' RAJA FAYYAZ AIIMAD, J.--- By this jail petition leave 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 of 2003, whereby the appeal filed by the petitioner namely Muhammad Nisar convicted by the learned Additional Sessions Judge, Mardan under section 302(b), P.P.C.
Respectively sentenced to death and to five years' R.I. With a fine of Rs,25,000 under section 324, P.P.C. 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 Exh.P.W.1/A, containing Fard-e-Bayan of injured Ikram son of Fazal Qadir, case Crime No,892 of 2001 was registered with Police Station "B"
Division, District Mardan on the same date at 4-50 p.m. Under sections 302/324/34, P.P.C. Against the nominated accused persons namely Abdul Raziq, Usman and Nisar (petitioner), wherein; it has been disclosed by P.W. Ikram to the Incharge Police Post A.S.-I. Abdul Qadeer that on the above said dated 4-15 p.m. He along with his deceased brother Ghulam Qadir and a neighbour Liaqat (P.W.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 P.W.8 A.S.-I. 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 Casualty Department of D.H.Q. 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 acknowledgment 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 P.W. Ikram and handed over the relevant papers to the doctor for the post-mortem of the dead body of the deceased and sent Murasila to the police station through constable Fayyaz for registration of the case.
3. A.S.-I. Muhammad Iqbal (P.W.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 Usman and 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, blood-stained earth and blood-stained clothes of injured and in his presence seizure memos. Exh.P.W.3/1 and Exh.P.W.3/2 were prepared by the Investigating Officer on which he inscribed his signature as a computer. P.W.13 Zarif Khan, S.-I., Police Post, Hoti on 21-11-2001 was appointed to investigate the case and received Murasila and copy of the F.I.R. 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. Exh.P.W.3/1. He also took into possession the blood-stained Shirt, Shalwar and Banyan of deceased Ghulam Qadir and shirt of injured Ikram, produced to him by F.C. 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 Exh.P.W.3 at the instance of P.W. 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 Exh.P.W.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 Exh.P.W.13/2 vide Murasila Exh.P.W.13/3. The blood-stained articles were sent to the F.S.L. For chemical examination and received the result produced by him as Exh.P.W.13/4 to the effect that the articles were stained with human blood. He recorded the statements of P.Ws. And after completion of investigation submitted the case papers to the S.H.O. 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 P.O. 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 S.H.O./Police Station "B" Division, Mardan, who after completion of investigation submitted challan in the Court. P.W.2, Khan Ghalib Khan, S.-I./Police Station "B" Division Mardan, arrested the proclaimed offender/accused Muhammad Nisar and submitted supplementary challan. P.W.3 Muhammad Khan, F.C., in whose presence the Investigating Officer took into possession an empty to .30 bore, emitting smell of fresh discharge vide memo. Exh.P.W.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 F.C. Sajid. These articles according to the witness were sealed into separate parcels. He also produced memo. Exh.P.W.3/2 in respect of the blood-stained articles, on which he inscribed his signature as a coMusheer. According to P.W.4 Alam Zaib Khan, A.S.-I./Police Station "B" Division, Mardan, accused Nisar was arrested on 14-9-2002 in case Crime No,197 of 2001 under section 13-E of the Arms Ordinance, 1965 of Police Station 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 of 2001 of Police Station "B" Division on 17-9-2002. During course of interrogation the accused led P.W.4 to the place of occurrence and the pointation memo. Exh.P.W.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 S.H.O. For submission of challan. P.W.4 Sajid Ali, F.C. 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. P.W.6 Farman Ali has identified the dead body of his deceased brother Ghulam Qadir before the Police Officer and Medical Officer. P.W.7, Usman Gul is the witness of the pointation memo. Exh.P.W.4/A in whose presence accused Muhammad Nisar pointed out the place of Wardat to the Investigating Officer. P.W.8, Abdul Qadeer Khan, A.S.-I. Deposed that he was on duty at the police post, Causality Department D.H.Q. Hospital, Mardan on 21-11-2001, when the complainant Ikram in injured condition was brought to the hospital along with 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 Exh.P.W.1/A on which the complainant inscribed his signature, attested by Mushtaq and P.W. Liaqat. He sent the Murasila to the police station for registration of the case through F.C. Fayyaz Khan, he also prepared the injury-sheet produced as Exh.P.W.8/2 and Exh.P.W.8/3 of deceased Ghulam Qadir and the dead body was sent in escort through Sajid F.C. For post-mortem examination. P.W.9, Shamsher, Moharir/H.C. Registered the F.I.R. In the case, produced as Exh.P.W.P.A. On receipt of Murasila from Abdul Qadeer. P.W.10, Ikram, brother of the deceased and P.W.11 Liaqat have been produced as ocular witnesses of the crime, out of whom Ikram suffered gun shot wounds on his person. P.W.12 Itebar Shah H.C. Was entrusted with the arrest of warrants of the absconding accused Muhammad Nisar (petitioner) for execution but due to willful concealment of the accused, he failed to execute his arrest warrants and submitted his report to such effect produced by the witness as Exh.P.W.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 Exh.P.W.12/2 along with his report. P.W.13, Zarif Khan, S.-I./Police Station P.P. Hoti conducted the investigation of the case mentioned hereinabove. P.W.14, Dr. Zakirullah, Medical Officer, D.H.Q. Hospital, Mardan examined the injured Ikram and also performed autopsy of the deceased body of deceased Ghulam Qadir, he produced the M.L.C. Of the injured as Exh.P.W.14/3 and the postmortem report of the deceased Exh.P.W.14/4 and the inquest report containing remarks as Exh.P.W.14/5.
5. Mr. M. Zaman Bhatti, learned Advocate Supreme Court 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 overall 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 (P.W.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 P.W. 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 PCr.LJ 908; (2) Mulnmmad Bashir v. The State PLD 1982 SC 139; (3) Zahir Parvez and another v.
The State PLD 1991 SC 575; (4) Khalid Javed v. Ansar Khan and others 1995 SCM R 1846; (5) Ali Muhammad son of Noor Muhammad v. Ali Muhammad son of Wali Muhammad PLD 1996 SC 274;
(6) Tayyab Hussain Shah v. The State 2000 SCM R 683 and (7) Bashir Ahmed v. The State 2000 SCM R 1666.
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 P.W. Liaqat, an independent witness and unconcerned person including the medical evidence adduced at the trial. From the medical evidence of Dr. Zakirullah M.O. D.H.Q. Mardan (P.W.14), who conducted the postmortem 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 P.W.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 P.W. Ikram, brother of the deceased, survived, who too sustained serious firearm 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 B.P., 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 P.W. Muhammad Ikram along with his brother Ghulam Qadir deceased and a neighbour Liaqat were present on the place of incident and in the meantime accused Abdul Raziq, Usma n, and Nisar inter se 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. P.W. 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 injuries died on the spot. It is worthwhile to note that P.W. Ikram in serious condition was brought to the hospital. Promptly after the incident along with 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. P.W.
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 spot 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 brother/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 P.W. Was confronted with the contents of the report made by him to the Police Officer, hence such a deposed fact in the given circumstances of the case and the physical status of the P.W. 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 (P.W.11), who had fully corroborated to the version of P.W. Ikram and was subjected to cross- examination as well but his testimony and that of P.W. 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 nor emerging from the prosecution evidence.
9. Reverting to the contention of the learned Advocate Supreme Court 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 ocular 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 P.W. 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 P.Ws., 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 fatal blow 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 along with 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 P.W. Ikram not to do so, which annoyed the petitioner and thereupon; he started firing at the P.W. 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 injuries to P.W. 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 unimpeached 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, blood-stained 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.