' KHAWAJA. MUHAMMAD SHARIF, J.-This judgment shall dispose of Criminal Appeal No,89 of 2001 (Asghar Masih v. The State) and Murder Reference No, 194 of 2001 (sent by the learned trial Court for confirmation of death sentence or otherwise), as they arise out Of the same judgment dated 26-2- 2001 passed by the learned Sessions Judge, Islamabad, whereby, following sentences and convictions were passed:-
(i) Appellant was convicted under section 302, P.P.C. And sentenced to death as Qisas 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 whereof to further undergo six month's R.I.;
2. Brief facts of the case, as explained by complainant Mst. Farzana Bibi (P.W.4) are that she was residing with her deceased husband Anwar Masih in servant quarter along with Rashid Masih; that in the same quarter appellant Asghar Masih was also residing; that on the fateful day and time when her deceased husband was coming out of bath room, appellant fired at him with .30 bore pistol on the back of his head, he was taken to Poly Clinic and then was referred from there to PIMS; that the deceased died in the evening of the same day; that the occurrence was witnessed by Rashid Masih (P.W.5) and Simpson Ghauri (P.W.6) and that the motive set by the prosecution was that the deceased was unhappy of the habit of appellant to tease the grown up daughters of Rashid Masih and the deceased had also asked the appellant to leave the quarter due to which the appellant bore a grudge in his mind and committed his murder.
3. After having completed legal formalities, challan was submitted by the police against the accused before the learned Court of competent jurisdiction, where, accused denied the charge and claimed trial. The prosecution, in order to prove its case against the accused, produced eleven prosecution witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal vehemently contends that it is a case of single shot and the fire was not repeated; that C.W.l Dr, Ghalib Imam Zaidl in his examination-in- chief stated that his first impression was that the deceased had fallen from the roof and his head had struck with the iron rod; that the motive, if any, was with the Rashid Masih and not the deceased; that pistol along with crime empty (which was lying in it) was recovered from underneath of a "Tolly" tree from a nearby jungle adjacent to a bungalow which cannot be relied upon and that if this Court is not convinced with the argument of acquittal then it is not a case of capital punishment because the appellant only fired a single shot at the deceased which was not repeated by him, so, the appellant is entitled to lesser sentence.
5. On the other hand, the learned Assistant Advocate General Punjab submits that the Court has to see the weapon used, the place of injury and the damage caused; that the ocular account in this case is corroborated by the medical evidence coupled with its further corroboration from the factum of recovery and positive report of the Fire-arm Expert and that there is no mitigating circumstances for lesser sentence.
6. We have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the respective parties.
7. It is a broad-daylight occurrence which had taken place on 4-12-1999 at 7-00 a.m., the deceased ivas taken to the hospital, complaint was made at 10-05 a.m. And the formal F.I.R. Registered at 10- 25 a.m. On the same day. The delay, if any, has reasonably been explained and even otherwise, it is settled by now that the delay, per se, in lodging the F.I.R. Is not fatal to the prosecution case.
8. The prosecution to prove its case produced Farzana Bibi (P.W.4) wife of the deceased, Rashid Masih (P.W.5) in whose quarter the occurrence had taken place and Simpson Ghauri (P.W.6). All of them have fully supported the prosecution case. They had no deep rooted enmity or any grouse to falsely depose against the appellant.
9. Apart from above, we may state here that it is a case which has taken place in a broad-daylight, so, there was no question of substitution and even otherwise substitution is a rare phenomenon.
10. In this case, the appellant was arrested on 4-12-1999, he got recovered a pistol along with crime empty, which was lying in it, from underneath a "Tolly" tree from a nearby jungle adjacent to a bungalow on 8-12-1999, report of the Firearm Expert is positive in nature according to which the said empty, recovered along with the weapon, was fired from the said pistol.
11. We have gone through the medical evidence. The ocular account in this case is corroborative by the medical evidence coupled with its further support from the factum of recovery and positive report of the Fire-arm Expert.
12. As far as argument of the learned counsel for the appellant qua difference of, opinion by the doctor is concerned, we may state here that the same is of no avail to the appellant. C.W.l, Dr. Muhammad Nadeem, at page 42 of the Paper Book, stated in his examination-in-chief as under:- ' "...Initially' statement given by the relative accompanying the patient > was that the patient has fallen from roof and some iron rod has hit his head on the way to the ground..".
' During the course of , cross- examination of the said doctor, at page 43 of the paper book, stated as under ' "..My observation was based upon the circumstances and it was mere a presumption. I had no actual proof of the same, but I presumed that it was an exit wound on the back of the head. It is correct that Exh.C.W./lA is not in my hand and also does not bear my signatures, It is correct that the initial statement of falling from roof on Exh.C.W.l/A was scored off after the actual position was brought to light and fire-arm injury on the head was later on written by Causality Medical Officer, probably Dr. Nadeem".
13. The most important statement regarding the injury on the person of the deceased of P.W.8 Dr. Muhammad Naseer who conducted the post-mortem examination on the dead body of the deceased on 5-12-1999. He .Has described the injury on the head of the deceased with a fire-arm.
According to him the time between injury and death was about 8 hours and time between death and post-mortem examination 27 hours which fits in with the time of occurrence. So, we have no doubt in our mind that it was a case of fire-arm injury.
14. Much emphasis was laid by the learned counsel that it is a case of mitigation for arguments made by him above, which arguments, in our considered view, have no force because the weapon used, place of injury and the damage caused suggest that there is no. Mitigating circumstance in favour of the appellant to award him lesser sentence.
15. In this regard this Court is fortified with a judgment of the august Supreme Court of Pakistan reported in Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCM R 427), delivered in December, 2004, wherein the decision of the High Court in reducing the sentence of death into imprisonment for life, on the basis of insufficiency of motive and being single shot attributed to the convict, was set aside and the same was enhanced to death under section 302(b), P.P.C. It is imperative to quote page 429 of the judgment, which portion of the judgment of the apex Court reads as under:- "6. It was through a judgment delivered in the case of Saeed Akhtar and others v. The State reported as 2002 SCM R 383 that this Court had declared that insufficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non-awarding of the normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment. This view has been consistently followed by this Court ever since. In the case of Arshad Ali alias Acchhu v. The State reported as 2002 SCM R 1806, it was held that even where the occurrence resulting in a murder had taken place at the spur of the moment and even where only one shot had been fired and same had not been repeated, the only penalty deserved by the killer was the normal punishment of death prescribed for the said offence. This Court reiterated in Hameed Khan's case reported as 2002 SCM R 1155 that inadequacy of weakness of thg alleged motive or where motive had not been proved, an assailant, if found guilty of causing the murder of another, did not deserve any leniency and the only punishment awardable in such-like circumstances would be sentence of death", (emphasis supplied)
' The question of mitigation in murder cases came up for consideration before the august Supreme Court of Pakistan in Miss Najiba and another v. Ahmad Sultan alias Sattar (2001 SCM R 988), wherein, at page 993, while enhancing the sentence of imprisonment for life to death of the accused in the said case, the apex Court of country 'observed as under:- "5. After hearing the learned counsel for the parties and going through the record of the case, we find that both the Courts failed to record reasons for not awarding the normal penalty of death to the respondents in offences punishable with death. Section 367(5), Cr.P.C. Provides:~ "(1) to (4) ...
(5) If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed".
The recording of reasons for not awarding normal penalty of death in offences punishable with death, are mandatory, therefore, nonrecording thereof would amount to non-compliance of the legal provisions. In various pronouncements, the Superior Courts have deprecated the practice of non-compliance of the said provision by the Courts, who while convicting the accused in offences punishable with death, ignore the mandatory provision of law and award lesser penalty of life imprisonment..." . (emphasis supplied)
' The august Supreme Court of Pakistan, in support of the above observations, was pleased to rely upon Mosaddi Rai v. Emperor (AIR 1933 Patna 100), Abdul Sattar v. Muhammad Anwar (PLD 1974 SC 266), Nabu v. The State (PLD 1975 SC '478), Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452), Bakhsh Elahi v. The State (1977 SCM R 389), Jetharam v. Weram (1986 SCM R 1056), Maqsood Ahmad v. The State (1987 SCM R 1059), Muhammad Sharif v. The State (1991 SCM R 1622), Noor Muhammad v. The State (1999 SCM R 2722) and Muhammad Afzal v. Ghulam Asghar and others (PLD 2000 SC 12). .
' At page 996 of the judgment (supra) in Miss Najiba's case the Honourable Supreme Court further observed as under "6.....it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to. Impose deterrent punishment on the offenders to make the evil doers an example and a warning, to the like minded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amount to gross miscarriage of justice whereas' the Courts are duty bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment to the respondents, the Courts while awarding lesser punishment have to record reasons justifying the same.." (emphasis supplied).
16. In view of the above resume of facts coupled with fortifying ourselves by the judgments of the apex Court of the country quoted above, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt to sustain conviction on a capital charge, therefore, appeal filed by the appellant against his conviction and sentence is dismissed and conviction and sentence awarded to the appellant by the learned trial Court is.
Maintained in toto except that R.I. Awarded in default of payment of compensation shall be treated as S.I. Murder Reference is answered in the affirmative while death sentence awarded to the appellant is hereby confirmed.