Kh. Muhammad Sharif, J.--This judgment shall dispose of Criminal Appeal No. 52/2001 (Muhammad Bashir Vs. The State), Crl. Appeal No. 53/2001 (Mirza Yasir Ali vs. Sajawal Khan etc). and Murder Reference No. 18/2001 (sent by the learned trial Court for confirmation of death sentence or otherwise), as they arise out of the same judgment dated 31.1.2001 passed by the learned Additional Sessions Judge. Attock whereby, following sentences and convictions were passed:-- (i)Appellant Muhammad Bashir was convicted under Section 302 (b) PPC and sentenced to death 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 months SI; (ii)However, benefit of doubt was extended to the acquitted accused, namely, Sajwal Khan who earned acquittal from the case.
2. Learned counsel for the complainant, who has filed CrI.A. No. 53/2001 against the acquittal of the said Sajawal, does not press the said appeal which is disposed of having not been pressed.
3. It is pertinent to mention here that this appeal was filed by Sardar M. Tahir Ayuh Khan Sadozai, Advocate. It came up for hearing on 13.6.2005 before a learned Special Division. Bench consisting of myself and Mr. Justice Mian Muhammad Najum-uz-Zaman on which date following order was passed:-- "None has entered appearance on behalf of the appellant despite repeated calls. Even no intimation has been sent by the learned counsel for his non-appearance. The Deputy Registrar (Judicial) of this Court shall establish contact with the appellant through ,superintendent Jail concerned to intimate him that in ease his learned counsel does not appear on the next date, a counsel at State Expense shall be appoinied to argue his case. A notice shall also be issued to appellant's learned counsel. To be relisted after doing the needful".
4. It is on the record that on a direction of this Court the appellant had submitted an application to the Superintendent Jail that on the next date of hearing Mi. M. Ikhlaque Awan, Advocate would appear on his behalf before this Court, who has filed his Power of Attorney. Today his junior has presented an application before this. Court to the effect that a very close relation of Mr. Ikhlaque has died on 3.12.2006 and due to that he had to go to his native city Muzaffarabad to attend his Nimaz-e-Janaza. Neither name nor any exact relation has been mentioned in the said application of the person died. Under Section 374 Cr.P.C. when an accused is awarded death sentence, Murder Reference is sent by the learned trial Court for confirmation of the said sentence of death or otherwise by this Court. Then this Court has to see legality of the said judgment of conviction or otherwise. When learned counsel for the appellant is not ready to provide us assistance, we are not left with no option but to proceed with the case with the assistance of the learned Assistant Advocate General and complainant's learned counsel who are present in Court and are ready to argue the case because we are not inclined to adjourn the case any further.
5.It would not be out of place to mention here that the occurrence in this case had taken place in 1998, the impugned judgment of conviction was passed by the learned trial Court in 2001 and this matter is pending with this Court for the last five years, meaning thereby, that eight years has already passed. We may state here that, on the one hand, if the appellant is undergoing the sentence of death then, on the other hand, the complainant party is also facing the agony of mental torture on account of non-hearing of their case for years and years as has happed in the present case. Therefore, it would be in the paramount interest of justice if the case is decided on its own merits as early possible so that agony of both the parties should come to an end. To strengthen our view, we have fortified our view with a judgment of the August Supreme Court of Pakistan reported in Barak Ullah vs. The State (1997 SCM R 274). wherein, at page 277 and while getting benefit from yet another judgment in Sikandar Hayat vs. Ata and others (PLD 1970 SC 224), the Apex Court held as under:-- ".................Hearing of the appellant or his counsel may be necessary provided they are present before the Court. If the appellant or his counsel intentionally avoids to come to address arguments, the Court may proceed with matter for its decision on merits in accordance with law..........."
In support of our view, further reference is given to a case reported in Shahid Ali vs. The State (2001 P.Cr. L.J 706), wherein, reference to both the above quoted judgments i.e. (1997 SCM R 274 and PLD 1970 SC 224), has been given.
6. We have ourselves perused the record of this case minutely with the able assistance of the learned Assistvt Advocate General and the learned counsel for the complainant.
7. Brief facts of the case, as explained by Mirza Yasir Ali Baig complainant (Exh. PA) are that on 1.10.1998 at 9:30 p.m. the complainant and Mirza Imran Baig were coming towards their house from Shamasabad Adda after purchasing household articles; when they reached near the house of Malik Wadood. Khan, they saw in the electricity light that Bashir (appellant) armed with pistol while Sajawal Khan (acquitted accused) empty handed came there; that they raised Lalkara not to spare the deceased Mirza Imran Baig, who, tried to fled away but was stopped by Sajawal acquitted accused; that Imran tried to return when appellant Bashir fired three successive shots on the deceased Imran who fell down; that complainant did not go ahead due to fear; that the hue and cry raised by the complainant attracted Mirza Irfan Baig and Mirza Jahangir Baig who witnessed the occurrence; thereafter the accused went to there houses and when the deceased Imran was being shifted to the Civil Hospital Attock in an injured condition he breathed his last. The motive set up by the prosecution was stated to be a family feud between Mirza Imran Baig and Bashir + Sajawal Khan and on that basis on 1.10.1998 at 6 p.m bicycle of Bashir appellant and Sajawal acquitted accused was hit to Imran Baig and abuses were exchanged, the matter was settled but the appellant and Sajawal bore a grudge on that account.
8. As the connected appeal filed against the acquittal of Sajawal Khan, who was not attributed any overt act and who was acquitted from the learned trial Court, has already been disposed of as having not been pressed by the learned counsel for the complainant, therefore, now we are left with the case of Bashir appellant one.
9. Two eye-witnesses, namely, Mirza Yasir Baig (PW 9) and Mirza Irfan Baig (PW 10) appeared before the learned trial Court in support of the prosecution case. Both the eye-witnesses have fully supported the prosecution case and nothing could be shaken from their testimony during the course of their cross-examination. They had no strong reason to falsely depose against the appellant. Even it is settled by now that motive, alleged not proved or not alleged, is inconsequential. It is rare phenomenon that the real culprits would be substituted with the others.
10.The matter was reported to the police on the same day. Mirza Yasir Baig is the first cousin of the decease. Three crime empties were taken into possession from the spot, appellant was arrested on 12.10.1998, on his personal search a pistol alongwith 3 live cartridges was recovered. The crime empties were sent to the Firearm Expert on 6.10.1998 while the pistol was sent on 14.10.1998.
Report of the Expert is to the effect that all the three crime empties recovered from the spot have matched with the pistol got recovered from the personal search of the appellant.
11.Dr. Muhammad Ali (PW 6) had conducted the postmortem examination of the dead body of the deceased an 2.10.1998. He found three firearm injuries on the person of the deceased, so, the ocular C account in this case is corroborated by the medical evidence. According to the same doctor the time between injuries and death was from 30 to 60 minutes and time between death and postmortem examination was from 8 to 16 hours which fits in with the time given by the prosecution.
12.It is a case of single accused. Not only one but the appellant fired three successive fatal shots which led to the brutal murder of the deceased, so, it is an intentional and pre-meditated murder on the part of the appellant, so, in such like proved cases the normal sentence is death.
13.We have also taken into consideration the mitigation aspect of the case and note that there is no mitigating circumstance in favour of the appellant to award him lesser sentence.
14.In view of the above resume of facts, 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. Murder Reference is answered in the Affirmative while death sentence awarded to the appellant Bashir is hereby confirmed.