' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose. Of Criminal Appeal No,597 of 1997 as well as Murder Reference No, 232 of 1997, both of which have arisen out of the judgment, dated 2-10-1997 passed by the learned Sessions Judge, Sargodha. Vide the aforesaid judgment the learned trial Court had convicted the appellant under section 302, P.P.C. And had sentenced him to death. The appellant was also directed to pay a fine of Rs,25,000 and in case of default in payment of fine to undergo further imprisonment for two years. He was also directed vide the impugned judgment to pay Rs,20,000 as compensation to the legal heirs of the deceased.
2. The case against the accused/ appellant is based on F.I.R. No,45/96 registered on 28-4-1996 at 9-00 p.m. In Police Station Kirana, district Sargodha under section 302, P.P.C. The F.I.R. Was lodged by one Mst. Manzoor Fatima widow of Hafiz Muhammad Latif deceased and wherein she had stated that for a period of about 20 years her husband Muhammad Latif had been Imam Masjid in Chak No,95/. South (Janobi) and they were living in the house adjacent to the masque. In the same mosque Allah Ditta Pawali was working as Khadim and who sometime ago had proceeded to Sargodha and in his place his maternal grand son (Nawasa) Shakeel Ahmad was working as Khadim in the mosque. Mst. Naziran Bibi, the mother of Shakeel. Ahmad was a woman of bad character and was having illicit relations with Yaqoob accused. As the house of Mst. Naziran Bibi was adjacent to their house, the husband of the complainant had forbidden the accused a number of times from coming towards their house and to which Muhammad Yaqoob had taken ill.
A few days ago, the husband of the complainant was going back with the fodder for the cattle when Yaqoob admonished her husband and even threatened to kill him. Her husband informed the respectables of the village about the same and who expelled them (Shakeel and his mother) from the adjacent house of the mosque. Yaqoob accused was aggrieved of the same. He sent a message to the husband of the complainant that if Shakeel and Mst. Naziran Bibi, were not able to celebrate Eid in the village, he will also not be able to do so.
3. On the day of occurrence around 7-30 p.m., the husband of the complainant i.e, Muhammad Latif after leading the prayers in the mosque, was standing in front of his house in the western corner of the Chowk, while the complainant and her son Abdul Ghaffar were standing in front of the house when suddenly Muhammad Yaqoob accused armed with a gun .12 bore emerged from the side of the Baithak of Khurshid Ashraf raising Lalkaras and fired a shot at her husband (Muhammad Latif) which hit him on the upper part of his right arm. At the same time he fired the second shot which hit him on his chest near the right armpit and he fell down. In the meanwhile Muhammad Hussain and Naveed Ahmad P. Ws. Who were present nearby and were witnessing the occurrence reached there on hearing the alarm raised by the complainant and her son and on seeing them, the accused entered the Baithak of Khurshid Ashraf, taking along his gun. When the complainant and her son attended to Muhammad Latif, he had already succumbed to the injuries.
4. In the F.I.R. a mention was also made about the motive and according to which the deceased had forbidden the accused for having illicit relations with Mst. Naziran Bibi and on account of the said grievance the accused had killed husband of the complainant namely Muhammad Latif by firing two shots with the gun at him.
5. Leaving her son Abdul Ghaffar and also Naveed Ahmad and other residents of the village near the dead body, the complainant proceeded to the police station and lodged the F.I.R.
6. After the investigation the challan was submitted in the Court and the accused was formally charged by the learned trial Court on 6-10-1996 under section 302, P.P.C. And to which he pleaded not guilty and hence the prosecution was thus asked to produce its evidence.
7. In this case the prosecution has examined as many as 12 witnesses. Of them P.W.11 is Dilshad Hussain, S-I., Police Lines, Mianwali, who on 28-4-1996 was posted as S-I. At Police Station Kirana. On the said date he recorded the F.I.R. Exh.P.G. On the statement of Mst. Manzoor Fatima, complainant/P.W.8 and then he proceeded to the spot. He prepared the injury statement and also the inquest report and sent the dead body to the mortuary for post-mortem examination. He inspected the place of occurrence and took into possession the blood stained earth and two crime empties from the spot and sealed thdm into a parcel. He also took into possession the Rexine Bag (P.3) containing 5 crime empties Exh.P.4/1-5 which were left by the accused at the spot. He prepared the site-plan of the place of occurrence Exh.P.K. Later Muhammad Ali, Constable No,414/P.W. Produced before him the last worn clothes of the deceased after the postmortem examination of the dead body of the deceased and which he took into possession. He handed the sealed parcels to the Moharrar for safe custody and for onward transmission to the concerned quarters. He was transferred from Police Station Kirana to Police Station City on 8-5-1996.
8. P.W.12 Ghulam Farid, S-I. Was posted as S.H.O. At Police Station Kirana. On 9-5-1996 he took over the investigation of this case, recorded the statements of some of the witnesses under section 161, Cr.P.C. And searched for the accused but, he could not arrest him. However he eventually arrested him on 19-5-1996 from Bus Stop Chak No,92/SB and obtained his physical remand. On 21-5-1996 during the course of investigation, the accused made a disclosure and then led to the recovery of double barrel gun Exh.P.5 from his house in Chak No,95/SB and which was lying under the bedding on a cot in a room of his house. The Investigating Officer took it into possession in the presence of the witnesses. He registered a separate case under section 13 of Arms Ordinance No,XX of 1965. He got prepared the site plans Exh.P.N. And Exh.P.N./1 from Iqbal Hussain P.W. He took other formal steps in connection with the investigation of this case and on the conclusion of the investigation challaned the accused in this case.
9. P.W.10 is Dr. Muhammad Yousaf, who on 29-4-1996 at 1-00 p.m. Had conducted the post-mortem examination on the dead body of Hafiz Muhammad Latif, deceased and had found six external injuries on the same. In his opinion cause of death in this case was due to cumulative effect of fire- arm injuries Nos.1 to 6, leading to haemorrhage, shock and pulmonary arrest and consequently to death. According to him all these injuries were ante-mortem and had been caused with fire-arm.
The probable time that had elapsed between injuries and death was immediate, while the probable time between death and postmortem examination was about 15 to 20 hours.
10. In this case the eye-witness account is furnished by P.W.8 Mst. Manzoor Fatima, who is the widow of the deceased and also by P.W.9 Muhammad Hussain and both of whom deposed on the same lines as indicated in the F.I.R. Both of them also deposed about the motive as mentioned in the F.I.R. On 25-1-1997 the Prosecutor tendered in evidence reports of Forensic Science Laboratory Exh.P.L., report of Chemical Examiner Exh.P.M. And report of Serologist Exh.P.N. And closed the case for the prosecution.
11. On 25-1-1997 the learned trial Court recorded the statement of the accused under section 342, Cr.P.C. Wherein he denied all the incriminating circumstances. When asked as to why this case against him and why the P. Ws. Had deposed against him, he replied that he had been falsely implicated in this case at the instance of Amir Saleem P.W. And his brother Khawar Saleem who is Inspector of Police and that the other P.Ws. Were inimical towards him and had made false statements. However he did not produce any evidence in defence nor did he make statement, under section 340(2), Cr .P.0 .
12. On the conclusion of the trial the learned trial Court convicted and sentenced the accused as aforesaid. Aggrieved of the impugned, judgment, the accused/appellant has come up in appeal.
The learned trial Court has also sent a reference for confirmation of the sentence of death awarded to the accused in this case.
13. The learned counsel for the appellant has argued that in this case the statements of P.W.8 and P.W.9 as eyewitnesses are not sufficient to establish the prosecution story and that P.W.8 Mst.
Manzoor Fatima being wife of the deceased is an interested witness whereas P.W.9 Muhammad Hussain was inimical towards the accused and his testimony cannot be considered as an independent and corroborative piece of evidence. He has submitted that the deceased was a religious fanatic belonging to sunni sect and used to abuse those belonging to shia sect and that in fact some unknown person belonging to the shia sect might have shot him dead. The learned counsel for the appellant has also argued that the prosecution had also failed to establish the motive which had been actually set up to strengthen the prosecution story. He has also argued that Khawar Saleem, the elder brother of Amir Saleem P.W., was serving as Inspector Police and he by misusing his influence had got the accused falsely challaned in this case. The learned counsel for, the appellant has argued that in fact the medical evidencq in this case does not fully support the ocular account and the recovery of gun (P.5) was fake and the same was actually .Not effected on the pointation of the accused and that only one of the two crime empties was found to be wedded with the weapon of offence i.e, 12 bore gun as per report of the Forensic Science Laboratory and which therefore means that at the spot only one shot had been fired while the other crime empty appears to have been fabricated and it makes the matter doubtful. The learned counsel for the appellant has argued that even if it be assumed for a moment that the charge against the accused was proved in this case, even then it was not a fit case for awarding capital punishment to the accused/appellant. He has argued that the prosecution has failed to establish the charge against the accused beyond reasonable doubt and in case it was found otherwise by this Court, it was a fit case for awarding lesser penalty to the accused/appellant under the peculiar circumstances of the case.
14. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court and has argued that there is sufficient evidence on record to support conviction as well as the sentence awarded to the accused by the learned trial Court and that there are no mitigating circumstances as it is a case of single accused and as per prosecution evidence the accused/appellant had clearly fired two shots causing injuries to the deceased and that according to the report of P.W.10 i.e, Dr. Muhammad Yousaf who had conducted the post-mortem examination the fire-arm injuries aforesaid were sufficient to cause death in the ordinary course of nature. He has thus argued that the appeal filed by the appellant is liable to be dismissed and has requested that the conviction recorded by the learned trial Court as well as the capital sentence awarded to the accused in this case be upheld.
15. We have carefully considered the arguments advanced from both sides. As mentioned above, the ocular account in this case is furnished by P.W.8 Mst. Manzoor Fatima and P.W.9 Muhammad Hussain. Both of whom fully support the prosecution version as indicated in the F.I.R. The testimony of P.W.8 cannot be disbelieved merely on the ground that she is wife of the deceased. It is not understandable as to why would she like to let off the actual culprits and to falsely implicate the accused in a case of this nature. P.W.9 Muhammad Hussain cannot be described as an interested witness. Both P.Ws.8 and 9 have also deposed about the motive as set up by the prosecution and there is no reason to disbelieve their statements. The recovery of the weapon of offence i.e, double barrel gun Exh.P.5 at the instance of the accused is also fully established in this case from the statements of P. W.12 Muhammad Farid S-I. And P.W.6 Fazal Karim. The report of the Forensic Science Laboratory is positive , to the extent of one of the two crime empties while regarding the second one, it has been mentioned in the said report that the same did not contain marks of similarity or were not otherwise sufficient for comparison with the test empties prepared from the double barrel shot gun mentioned above. However even. If the report of Forensic Science Laboratory is excluded from consideration as a whole, even then it would not make any difference because recovery of weapon of offence is only a corroborative piece of evidence. In this case there is available sufficient eye-witness account of the occurrence in the form of statements of P.W.8 and P.W.9 coupled with the evidence regarding the existence of motive. The ocular account in this case is also fully corroborated by the medical B evidence. In his statement, P.W.10 Dr. Muhammad Yousaf who had conducted the post-mortem examination on the dead body of the deceased had found fire-arm injuries on the dead body and which were sufficient to cause death in the ordinary course of nature.
16. It is a case of promptly lodged F.I.R. Which excludes the possibility of false implication. The testimony of eyewitnesses inspires confidence. It is a case of single accused. The existence of motive is fully proved, ocular account is fully corroborated by the medical evidence. There is sufficient evidence on record to the effect that the accused had fired two shots at the deceased with the gun .12 bore and which clearly indicates his intention. Hence there is sufficient justification to warrant conviction of the accused under section 302(b), P.P.C. We accordingly uphold the conviction of the accused (which shall be deemed to have been recorded under section 302(b), P.P.C.). Since there are no mitigating circumstances, we also uphold the sentence of death awarded to the accused/appellant by the learned trial Court. So far as the sentence of fine is concerned, the same is set aside. However, the accused/appellant will pay an amount of Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased.
17. With the above modification in the impugned judgment, the appeal filed by the appellant is dismissed. The sentence of death awarded to the accused/appellant in this case by the learned trial Court is confirmed.
18. Murder Reference (No,232/1997) is answered in the affirmative.