain matter with an exit wound on the left side of skull. As a result whereof his scalp, skull, membrane and brain matter were damaged leading to haemorrhage, shock and death, whereas; Ikram, brother of the deceased PW- 10 has also suffered three fire-arm entrance wounds i,e, on the upper half of the posterior side of the left arm, left side of the chest just below the axilla and the entrance wounds on the 4th and 5th fingers of left hand fracturing the phalangeal bones with exit wounds corresponding to the former two injuries. The medical evidence despite cross-examination conducted could not be discredited, impeached or rebutted. The expert's evidence unequivocally leads a prudent mind to believe that the deceased and the injured were subjected to repeated fires out of which a fatal shot hit the deceased at the vital part, as above noted, of his body, therefore it could not be said that only one shot was fired by the assailant and luckily PW Ikram, brother of the deceased, survived, who too sustained serious fire-arm wound on the left side of his chest just below the axilla having an exit wound on the back of left half of his chest and was brought to the hospital promptly after the incident in semi unconscious condition with a non recordable BP, hence it cannot be said that the appellant fired multiple shots with the deadly weapon without any intention to cause the death of the deceased or had no knowledge that the attributed act will not in the ordinary course of nature be sufficient to cause the death of the person subjected to firing.
8. It has been alleged in the report that PW Muhammad Ikram alongwith his brother Ghulam Qadir deceased and a neighbour Liaqat were present on the place of incident and in the meantime accused Abdul Raziq, Usman, and Nisar interse brothers equipped with fire-arms made firing on them as a result whereof he suffered serious injuries whereas; his brother Ghulam Qadir died on the spot. The motive of the crime was disclosed that about 2/3 days ago there was a row between them. PW Ikram in his deposition at the trial supported to his version as contained in the report and specifically alleged that all the three nominated accused persons came to the spot duly armed, out of whom accused Muhammad Nisar made firing initially in the air and he restrained him from doing so, on which accused Muhammad Nisar got annoyed and with the help of his other brothers/co accused persons made firing at him and Ghulam Qadir, due to which he was injured and Ghulam Qadir after receiving fire-arm injures died on the spot. It is worthwhile to note that PW Ikram in serious condition was brought to the hospital promptly after the incident alongwith the dead body of his deceased brother Ghulam Qadir. Hence, it could not be expected from him to have mentioned in his report the details of the incident as it happened. Therefore, in such view of the matter his testimony containing details of the occurrence before the trial Court will be of great significance and value as he was subjected to cross-examination by the defence. PW Ikram in his deposition has supported to the contents of his report on all material particulars. No doubt he for the first time in his evidence before the trial Court stated that the nominated accused present in Court came to the post duly armed with deadly weapons, out of whom accused Nisar made aerial firing so he restrained him from doing so, on which accused Nisar got annoyed and with the help of his brothers/co-accused persons, Nisar accused started firing at him and Ghulam Qadir. This part of his evidence has not been challenged or disputed by the defence in cross-examination nor relating to such deposed fact, the PW was confronted with the contents of the report made by him to the policy officer; hence such a deposed fact in the given circumstances of the case and the physical status of the PW at the relevant time when he made the report shall be deemed to have been accepted by the accused, which further gets due corroboration from the testimony of the other uninterested and independent ocular witness of the incident namely Liaqat (PW-11), who had fully corroborated to the version of PW Ikram and was subjected to cross-examination as well but his testimony and that of PW Ikram remained firm, consistent, convincing, straight forward and reliable. Hence, the direct evidence adduced in support of the incident by the ocular witnesses cannot be doubted, discredited or discarded on mere suppositions or any hypothesis not emerging from the prosecution evidence.
9. Reverting to the contention of the learned ASC that the probability of something very serious in nature had happened immediately preceding the incident stands excluded from the specific and positive version of the coular witnesses, who stated that the nominated accused persons reached to the place of incident out of whom accused Nisar initially made aerial firing on which PW Ikram asked him not to do so, on which the petitioner Nisar felt annoyed and started firing with the pistol at him and his deceased brother Ghulam Qadir. In view of such an undisputed and unchallenged version of the PWs, the contention raised by the learned counsel for the petitioner becomes devoid of any substance to award lesser sentence to the petitioner as against normal penalty of death confirmed by the learned High Court on proper appraisal and scrutiny of entire evidence and on taking into consideration the entire facts and circumstances of the case. It has been held in the reported judgment of this Court i,e, Muhammad Bashir supra that awarding of lesser sentence is not a universal rule in the case of solitary fata below as the Courts have to take notice of seat of injury, weapon used and damage done together with the relevant knowledge, preparation, intention or premeditation to be the relevant factors to be considered while awarding lesser sentence. The case law cited in support of the contention by the learned counsel for the petitioner for awarding lesser sentence in view of the above mentioned facts and reasons is not applicable to the case in hand in view of the material distinguishable facts of each case. The petitioner alongwith his two brothers/the nominated co-accused persons came to the place of incident equipped with fire-arms and started aerial firing on which he was asked by the PW Ikram not to do so which annoyed the petitioner and thereupon; he started firing at the PW Ikram and Ghulam Qadir deceased; does not in our considered view in absence of any reason, apparent or emerging from the evidence nor the act of asking the accused to stop firing would create a cause of grievance in the ordinary course of the event to the petitioner to have resorted to firing resulting in the instantaneous death of Ghulam Qadir deceased and inflicting serious injures to PW Ikram.
There is nothing on record to presume that something had preceding the incident taken place, which caused abrupt provocation to the petitioner to resort to firing. The learned trial Court has also attended to such an aspect in its judgment and came to the conclusion in view of the evidence that nothing emerges from the prosecution evidence to militate, in awarding lesser sentence of life imprisonment as against the normal penalty of death, which has been maintained by the learned High Court on consideration, appraisal and scrutiny of entire evidence.
10.Non recovery or failure on the part of the investigating officer to recover the weapon of offence from the accused, who absconded after commission of the offence and seizure of one empty from the place of occurrence per se will not by any stretch have an adverse effect on the prosecution case in view of the un-impeached ocular account of the incident, medical evidence corroborated by other pieces of circumstantial evidence, such as, seizure of blood-stained earth from the place of incident, bloodstained clothes of the deceased and the injured, seizure of crime empty emitting fresh discharge of gun powder and the report of serologist coupled with the absconsion of the accused after the incident.
11. No case for leave to appeal is made out, consequently; this petition is dismissed and leave to appeal is refused.