' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,1684 of 2000 filed by Sheraz Khan, who was convicted and sentenced by the learned Sessions Judge, Mianwali, vide his judgment dated 2-11-2000 as under:-- ' Death with compensation of Rs,1,00,000 or in default six months' R.I. Under section 302(b), P. P.0 .
' Murder Reference No,737 of 2000 for confirmation or otherwise of death sentence of appellant and Criminal Appeal No,1995 of 2000 filed by Zaman Shah against acquittal of Noor Muhammad Khan and Said Khan shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated in F.I.R. Exh.PG/1 are that on 10-7-1996 Zaman Shah- complainant along with his sons Muslim Shah, Zamir Khan and Aqal Shah-deceased were proceeding to Tibbi Sar. Aqal Shah was employed in the Army and he was on ten days' leave in those days. At about 6-00 a.m. When they reached near the Kholas of Shakar Deen, they saw Sheraz Khan-accused armed with .12 bore Gun, Noor Muhammad and Said Khan armed with rifles appeared there. Sheraz Khan-accused raised Lalkara and fired with his gun on Aqal Shah which hit him on the face. Aqal Shah fell on the ground. In the meanwhile, Said Khan and Noor Muhammad fired with their respective weapons on the complainant and P. Ws. But they escaped. Aqal Shah succumbed to the injuries at the spot.
3. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Afzal, Inspector/P.W.9. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.PJ and inquest report Exh.PK. He took into possession bloodstained earth from the spot vide Exh.PH. On 17-8-1996 he arrested all the three accused persons. At the time of arrest, Sheraz accused was in possession of .12 bore gun P.5 along with four cartridges P.6/1-4 and a licence which were secured vide memo. Exh.PC, Noor Muhammad accused was in possession of rifle P.7 and six bullets P.8/1-6 which were secured vide memo. Exh.PD, while Said Khan was in possession rifle P.9 along with seven bullets P.10/1-7 which were secured vide memo. Exh.PE. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 9 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PN and that of Serologist Exh.PO closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the learned trial Court while acquitting the rest of the accused convicted and sentenced the appellant as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that both the eye-witnesses were not only related to the deceased but were also chance witnesses; that both the witnesses have contradicted each other on material points; he has referred to the statement of Zaman Shah, wherein he stated that he was standing outside the 'Naala' while Muslim Shah stated that they were standing inside the 'Naala'; that Zaman Shah firstly tried to implicate all the accused by stating that both the accused fired at Aqal Shah but during cross-examination stated that only Sheraz Khan fired a single shot which caused death of Aqal Shah; that the motive was trivial; that no previous enmity existed between the parties; that single fire was attributed to the appellant; and that in the above noted circumstances, in any case, it was not a case where extreme penalty of death should have been imposed.
6. Conversely, the learned counsel for the complainant submits that both the eyewitnesses had no previous enmity or to depose falsely against the appellant, who was real maternal nephew of the complainant; that the contradictions pointed out by the learned defence counsel were minor in nature and did not cause any dent in the veracity of the prosecution case; and that statements of both the eye-witnesses are supported by medical evidence and corroborated by the motive and the factum of lodging of F.I.R. Promptly. In support of appeal against acquittal the learned counsel has added that Noor Muhammad and Said Khan accompanied with principal accused with common intention fired upon the eye-witnesses, thus they were wrongly acquitted by the learned trial Court.
7. The learned counsel appearing on behalf of the State has adopted the line of arguments advanced by the learned counsel for the complainant. However, he does not support the learned counsel for the complainant to the extent of appeal against acquittal and supports the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties at length and gone through the record carefully.
9. The occurrence took place at 6-30 a.m. On 11-7-1996, the statement of the complainant was recorded at 11-00 a.m. And F.I.R. Was registered at 11-10 a.m. Within 4-1/2 hours while the police station was at a distance of 35 k.Ms. The occurrence was witnessed by Zaman Shah, P.W.7 father of the deceased and Muslim Shah P.W.8 brother of the deceased and one Amir Khan, who was not produced during trial. The deceased was Army Personnel, who was on leave. So, there was nothing unnatural that the P.Ws. Were accompanying him and were going together in connection with some private errand. Both the witnesses had no existing or enmity against the appellant as so to depose falsely against him, while Aqal Shah-deceased was son of Zaman Shah, Sheraz Khan is maternal nephew of Zaman Shah, so there was no chance of false implication as far as the appellant was concerned. The statements of both the witnesses are fully supported by the medical evidence and corroborated by the factum of promptly lodged F.I.R. Coupled with the fact of conducting of post-mortem examination upon the dead body of the deceased on the same day.
The discrepancies pointed out by the learned defence counsel were not describable and immaterial. The evidence is to be read as a whole and not in isolation.
10. The plea taken by the appellant that Muslim Shah had relationship with wife of the deceased and he murdered Aqal Shah is totally baseless and is not supported by any evidence at all. It is unfortunate that the learned trial Court allowed the learned counsel for the accused to put such scandalous questions, which had no basis.
11. On the question of sentence the learned counsel for the appellant has argued that there was no previous enmity and the motive was trivial. We have considered the arguments advanced by the learned counsel. In our view Sheraz Khan took life of Aqal Shah by firing at him merely for the reason that he was playing tape-recorder in louder tones on the previous day. The matter was patched up still the appellant without any provocation took the life of his cousin next day. For what has been noted above, no mitigating circumstances exists in favour of the appellant. Reliance is placed on the case of Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCM R 427).
12. After scanning the whole evidence we are convinced that the prosecution has proved its case against Sheraz Khan-appellant beyond doubt. Hence this appeal is dismissed. The conviction of the appellant for offence under section 302(b), P.P.C. And his sentence of death are maintained.
The amount of compensation imposed by the learned trial Court is also maintained with slight modification that in case of non-realization or non-payment thereof, the appellant would suffer six months' S.I.
13. Murder Reference is answered in the affirmative. Death sentence is confirmed.
14. As far as the appeal against acquittal, is concerned, Noor Muhammad and Said Khan did not fire at the deceased and the allegation that they fired at the P.Ws. Is not supported by any reliable evidence. The reasons advanced by the learned trial Court for their acquittal do not suffer from any infirmity or perversity. Thus, this appeal against acquittal being devoid of any merit stands dismissed.
Death .