' IJAZ AHMAD CHAUDHRY, J.---Through this consolidated judgment we intend to dispose of Murder Reference No,135 of 2001 sent by the learned trial Court for the confirmation of death sentence awarded to Muhammad Yaseen convict-accused as well as Criminal Appeal No,92-J of 2001 filed by Muhammad Yaseen appellant, together as both these matters have arisen from the same judgment dated 30-1-2001, rendered by the learned Additional Sessions Judge, Faisalabad, whereby he has convicted Muhammad Yaseen appellant under section 302(b), P.P.C. For committing the murder of Pervez Iqbal deceased and sentenced him to death with the direction for payment of compensation of Rs,50,000 under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo six months' R.I.
2. Concisely the facts of the prosecution ease set up in the F.I.R. (Exh.P.G./1) are that on 24-9-1997 at about 12-00 noon, Muhammad Iqbal complainant (P.W,8) was standing in the Chowk in front of his house. His son Pervez Iqbal deceased after fetching ice from the shop of Ashraf Butt, was coming towards his house. When he reached at the corner of the house of one Riaz, Muhammad Yaseen appellant while armed with .12 bore double barrel gun came in the Chowk near the house of Pervez son of Ghulam Haider and raised a Lalkara that Pervez Iqbal deceased would be taught a lesson for insulting him and suddenly fired with gun hitting Pervez Iqbal deceased on his back. The complainant along with Muhammad Rafique (P.W.9) and Ubaidullah (now produced) who had also witnessed the occurrence ran towards Muhammad Yaseen appellant to catch hold of him, but he fled away while firing. Pervez Iqbal fell on the ground and succumbed to the injury at the spot.
3. The motive behind the occurrence was alleged to be that the land of complainant fell near the village where womenfolk used to come and Muhammad Yaseen appellant while standing in the way used to cut jokes with them, who had been forbidden by Pervez Iqbal deceased many a time from doing so and due to the said grudge and grievance the accused had committed the `Qatl-i- Amd' of Pervez Iqbal deceased. Leaving the dead body of Pervez Iqbal deceased under the guard of Muhammad Rafique (P.W.9) and Ubaidullah (now produced); Muhammad Iqbal complainant (P.W.8) proceeded to report the matter to the police and he met with Mushtaq Elahi, S.-I. (P.W.13) at Pull Ali Wal, situate within the area of Chak No,273/RB, where he made statement (Exh. P.G.) at 2-05 a.m. On 24-9-1997, before him in respect of the present incident, on the basis of which formal F.I.R.
No,369 (Exh.P.G./1) was subsequently drafted by Asghar Ali, H.C. (P.W.13) at the Police Station the same day at 2-45 a.m. Under section 302, P.P.C.
4. The investigation of this case was conducted by Mushtaq S.-I. (P.W.13), Muhammad Hanif Khan, S.-I. (P.W.11) and Feroze Khan, S.-I. (P.W.6) and during the investigation, the dead body of Pervez Iqbal deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under sections 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood stained earth was secured, a rough site-plan of the place of occurrence was prepared, the dead body was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant was arrested; recovery of .12 bore double barrel gun from the appellant's possession was effected and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court.
5. The learned trial Court after supplying the requisite documents required under section 265-C, Cr.P.C. To the appellant framed the charge against him on 20-4-2000, to which he pleaded not guilty and claimed to be tried.
6. The prosecution in order to prove the guilt of the appellant produced as many as 13 witnesses.
P.W.1 Ehsan Ullah Danis, had identified the dead body of Pervez Iqbal at the time of its post-mortem examination at Rural Health Centre, Dijkot while the dead body of Pervez Iqbal deceased was sent to the mortuary for autopsy under the escort of P.W.2, Khalid Pervez, Constable. P. W .3 , Muhammad Yaqub, H.C. Was handed over a sealed parcel containing blood-stained earth for keeping the same in the Malkhana whereas P.W.4, Aurangzeb, Draftsman had prepared the site-plans (Exh.P.B.
And Exh.P.B./1) on the pointing out of the P. Ws. The recovery of .12 bore double barrel gun (P.4) on the pointing out of the appellant from a Jesti Peti lying in a residential room of appellant's house was effected in the presence of Ali Ahmad (P.W.5). Medical evidence was furnished by Dr. Captain Muhammad Anwar (P.W.7), who on 25-9-1997 at 9-00 a.m. Had conducted the post-mortem examination on the dead body of Pervez Iqbal deceased while the ocular account of the incident in question was provided by Muhammad Iqbal complainant (P.W.8) and Muhammad Rafique (PVJ- 9) who also deposed about the motive. P.W.10 Jamal Din, Constable had received a sealed parcel containing blood stained earth for onward transmission to the office of Chemical Examiner while P.W.12, Asghar Ali, H.C. Had drafted the formal F.I.R. (Exh.P.G./1). The investigation of this case was conducted by Mushtaq Elahi, S.-I. (P.W.13), Muhammad Hanif Khan, S.I. (P.W.11), and Feroze Khan, S.I.
(P.W.6), who deposed about the various steps taken by them during the investigation.
7. After the close of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C., who denied the allegations and professed his innocence. However, to a question that why this case against you and why the P.Ws. Have deposed against you?"
Muhammad Yaseen, appellant replied in the following terms:-- ' "I am innocent. The P.Ws. Are related inter se. The deceased Pervez Iqbal had enmity with different persons of the village and he was not a man of good character. He might had been murdered by unknown person. Muhammad Asif my Bhanja was murdered by Mukhtar Ahmed, Sultan and Shahzad and the case is still pending in the Court. They got registered fake case against me because I was not compromising in that case."
' However, neither he opted to make statement under section 340(2), Cr.P.C. On oath nor produced any witness in his defence.
8. The learned trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction and sentence against the appellant as detailed in para 1 ante. Hence, both these matters before this Court.
9. The learned counsel for the appellant contends that there were contradictions in the statements of Muhammad Iqbal complainant (P.W.8) and Muhammad Rafique (P.W.9) regarding the place of occurrence as according to P.W.8 Muhammad Iqbal complainant the occurrence had taken place in front of the house of Muhammad Riaz while P.W.9, Muhammad Rafique stated that the occurrence had taken place in front of the house of Pervez; that none of the persons whose houses were around the place of occurrence were joined in the investigation by the police; that P.W.9 Muhammad Rafique was a chance witness who had failed to explain his presence at the spot at the time of the occurrence through any reasonable explanation; that alleged recovery of .12 bore double barrel gun from the appellant was legally inconsequential as no empty was recovered from the spot; that Muhammad Iqbal complainant (P.W.8) had failed to show any reason for his presence at the spot who claimed that he was standing in the Chowk in front of his house but had not uttered even a single word that why he had come out from the house; that the occurrence was not witnessed by the complainant and the prosecution had failed to prove the case against the appellant beyond any shadow of doubt; that the motive also could not be proved by the production of any sufficient evidence and even the names of the womenfolk who were allegedly teased by the appellant had not been disclosed by the prosecution and lastly it has been prayed by the learned counsel for the appellant that the learned trial Court had adopted a very harsh view while awarding the sentence of death to the appellant which otherwise at the most deserved lesser punishment and the motive was not proved and the appellant had only fired a single shot.
10. On the contrary, the learned counsel for the complainant as well as the State have vehemently opposed the appeal on the ground that the prosecution had been able to prove its case beyond any shadow of doubt; that mere close relationship of the witnesses inter se and with the deceased is not sufficient to declare them interested witnesses, who otherwise were the natural witnesses being residents of the same vicinity and had no previous enmity to falsely implicate the appellant in the present case by letting off the real culprit; that it was a daylight occurrence and the appellant was previously known to the witnesses, which rules out the possibility of any misidentity; that the F.I.R. Was got recorded with promptitude which eliminates the possibility of concoction of story; that the post-mortem examination was conducted on the next day at 9-00 a.m. But the delay in conducting the post-mortem examination and minor discrepancies in the prosecution's story, if any, are not sufficient for disbelieving the prosecution version; that the conviction and sentence under section 302(b), P.P.C. Recorded by the learned trial Court through the impugned judgment being based on the evidence on record are liable to be maintained and the appellant having committed murder of the deceased through fire shot is not entitled to any leniency in the quantum of sentence.
11. We have heard the learned counsel for the parties and perused the record with due care and caution.
12. The occurrence in the present case had taken place at 12-00 noon on 24-9-1997 at Chak No,274/RB which was at a distance of 18 km. Towards South/West from Police Station, Dijkot District, Faisalabad and the matter was reported to Mushtaq Elahi-S.-I. (P.W.13) by Muhammad Iqbal complainant (P.W.8) father of the deceased who met with him at Pull Ali Wal, the same day at 2-05 a.m. And made statement (Exh.P.G.) before him in respect of the present incident, on the basis of which formal F.I.R. No .369 (Exh.P.G/ 1) was subsequently drafted by Asghar Ali, H.C. (P.W.13) at the police station the same day at 2-45 a.m. And as such the F.I.R. Was got lodged with promptitude, in which name of the appellant as a single accused was duly mentioned. It was stated therein that Muhammad Yaseen had fired with 12 bore double barrel gun at the deceased which hit on his back.
13. Medical evidence was provided by Dr. Muhammad Anwar (P.W.7) who had conducted the post- mortem examination on the dead body of Pervez Iqbal deceased on 25-9-1997 at 9-00 a.m. And he had observed two fire arm injuries on the back of left chest of Pervez Iqbal deceased and as such the medical evidence fully supported the ocular account. We don't find( any contradiction in the medical evidence-and the story of the prosecution regarding the time and nature of the fire arm used in the incident.
14. To prove the ocular account the prosecution got examined Muhammad Iqbal complainant (P.W.8) father of the deceased and P.W.9 Muhammad Rafique. The latter claimed that at the time of occurrence he was standing with the complainant and Ubaidullah (given up P.W.) but he during the cross-examination P.W.9 admitted that his house was on the other side of the village and his land was at a distance of 4/5 acres from the village, but failed to explain any reason for his presence at the spot. He was a chance witness and it is settled law that the chance witness cannot be relied upon unless he sufficiently explains his presence at the spot reasonably. However, the other eye-witness, namely Muhammad Iqbal complainant (P.W.8) was resident of the same locality and his house situated in the same Chowk at a distance of 20/25 Karams from the place of occurrence. P.W.9 further explained that the door is opened in the bazaar. Though P.W.9 was father of the deceased yet mere close relationship with the deceased is not sufficient to declare him as an interested witness as there was no previous enmity or grudge between the parties. The complainant (P.W.8) was a natural witness, whose presence at the spot at the lime of the occurrence which had taken place in the month of September in a Chowk of the Bazaar in the middle of the day near the house of the complainant cannot be doubted. The site plan (Exh.P.B) also finds mention the house of the complainant in the same street and its distance from the place of incident was given as 104 feet, which supplements the version of the complainant. There is nothing on the record to discard the statement of the complainant and to declare him as an interested witness. He had faced the test of cross-examination successfully and the defence failed to gain anything out of it for false implication of the appellant by letting off the real culprit. P.W.9 remained consistent regarding the time, place and the manner in which the occurrence had taken place with the previous statement made before the police. It is settled law that in criminal cases, the quality and not the quantity of evidence is to be seen. Conviction can be based on solitary statement of the witness, if the same is found to be trustworthy. We don't find any reason for discarding the statement of the complainant (P.W.8), which being trustworthy and confidence inspiring is found sufficient to connect the appellant with the commission of the crime even without any corroboration through any independent piece of evidence. It is, however, noticed that in the present case the appellant had remained fugitive from justice for about one year as the occurrence had taken place on 24-9-1997, but the appellant was arrested in the present case on 15-8-1998. P.W.6, Feroze Khan, S.-I. Had arrested him. P.W.11, Muhammad Hanif Khan, S.-I. Stated that he had obtained the warrants of arrest of the appellant and proclamation was also issued against him on 26-11-1997. The appellant was resident of the same locality. It cannot be believed that the appellant was ignorant about registration of the present case against him and his abscondance can be termed as intentional to avoid legal consequences of the case registered against him. The abscondance of the appellant gave sufficient corroboration to the ocular account regarding his involvement in the present occurrence.
15. The alleged recovery of weapon from the appellant after about one year of the occurrence in the present case was legally inconsequential as no empty was recovered from the spot and only report of the Forensic Science Laboratory that the weapon was in working condition was not sufficient to declare that the said weapon was used by the appellant in the said incident. However, it is settled law that mere non-recovery of the weapon from the accused or failure of the prosecution to prove the recovery at the trial is not sufficient to discard the ocular account which even otherwise has been found confidence-inspiring.
16. The motive set up by the prosecution was that the appellant was forbidden by the deceased many a time from teasing the womenfolk, who used to visit the land of the complainant party and due to this reason the appellant had committed the murder of the deceased. The witnesses during the cross-examination had even failed to disclose the names of the womenfolk who were being teased by the appellant and even they were not produced before the Investigating Officers during the investigation. Even the said matter of teasing the women by the appellant was not reported to the police or any respectable of the Ilaqa. The oral statement of the complainant is not sufficient to prove the motive against the appellant, but mere non-proving of any motive is not a ground for exonerating the appellant from the commission of the crime as the motive is purely a matter between the assailant and the victim and the witnesses cannot be expected to have full knowledge about the same. Even the murders are committed without any motive or at the spur of the moment due to sudden flare up.
17. For the foregoing reasons, we have no hesitation in holding that the prosecution had been able to bring home guilt to the appellant beyond any shadow of doubt. Resultantly, the conviction recorded by the learned trial Court under section 302(b), P.P.C. Is maintained. So far as quantum of sentence is concerned, we do not see mitigating circumstances warranting lesser sentence. The appellant had fired with double barrel .12 bore gun resulting into causing of the following injuries:--
(1) A fire-arm wound 1 x 1 c.m. And 1 c.m. Below the left scapula on the back of left chest, perforating the costal space, damaging the route of arota with anterior wall of left ventricle of the heart, a big metallic pellet found in the anterior and inferior part of ventricle. Pellet recovered, sealed and handed over to police.
(2) A fire arm wound 1 x 1 c.m. On the left back of chest 1 c.m. From midline on the route of 9th rib, 9th rib broken at the base, perforating of thorax wall and entering the middle, half of right lung, above and downward, a metallic big pellet found in the mos of lung recovered and handed over to police. ' which were declared by the doctor (P.W.7) sufficient to cause death in the ordinary course of nature and the probable, time between the injuries and the death was immediate. The appellant cannot be benefited that he had achieved his goal of causing death of the deceased in a single fire shot. The intention of the assailant can be gathered from the nature of the weapon used in the occurrence, seat of the injuries and the damage caused by it. As such the death sentence awarded to the appellant by the learned -trial Court is also maintained. The direction for payment of compensation amounting to Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Is also maintained, but in default of payment thereof the appellant shall undergo S. I. For six months instead of R.I. As ordered by the learned trial Court. This appeal stands dismissed accordingly.
18. Consequently, the death sentence awarded to Muhammad Yaseen, convict-appellant, is confirmed and Murder Reference No,135 of 2001 is replied in the affirmative.