' MUHAMMAD FARRUKH MAHMUD, J.--- Muhammad Akram alias Pehalwan, appellant, was tried by the learned Additional Sessions Judge, Wazirabad, in lieu of case F.I.R. No,182 registered at Police Station Sadar Wazirabad on 16-6-2000 for offences under sections 302/324, P.P.C. Vide judgment, dated 8-9-2001, the learned trial Judge, convicted and sentenced the appellant as follows:--
(I) For offence under section 302(b), P.P.C. To death plus payment of Rs,50,000 as compensation to the legal heirs of the deceased, in default in payment whereof to undergo S.I. For six months;
(II) For offence under section 324, P.P.C. To undergo R.I. For seven years and to pay a fine of Rs,25,000, in default whereof to suffer S.I. For three months; and
(III) For offence under section 337-D, P.P.C. To suffer R.I. For three years plus payment of Arsh amounting to Rs,56,870, one third of the Diyat.
' Both the latter sentences were to run concurrently.
2. The convict-appellant has challenged his above noted convictions and sentences through the instant appeal. Murder Reference No,600 of 2001 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. The brief facts of the prosecution case as per statement/ complaint Exh.P.E. Recorded by Asif Mahmood, S.-I./P.W.10, at the instance of Muhammad Iqbal, complainant/P.W.4, are that on 16-6- 2000 at about 6-00 p.m. Complainant, Muhammad Azam, Muhammad Arif/P.W.5, Tariq Mahmood and Muhammad Asif were passing through the bazaar of Qudratabad in front of the shop of Muhammad Saleem when suddenly, Muhammad Akram alias Pehalwan/appellant armed with .30 bore pistol came there and while raising Lalkara that he would not spare Muhammad Azam resorted to firing, hitting Muhammad Azam on different parts of his body. When Muhammad Arif stepped forward to rescue Muhammad Azam, he was fired at by Muhammad Akram, hitting on the lower part of abdomen of Muhammad Arif. Both Muhammad Azam and Muhammad Arif fell down.
When the complainant, Muhammad Asif and Tariq Mahmood raised hue and cry, Muhammad Akram threatened them with dire consequence in case they came near him. The appellant, while brandishing his pistol, ran away from the spot. Muhammad Azam and Muhammad Arif, both in injured condition, were taken to Civil Hospital, Wazirabad, where Muhammad Azam succumbed to his injuries, while Muhammad Arif after having been medically examined and given first aid was referred to District Hospital, Gujranwala.
' The motive behind the occurrence was an altercation which took place 7/8 days prior to the occurrence between Muhammad Akram and Muhammad Azam over repair of fan of Muhammad Akram by Muhammad Azam and the matter was patched up between the two due to the intervention of the respectables but the appellant kept a grudge in his mind and committed the murder of the deceased and caused injuries to the injured.
4. On 16-6-2000, Asif Mahmood, S.-I./P.W.10, who along other police officials was on patrol duty at Chowk Masjid, on receipt of information about the occurrence, went to Civil Hospital, Wazirabad, where he recorded the statement Exh.P.E. Of Muhammad Iqbal and sent the same to the police station for formal registration of the case. The Investigating Officer (I.0.) prepared injury statement Exh.P.K. And inquest report Exh.P.J. And sent the dead body for post-mortem examination. The Investigating Office then went to the spot; secured blood through cotton from the places of Muhammad Azam deceased and Muhammad Arif injured and took the same into possession through memos. Exhs.P.B. And P.C. Respectively. The Investigating Officer also took into possession five empty cartridges of .30 bore from the place of murder of Muhammad Azam through memo.
Exh.P.D. The appellant was arrested on 22-6-2000 and on 29-6-2000, while in custody, led to the recovery of .30 bore pistol P.6 which was taken into possession vide memo. Exh. P . G.
5. To substantiate its version at the trial, the prosecution produced eleven witnesses and after placing on record the positive reports of Chemical Examiner Exhs.P.O., P.Q. And that of Forensic Science Laboratory Exh.P.R. Closed its side.
6. #In his statement recorded under section 342, Cr.P.C. The appellant pleaded his innocence and false implication in the case by stating as under:-- "Some time before the present occurrence Sajid and Majid sons of one Hamid Khan resident of Qudrat Abad were involved in the narcotics case in which Muhammad Azam deceased and Arif P.W. Were also involved. Muhammad Azam decesed and Arif P.W. Are my relatives and I spent Rs,50,000 in the above said case. When I demanded back the said money, Azam deceased and Arif P.W. Abused me and they threatened and they made firing upon me. I rescued myself from the said firing but Muhammad Azam was murdered by the fire shots of Arif injured P.W. And Arif P.W.
Was injured due to fire shot of Azam deceased. The police put my licenced pistol upon me as recovery. I am innocent. The P.Ws. Are relatives of the deceased, and Arif P.W. Is brother of Azam.
Iqbal complainant is real maternal-uncle of deceased and injured Arif and due to which they have deposed against me.
' Neither the appellant appeared as his own witness under section 340(2), Cr.P.C. Nor did he produce any witness in his defence.
7. Learned counsel for the appellant contends that the occurrence took place in a Bazaar but no independent witnesses were produced during trial; that the motive could not be (formed) during trial; that the prosecution version is not supported by the medical evidence; that the recoveries were planted upon the appellant after his arrest, as he possessed a licensed pistol; that the defence plea was borne out from the circumstances of the case.
8. Conversely, the learned counsel for the complainant submits that the presence of Muhammad Arif who received injuries during the occurrence could not be denied; that the ocular account is fully supported by the medical evidence and corroborated by the factum of promptly lodged F.I.R.; that the defence plea is not supported by any evidence nor is borne out from the circumstances of the case; that the defence plea is also belied by the medical evidence; and that the presence of Muhammad Arif has not been denied; that the appellant took life of an innocent person, who was a teenager, by repeating firing and did not deserve any leniency. Both the learned counsel appearing on behalf of the State have adopted the line of arguments of the learned counsel for the complainant. They support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. The prosecution case revolves around the testimony of Muhammad Iqbal uncle of the deceased/P.W.4 and Muhammad Arif brother of the deceased/P.W.5. The presence of Muhammad Arif at the A spot is proved by the physical evidence, as he received fire-arm injuries during the occurrence. The appellant has also admitted his presence. Both the P.Ws. Had no enmity or against the appellant so as to depose falsely against him. Both these witnesses have given very consistent account of the occurrence and have corroborated each other on all the material points. During lengthy cross-examination, the veracity of their statements could not be shaken. The occurrence took place at 6-00 p.m. Muhammad Azam deceased and Muhammad Arif/P.W., who were seriously wounded, were immediately taken to hospital. Muhammad Azam lost his life, while Arif, due to his serious condition, was referred to District Hospital, Gujranwala. Within forty minutes, Asif Mahmood, S.-I./P.W.10, recorded the statement of Muhammad Iqbal at Civil Hospital. There was hardly any time- for deliberations. It is a case of B single accused whose identity is not in question. The ocular account is fully supported by the medical evidence. Dr. Nasrullah/P.W.6, who conducted post- mortem examination on the dead body of Muhammad Azam, found nine injuries on the person of the deceased. Out of nine, injury No,1 which was on the neck, injury No,3 which was on the back of left side of abdomen, injury No,4 which was on back of lower part of right chest and injury No,8 which was on the back of lower part of right chest were entry wounds caused by firing. Injuries Nos.2, 5, 6 and 9 were exit wounds. Injury No,7 was on the left thigh which was blunt in nature and would be result of falling of Azam on the ground. During cross-examination, the doctor stated that the injuries were caused by bullets and not by pellets which is in accordance with the prosecution c story, as, according to the P.Ws., the appellant was armed with .30 bore pistol. Dr. Muhammad Yousaf Rajput/P.W.9 examined Muhammad Arif/P.W.5 on the same evening after the occurrence.
He observed firearm injury on the lower abdomen with an exit wound. Due to serious condition, the injured witness was referred to DHQ Hospital, Gujranwala. The statement of the doctor fully supports and corroborates the statements of the P.Ws. Vis-a-vis the seat of injury, examination of D the P.W. Soon after the occurrence and reference of Muhammad Arif to Gujranwala Hospital.
11. The appellant was arrested on 22-6-2000 by Asif Mahmood, S.-I./P.W.10 and while in custody he led to the recovery of .30 bore pistol P.6 from a trunk lying in his residential room. The empties P.1 to P.5 recovered from the spot wedded with the pistol. The argument of the learned counsel for the appellant that the recovery was planted and the. Recovery memo. Was not attested by any public witness has no force in the circumstances of the case; firstly, the appellant admits that pistol P.6 belongs to him and he has a licence to keep it; and secondly, during cross-examination P.W.10 explained that many people from the locality gathered at the time of recovery from the accused but no one was ready to become witness, so it is not a case where the Investigating Officer has willfully avoided to join the public witnesses during recovery proceedings.
12. As far as motive is concerned, it has come through the mouth of eye-witnesses and apparently there was no other motive behind the occurrence.
13. Now coming to the defence plea, which has been reproduced in para.6 ante. During cross- examination it was put to P.W.4 that Rs,50,000 were spent by the accused in a case against one Saleem alias Chhabbi. What was the relationship between Saleem alias Chhabbi and Azam could not be established. It was suggested to the P.W. That Saleem was fast friend of Sajid and Azam was apprentice with Saleem alias Chhabbi for the last 3/4 years but the suggestion was denied. It could not be brought on the record at all as to whether Azam was involved in any case along with Majid as claimed in the defence plea. The stance taken in defence plea does not tally with the tenor of cross-examination, as is evident from the fact that it was put to P.W.5 that he knew Hamid Pathan and his sons Sajid and Majid who lived in that area. He explained that Sajid was in judicial lock-up in a murder case of police constable. Then it was suggested to him that Azam had relationship with Pathans and Saleem Chhabbi but it was denied. The Story put forward by the appellant that Azam and Arif after threatening fired at him. He, however, rescued himself but Muhammad Azam was murdered by the fires shot by Arif and Arif P.W. Was injured by the fire shot by Azam is not only without any substance, without any evidence but is also revolting to the common sense. Why Arif would repeatedly fire at his real brother Muhammad Azam who was only eighteen years of age.
The defence plea is rejected.
14. The upshot of the whole discussion is that the prosecution has proved its case against the appellant beyond doubt. The appellant who was armed with a pistol through repeated fires caused the death of Muhammad Azam who was eighteen years of age and caused serious injuries to Muhammad Arif/P.W.5. No mitigating circumstances exist in favour of the appellant. Hence, this appeal is dismissed. The judgment passed by the learned trial Court is upheld. The death sentence is confirmed. The Murder Reference is answered in the affirmative.