' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Murder Reference No,509 of 2001 Criminal Appeal No,498 of 2001 as they arise out of the same judgment dated 9-7-2001 passed by the learned Sessions Judge, Muzaffargarh whereby appellant was convicted under section 302(b), P.P.C. And sentenced to death with a compensation of Rs,50,000 to be paid to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default hereof to further undergo one year R.I.
2. Brief facts of the case as disclosed by the complainant Muhammad Ali (P.W.5) are that on 13-5- 2000 at about 8-00 p.m. Complainant along with his son Shaukat. Hussain, Nazeer and Allah Ditta (P.W.6) was going from his house to Chowk Rangpur and when they reached near the house of Baghay Khan Rajput, Shahid appellant emerged there and raised to Lalkara to teach a lesson to Shaukat deceased for insulting him and then took out a pistol from his Naifa, he made two fires on him in his abdomen who fell down and Shaukat succumbed to the injuries at the spot. The motive was stated to be a previous quarrel over some payment.
3. The investigation of the case was carried out by the police and after having completed legal formalities the accused were sent up for trial before the learned trial Court where the prosecution, in order to prove its case produced eleven prosecution witnesses whereas the accused in their statements recorded under section 342, Cr.P.C. Pleaded not guilty and claimed trial.
4. Learned counsel for the appellant in support of his appeal contended that it is a dark night occurrence and there was no source of light so identity of the accused was not possible; that complainant's name in the F.I.R. And statement under statement under section 342, Cr.P.C. Is different; that the motive is not proved and not believed by the learned trial Court; that conduct of the complainant in going to the police station for lodging the F.I.R. Immediately after the occurrence and leaving alone his son in injured condition was quite unnatural; that name of the accused is not mentioned in the recovery memo and the site-plan prepared at the spot in support of which he relied on Taj Ali Khan v. State (1999 SCM R 2444), Syed Azeem Shah v. The State (NLR 1998 AC 99) and Noor Ahmad v. State (PLJ 1982 Cr.0 251); that the appellant has given his age as 18 years in his statement under section 342, Cr.P.C. And he was 17 years of age at the time of occurrence; that the report of the Medical Board, if any, was not put to the accused during the trial and it cannot be read against the accused and relied on Waqar Azeem and Billu and others v. The State (2001 PCr.R 202); that both the eyewitnesses are chance witnesses and not confidence inspiring and that the above factors suggest that it is a case of mitigation.
5. On the other hand, learned counsel for the State assisted by complainant's learned counsel submits that there was only 4/5 feets distance between the appellant and the eye-witnesses, the parties were known to each other, so, no question of misidentity arises because in the days of occurrence the Maghrib prayer time is 7-30 p.m. And time of occurrence is 8-00 p.m.; that site- plan is not a substantive piece of evidence; that so far as question of age of the appellant is concerned as per report of the Medical Board he was major at the time of occurrence; that the prosecution has proved its case against the appellant to the hilt and that the appeal filed by the appellant against the captioned conviction and sentences is liable to be dismissed by this Court.
He relied on Sardar Khan v. State (1998 SCMR 823).
6. We have heard learned counsel for the parties at a great length, have given anxious consideration to their submissions made before this Court and have also gone through the record with their able assistance.
7. In this case the occurrence had taken place at 8-00 p.m., the matter was reported to the police at 8-25 p.m on the same day and the formal F.I.R. Was recorded at 8-35 p.m. So it can be said that it is a case of promptly lodged F.I.R.
8. It is a case of single accused. Name of the appellant is mentioned in the F.I.R. With a specific role.
The ocular account in this case is not only corroborated by the medical evidence and also by the evidence of recovery. The post-mortem examination was conducted by P.W.1 on 14-5-2000 and the duration given by the doctor was 12/15 hours which fits in with the time of occurrence.
9. The contention of the learned counsel for the appellant that it was dark night occurrence and identity of the appellant was not possible cannot be accepted because the parties were known to each other coupled with the fact that in the days of occurrence the Maghrib prayer time was 7-30 p.m. And time of occurrence was 8-00 p.m. And distance between both the parties was 4/5 feet, so, the identity of the assailant was possible as has happened in the present case. This contention of the learned counsel for the appellant is repelled. On this score, the eye-witness account cannot be discarded.
10. So far as contention of learned counsel for the appellant regarding non-mentioning the name of the accused on the recovery memos which were prepared at the time of occurrence is concerned, a specific question was put to the Investigating ' Officer P.W.11 Azhar Hussain, S.-I. Who in cross-examination, at page 42 of his statement, stated that "... It is correct that I have mentioned the name of the accused on Exh.PD, Exh.PE and Exh.PG. Volunteered that I mentioned the name of the accused only when he is arrested". The first document which was prepared after registration of the F.I.R. Was the Inquest Report. It appears the same is due to negligence of the Investigating Officer and it is settled by now that the same is not fatal to the prosecution case. Even otherwise, it is settled by now that while doing justice technicalities are to be overlooked by the Courts of law.
11. Both the eye-witnesses of this case i.e, P.Ws.5 and 6 have fully proved the prosecution case.
There is no enmity between the parties. No reason for false implication arises. Although the eyewitnesses are related to the complainant party yet there is nothing on record to lead an inference that they were inimical towards the appellant. It is not a case of single blow but the fire shots were repeated and two consecutive shots were fired upon the deceased which shows intentional murder.
12. So far as remaining submissions of the learned counsel for the appellant are concerned, those are technical in nature and it is settled by now that the Court has to see the quality of the evidence and not the quantity and if the ocular account is confidence-inspiring, having its intrinsic value, then the same can be relied upon to sustain a capital charge against the accused. Further more that in this case the ocular account is not only corroborated by the medical evidence but also the evidence of recovery.
13. Now we would like to discuss the contention of the learned counsel for the appellant qua non- proving of motive by the prosecution. It is law of the land that where the eye-witness account was worthy of credence, unimpeachable, confidence-inspiring and accusation was established beyond any shadow of doubt, weakness of motive or its absence or where alleged but no proved would hardly make any difference in awarding the death and would not constitute mitigating circumstance. In this regard reliance is placed on Waris Khan v. The State (2001 SCM R 387) and Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCM R 427).
14. There is yet another aspect of the case. Learned counsel for the appellant has laid much stress upon the tender age of the appellant. We have gone through the judicial file and in answer to the said contention of the appellant's learned counsel, complainant's learned counsel has contended that to determine the age of the appellant Medical Report was called by the learned trial Court which is available at page 53 of the judicial file and we have taken judicial notice of the same. The opinion was given by three doctors, firstly, according to Dental Surgeon appellant's age was 17-25 years, according to Radiologist his age was more than nineteen years and according to the Medical Superintendent of D.H.Q. Hospital, Muzaffargarh his age was 20-25 years. This report is dated 14-6-2001. So, during the existence of the above report and non-existence anything on record in rebuttal we can safely held that the appellant was major at the time of occurrence.
15. So far as precedent case-law relied upon by the learned counsel for the appellant is concerned, the same is distinguishable and is not applicable in the facts and circumstances of this case.
16. The analysis of the entire record of this case coupled with anxious consideration given to the submissions made at the bar by the learned counsel for the respective parties and application of independent judicial made would lead us to an irresistible conclusion that the prosecution has proved its case against the appellant through an independent and unimpeachable evidence and it is a case capital punishment and there is no mitigation to warrant lesser sentence to the appellant.
17. Murder Reference is answered in the affirmative, Criminal Appeal No,499 of 2001 is dismissed and the sentence of death awarded to appellant is hereby confirmed.