JUDGMENT ASIF Saeed KHAN KHOSA, J.~ Sabir Hussain appellant was convicted for an offence under Section 302(b), PPC vide judgment dated 7.11.1998 handed down by the learned Sessions Judge, Mianwali and was sentenced to death and to pay of a sum of Rs. 1,00,000/- to the heirs of Muhammad Ikram deceased by way of compensation under Section 544-A, Cr.P.C, and in default of payment thereof the said amount was ordered to be recovered as arrears of land revenue. The appellant has challenged his conviction and sentence before this Court through the present appeal which has been heard by us alongwith Murder Reference No. 457 of 1998 seeking confirmation of the sentence of death passed by the learned Trial Court against him. We propose to decide both these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Muhammad Jameel complainant was a resident of Chak No. 5/DB situated within the area of Police Station Kundian, District Mianwali and on 1.4.1998 he was present in his house alongwith his wife namely Mst. Balqees Bibi and their children, In the afternoon the complainant's son namely Muhammad Ikram aged about 17/18 years, a student of Technical College, Mianwali returned to .The complainant's house after attending his college and sat near the complainant and others on a cot in the compound of the complainant's house. The complainant's wife namely Mst. Balqees Bibi started moving towards a room of the house so as to fetch food for the said son of the complainant when at about 3.00 p.m. The complainant's brother-in-law (brother of the complainant's wife) namely Sabir Hussain appellant came there with a double barrel gun .12 bore. Immediately upon has arrival the appellant raised a lalkara that he had come to teach a lesson to Muhammad Ikram for forbidding him from visiting his house, In order to save himself Muhammad Ikram stood up from the cot but in the meanwhile the appellant fired two shots from his gun which hit Muhammad Ikram on the left side of his neck.
Upon receipt of those injuries the complainant's son fell down. The hue and cry raised by the complainant and his wife attracted the complainant's brothers namely Muhammad Latif and Abdul Majeed to the place of occurrence and they too witnessed the occurrence. Soon thereafter the appellant decamped from the scene of the crime while brandishing his gun. The complainant and others then took Muhammad Ikram in an injured condition to Civil Hospital, Mianwali on a wagon but he succumbed to his injuries and died on the way. The motive set up in the F.I.R, was that Sabir Hussain appellant was a vagabond and was of bad character and he had been forbidden by the complainant's son namely Muhammad Ikram deceased from visiting the complainant's house. That forbiddance had led to a verbal altercation between the two. a few days prior to the present occurrence. Leaving the dead-body of Muhammad Ikram deceased in Civil Hospital, Mianwali in the care of his brothers namely Muhammad Latif and Abdul Majeed the complainant went to Police Station, Kundian, District Mianwali alongwith Muhammad Boota, Lumberdar and lodged F.I.R. No. 48 thereat in respect of the present occurrence at 5.00 p.m. On 1.4.1998 for an offence under Section 302, PPC.
3. The investigation of this case was initially conducted by Hafiz Muhammad Rustam, SI/SHO (PW.12) and then by Muhammad Sher Khan, SI (PW.11) and Nazir Hussain, AS1 (PW.4). During the investigation an injury statement and an inquest report were prepared, the dead- body was sent to the mortuary for autopsy, the place of occurrence was inspected, blood-stained earth was secured therefrom, a rough site-plan thereof was prepared and statements of witnesses were recorded. After the postmortem examination of the dead-body the last-worn clothes of the deceased were secured and later on a formal site-plan of the place of occurrence was got prepared, the appellant was arrested and a gun .12 bore alongwith four live cartridges were recovered from his possession. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned Trial Court framed a charge with two heads under Sections 449 and 302, PPC against the appellant to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced twelve witnesses in support of its case against the appellant. Muhammad Jameel complainant (PW.8) and Mst. Balqees Bibi (PW.9) furnished the ocular account of the incident in issue and they also deposed about the motive. Nazir Hussain, AS1 (PW.4) and Allah Wasaya, FC (PW-5) stated about recovery of a gun .12 bore alongwith four live cartridges from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Safdar Khan Kundi (PW.I). Hafiz Muhammad Rustam, SI/SHO (PW.12), Muhammad Sher Khan, SI (PW.11) and Nazir Hussain, AS1 (PW.4) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In his statement recorded under Section 342, Cr.P.C, the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While responding to a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him he had stated as follows:-- "My sister Mst. Balqees, PW was married to Muhammad Jamil, complainant and from this wedlock she gave birth to Muhammad Ikram, deceased besides other children. My .Relations with Muhammad Jamil, complainant and his other family members including the deceased were very cordial. Muhammad Jamil, complainant borrowed Rs. 60,000/- from me and did not return this amount despite the fact that I asked him to pay back the money time and again. On the day of occurrence at relevant time I reached the house of Muhammad Jamil, complainant empty handed and demanded Rs. 60,000/- from him. On my demand, Muhammad Jamil, complainant turned red with rage-and picked up his licenced double barrel gun in order to fire at me. My sister Mst. Balqees intervened and held her husband Muhammad Jamil when during the struggle the gun went off and accidentally hit Muhammad Ikram, deceased. On account of money dispute Muhammad Jamil and under his influence Mst. Balqees falsely involved me in this case.
Muhammad Bashir Cheema was my relative and a family friend. He made murderous assault on Abdul Majeed, PW for, which he was booked on the charge of attempted murder and was convicted and sentenced to three years' R.I. While undergoing the sentence in jail Bashir Cheema died, In that case I sided with Bashir Cheema to the annoyance of the complainant party of this case. A daughter of aforesaid Bashir Cheema is the wife of my brother. This was another reason which prompted the complainant to falsely involve me in this case."
The appellant, however, opted not to make a statement on oath under Section 340(2), Cr.P.C, and he did not produce any witness in his defence.
7. Upon conclusion of the trial the learned Trial Court found the prosecution's case against the appellant to have been proved beyond reasonable debit and, thus, he was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance, it has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and the version of the incident advanced by the appellant was more plausible. He has also argued in the alternative that in the circumstances of this case the appellant does not deserve a capital sentence, it has , thus, been canvassed by him that the appellant may be acquitted by this Court or in the alternative his sentence may be reduced from death to imprisonment for life. As against that ^e learned counsel for the State and the- learned counsel for the complainant 'have maintained In unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his conviction and sentence recorded by the learned Trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that the occurrence in this case had taken place in broad daylight and an F.I.R, in that respect had been lodged with reasonable promptitude wherein the present appellant had specifically been nominated as the sole perpetrator of the murder in issue, it is of critical importance to mention here that the appellant is very closely and sensitively related to the complainant party inasmuch as Mst. Balqees (PW.9), the mother of Muhammad Ikram deceased, is a real sister of the appellant whereas Muhammad Jameel complainant (PW.8), the father of Muhammad Ikram deceased, is a brother-in-law of the appellant. Muhammad Ikram deceased was, thus, a son of the appellant's real sister, In the absence of any background of enmity or ill-will between the parties there was hardly any occasion for such closely and sensitively related witnesses to falsely implicated the appellant in a case of this nature. Both the eye-witnesses produced in this case, i.e. Muhammad Jameel complainant (PW.8) and Mst. Balqees (PW.9) were quite natural witnesses inasmuch as the occurrence in this case had taken place in their on. House. Even the shop of the complainant was situated in a portion of the same house and, thus, it could not be said that the complainant was out of his house at the relevant time minding his business at the said shop, it is of critical importance to mention here that through the suggestions made by the defence to both the said eye-witnesses and through the statement made by the -appellant under Section 342, Cr.P.C, the date, time and pi v of occurrence and the appellant's presence and involve ~ nt in the same Were never disputed by the appellant.
Even the. Presence of the above-mentioned eye-witnesses at the spot . At. The-, relevant time had been admitted by the defence, through its suggestions and the Statement made by the appellant under Section 342, Cr.P.C. Although the appellant had advanced a story regarding accidental going off of the gun of Muhammad Jameel complainant and its fire hitting Muhammad Ikram deceased accidentally yet no independent proof establishing such a story had been produced by the appellant before the learned Trial Court nor any circumstance of this case confirms such a story. The above-mentioned eye-witnesses had made absolutely consistent statements before the learned Trial Court regarding the main occurrence which statements had not only impressed the learned Trial Court but the same have also been found by us to be worthy of implicit reliance.
10. Ithad been alleged in the F.I.R, that the appellant was of a bad character and Muhammad Ikram deceased had forbidden him from visiting his house and an altercation had taken place between the two in that regard a few days prior to the present occurrence, it may be true that Muhammad Jameel complainant (PW.8) and Mst. Balqees (PW.9) had not claimed to be present either at the time of forbiddance or at the time of the altercation but it cannot be lost sight of that being parents of Muhammad Ikram deceased and being a brother-in-law and a real sister of the appellant respectively both the said witnesses were expected to be in the know of the bitterness between the Appellant and the deceased. The appellant's criminal history had been established on the record of this case and the same finds a mention in paragraph No. 11 of the impugned judgment passed by the learned Trial Court, In that backdrop we have felt that the motive set up by the prosecution was not without any foundation or substance.
11. Although a gun .12 bore had allegedly been recovered from the appellant's possession during the investigation of this case yet such recovery was legally inconsequential as no crime-empty had been recovered from the place of occurrence so as to connect the recovered gun with the murder in issue. Be that as it may, the ocular account furnished in this case has been found by us to be quite strong and the motive set up by the prosecution had also been found by us to be quite believable and, therefore, absence of corroboration from the recovery of gun has not been found by us to be sufficient all by itself to weaken the ocular account in any manner.
12. The ocular account furnished in this case had found ample support from the medical evidence inasmuch as the date and time of occurrence, the weapon used therein and the locale of the injuries caused by the appellant as stated by the eye-witnesses had all been confirmed by the medical evidence.
13. The discussion made above leads us to an irresistible, unavoidable and inescapable conclusion that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, the learned Trial Court was quite justified in convicting the appellant for an offence under Section 302(b), PPC. We have also attended to the question of sentence to be passed against the appellant and in this context^was, have noticed that the appellant was involved in many criminal cases and he had murdered his on. Young nephew in broad daylight inside the latter's on. Home and that too within the view 6f his parents. The appellant had committed the said murder over a matter which was not all that serious and he had' deprived his young nephew of his life at the age of about 17/18 year the said nephew of the appellant was a college student and he had been deprived of his life over a trifling issue. All this shows that the appellant is a desperado who cannot be let loose on the society. The normal wages of a crime of murder is death and in the peculiar circumstances of this case the appellant deserves no less.
14. As a sequel to the discussion made above this appeal is dismissed and the conviction and sentence of the appellant recorded by the learned Trial Court are upheld and maintained.
15. Murder Reference No. 457 of 1998 is answered in the affirmative and the sentence of death passed by the learned Trial Court against Sabir Hussain appellant is confirmed.