' MUHAMMAD FARRUKH MAHMUD, J.---The appellant Muhammad Sadiq along with Taj Din and Waris Ali, was tried by the learned Additional Sessions Judge, Ferozewala, in case F.I.R. No. 344 registered at Police Station Ferozewala on 12-6-1994 for offences under sections 302/324/34, P.P.C. For having caused the death of Arif Hussain and injuries to Mst. Nawab Bibi. Vide judgment, dated 18-3-1997, the learned trial Court, while acquitting Taj Din and Waris Ali, convicted the appellant for offence under section 302, P.P.C. And sentenced him to death plus payment of Rs,10,000 as fine, in default whereof to undergo R.I. For three months.
2. Muhammad Sadiq, convict/appellant, has challenged his conviction and sentence by filing the instant appeal, while Barkat Ali, complainant, has questioned the acquittal of Taj Din and Waris Ali, co-accused, through Criminal Appeal No.172 of 1997. Murder Reference No.427 of 2002 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. We propose to decide all these matters through this consolidated judgment.
3. The brief facts of the case per complaint Exh.PG/1 recorded by Fazal Din, S.-I./P.W.10, at the instance of Barkat Ali, complainant/ P.W.6, which based the registration of formal F.I.R. Exh.PG/2, are that Sadiq-appellant and Waris-acquitted accused, both sons of Taj Din, were living in the village of the complainant. Two days prior to the occurrence, Waris divorced his wife. On 11-6-1994 at about 3-00/4-00 p.m., the relatives of the wife of Waris came to their village and took back the dowry articles of the wife of Waris on a truck. Mst. Saleem Bibi wife of the complainant went to the house of Waris and admonished him on his cruel act of divorcing his wife, whereupon Waris maltreated her. She came back to her house. On the last night at 12'O clock when Arif Hussain son of the complainant came to the house after performing his duties in the Match Factory, the complainant's wife narrated the whole incident to him. On 12-6-1994 at about 8.00 a.m., Arif Hussain made a protest to Waris, while they were standing in the street, as to why he had abused her mother. Waris Ali flew into rage and started abusing Arif Hussain. In the meanwhile, Muhammad Yousaf/P.W.7 alsocame there. The complainant and aforesaid Yousuf pacified Waris Ali who went to his house. On hearing the noise, Muhammad Latif son of Noor Muhammad also came there. They all were standing there, when Sadiq/appellant armed with .222-rifle, Waris Ali armed with .7-mm rifle and Taj Din empty handed came there. Taj Din raised Lalkara that Arif Hussain should be taught a lesson for insulting Waris Ali, whereupon Sadiq appellant fired from his rifle, which hit Arif Hussain on the left side of his chest. Arif Hussain fell on the ground and succumbed to the injuries at the spot. The fire shot by Waris Ali (acquitted accused) hit Mst. Nawab Bibi, who was passing through the street, on her right leg. All the accused decamped from the scene of occurrence.
4. On 12-6-1994 at about 8-30 when Fazal Din, S.-I./P.W.10, was present near Pind Karole in connection with patrol duty, the complainant got recorded his statement/complaint Exh.PG/1, which was sent to the police station for registration of formal F.I.R. Then the Investigating Officer (I.0.) went to the place of occurrence; prepared its rough site-plan Exh.PK; recorded the statements of the witnesses under section 161, Cr.P.C.; collected blood-stained earth from the spot and sealed the same into parcel vide memo. Exh.PH; prepared injury statement Exh.PD and inquest report Exh.PC of the deceased and sent the dead-body of the deceased for post-mortem examination.
On 2-7-1994, Taj Din (acquitted accused) was arrested. The appellant and Waris Ali (acquitted accused) were declared absconders on 10-7-1994. Waris Ali (acquitted accused) was arrested on 19-8-1994 and recovered .7-mm rifle P-4 along with a bullet, which was taken into possession vide memo. Exh.PJ. Sadiq/ appellant was arrested by Police Station Naulakha and was got transferred as accused in this case to District Jail Sheikhupura. The Investigation Officer took into possession rifle P-6, which was recovered from him by the police of Police Station Naulakha, vide memo. Exh.PL.
After completion of investigation, the accused were sent up to face trial.
5. To substantiate its version at the trial, the prosecution producedtwelve witnesses. Ocular account was furnished by Barkat Ali, complainant/P.W.6 and Muhammad Yousaf/P.W.7. In addition to that, they also stated about the motive. Muhammad Yousaf also stated about the recoveries effected from the spot. Dr. Abdul Majeed Mirza/P.W.1, who conducted post-mortem examination on the dead-body of Arif Hussain deceased on 12-6-1994 at 1-30 p.m., while observing the following injuries on his person:--
(I) A punctured wound .7 cm x .7 cm with collar of abrasion inverted edges on the front of left chest upper part 6 cm from mid line 8 cm-left nipple.
(II) A punctured wound 1 cm x 1 cm everted edges on back of right chest mid part 8 cm from mid line."
' Opined that the death occurred due to shock, haemorrhage and cardio respiratory failure due to injury No.1 which was ante mortem, caused by fire-arm and was sufficient to cause death in the ordinary course of nature. He further opined that probable time between injuries and death was immediate, while between death and post-mortem examination it was 24 hours. Fazal Din S.- I./P.W.10, stated about the recording of complaint/statement Exh.PG/1 at the instance of Barkat Ali, its dispatch to the police station where formal F.I.R. Exh.PG/2 was registered, and the investigation thereafter. The rest of the evidence, being formal in nature need not be discussed.
6. In their statements recorded under section 342, Cr.P.C., all theaccused pleaded their innocence and false implication due to previous enmity and party-faction. Taj Din and Waris Ali, the acquitted accused, made their statements under section 340(2), Cr.P.C., Taj Din stated that two years and eight months ago at about 6-00 a.m. His sons Sadiq and Waris went to their duty while he went out in the fields for cutting fodder. He returned at about 7-30 a.m. In his house. In the house Sher and Bashir, his nephews and brothers-in-law of Waris, were present. The deceased was of a bad character. They used to ask the deceased to refrain from his conduct but he did not desist from his character. When he returned to his house along with fodder, he saw his nephews quarrelling with the deceased as to why he had entered the courtyard of their house. He (witness) started taking his meal. In the quarrel, Bashir and Sher made fire shots upon the body of the deceased, who died at the spot. The witness went to the police station for informing the police, who asked him to sit down in the police station. He submitted the application before the police. Thereafter, the complainant went to the police station and they put the case on him while involving him in that case. He further stated that his son Waris did not divorce his wife Mst. Jia. Even she was living with them as wife of Waris. Neither anybody from the village came to their house to say that she was divorced and that it was not a good thing nor any quarrel had taken place with the mother of the deceased nor articles of dowry were returned to the wife of Waris or her parents. Waris Ali stated that two years and eight months ago at about 6-00 a.m. In the morning he was on duty and left his house at about 6/6-30 a.m. He had heard about the occurrence in question subsequently. He came to know about the occurrence in question in the evening. A day before he told Sher and Bashir, his brothers-in-law that Arif deceased was of bad character and he had got illicit relations with his wife, upon which his brothers-in-law came to his house in the night. In the morning he left for his job and his brothers-in-law were present in the house. They said that they would try to make Arif deceasedunderstand. He further stated that when the case was registered he went to his officer who was Deputy Director, LDA. His officer gave him a certificate Exh.DB, which was produced before the police but he did not know whether any fact had taken place upon that certificate or not. He further stated that he informed the police about Sher and Bashir but the police had not apprehended them and they had also absconded. He also stated that his wife Mst. Jia was living with him. She was not divorced by him in writing or orally nor he had returned the dowry article to his in-laws. The appellant did not appear as his witness under section 340(2), Cr.P.C. None of the accused produced any witness in defence.
7. Learned counsel for the appellant submits that according to prosecution case, the motive behind the occurrence was altercation between deceased and Waris Ali, who has been acquitted; that no independent witness has been produced; that prosecution could not prove to judicial satisfaction that Waris had divorced his wife; that no empties were recovered from the spot; that Mst. Nawab Bibi, who was an independent witness, did not support the prosecution case; that the factum of abscondence could not produced by the prosecution; and that in any case it was not a case of capital sentence, as appellant Muhammad Sadiq had no motive to kill the deceased and it was a sudden affair.
8. Learned counsel for the complainant submits that it was a day light occurrence; that the matter was reported to the police without any loss of time; that both the P.Ws. Had no previous enmity oragainst the appellant so as to involve him in a false case; that their statements are supported by the medical evidence and corroborated by the circumstances of the case; that no mitigating circumstances exist in favour of the appellant Muhammad Sadiq who took the life of an innocent person. The learned counsels appearing on behalf of the State, while adopting the line of arguments of the learned counsel for the complainant, have supported 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. Briefly, according to prosecution case, Waris acquitted accused divorced his wife. On 11-6-1994 at about 3-00/4-00 p.m. The relatives of the wife of Waris visited the house of Waris and left after collecting the dowry. Mst. Saleem Bibi mother of Arif Hussain deceased and wife of the complainant went to the house of Waris and admonished him for divorcing his wife. Waris used harsh language with the wife of the complainant who narrated the incident to his deceased son when he reached his house late at night. On the fateful day at 8-00 a.m. Arifcontacted Waris and complained about the behaviour of Waris with his mother. Instead of feeling sorry, Waris flew in rage and abused Arif Hussain deceased. The complainant and other P.Ws. Pacified Waris Ali and he left for his home, while the P.Ws. And the deceased were standing in the street, Sadiq appellant armed with .222- bore rifle and Waris armed with .7-mm rifle along with their father Taj Din reached there. Taj Din raised Lalkara. Thereafter Sadiq caused fire with his rifle which hit on the chest of Arif Hussain who died on the spot. Waris also fired which hit Mst. Nawab Bibi, who was passing by, on her left leg. In order to prove its case, the prosecution has produced Barkat Ali father of the deceased and Muhammad Yousuf, a distant relative of the deceased. It is true that both the eye-witnesses are related to the deceased but it is also true that they had no enmity oragainst the appellant so as to involve him in a false case. Muhammad Yousaf is an immediate neighbour of Waris Ali brother of Sadiq appellant. Similarly, Barkat Ali also lived nearby. Both the witnesses were cross-examined but their veracity could not be shaken. There is nothing on record that relationship between the P.Ws.
And the appellant was strained. The mother of Artif Hussain deceased had gone to the house of Waris, feeling concerned other the matter of divorce, as she was a neighbourer. The occurrence took place in a broad-daylight at about 8-00 a.m. The matter was reported to the police within one hour through Exh.PG/1 at 9.00. The post-mortem examination of the deceased was also conducted on the same date at 1-30 p.m. The prompt reporting of matter to the police and prompt postmortem examination rule the factum of fabrication. The statements of both the witnesses are fully supported by the medical evidence and corroborated by the above noted circumstances.
11. The learned counsel for the appellant has laid much stress on the point that the prosecution failed to prove that Waris Ali divorced his wife, as no document was produced before the trial Court and Waris Ali denied that he divorced his wife. The fact remains that Mst. Saleem Bibi mother of the deceased had gone to the house of Waris only after hearing about divorce where she was maltreated and she narrated the incident to her deceased son Arif Hussain, who lodged protest against the behaviour of Waris. Except that no other motive is available on the record of the case.
Substitution is a very rare phenomenon. However, in this case, not a single reason is available on the record as to why Barkat Ali would substitute the killer of his son with an innocent person. The truthfulness of the witnesses is apparent from the fact that they did not attribute fatal shot to Waris Ali.
12. After registration of the case, the appellant absconded. He was declared absconder through due process of law. The prosecution brought on record marks 'A' to 'E'. Akmal Shahzad, Constable, was producedbefore the learned trial Court as P.W.5, whose testimony was not seriously challenged. In reply to question No.7 about the abscondence, answer of the appellant was that he was not aware of the registration of this case. It is not believable, as his real brother and father were implicated in the case and his father was arrested on 2-7-1994. The abscondence of the appellant provides corroboratory evidence. The argument of the learned counsel for the appellant that on the same evidence, the rest of the accused were acquitted; hence, the appellant also deserved acquittal, has no force, as both Taj Din and Waris Ali were given benefit of doubt by the learned trial Court. Taj Din was admittedly empty-handed and the fire caused by Waris did not hit the deceased. Mst. Nawab Bibi, who was allegedly fired at by Waris Ali, did not appear before the learned trial Court.
13. The defence plea taken by the appellant before the learned trialCourt was not only opposed to commonsense but also an afterthought. As noted above, the father would not substitute the real killer of his son by an innocent person. Whether Waris Ali had divorced his wife or not would be of no consequence. The relevant fact was that after hearing about the divorce, mother of the deceased went to the house of Waris who misbehaved her which caused grievance to the deceased.
14. In the above noted circumstances, we are of the opinion that prosecution has successfully proved its case against Muhammad Sadiq through ocular version which was fully supported by the medical evidence and corroborated by the circumstances of the case like promptly lodging of F.I.R., prompt post-mortem examination and abscondence of the appellant. We have purposely not mentioned the evidence of recovery, as no empty was recovered from the spot. Having come to this conclusion, we have given our considerate thought to the question of quantum of sentence. It has been noticed by us that without any justification, the appellant, while armed with a rifle, fired which hit on the chest of the deceased. The intention of the appellant is to be gathered by his act.
In the circumstances, the appellant had no other intention than to kill hence, no mitigating circumstance exists in his favour. This appeal is dismissed and the judgment passed by the learned trial Court is upheld. The death sentence is confirmed. The Murder Reference is answered in the affirmative.
15. As far as Criminal Appeal No.172 of 1997 against acquittal of Taj Din and Waris Ali is concerned, Taj Din was empty-handed, while Mst. Nawab Bibi who had received injuries at the hands of Waris Ali did not appear before the learned trial Court. The F.I.R. Does not disclose that Waris Ali aimed his rifle at the deceased. The reasons advanced by the learned trial Court for recording of acquittal of Taj Din and Waris Ali are neither perverse nor fanciful. While recording acquittal of TajDin and Waris Ali, the learned trial Court has followed the principle of safe administration of justice. We find no merit in this appeal and the same is dismissed in limine.