' MUHAMMAD FARRUKH MAHMUD, J.---Naubahar alias Baharuappellant and one Liaqat Ali were booked in case F.I.R. No,113 registered at Police Station Syedwala on 9-6-1995 for offences under section 302/34 P.P.C. For having caused the death of Ghulam Shabbir. Before trial Liaqat Ali/co- accused died, so Naubahar alias Baharu was tried by the learned Additional Sessions Judge, Sheikhupura. Vide judgment dated 14-11-2001, the learned trial Court convicted him for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs,50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I. For six months.
2. Naubahar alias Baharu has challenged his above noted conviction and sentence by filing the instant appeal. Murder Reference No,797 of 2001 seeking confirmation or otherwise of death sentence imposed 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 per F.I.R. Exh.PB recorded by Muhammad Tufail, S.-I. /P.W.6, at the instance of Muhammad Sharif, complainant/P.W.2, are that on 9-6-1995 at 6-30 p.m., the complainant, his brother Ghulam Shabbir (deceased), Alam Sher and Sikandar/P.W.3 were at their Dera. Ghulam Shabbir proceeded to the fields of Ishaq to catch the mares. He was followed by the complainant and his companions. Suddenly, Naubahar alias Baharu appellant armed with a .12 bore carbine and Liaqat Ali (since dead) armed with .12 bore gun came there on a mare. Liaqat, while raising Lalkara that Ghulam Shabbir should be taught a lesson for insulting them, fired from his gun which hit Ghulam Shabbir on his left hand and left wrist. The fire-shot by Naubahar hit Ghulam Shabbir on his abdomen and chest on the left side. Ghulam Shabbir fell down, while the P.Ws. Saved their lives by lying on the ground. The accused persons, while raising Lalkaras, decamped from the scene of occurrence on their mares. Ghulam Shabbir died at the spot.
' The motive behind the occurrence was that both the accused had stolen a bull of the complainant party and did not return the same despite admissions. On demand for restoration of bull, hot words were exchanged several times. On the fateful morning, Ghulam Shabbir demanded the return of bull from the accused, whereupon an altercation took place between them; however, the matter was cooled down. While going Liaqat threatened that he would deal with them. Due to this grudge, both the accused had committed the murder of the deceased.
4. On 9-6-1995 after registration of formal F.I.R. , Muhammad Tufail, S.-I./ P.W.6, went to the place of occurrence; inspected the dead body; prepared its inquest report Exh.PE and injury statement Exh.
PF and dispatched the dead body to the mortuary for post-mortem examination. On 10-6-1995, he prepared rough site-plan Exh.PG of the place of occurrence. He collected blood-stained earth from the spot and sealed the same into parcel vide memo. Exh.PA. He got prepared the scaled site-plan Exh.PD and Exh.PD/1 of the place of occurrence from the Patwari. Liaqat Ali-accused (since dead) was arrested on 21-8-1996 and a mare belonging to him was taken into possession vide memo.
Exh.PH. Naubahar was got declared as proclaimed offender. On 26-1-1996 the appellant was arrested by Naseer Ahmad, A.S.-I./ P.W.11. The appellant, while in custody on 8-2-1996, led to the recovery of carbine P-3 which was taken into possession vide memo. Exh.PK. After completion of investigation, the appellant was sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced eleven witnesses. Ocular account was furnished by Muhammad Sharif/P. W.2 and Sikandar Hayat/P.W.3. In addition to that, P.W.2 also stated about the motive. Dr. Khadim Hu s s ain/P W.8 conducted post-mortem examination on the dead body of the deceased on 10-1-1995 at 12-10 noon. He, while observing seven injuries on the person of the deceased, opined that cause of death was shock and haemorrhage due to Injuries Nos.4, 5 and 6, which was sufficient to cause death in the ordinary course of nature. According to him all the injuries were ante mortem and caused by fire-arm weapon. The duration between injuries and death was about 10 to 20 minutes, while the duration between death and post-mortem examination was 16 to 18 hours. Muhammad Tufail, S.-I./P.W.6, stated about the registration of the case and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication in the case due to enmity over the theft of a bullock, as the complainant party was taking him responsible for the theft of the bullock while he was not concerned with that theft.
He also appeared as a witness under section 340(2), Cr.P.C. And stated that no carbine was recovered from him during the investigation.; that an ox of the complainant was stolen and he was suspected to be involved in the theft. He further stated that he gave oath on that regard to the complainant. He added that the complainant party had murdered persons of Kamir's party and the deceased Shabbir could have been murdered by the opponents of complainant party who belonged to Kamir's party;, and that the police challaned him unjustly and against the facts in this case. He, however, did not produce any witness in defence.
7. Learned counsel for the appellant stated that the P.Ws. Were inimical to the appellant who was roped in the case merely on suspicions; that in fact, it was an unwitnessed occurrence; that the motive as narrated in the F.I.R. Lead to the conclusion that the complainant as well as the deceased had grudge against the appellant; that the recovery of weapon was of no consequence, as the appellant would not keep the weapon for a whole year after occurrence; that abscondence was not, judicially proved; and that in any case, it was not a case of capital punishment.
8. Conversely, the learned counsel appearing on behalf of the State argued that the occurrence took place when the daylight was available and there was no question of misidentification; that the matter was reported to the police without any delay; that the ocular account was supported by the medical evidence and corroborated by the evidence of motive as well as of abscondence of the appellant.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. The prosecution has produced Muhammad Sharif brother of the deceased and Sikandar Hayat as P.Ws.2 and 3 to prove its case. Sikandar Hayat is an independent witness having no enmity or ill- will against the appellant. He has corroborated the statement of Muhammad Sharif on all material points. The intrinsic value of the incriminating evidence furnished by these witnesses could not be shaken during cross-examination, rather the statement of Sikandar Hayat was not seriously challenged. The occurrence took place at 6-30 p.m., while the matter was reported at the police station which was at a distance of seven miles at 8-5 p.m., within 1-1/2 hours. The factum that the F.I.R. Was promptly lodged rules out the fabrication in B the story of the F.I.R.
11. The ocular account is fully supported by the medical evidence. According to medical evidence, the deceased lost his life due to Injuries Nos.4, C 5 and 6 collectively, which are attributed to the appellant.
12. The motive as set down in the F.I.R. Has been admitted by the appellant in his statement recorded under section 342, Cr.P.C. And in his statement recorded under section 340(2), Cr.P.C. As far as abscondence is concerned, in order to prove the same the prosecution produced Bashir Ahmad Constable/P.W.4 whose statement remained unchallenged. It means that his statement was admitted as true but the evidence of abscondence cannot be used against the appellant, as the learned trial Court did not put question about the abscondence when the statement of the appellant was recorded under section 342, Cr.P.C.; hence, the appellant was not given a chance to explain the factum of abscondence.
13. As far as defence plea is concerned, no specific plea was taken by the appellant except that he was falsely implicated in the case and complainant party had murdered persons of Kamir's party and the deceased Shabbir could have been murdered by the opponents of the complainant party who belonged to Kamir's party. The statement of the appellant is based on presumptions alone and has no value.
14. In the above noted circumstances, we are of the view that the prosecution has proved its case against the appellant beyond doubt. The appellant, while armed with a fire-arm, had gone to the place of the deceased and caused his murder; hence he does not deserve any leniency. The appeal is dismissed. The conviction of the appellant under section 302(b), P.P.C. And sentence passed by the learned trial Court are maintained. The death sentence is confirmed. The Murder Reference is answered in the affirmative.