' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Criminal Appeal No,208 of 2001 (Shaukat Ali v. The State) and Murder Reference No,816 of 2001 (sent by the learned trial Court for confirmation of death sentence or otherwise), as they arise out of the same judgment dated 30-4- 2001 passed by the learned Additional Sessions Judge, Rawalpindi, whereby following sentences and convictions were passed:-
(i) Appellant was convicted under section 302(b), P.P.C. And sentenced to death with a compensation of Rs,1,00,000 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' S.I.;
(ii) Appellant was further convicted under section 324, P.P.C. For attempt to" Qatl-e-Amd of Banaras injured and sentenced to ten years'R. I. With a fine of Rs,20,000 in default whereof to further undergo S. I. For six months';
(iii) He was also convicted under section 337-L(ii), P.P.C. And sentenced to two years' R.I. For causing injury to Banaras injured- P.W.
2. Brief facts of the case, as explained by Babar Masood (P.W.3)/complainant (in Exh.PA) are that on the fateful day and time he along with Ijaz were coming back to their house after working labour as Masson along with deceased Zahid and Banaras and when they reached near the Dhoke of Baba Yaroo Dakhli Muradyal, accused Shaukat emerged there while armed with a Chhurri and raised a Lalkara that as Safina Bibi had given him "Taana" about his sister, he would teach them a lesson upon which he inflicted a Chhurri blow at the left flank of Banaras (injured P.W.) and when Zahid tried to rescue his father he was inflicted a Chhurri blow on his chest who .Fell down; that the hue and cry raised by them attracted the inhabitants of the vicinity and that Shaukat decamped from the spot while brandishing Chhurri; that Zahid breathed his last at the spot. The motive set by the prosecution was of "Taana" by Safina to the appellant qua his sister.
3. After having completed legal formalities, challan was submitted by the police against the accused before the learned Court of competent jurisdiction, where, accused denied the charge and claimed trial. The prosecution, in order to prove its case against the accused, produced thirteen prosecution witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal vehemently contends that the eye- witnesses are interested witnesses; that no independent witness has been produced; that the appellant was falsely implicated in the case' being cousin of Tariq who had abducted sister of the appellant; that the recovery was planted; that the ocular account in this case is not corroborated by the recovery of weapon; that the version of appellant in his statement under section 342, Cr.P.C.
Was not taken into consideration; that the doctor who had conducted post-mortem examination did not appear before the trial Court, so, conviction cannot be maintained and that the appellant was one while on the opposite there were four persons, so, it is not believable that he would cause such a damage.
' While advancing his submissions, learned counsel for the appellant further contends that there are mitigating circumstances in favour of the appellant because the injury on the person of Banaras is simple in nature and due to nonproduction of the doctor the murder charge remained unproved; that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and that the appellant is entitled to acquittal by this Court.
5. On the other hand, learned counsel for the complainant submits that it js a case of single accused; that substitution is a fare phenomenon; that appellant's abscondence for 1-1/2 years is a strong piece of evidence against the appellant qua which there is no plausible explanation existed on the record; that Banaras (P.W.4), being injured witness of the case, has fully supported the prosecution case; that the ocular account in this case is corroborated by the medical evidence; that the prosecution has proved its case against the appellant beyond an iota . Of doubt; that the deceased was done to death in callous manner, therefore, the appellant has rightly been awarded the normal penalty of death; that it is law of the land when the murder case is proved against the accused to the hilt then the only sentence in law is death and that this appeal is liable to be dismissed.
' The learned Assistant Advocate- General Punjab, in addition to the above submissions made by the learned counsel for the complainant, submits that no one can take advantage of his misdeeds; that the appellant remained absconder for a long period of 1-1/2 years and that the statement of the doctor was recorded when the proceedings under section 512, Cr.P.C. Were initiated against him and his statement is available on the record which can be read in this case as well. In support of the said contention the learned Law Officer has referred to Article 47 of the Qanun-e- Shahadat Order, 1984 and has relied upon a judgment of the apex Court of the country reported in Abdur Rehman v. The State (1998 SCM R 1778).
6. We have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the respective parties.
7. The occurrence in this case had taken place on 24-7-1996 at 5-30 p.m., the matter was reported to the police at 7-50 p.m. In the Gujar Khan Hospital while formal F.I.R. Was recorded at 8-00 p.m. In the police station and the distance between the place of occurrence and the police station is 14 kilometres. The delay, if any, has reasonably been explained and even otherwise, it is settled by now that the delay, per se, in lodging the F.I.R. Is not fatal to the prosecution case.
8. The prosecution to prove its case produced Muhammad Banaras (P.W.4) who, being an injured, is a star witness of the case. Although he is closely related to the deceased i.e, father yet he has no enmity or strong motive to falsely implicate the appellant in this case. Moreso, it is rare phenomenon that a real father of the deceased would substitute the real culprit of the case. He has reasonably explained his presence at the place of occurrence and this Court seems no reason not to accept his statement. Notwithstanding the fact that he was subjected to cross-examination but nothing could be shaken from his testimony.
9. There is yet another eye-witness of the case, namely, Babar Masood (P.W.3) who appeared before the learned trial Court in support of the prosecution case. He also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross- examination to which he was subjected during the trial. He corroborated the statement of the above eye-witness on the main points. Although he is also cousin of the deceased yet he has no enmity with the appellant to falsely depose against him., He has also reasonably proved his presence at the spot to have witnessed the occurrence. This Court seems his testimony to be worthy of credence.
10. We may state here that the appellant was arrested after one year and a six months' of the occurrence, proceedings under section 512, Cr.P.C. Were initiated against him and the evidence was recorded. The main objection of the learned counsel for the appellant is that the doctor who had conducted the post-mortem examination of the deceased did not appear before the learned trial Court when the trial of the appellant was held after his arrest. But the, fact remains that the appellant remained absconder for a long period of.1-1/2 years, statement of the doctor was recorded when the proceedings under section 512, Cr.P.C. Were initiated against the appellant, statement of the doctor is available on the record which can be read in this case as well. In support of the said contention the learned Assistant Advocate-General, Punjab has rightly referred to Article 47 of the Qanun-e-Shahadat Order, 1984 and a judgment of the apex Court of the country reported in Abdur Rehman v. The State (1998 SCM R 1778).
11. Apart from above, Dr. Muhammad Ilyas (P.W.8) had also examined Banaras P.W. On 24-7-1996 and found one injury on his person with a sharp-edged weapon which is a further corroboration to the prosecution case. Being injured of the case, his testimony is believable, convincing and confidence-inspiring, so, the argument of the learned counsel for the appellant that there was no independent and reliable eyewitness in this case, has no legs to stand because the said Banaras was given first injury and when his son i.e, the deceased, stepped forward to rescue his father, he was done to death for no fault of him which is a brutal and callous conduct on the part of the appellant, so, further argument of the learned counsel qua mitigation has no force and the said argument is accordingly repelled.
12. We may further state here that the ocular account in this case is fully corroborated by the medical evidence coupled with its further support from the factum of recovery long abscondence of the appellant for a period of one year and a six months. It would not be out of place to mention here that it is a case of single accused and bona fides of the complainant party are reflective of the fact that they did not involve any other person in the case, so, in our opinion, the prosecution has proved its case against the appellant.
13. The question of mitigation in murder cases came up for consideration before the august Supreme Court of Pakistan in Miss Najiba and another v. Ahmad Sultan alias Sattar (2001 SCM R 988), wherein, at page 993, while enhancing the sentence of imprisonment for life to death of the accused in the said case, the Apex Court of country observed as under:- "(5) After hearing the learned counsel for the parties and going through the record of the case, we find that both the Courts failed to record reasons for not awarding the normal penalty of death to the respondents in offences punishable with death. Section 367(5), Cr.P.C. Provides:~ "(1) to (4) ....
(5) If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed".
The recording of reasons for not awarding normal penalty of death in offences punishable with death, are mandatory, therefore, non- reading thereof would amount to non-compliance of the legal provisions. In various pronouncements, the Superior Courts have deprecated the practice of non-compliance of the said provision by the Courts, who while convicting the accused in offences punishable with death, ignore the mandatory provision of law and award lesser penalty of life imprisonment....". (emphasis supplied)
' The august Supreme Court of Pakistan, in support of the above observations, was pleased to rely upon Mosaddi Rai v. Emperor (AIR 1933 Patna 100), Abdul Sattar v. Muhammad Anwar (PLD 1974 SC 266), Nabu v. The State (PLD 1975 SC 478), Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452), Bakhsh Elahi v. The State (1977 SCM R 389), Jetharam v. Weram (1986 SCM R 1056), Maqsood Ahmad v. The State (1987 SCM R 1059), Muhammad Sharif v. The State (1991 SCM R 1622), Noor Muhammad v. The State (1999 SCM R 2722) and Muhammad Afzal v. Ghulam Asghar and others (PLD 2000 SC 12).
' At page 996 of the judgment (supra) in Miss Najiba's case, the Honourable Supreme Court further observed as under:- "(6) .....it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the like- minded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amount to gross miscarriage of justice whereas the Courts are duty bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment to the respondents, the Courts while awarding lesser punishment have to record reasons justifying the same., "(emphasis supplied)
14. In view of the above resume of facts coupled with fortifying ourselves by the judgments of the apex Court of the country quoted above, 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 is hereby confirmed.