' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,464 of 2000 filed by Shahid Mehmood, appellant who was convicted under section 302(b), P.P.C. And sentenced to death and to pay compensation to the tune of Rupees one lac. He was also convicted under section 337-A(I), P.P.C. And sentenced to two years' R.I. And to pay Rs,10,000 Daman to be paid to victim Tariq. The conviction and sentence was recorded against the appellant vide judgment, dated 2-11-2000 passed by learned Additional Sessions Judge, Rawalpindi.
' Murder Reference No,81 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be answered through this single judgment. Criminal Appeal No,501 of 2000 filed by the complainant against the acquittal of Waqar Mahmood was also ordered to be heard along with appeal of the convict, so the same shall also be decided along with appeal of the convict.
2. Briefly stated the facts of the case are that Muhammad Nizam, complainant was employed in PIA and was residing at his house D/619. On 9-2-1995 at about 5 p.m., Mst. Siddiqua Begum wife of the complainant went at the rooftop to remove the clothes. Faisal Nazam son of the complainant also followed her. One Shahid Malik also came on rooftop of House No,D/62 owned by Malik Muhanunad Sharif. He was asked by wife and son of the complainant not to stand on the rooftop in such a manner as that amounted to exposition of their privacy. Upon this, Shahid Malik started abusing wife and son of the complainant. The complainant on hearing the noise also went on the rooftop.
Then Shahid went down from the roof and after a while Shahid armed with pistol along with Waqar armed with rifle .222 came on the rooftop and started firing. Shahid fired a shot, which landed on the neck of Mst. Siddiqua Begum, wife of complainant. Muhammad Tariq, real brother of the complainant who also resident of adjacent house witnessed the occurrence from his roof and ran towards the rooftop of complainant. The complainant, his son and brother brought Mst. Siddiqua down in an injured condition for taking her to hospital, but Shahid accused gave a brickbat to Muhammad Tariq, brother of the complainant which landed on left shoulder and right jaw of Tariq.
The injured succumbed to her injury in the hospital.
3. Habib Ullah, S.-I. P.W.16 took up the investigation, proceeded to Holy Family Hospital, Rawalpindi where the dead body of Siddiqua Begum was lying. He prepared injury statement Exh.P.L. And inquest report Exh.P.M. Then he went to the place of occurrence from where he took into possession the blood with the help of cotton vide pistol and one empty of rifle .222 were taken into possession from the spot vide recovery memo. Exh.P.E. A brickbat P.7 was secured vide memo. Exh.P.H. After formal investigation, Waqar accused was arrested on 7-3-1995 and the accused while in custody got recovered rifle P.3 which was taken into possession vide memo. Exh.P.C. Shahid accused was arrested on 20-3-1995 and he while in custody on 21-3-1995 led to the recovery of pistol P.8 which was secured vide memo. Exh.P.J. The Investigating Officer on 9-2-1995 also got medically examined Tariq, the injured. After completion of the investigation, both the accused were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 17 witnesses in all. The learned D.D.A.
Tendered in evidence report of the Chemical Examiner Exh.P.T. And closed the case of prosecution.
The accused in their statements under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, Waqar was acquitted while Shahid was convicted and sentenced as stated above.
5. Learned counsel for the appellant submits that the present appellant was younger brother of his acquitted accused Waqar and this fact stood admitted by the complainant himself. Learned counsel wants to argue that the appellant acted under the commanding Lalkara of his elder brother. Further submits that there was no premeditation, it was a case of sudden flare up, there was no previous background of enmity and that the appellant did not repeat the shot. In fact the emphasis of argument of learned counsel for the appellant was that it is not a case of capital punishment and there are mitigating circumstances in this regard. He has relied upon 2005 PCr.LJ 1086; 2000 SCM R 1818; 1999 SCM R 396; PLD 1994 SC 641; PLD 1996 SC 122 and 2002 SCM R 1394.
6. Learned counsel for the State submits that Mumti having been mentioned in the site plan, the ocular account is fully supported by medical evidence, it is not a case of sudden flare up as also not of acting under the commanding Lalkara of his elder brother because both performed independent acts and that on the one side there was one lady and his empty-handed son while on the other hand, both the brothers while armed with fire-arms fired at the lad. According to learned counsel, the prosecution story is further corroborated by positive report of the Fire-arms Expert.
7. We have heard learned counsel for the parties at length and have gone through the record. In the instant case, the occurrence had taken place at 5 p.m. While the matter was reported to the police in the police station at 6-30 p.m. When the distance between the piace of occurrence and the police station is 1/2 kilometer. The deceased lady was firstly taken to the hospital so that her life could be saved and moreover the A matter was reported to the police in the police station, so it was a case of promptly lodged F.I.R.
' Though three eye-witnesses namely P.Ws. 13 to 15 are closely related to the deceased, but their presence at the spot, by no stretch of imagination, can be disbelieved for the reason that P.W.13 complainant was husband of the deceased while Faisal Nizam P.W.14 was her son and their presence in the house where the occurrence had taken place was natural. It was the position of Muhammad Tariq P.W.15 also who is real brother of the complainant and was residing in the adjacent house of the deceased. It was also the case of prosecution that when the deceased was brought down from the rooftop on the road for taking her hospital, the appellant caused injuries with brick bat on the person of Muhammad Tariq P.W. He was also got medically examined by Investigating Officer P.W.16 on 9-2-1995 and blunt weapon injuries were found on his person.
' Dr. Muhammad Ashraf P.W.5 conducted post-mortem examination on the dead body of the deceased at 9-10 a.m. On 10-2-1995. The duration given by him between injury and death was one hour while within 24 hours between death and post-mortem. The occurrence took place at 5 p.m.
On 9-2-1995. In this view of the matter, the ocular account is fully corroborated by medical evidence and a fire-arm injury exists on the neck of the deceased lady.
' The ocular account furnished by independent witnesses and supported by medical evidence is further corroborated by positive report' of the Fire-arms Expert. Though crime-empty of rifle .222 was also recovered from the spot and the acquitted accused Waqar also after his arrest led to the recovery of rifle .222 but the weapon was not sent to the office of the Fire-arms Expert Exh.P.T.
' We are thus, satisfied in our mind that it was Shahid Mahmood, appellant, who committed the murder of deceased. He chased vital, that's neck of the deceased and the single shot proved fatal.
From a perusal of the record it has not come on record anywhere that the deceased and her son provoked the appellant. In fact they admonished the appellant not to stand on the rooftop so that their privacy is not exposed and the appellant taking the said admonish as his insult, murdered the deceased. It has also nowhere alleged in the F.I.R. That elder brother of the convict appellant raised Lalkara and upon that, the convict fired at the deceased. The role of the acquitted accused namely Waqar was that of firing in the air. There are as such no extenuating circumstances for conversion of death sentence to imprisonment for life. At this juncture, we may advantageously rely upon the case of Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCM R 427 wherein their Lordships of the Honourable apex Court ruled that inadequacy of motive or motive being shrouded in mystery, the occurrence having taken place at the spur of the moment and one shot having been fired, do not constitute a mitigating circumstance for lesser punishment.
' Resultantly, the appeal filed by convict appellant Shahid Mehmood is dismissed. The conviction and sentence recorded against him vide the impugned judgment of the trial Court is maintained in toto. The death sentence of Shahid Mehmood, appellant is confirmed and Murder Reference is answered in the affirmative.
' Now, we take up Criminal Appeal No,501 of 2000. In this regard, we after having gone through the reasoning given by the trial Court at page 61 of the impugned judgment and page 224 of the paper book are in agreement with the same and are not persuaded to interfere. Except Lalkara, no overt act qua the deceased was attributed to him. The II appeal filed by the complainant against the acquittal of Waqar is thus, dismissed.