' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,377-J of 2001 filed by Nisar Ahmad, who was convicted and sentenced by the learned Additional Sessions Judge, Hafizabad, in case F.I.R. No,262, registered at Police Station Kasuki, on 5-9-1999, for offences under sections 302/109, P.P.C., vide his judgment dated 3-9-2001 as under:-- Death with compensation of Rs,50,000 or in default six months' S.I. Under section 302(b), P.P.C.
Murder Reference No,617 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
2. Brief facts of the case, per F.I.R., as narrated by Muhammad Faiz/complainant (P.W.2) are that the complainant was resident of village Muttum and was cultivator. On the fateful day i.e. 5-9-1999 Muhammad Fazil, brother of the complainant, had to go to Lahore. At about 8-30 a.m. When the complainant was going to board a bus to Muhammad Fazil for Lahore and while they were on Hafizabad Khanqah Dogran Road, Nisar Ahmad armed with .12 bore gun came there and fired, which hit Muhammad Fazil at his chest, who fell down. Meanwhile, Muhammad Zahid and Muhammad Javed (brothers of the complainant and deceased) also came to the scene of occurrence from a nearby shop. They went forward to rescue Muhammad Fazil but they were aimed at by Nisar Ahmad. They saved their lives by hiding in a street. Nisar Ahmad made good his escape by raising Lalkara that he had taken the revenge of his father. Muhammad Fazil succumbed to the injury at the spot.
' The motive behind the occurrence was that two years ago Muhammad Zahid, brother of the complainant, caused fire-arm injury to Muhammad Saleem father of Nisar Ahmad. For that revenge Nisar Ahmad committed the murder of Muhammad Fazil.
3. After registration of formal F.I.R., the investigation of the case was taken over by Najam-ul-Saqib S.-I./P.W.8. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.F. And inquest report Exh.P.J. He took into possession bloodstained earth from the spot vide memo. Exh.P.C. He arrested Nisar Ahmad on 8-9-1999. While in custody, on 16-9-1999, Nisar Ahmad led to the recovery of .12 bore single barrel gun P.4, which was taken into possession vide memo. Exh.P.D. After completion of investigation, the accused was sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 15 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.L., Forensic Science Laboratory Exh.P.M. And that of Serologist Exh.P.N. Close its case. The accused in his statement recorded under section 342, Cr.P.C. Took a specific defence plea, which is being reproduced:- , "The story of occurrence described by the ocular account is totally wrong. In fact Muhammad Fazil deceased while armed with a carbine attacked upon me on 5-9-1999 while I was in my house.
Exercising my right of private defence, I fired at Muhammad Fazil deceased in my own defence. The occurrence took place in my house. The site plan prepared by the police and by Draftsman Masood Ahmad Bhatti was with connivance of the P.Ws. Is wrong, my house, where the occurrence took place was demolished to prove the different place of occurrence at the road side. My first version by the Investigating Officer was also wrong. The recovery of blood-stained earth is also shown from different place."
' The appellant did not appear as witness under section 340(2), Cr.P.C. Nor did he produce any defence witness in support of his defence plea. After conclusion of trial the appellant was convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that both the witnesses are related to the deceased; that the motive set down in the F.I.R. Could not be proved during trial; that the medical evidence does not support the ocular account as there were two injury wounds while according to P.Ws. Only one fire was caused; that the defence plea taken by the appellant was more plausible because after compromise with Muhammad Zahid and his family there was no occasion for the appellant to go and fire at the deceased; and that in any case it is not case of capital punishment as the real motive is shrouded in mystery.
6. The learned counsel appearing on behalf of the State have deposed that it is a daylight occurrence; that both the witnesses had no previous grudge against the appellant so they cannot be termed as interested witnesses; that promptly lodged F.I.R. Shows that the witnesses were present at the time of occurrence; that the appellant took defence plea but neither he appeared himself in support of his plea nor he produced any defence witness nor it was borne out from the circumstances of the case; that no reason exists for substitution; and that no mitigating circumstances exist in favour of the appellant.
7. We have heard the learned counsel for the parties at length and scanned the entire record minutely. The appellant has taken a specific plea of self-defence. It is a case of two versions. Both the versions are to be put in juxtaposition to discover the truth.
8. According to prosecution case, at about 8-30 a.m. On 5-9-1999 the complainant left with his brother Muhammad Fazil deceased to board him in a bus for Lahore. When they were on Hafizabad Khanqah Dogran Road, Nisar Ahmad appellant, who was armed with .12 bore gun, reached there and fired, which hit on the chest of Muhammad Fazil, who fell down. Muhammad Zahid and Muhammad Javed, who were present in a nearby tyre shop, also reached there. Nisar Ahmad appellant left the scene of occurrence shouting Lalkara that he had taken revenge of causing fire- arm injury to his father. Muhammad Fazil died on the spot. In support of prosecution case Muhammad Faiz and Muhammad Javed P.Ws.2 and 3, both brothers of the deceased, appeared before the learned trial Court. Their statements are in accordance with the story given in the F.I.R.
And both of them have corroborated each other on all the material points. It is in evidence that all the brothers lived together, A so accompanying of Muhammad Faiz with Muhammad Fazil deceased was not an unusual circumstance. The tyre shop and presence of Muhammad Javed P.W. Are duly reflected in the site plan Exh.P.E. Their statements are corroborated by the circumstance of promptly lodging of F.I.R. And the factum of post-mortem conducted on the same day. The occurrence took place in daylight and there was no question of mistaken identity of the assailant.
9. Ocular account is fully supported by the medical evidence. The witnesses stated that fire was caused from 6/7 feet, which is borne out by the medical evidence as tattooing was present around the wound.
10. The motive set down in the F.I.R. Was that two years prior to the occurrence Muhammad Zahid, brother of the complainant, and Muhammad Fazil deceased had caused fire-arm injury to Muhammad Saleem, father of the appellant and for that reason Nisar Ahmad killed Muhammad Fazil. It is in evidence that Muhammad Zahid was admitted to bail on the basis of compromise. In any case it was not Muhammad Fazil, who had fired upon Muhammad Saleem father of the appellant. In these circumstances, motive cannot be used as corroborative evidence against the appellant.
11. Najam-ul-Saqib, S.-I./P.W.8 arrested the appellant on 8-9-1999. On 16-9-1999 while in custody Nisar Ahmad led to the recovery of .12 bore single barrel gun P.4 from Engine Room after opening its lock. According to the report of Forensic Science Laboratory Exh.P.M. The gun was found to be in working order. The recovery has been effected from a place which was in exclusive knowledge of the appellant, who led C to the recovery from the room after opening its Outer lock. The recovery of gun stands proved through reliable evidence.
12. Now we come to defence plea, which has been reproduced in para.4 (ante). In support of defence plea neither the appellant appeared as witness under section 340(2), Cr.P.C. Nor did he produce any defence witness. Most importantly his real father and brother did not say a word about the defence plea in their statements recorded under section 342, Cr.P.C. The tenor of cross- examination shows that the plea taken by the accused during trial was not according to his first version recorded by the Investigating Officer soon after his arrest. The plea is not supported by the circumstances of the case as well. Hence the same is rejected.
13. In the above noted circumstances, we are of the considered opinion that the prosecution has successfully proved its case against the appellant beyond doubt.
14. Having come to this conclusion we have given our considered thought to the question of sentence. The learned counsel for the appellant argued that it was not a case of capital sentence, as the prosecution failed to prove the motive. The argument of the learned counsel has no force as the appellant, who was armed with deadly weapon reached the spot and took life of an innocent man without any provocation. It was observed by the Honourable Supreme Court of Pakistan in the case of Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCM R 427 that "insufficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non-awarding of the normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment". It was further observed that "inadequacy or weakness of the alleged motive or where motive had not been proved, an assailant if found guilty of causing the murder of another, did not deserve any leniency and the only punishment awardable in such-like circumstances would be the sentence of death". It is true that the appellant caused a single shot and did not repeat. Certainly there was no need to repeat the shot as fire had hit on the chest of Muhammad Fazil deceased from a close range, who died at the spot. We are afraid that no mitigating circumstance is available in favour of the appellant.
15. Resultantly, this appeal is dismissed. The judgment passed by he learned trial Court is upheld.
Murder Reference is answered in the affirmative. Death sentence is confirmed.