' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,415 of 2001 filed by Liaqat Ali, appellant, who was convicted and sentenced by learned Sessions Judge, Attock vide his judgment dated 12-11-2001 to death and a fine of Rs,one lac or in default three years and half of the amount was ordered to be paid to the legal heirs of the deceased under section 544-A, Cr.P. C .
Murder Reference No,809 of 2001 for confirmation of death sentence or otherwise of Liaqat All appellant shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place on 12-10-2000 at 11-00 p.m. Within the revenue estate of Hattar at a distance of 5 Kms. Away from Police Station Fateh Jang, District Attock while the matter was reported to the police on 13-10-2000 at 12-45 p.m. By Muhammad Afzal complainant, who is real brother of Ashraf deceased while the formal F.I.R. Was recorded on 13-10-2000 at 1-00 a.m. By Arshad All Khan H.C.
3. Brief facts of the case, as disclosed by Muhammad Afzal, are that on 13-10-2000 at about 12-45 p.m. That his younger brother Muhammad Ashraf was married with Mst. Aasia daughter of Raja 12/13 years ago. After a year of marriage, he along with his wife shifted to the house of in-laws. A son Waqas of 10 years and two daughters Mehwish and Kaenat of the age of 8 and 5 years respectively were born out of this wed-lock. Liaquat (accused grandson of Raja also lived in the house of Raja). About 7/8 days ago Muhammad Ashraf returned to his village Hattar because of strained relations with the in-laws. Two days thereafter his daughter Mehwish and son Waqas came to their father Muhammad Ashraf. Muhammad Ashraf suspected illicit relations between his wife Mst. Aasia and accused Liaqat. Raja visited the house of Ashraf to bring back Mehwish and Waqas. But Ashraf did not allow Raja to. Meet Mehwish and Waqas. Raja returned angrily.
Subsequently, Ashraf sent back Mehwish and Waqas through Sardar and Amir Zaman to the house of Raja keeping in view the loss of studies of the children.
' That night at about 11-00 p.m. When he along with Muhammad Ashraf (deceased) and Sikander after taking tea at a shop of Rabnawaz were returning to their houses, Muhammad Ashraf, who was moving ahead of them while reaching a turn of street near his house and where electric bulb was lit, accused Liaqat armed with .12 bore carbine hiding beside the wall of house of Sikandar raised Lalkara that Muhammad Ashraf not to spare him alive and in their view accused Liaqat fired which hit Ashraf and caused him fell down. The accused who was very well identified by all of them, successfully fled away from the scene of occurrence. Complainant along with P.Ws. Attended and found Ashraf unconscious and removed him to hospital, who succumbed to the injuries on reaching the hospital.
' Motive behind the occurrence was that accused Liaqat intends to marry Mst. Aasia and due to this accused killed Muhammad Ashraf.
4, Muhammad Nawaz S.-I./S.H.O. P.W.12 took over the investigation in this case. He after recording the statement of the complainant Exh.P.D. Examined the dead body of the deceased, prepared injury statements Exh.P.I. And inquest report Exh.P.J., thereafter, proceeded to place of occurrence, inspected the spot, took blood with cotton and sealed into parcel vide memo. Exh.P.G. On 19-10- 2000 he arrested Liaqat and on his personal search he recovered carbine P.3 along with one empty cartridge P.5, which was taken into possession vide memo. Exh.P.F. After completion of remaining formal investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.M., report of Serologist Exh.P.M./1, report of F.S.L. Exh.P.N. And closed the prosecution case, then, the statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded innocence.
6. 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, learned counsel for the appellant submits that motive set up by the prosecution has not been proved and in fact same is shrouded in mystery and is also not believable. Further submits that it is not believable that Mst.
Aasia, who was already married and was "Khala" ( {{URDU TEXT}}) in relation of the accused but in spite of that he wanted to marry with Mst. Aasia. Also submits that at the time of occurrence the age of the appellant was little more than 18 years, that marriage of Mst. Aasia with the deceased took place in the year 1988 and at that time appellant was about 6 yeas of age so how at this stage, the appellant could think to marry with Mst. Aasia. Next submits that Mst. Aasia was present with his father Raja in Raja's house where the appellant was living so there was no reason on the part of the appellant to have gone at the place of occurrence and commit the murder of the deceased.
Further submits that there is no evidence on record that appellant had ever made a wish that he wanted to marry with Mst. Aasia now widow of the deceased, that except the statement of complainant there is no other evidence on record regarding the motive, that nobody from Hattar had stated that there was illicit relations between appellant and Mst. Aasia mentioned above, that there was age difference between Mst. Aasia while appellant was little more than 18 years of age while Mst. Aasia was 35 years of age, that three young brothers of Mst. Aasia live in the same house where. Raja lives so there was no question of illicit relations between Mst. Aasia and the appellant.
Adds that Mst. Aasia had given two applications i.e. Exh.P.B. And other mark "K", to the concerned authorities that Ashraf was not maintaining her. Submits that according to the prosecution case, Mst. Aasia was not residing with Ashraf deceased for the last three months so story given by the prosecution that she was not residing with the deceased for the last 7/8 months becomes false.
' As far as recovery of carbine, is concerned, occurrence took place on 12-10-2000 while the carbine along with empty cartridge was recovered on 19-10-2000 and it is unnatural that appellant would allow to remain the empty cartridge in the carbine even after seven days of the occurrence, that there is no witness from the said locality from where the appellant was arrested and recovery was effected, that Muhammad Akram who is recovery witness and belonged to. Hattar and that story described by Muhammad Akram the recovery witness before the trial Court regarding the recovery and arrest of the appellant is unbelievable. Adds that Investigating Officer never stated before the learned trial Court that he ever made sealed parcel of carbine, which was recovered from the appellant. Learned counsel submits that in the site plan Exh.P.K. No electric bulb has been shown while in the site plan Exh.P.E. Prepared by the draftsman without scale light has been shown. He submitted that it is mentioned in the F.I.R. That appellant was concealing himself and on seeing the deceased he raised "Lalkara". Explaining this, when this was the position, then there was no need of raising "Lalkara" and when appellant raised "Lalkara" before firing at the deceased, immediately thereafter, neither the deceased ran away in the street in order to save his life nor he turned back, that witnesses also remained present at 13 feet and did come forward in order to save his life. Adds that position of the street, presence of the eye-witnesses, the distance of firing and place of firing suggest that deceased could not have received the firing from the said place. Learned counsel submits that Sikandar Khan P.W.11 is 70 years of age and he was present 13 feet away from the accused, who did not belong to his village, so it was impossible for him to have recognized the accused. He has referred to the statement of Sikandar Khan P.W.11 regarding the distance, which according to him is not believable. Submits that Raja and Irfan were also joined in the investigation.
He submits that according to the prosecution Ashraf deceased had gone along with complainant to take, tea but no money was recovered from his pocket. Also submits that Muhammad Afzal P.W.10 stated that after receiving the shot, deceased fell down on the ground with face downward but he did not receive any injury on his mouth, that owner of the hotel, namely, Rab Nawaz was not produced by the prosecution, that all the witnesses are related inter se, that no independent witness has been produced. He submits that there is mitigating circumstance in favour of the appellant because he while recording his statement under section 342, Cr.P.C. Has given his age as 18 years and it was held by the apex Court in 2000 SCM R 1758 that age given by the appellant in his statement recorded under section 342, Cr.P.C. Should be accepted in totality. He lastly submits that prosecution failed to prove its case produced against the appellant beyond any shadow of doubt and he is entitled to acquittal.
7. Learned A.A.-G. Submits that occurrence had taken place at on 12-10-2000 at 11-00 p:m., complaint was made at 12-45 a.m. On 13-10-2000 while the F.I.R. Was recorded on 13-10-2000 at 1- 00 a.m., that specific light of reference has been mentioned in the F.I.R., that in the site plan Exh.P.E.
Light has been shown and in this regard he submits that if the accused is not stranger, then, the light is immaterial, reliance is placed upon 2006 SCM R 637, that ocular account is fully corroborated by medical evidence.
' With regard to motive, learned A.A.-G. Submits that in case ocular account is confidence inspiring, then, the motive become immaterial. He has referred to page 61 (Exh.P.B.) wherein, Mst. Aasia mentioned that deceased had stated that neither he will maintain her nor divorce her. Adds that it is a case of single accused so there was no question of false implication of the appellant. As far as relations, is concerned, appellant was son of maternal-nephew of Raja father of Mst. Aasia. He lastly submits that prosecution has proved its case against the appellant beyond any shadow of doubt and there is no mitigating circumstance in his favour.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 12-10-2000 at 11-00 p.m. Within the revenue estate of Hattar at a distance of 5 Kms. Away from Police Station Fateh Jang, District Attock while the matter was reported to the police on 13-10-2000 at 12-45 p.m. By Muhammad Afzal complainant, who is real brother of Ashraf deceased while the formal F.I.R. Was recorded on 13-10-2000 at 1-00 a.m. Arshad Ali Khan H.C. Three eye-witnesses were mentioned in the F.I.R., namely, Muhammad Afzal, Sikandar Khan and Sardar, who were given up by the prosecution. Dr. Muhammad Shoaib Bhatti P. W.1 conducted post-mortem examination on the dead body of the deceased on 13-10-2000 at 6-30 a.m. He found one fire-arm injury on the person of deceased and according to his opinion the time between injuries and death was immediate whereas the time between death and post-mortem examination was within 12 hours, which also coincide with the time of occurrence.
' Motive behind the occurrence was that Ashraf deceased was married with one Mst. Aasia, he had three issues out of the wedlock while present appellant was maternal-nephew of one Raja father of Mst. Aasia and according to the F.I.R. Appellant had developed illicit relations with Mst. Aasia as he wanted to marry with her, on which Ashraf deceased, who was living in the house of his in-law, 7/8 days prior to the occurrence left the said house and returned to his village Hattar and two days thereafter, his daughters Mehwish and son Waqas came to their father Muhammad Ashraf and later on Raja father of Mst. Aasia came there in order to get Mehwish and Waqas but Ashraf deceased did not allow Raja to meet them, Raja became annoyed and went back but later on, complainant, who is real brother of the deceased, insisted the deceased that due to education of children, they should be sent back in the house of Raja. As far as, contention of learned counsel for the appellant, that there was age difference between appellant and Mst. Aasia, is concerned, we may state here, that for such relations difference between ages makes no difference. Both the eye- witnesses namely Muhammad Afzal P.W.10 and Sikandar Khan P.W.11 have fully supported the case of prosecution. They had no ill-will or animus against the appellant to implicate him falsely. Court has to see whether the evidence, has come from an impeachable source having intrinsic value, it is so in the instant case. So there is no earthly reason to disbelieve their testimony.
' Even if the report of the Forensic Science Laboratory, which is positive, is excluded from consideration, there is still sufficient evidence in the shape of ocular testimony and the motive on record to maintain conviction of the appellant.
' The appellant is real grandson of Raja, father of Aasia, widow of deceased Ashraf, so this relationship of Raja with the appellant is suggestive of the fact that the appellant was not falsely implicated. Had it been so, Raja must have got the matter compromised either before or after conclusion of the trial when the appellant was sentenced to death.
' We are fully satisfied in our mind that it was the appellant who committed murder of the &ceased and the prosecution has proved its case against the appellant to its hilt and beyond any shadow of doubt.
' Now we take up the submission, of learned counsel for the appellant 'la he at the time of occurrence appellant was less than 18 years. Mere mention of his age by the accused in his statement under section 342, Cr.P.C. Cannot be a proof to declare him minor rather in the instant case the appellant even did not produce any birth certificate or for that matter the school leaving certificate. There is thus, no mitigating circumstance in favour of the appellant for lesser sentence. Resultantly, the appeal filed by convict appellant is dismissed, the conviction and sentence recorded against him by the trial Court vide impugned judgment is maintained in toto, the death sentence is confirmed and murder reference is answered in the affirmative.
' Before parting with this judgment, we may observe that this Court had time and again directed that during the trial proceedings, age of the accused at the time of framing the charge and recording statement under section 342, Cr.P.C. Must be recorded but the said direction is not being complied with which, creates difficulties in arriving (at a just conclusion, so a copy of this judgment be sent to all the learned Sessions Judges- in the Punjab to' circulate theinstructions to all the Courts under their supervision for strict compliance.