Dost Muhammad Khan, J.--At a trial held by the learned Sessions Judge, Haripur, Muhammad Saeed aged 31 years, was found guilty for crime under Section 302 PPC for the murder of Rashad and Imtiaz Bibi. Thus he was convicted and sentenced to death on two counts and has to pay compensation of Rs, 60,000/- to the legal heirs of each deceased. He was further found guilty under Section 324 PPC for effectively attempting at the life of Nazeer Abid (P.W.5) and upon conviction was sentenced to 8 years R.I. with a fine of Rs, 50,000/- or in default of payment of fine to suffer two years R.I. He was further found guilty for crime under Section 459 PPC and upon conviction was sentenced to 7 years R.I.
2. The appellant, has now questioned his conviction and sentences, through the instant appeal while, the learned trial Judge has sent Murder Reference No, 6 of 2005 seeking confirmation of the sentences so awarded.
3. The present tragedy was enacted on 9.7.1998 at 9 p.m. According to the report Ex. P.A/1 lodged by injured complainant Nazeer Abid (P.W.5) he after offering night (Isha) prayers was sitting on the prayer mat, while his mother Mst. Imtiaz Bibi and his brother Rashad Khan, (both deceased) were a sleep nearby in the courtyard of the house when in the meanwhile appellant entered there, who first fired at Rashad Khan with pistol who was hit. On the reports of the fire shots his mother Mst.
Imtiaz Bibi got up and cried who was also fired at by the appellant, as result she too was hit.
Thereafter the appellant fired at the complainant effectively and caused him injuries on left side of mouth and both arms. On the hue and cries and reports of fire shots. Abdur Rauf (P.W.6) was attracted to the crime spot alongwith Abid who witnessed the occurrence while appellant bolted away.
4. The report of the injured complainant was taken in the casualty of Civil Hospital Haripur by Bashir Ahmad IHC (P.W.8) on the basis of which F.I.R. Ex. P.A. Bearing No, 276 was registered by Police Station Kotnajibullah, Haripur. Injury sheet of the complainant was prepared there and was left in the hospital for treatment. Complainant Nazeer Abid was a disabled person who has identified the accused in the light of the two burning bulbs at the time of occurrence which, were taken into 'possession by the I.O. vide memo Ex. P.W.2/1.
5. On receiving the copy of F.I.R. Qazi Ghulam Asfiya Inspector proceeded to the spot where the dead bodies of Mst. Imtiaz Bibi and Rashad Khan were lying. He prepared the inquest reports and injury sheets of both and dispatched them to the mortuary, under the escort of a constable. He also prepared the site-plan Ex. P.B., collected blood-stained earth from the place of deceased Imtiaz Bibi and that of Bashed Khan. He also took into possession the prayer mat (Jae-namaz) and the prayer cap stained with blood from the place of complainant Nazeer Abid vide memo Ex.
P.W.2/2. He collected two crime empties of .30 bore through memo Ex. P.W. 2/3 from the place where the dead body of Rashad deceased was present and two similar empties were found near the dead body of Imtiaz Bibi while four crime empties of the same bore from the place of complainant Nazeer Abid injured. These were giving fresh smell of gun powder and, therefore, were placed into a sealed parcel. He also took into possession a cover of pillow blood-stained bearing bullet marks vide memo Ex. P.W.9/4. He received garments of the deceased Rashad Khan brought by F.C. Yaqoob No, 130 and sealed into a parcel vide memo Ex. P.W.4/1 while garments of Imtiaz Bibi were brought by Ahmad Nawaz F.C. No, 36 which were blood-stained and also a spent bullet which were taken into possession vide memo Ex. P.W. 9/5. He also took into possession two electric bulbs of 100 watt. Ex. P. 1 and Ex. P.2 from the spot. He sent the blood-stained articles to the chemical examiner whose report was brought on record which is in the positive.
6. These recovery memos were witnessed and attested by Roshin Din'ASI (P.W. 10) and Ghulam Mursalin not produced.
7. Roshin Din ASI (P.W.10) arrested the appellant on 12.7.1998 and during interrogation he disclosed about concealment of the crime weapon and it was on 13.7.1998 that he led the police party to a place known "Paharjabbi-nalla" and brought out .30 bore crime pistol country made Ex. P.14 with two magazines and four cartridges Ex. P. 15 which he produced to the ASI. The same was sealed into a parcel there and then. Initial was put on the pistol and memo to this effect was prepared which is Ex. P.W. 10/1 while site-plan of the place of recovery is Ex. P.W. 10/2. He also registered a separate case under Section 13 A.O. against the appellant as the pistol was unlicensed. On the same date vide fire-arm. The medicolegal report is Ex. P.W.12/1 while injury sheet Ex. P.W.8/1.
The said doctor on 10.7.1998 at 6.30 a.m. conducted autopsy on the dead body of Rashad Khan, aged about 23 years, and found two entry wounds and one single grazing wound, all caused by fire-arm. The entry wounds were having charring marks. Scalp, skull, membrane, brain were found injured. Stomach was containing food particles and juices. Skull bone was found fractured while, rest of the organs of the body were in tact. One bullet, shirt and banyan with shalwar were handed over to the police. Postmortem report is Ex. P.W. 12/2. Time between death and postmortem is shown 9 to 10 hours.
10. As discussed above, at pre-remand stage, 11 witnesses were produced by the prosecution while, after remand, the last witness namely Dr. Humayun was examined as P.W. 12 where after the accused was reexamined under Section 342 Cr.P.C. who produced his sister Mst. Aneesa Bibi this time with the plea that few days prior to the occurrence Rashad deceased had attempted to sexually harass her in her house but on her hue and cry the deceased fled away which fact, she had disclosed to the appellant but she was advised by the appellant not to tell about the incident to any one.
11. The entire prosecution case rests on the following items of evidence:--
(i) The ocular account of injured complainant Nazeer Abid (P.W.5).
(ii) The ocular account of circumstantial nature of Abdur Rauf (P.W.6).
(iii) The recovery of crime empties from the spot and the recovery of crime pistol at the instance of the appellant.
(iv) The positive report of the arms expert and confirmatory medical evidence.
12. We have heard the arguments of the learned counsel for the appellant, for the complainant and the learned D.A.G. for the State and have gone through the entire evidence/record with their assistance.
13. Before discussing the merits of the prosecution case it is, of great worth to mention here that, complainant Nazeer Abid (P.W.5) is the first cousin of the appellant. The degree of relation of the appellant with Mst. Imtiaz Bibi is like a mother and a son while deceased Rashad was his first cousin. Thus we are having Nazeer Abid a witness of the first category entirely dependable and that too when there was no blood feud between the parties before or at the time of occurrence. He was not only inmate of the same house but was victim of the same aggression launched by the appellant. Two electric bulbs were secured from the spot making identification of the culprit more than possible. More-so, when the parties are closely related to each other and the firing has made on all the three victims from a very close range as the entry wounds on the three victims were having charring marks, therefore, we have no doubt in our mind regarding the identification of the appellant by the complainant. Therefore, the plea of the learned counsel for the appellant that being night occurrence there was a chance of mis or non-identification and suspicion has fallen on the appellant.
14. The next plea of the learned counsel for the defence that the deceased was having grudge with another family in the village, therefore, the possibility of enacting the tragedy by third party cannot be ruled out, is equally of no force because keeping in view the number of injuries on the three victims there was an ample room for the complainant to have added the name of another woe/adversary in addition to the appellant in the F.I.R. but he did not opt for the same which bespeaks volumes about the truthfulness of the story he has given in the F.I.R. and at the trial in the Court.
15. The next plea of the learned counsel for the defence that due to 'molestation of the sister of the appellant by deceased Rashad few days ago, he has acted under a provocation albeit not sudden thus he can be given the benefit of reduced sentence is absolutely misconceived and absurd one.
At pre-remand trial stage no doubt the plea was taken but with no certain words but defence evidence on this score was not produced nor it was suggested to the two prosecution witnesses and it was after remand of the case to the trial Court that the defence evidence was led with some what new theory which is an attempt like a drowning man catching at the straw. Even for the sake of arguments if such plea is accepted for discussion purposes it shall not prevail in any manner because if the appellant had animus against Rashad deceased then he would have confined his deadly assault to him alone but he also took the life of his mother and made very serious attempt at the life of the complainant Abid and after exhausting the entire magazine of cartridges and after getting ensured that no one was left behind alive and all signs of the crime he has committed have been destroyed, he left the spot. He has not only acted in a brutal, manner but also in a very planned and calculated way, therefore, such defence plea cannot be accepted which appears to be an after thought. More-so, when no one has come forward to support the same.
16. The last plea of the learned counsel for the defence that the medical evidence is in conflict with the ocular account because according to him charring marks are caused by the fire-shot from a pistol within 9 to 12 inches while, in the site-plan the distances between the victims and the appellant are shown upto 3/4 feet is also not acceptable for the reason that site-plan is not a substantive piece of evidence and due to quick changing of paces by the appellant, witnesses were not expected to measure the same with absolute accuracy, more so, when the site-plan has not been prepared at the instance of Nazeer Abid P.W., the only and the first eye-witness as well as victim of the crime.
The arguments of the defence counsel that prosecution has failed to point out and prove the motive for the crime is also of no benefit to the appellant either to extend him benefit of doubt or any concession in the reduction of sentence because we have already held that he has committed the crime in a very brutal manner and does not deserve any leniency what so ever in the matter of sentence as under the law motive is not sine qua non for awarding normal penalty of death in such like cases.
17. As the parties are closely related to each other and single accused (appellant) has been charged for double murder and attempted murder causing numerous injuries to all the three victims, therefore, chance of any substitution is absolutely excluded and the neck of the appellant is well connected with the crime. Not because for the most dependable ocular account which we have believed, the same is also supported and corroborated by the other evidence like recovery of crime empties from the spot, the recovery of crime pistol at the instance of the accused and the positive report of the fire arms expert who has found the crime empties wedded with the crime pistol. The medical evidence further confirms the time of occurrence because of stomach contents of the two deceased shown in the postmortem report, thus the prosecution has established the guilt of the appellant beyond any shadow of doubt.
18.For what has been discussed above, we are firm in our view that the appellant has been rightly convicted and sentenced to death on two counts as well as to imprisonment for 8 years R.I. and compensation of Rs, 50,000/- to pay to the victim Nazir Abid for crime under Section 324 PPC as well as under Section 459 P.P.C. to 7 years R.I. alongwith fine and compensation amount.
Accordingly, appeal of the appellant fails which is accordingly dismissed and the Murder Reference sent by the trial Court is hereby confirmed on two counts. These are the detailed reasons for our short order of today.