' MUHAMMAD FARRUKH MAHMUD, J.--- Muhammad Ayub alias Mahboob Ahmad was tried by the learned Additional Sessions Judge, Ferozewala, in lieu of case F.I.R. No,396 registered at Police Station Sharaqpur on 21-8-2000 for offences under sections 302/324, P.P.C. Vide judgment dated 3- 10-2001, the learned trial Judge convicted and sentenced the appellant for offence under section 302(a), P.P.C. To death.
2. The convict-appellant has challenged his above-noted conviction and sentence through the instant appeal. Murder Reference No,646 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 case as per F.I.R. Exh.P.A. Lodged at the instance of Muhammad Hayat/P.W.10 are that four years earlier, his sister-in-law Mst. Rehana Bibi was married to Mahboob Ahmad/appellant and this wedlock gave birth to a child. Due to estrangement of relations between the two, Mst. Rehana, who had come to her parental house, was in the house of the complainant.
On 20-8-2000 at 10/11 p.m. Mahboob Ahmad came to the house of the complainant and remained quarrelling with his wife Mst. Rehana and the complainant. In the morning, he left the complainant's house and extended threats of killing. On 21-8-2000 at about 8-00 p.m., when the complainant along with Ghulam Mustafa/P.W.6 and Iftikhar Ahmad, the brothers of Mst. Rehana/guests, were sitting in the courtyard of the house, while Mst. Sajida Bibi was cooking food on the roof of the house, whereas the complainant's son Sarfraz/P.W.7 was sitting on a cot, suddenly the appellant armed with .30 bore pistol entered into the house, went on its roof and fired at Mst. Sajida hitting on her left shoulder and also fired two shots on Sarfraz Ahmad hitting in front of his chest and below the chest on the left side and the right leg. The hue and cry attracted the complainant, Ghulam Mustafa and Iftikhar Ahmad who were threatened by the appellant with dire consequences if they intervened. The appellant/accused, while raising Lalkaras, decamped from the scene of occurrence. Mst. Sajida Bibi succumbed to the injuries at the spot, while Sarfraz Ahmad was taken to the hospital for treatment.
' The motive behind the occurrence was the strained relations between the appellant and Mst.
Rehana Bibi.
4. On 21-8-2000, after registration of the case, Muhammad Yasir, Inspector/P.W.11, went to the spot; collected blood-stained earth and sealed the same into parcel through memo. Exh.P.F. Prepared injury statement Exh.P.J. As well as rough site plan of the place of occurrence Exh.P.K. And sent the dead body for post-mortem examination. On 31-8-2000, the accused/appellant was arrested and while in custody he led to the recovery of .30 bore pistol which was taken into possession vide memo. Exh.P.C. After completion of investigation, the accused was sent up to face the trial.
5. To substantiate its version at the trial, the prosecution produced eleven witnesses. The ocular account was furnished by Ghulam Mustafa/P.W.6, Sarfraz Ahmad/P.W.7 and Muhammad Hayat/P.W.10. In addition to that, P.Ws.7 and 10 also stated about the motive. Dr. Fayyaz Ahmad Butt/P.W.2 medically examined Sarfraz Ahmad and vide MLC Exh.P.D. Found four lacerated wounds on his person. Dr. Nasreen Akhtar Malik/P.W.9 conducted post-mortem examination on the dead body of Mst. Sajida Bibi deceased and vide post-mortem report Exh.P.H. Found one lacerated wound with inverted margins and blackening around the wound measuring 3 c.m. x 2 x half c.m.
Was present on the upper part of front of left shoulder joint, 8 c.m. Above from left axilla. In the opinion of doctor cause of death was injury No,1, caused by fire-arm, which was sufficient to cause death in the ordinary course of nature. The duration between injury and death was within half an hour, while between death and post-mortem examination, the duration was about 12 to 24 hours.
Muhammad Aslam, A.S.-I./P.W.1, stated about the registration of the case at the instance of the complainant. Muhammad Yasin, Inspector/P.W.11, stated about the investigation of the case.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication, stating that he had been involved in this case due to enmity and that the P.Ws.
Being related to the deceased and the complainant had deposed against him. The appellant did not appear as a witness in his defence under section 340(2), Cr.P.C. He, however, produced Shaukat Ali his brother as D.W.1.
7. Learned counsel for the appellant contends that all the eye-witnesses were related to the deceased; that the appellant had no motive against Mst. Sajida and Sarfraz, so as to fire upon them; that the story of the prosecution was also belied by the factum of non-recovery of empties from the place of occurrence; that in any case it was not a case of capital sentence, as real motive remained shrouded in mystery; that the doctcr who examined Sarfraz Ahmad did not state about the weapon of offence used during occurrence; hence, it cannot said that Sarfraz received firearm injuries.
8. Conversely, the learned counsel appearing on behalf of the State submits that the occurrence took place in the house of the complainant so the complainant as well as other witnesses were natural witnesses; that the matter was reported to the police within twenty minutes which rules out the possibility of any fabrication; that the ocular account was fully supported by the medical evidence and was corroborated by the motive; that the defence plea brought through D.W.1 on the record of the case was not supported by any independent evidence and not even by the statement of the appellant himself; that no mitigating circumstances exist in favour of the appellant. Supports 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 place of occurrence which is the house of complainant Muhammad Hayat has not been challenged. Sarfraz Ahmad, who is son of the complainant and brother of Mst. Sajida Bibi deceased lived with his father/complainant, so both of them are natural witnesses, rather Sarfraz Ahmad is star-witness of the case, as he received fire-arm injuries during the occurrence and his presence could not be denied. Neither Muhammad Hayat complainant nor Sarfraz Ahmad/P.W.7 had any previous enmity or against Muhammad Ayub, so as to involve him in a false case. The third eye- witness Ghulam Mustafa/ P.W.6 is the brother of Mst. Rehana wife of appellant. All the three witnesses have given very consistent statement of the occurrence and have corroborated one another on all the material points. During cross-examination, no contradiction in their statements could be brought on the record of the case. Heir statements are worthy of credence. It was not even suggested to P.W.7 that he did not receive injuries during the occurrence. Neither it is a case of mistaken identity nor that of substitution, as the appellant was closely related to the P.Ws. And was very well known to them. No reason existed for a father to substitute a real killer for an innocent person. The statements of P.Ws. Are fully supported by the medical evidence. Perusal of MLC of Sarfraz Ahmad Exh.P.D. Reveals that he had received five lacerated injuries; one 2 c.m. x 1.1 c.m. x DNP on lower front of left chest; second 4.6 c.m. x 1.5 c.m. x DNP on right side of epigastric region; third 1.8 c.m. x 0.9 c.m. x DNP on upper front of right thigh; and fourth 1.9 c.m. x 0.8 c.m. x DNP on upper outer front of right thigh. Corresponding cuts were present on shirt, vest and Shalwar. Exh.P.D.
Further reveals that due to the condition of Sarfraz Ahmad, he was referred to Mayo Hospital, Lahore, immediately after examination. It is for that reason that the weapon used was not described in the relevant column, as the main worry of the learned doctor was to save the life of Sarfraz Ahmad.
11. As far as motive is concerned, it stands proved through the statement of P.W.10 and P.W.6. Except for the motive set down in the F.I.R., no other motive has been brought on the record of the case.
The argument of the learned counsel that in the light of the motive, the victim should have been Mst. Rehana Bibi and not Mst. Sajida Bibi, has no force, as P.W.6 and P.W.7, both, have stated that at the time of occurrence, Mst. Rehana Bibi was not present in the house. As against the concrete evidence, the Courts cannot follow the hypothetic argument that an accused should have behaved in a particular manner. What is in the mind of the accused cannot be read except through his action.
12. The appellant was arrested by Muhammad Yasir, S.H.O./ P.W.11, on 31-8-2000 and while in custody on 4-9-2000; he led to the recovery of .30 bore pistol which he had hidden near the Bund of Bhoinwal. Anyhow, the evidence of recovery is supported by the statements of P.W.11 Muhammad Yasir/P.W.11 and Sarfraz Ahmad/ P.W.7. However, as pistol was not sent to Forensic Science Laboratory, it would not be safe to rely upon the evidence of recovery.
13. In his statement recorded under section 342, Cr.P.C., in answer to question No,7, appellant simply stated that he had been involved in the case due to the enmity and that the P.Ws. Were related to the deceased as well as to the complainant and for that reason, they deposed against him. But the appellant did not appear as a witness in his defence under section 340(2), Cr.P.C. He produced his brother Shaukat Ali as D.W.1, who came out with a novel story. According to him, on 21-3-2000 he went to Sharqpur in search of his brother in the house of Muhammad Hayat where he saw Sarfraz and Muhammad Ayub quarrelling with each other in front of the outer door of the house of Hayat.
Ayub was asking Sarfraz that he had to see his child inside the house, whereas Sarfraz was not allowing him to enter the house and was threatening him with dire consequences if he entered the house. However, Ayub/appellant entered inside the house and Sarfraz who was armed with a pistol chased and fired upon him which hit his real sister instead of Ayub. Thereafter the appellant and Sarfraz grappled with each other and fell down from the roof while quarrelling. The younger brother of Sarfraz gave hatchet blow on the head of Ayub. In the meanwhile, the neighbourers came and separated them. This novel story is not supported by the statement of appellant himself nor this story was put to any of the witnesses during the trial. It is also belied by the circumstantial evidence as Shaukat Ali never claimed that he received any hatchet injury on his person. The story also does not disclose as to how Sarfraz received fire-arm injuries. The story is an afterthought and is not worthy of credence.
14. The upshot of the whole discussion is that the prosecution has successfully proved its case through reliable ocular account, which was supported by medical evidence and was corroborated by motive and circumstances of the case. The learned trial Court overlooked the provisions of section 304, P.P.C. And convicted the appellant for offence under section 302(a), P.P.C. Hence, we alter the conviction of the appellant from offence under section 302(a), P.P.C. To offence under section 302(b), P.P.C. Death sentence is maintained. The learned trial Court failed to pass any order under section 544-A, Cr.P.C. Which was mandatory; hence, we direct the appellant to pay compensation Rs,1,00,000 to the legal heirs of deceased Mst. Sajida Bibi. The amount of compensation would be recovered as arrears of land revenue or in default of recovery or payment thereof, the appellant would suffer S.I. For six months.
15. With the above modification, this appeal is dismissed. The death sentence is confirmed. The Murder Reference is answered in the affirmative.