' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,417 of 2002 filed by Asad Abbas, who faced trial in case F.I.R. No,83, registered at Police Station Noushera, District Khushab, on 31-7-2001, for offences under sections 302/109, P.P.C. Before learned Sessions Judge, Khushab, who after conclusion of trial, vide his judgment, dated 16-3-2002 convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs . 50, 000.
2. Murder Reference No,194 of 2002 for confirmation or otherwise of death sentence of appellant and Criminal Revision No,281 of 2002 filed by Asif Jahan/complainant seeking enhancement of compensation shall also be disposed of through this single judgment.
3. Brief facts of the case as narrated in F.I.R. Exh.P.A. By Asif Jahan complainant are that on 31-7-2001 at about 7-00 a.m. He along with his uncle Zafar Ahmad went to Ochhali bus-stop and boarded guests in a coach. Thereafter they sat in the shop of Alam Khan. Alam Khan and Alamgir were also present in the shop. In the meanwhile Asad. Abbas armed with pistol reached there and after raising Lalkara that he will teach lesson to Zafar Ahmad of being a big man fired at him, which hit Zafar Ahmad on his left upper arm. He also caused second fire which landed on left shoulder of Zafar Ahmad. Zafar Ahmad fell down. Asad Abbas fled away from the spot. While the injured was being shifted to Civil Hospital, Noushera, he succumbed to the injuries on the way.
4. The motive behind the occurrence was that the exchange of hot words between Asad Abbas and Zafar Ahmad due to political rivalry and Asad Abbas committed the murder at the instance of political opponents of the deceased namely Sher Zaman, Habib Ullah Khan and Mughal Khan as a hired assassin.
5. After registration of formal F.I.R., the investigation of the case was taken over by Khizar Hayat, Inspector/P.W.10. He proceeded to the Civil Hospital, Noushera where dead body of Zafar Ahmad was lying. He took over the dead body, prepared injury statement Exh.P.G. And inquest report Exh.P.H. Thereafter, Ile visited the place of occurrence and secured blood-stained earth from the spot vide memo. Exh.P.B. On 9-8-2001 he arrested Asad Abbas accused, who while in custody on 10-8-2001 led to the recovery of .32 bore revolver P.1 along with 4 live cartridges P.2/1-4 from his residential house, which were taken into possession vide memo. Exh.P.D. After completion of investigation, the accused was sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 10 witnesses in all including Dr. Muhammad Yaqoob/P.W.9, "ho conducted the post-mortem and observed the following injuries on the dead body of Zafar Iqbal:--
(1) A fire-arm blood-stained 1/2 c.m. x 3/4 c.m. Wound of entry with inverted margin on upper part of left upper outer frontal part of upper arm.
' Note: Probing of injury No,1 was done which indicated that bullet entered through muscular path way in the chest cavity.
(2) A fire-arm blood-stained 1/2 c.m. x 1/2 c.m. Wound of entry with inverted margin on outer and mid part of left upper arm.
(3) A fire-arm blood-stained 1 c.m. x 1 c.m. Wound of exit with averted margin on inner upper part of left upper arm, 6 c.m. Below from axilla (Armpit).
(4) A fire-arm blood-stained 1 c.m. x 1 c.m. Wound of entry with inverted margin on left outer side of upper chest, 7 c.m. From left axilla (Armpit).
' Note: Probing of injuries Nos.2, 3 and 4 was done which indicated that bullet entered through injury No,2, came out through injury No,3 and again entered in injury No,4 which fractured rib No,6 on left side.
' The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.K., Serologist Exh.P.K./1 and that of Forensic Science Laboratory Exh.P.L. Closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence and false implication. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above.
7. 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 has contended that the prosecution failed to prove motive against the appellant, as he had no political rivalry with anyone as he had not contested any election; that there were contradictions between the medical evidence and the ocular account; that both the eye-witnesses have not been mentioned as witnesses on the last page of the inquest report, which bears the name of Fateh Sher and Muhammad Ramzan only; that the recovery of .32 bore revolver was planted upon the appellant and the recovery evidence was not worthy of any credence; and that according to Exh.P.D. .32 bore revolver was recovered at the instance of the appellant while according to P.W.5 .30 bore pistol was recovered; that the mandatory provisions of section 103, Cr.P.C. Were violated and no one from the public was associated during recovery proceedings. In the alternative the learned counsel has submitted that the appellant did not deserve capital punishment as he was about 20 years of age at the time of occurrence and according to prosecution case itself he committed the offence under the influence of his elders, therefore, the above noted circumstances may be considered mitigating circumstances in favour of the appellant.
8. The learned counsel for the complainant has argued that F.I.R. Was lodged promptly, which ruled out the possibility of fabrication; that P.W. Alam Khan was an independent witness having no enmity with the appellant whatsoever; that both the P.Ws. Have given consistent account of the occurrence and their statements are fully supported by the medical evidence and corroborated by the circumstances of the case; that the, fact remains that the appellant led to the recovery of .32 bore revolver, which was sent to the Forensic Science Laboratqry and was found in working order; that no mitigating circumstance exists in favour of the appellant as he took the life of an innocent person by repeated firing at him; and that the doctor who conducted the post-mortem examination on dead body of Zafar was different person than the doctor mentioned in the statement under section 342, Cr.P.C.; and that no suggestion was put tc, the doctor P.W.9 that he dishonestly prepared the post-mortem report. He supports the judgment passed by the learned trial Court.
9. The learned Additional Prosecutor-General adopts the line of arguments advanced by the learned counsel for the complainant.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
11. The occurrence took place at 7-00 a.m. In the stop of Alam Khan and was witnessed by Asif Jahan/P.W.1, nephew-of the deceased, and Alam Khan/P.W.2, in whose shop the occurrence took place. Asif Jahan has plausibly explained his presence with the deceased at the time of occurrence. He stood the test of cross-examination and stated the names of the guests with whom he and the deceased had accompanied to the bus-stand. His statement is corroborated by Alam Khan who also stated the name of one of the guest as Ghulam Abbas. No serious enmity or existed between the complainant and the appellant so as to involve him in a false case. As far as Alam Khan is concerned, he is an independent witness. The existence of his shop near Adda has not been challenged. Blood-stained earth was collected from inside his shop. His statement on oath cannot be discarded on the presumption that in the presence of his young sons it would not likely that he would run the shop himself. He was a retired Army man; therefore, his presence in the shop is very natural. He and complainant, both without any loss of time lifted Zafar while he was alive from the shop and started towards hospital, Noushera, however, before reaching the hospital the deceased lost his life and the matter was reported to the police. The occurrence took place at 7-00 a.m. The police station was at a distance of 14 Kms. And within 45 minutes F.I.R. Was got registered.
On the same date at about 8-30 a.m. After 45 minutes of registration of the case dead body was received at the hospital and P.W.9 conducted the post-mortem. The promptly lodging of F.I.R. And receipt of dead body at the hospital within 45 minutes thereafter, rules out any fabrication. It also denotes that both the P.Ws. Were present. Both the P.Ws. Have corroborated each other on all the material points. Their statements are natural, coherent and trustworthy. The intrinsic value of their evidence could not be shaken during lengthy cross-examination. The ocular account is fully supported by the medical evidence.
12. The argument of the learned counsel for the appellant that according to P.Ws. The appellant fired twice while according to the doctor the deceased has received four fire-arm injuries three of which were entry wounds, hence the medical evidence belied the ocular version, has no force. Dr. Muhammad Yaqoob appeared as P.W.9. According to post-mortem report and his statement, he observed four injuries on the dead body. Injuries Nos.1, 2 and 4 were entry wounds while injury No,3 was exit wound. However, the doctor gave a note that probing of injuries Nos.2, 3 and 4 was done, which tndicated that the bullet entered through. Injury No,2 came out through injury No,3 and again entered in injury No,4 and fractured rib No,6 on the left side. The note of the doctor is available on post-mortem report Exh.P.F. His statement to that effect was not challenged at all and impliedly accepted.
13. The argument of the learned counsel for the appellant that the doctor favoured the complainant party being relative is also without any substance. As noted above, statement of Dr. Muhammad Yaqoob P.W.9 was not challenged vis-a-vis not at all. The doctor referred to by the appellant in his statement recorded under section 342, Cr.P.C. Was a different doctor whose name was Dr. Nasir Khan.
14. The other argument of the learned counsel for the appellant that names of the eye-witnesses were not mentioned in the inquest report which indicated that they were not present, is also not valid, as in column No,4 of the inquest report the names of those P.Ws. Were mentioned who would identify the dead body before the doctor and it does not contain the name of eye-witness but the name of eye-witness stands duly mentioned in the part of inquest report relating to brief history of the case.
15. The learned counsel has submitted that the prosecution failed to prove motive as there was no political rivalry between the appellant and the deceased while the tenor of cross-examination shows that many pages of cross-examination were devoted to bring on record the political rivalry between the parties.
16. As far as the recovery of revolver at the instance of the appellant is concerned, in our opinion it was of no consequence as no empty was recovered from the spot. It is also noteworthy that in violation of section 103, Cr.P.C. No one from the public was associated during recovery proceedings.
17. In the above noted circumstances we are of the opinion that the prosecution has successfully proved its case against the appellant through trustworthy direct evidence, which was supported by the medical evidence and corroborated by the circumstances of the case like promptly lodging of F.I.R. And immediate post-mortem.
18. Having come to this conclusion we have given our considerate thought to the quantum of sentence in the instant case. The learned counsel for the appellant has submitted that the appellant was about 20 years of age at the time of occurrence. However, according to school leaving certificate Exh.D.D. brought on record by the appellant himself, the appellant was born on 15-8-1980 and was about 21 years old at the time of occurrence. Mere young age would not constitute mitigating circumstance. In the instant case the appellant while armed with deadly weapon fired not once but twice at the deceased. Hence, no mitigating circumstance exists in his favour.
19. As a result of above discussion, this appeal is dismissed. Sentence of death is confirmed. Murder Reference is answered in the affirmative.
20. As far as the revision is concerned, we find no justification for enhancing the amount of compensation. Thus, the revision is dismissed.