' ASIF SAEED KHAN, KHOSA, J.---Zulfiqar Ali Shah appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 21-7-1999 handed down by the learned Additional Sessions Judge, Sialkot and was sentenced to death as Ta'zir and to pay a sum of Rs.20,000 to the heirs of Shaukat Ail Shah deceased by way of compensation under section 544-A, Cr.P.C. Through the same judgment the learned trial Court had acquitted the appellant's co-accused namely Zulqarnain, Saqlain Shah and Munir Ahmad. Zulfiqar Ali Shah appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.849 of 1999 whereas Syed Fida Hussain Shah complainant has preferred Criminal Revision No.474 of 1999 before this Court seeking enhancement of the sentence passed by the learned trial Court against Zulfiqar Ali Shah appellant. We have heard both these matters together along with Murder Reference No.389 of 1999 seeking confirmation of the sentence of death passed by the learned trial Court against Zulfiqar Ali Shah appellant and we propose to decide all these matters together through the present consolidated judgment.
2. The prosecutor's case unfolded in the F.I.R. Was that Syed Fida Hussain Shah complainant was a resident of Mauza Chak Ikhtiar situated within the area of Police Station Sambrial, District Sialkot. At about 5-30 p.m. On 31-8-1993 the complainant as well as Fazal Hussain Numberdar, Talib Hussain and Muhammad Sharif P.Ws. Were sitting in the complainant's haveli situated in front of the complainant's house when Zulfiqar Ali Shah appellant came there armed with a gun .12 bore. At that time the complainant's brother namely Shaukat Ali Shah was standing in the said haveli of the complainant near a cow for her milking. The appellant raised a lalkara that he would teach a lesson to Zulfiqar Ali Shah for forbidding the appellant from going to the house of Mst. Shamim Akhtar and then the appellant fired a shot from his gun hitting Shaukat Ali Shah in his abdomen.
The fire went through and through. Upon receipt of that injury Shaukat Ali Shah fell down and started bleeding whereafter the appellant decamped from the spot. Shaukat Ali Shah was taken by the complainant and others in a Suzuki pick-up to Civil Hospital, Sialkot for treatment but he died on the way. Leaving the dead-body of his brother in the hospital in the care of Fazal Hussain Numberdar the complainant then proceeded to report matter to the police. The motive set up in the F.I.R. Was that Mst. Shamim Akhtar wife of Munir Ahmad accused used to live in the complainant's village and she did not enjoy good moral reputation. The appellant and his two bothers/co-accused namely Zulqarnain and Saqlain Shah used to visit the house of that lady but, on account of his distant relationship with the appellant and his brother/co-accused, Shaukat Ali Shah deceased had forbidden them from doing that. Even on the day of the present occurrence Shaukat Ali Shah deceased had gone to Munawar Shah, the father of the appellant and his two co- accused, and had complained against the said conduct of the appellant and his two co-accused.
According to the F.I.R. The appellant had committed the murder of Shaukat Ali Shah deceased with the abetment of Zulqarnain, Saqlain Shah and Munir Ahmad co-accused. Upon the statement made by Syed Fida Hussain Shah complainant in respect of the alleged incident F.I.R. No.213 was registered at Police Station Sambrial, District Sialkot at 8-00 p.m. On 31-8-1993 for an offence under section 302, P.P.C. Read with section 109, P.P.C.
3. After registration of the above mentioned F.I.R. The investigation of this case was conducted by Muhammad Tariq, Inspector (P.W.14) who inspected the dead-body and the place of occurrence, got the dead-body subjected to post-mortem examination, recorded statement of witnesses, arrested the appellant and his co-accused, recovered a gun from the appellant's possession and then completed the investigation of this case. Thereafter a challan was submitted before the learned trial Court.
4. At the commencement of the trial a charge with two heads under sections 302/34 and 302/109, P.P.C. Was framed against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as sixteen witnesses in support of its case against the appellant and his co-accused. Syed Fida Hussain Shah complainant (P.W.7) and Talib Hussain (P.W.8) furnished the ocular account of the incident in question and they also deposed about the motive. Muhammad Hussain (P.W.13) proved the recovery of a gun from the appellant's possession during the investigation of this case. Muhammd Sadiq (P.W.5) and Muhammad Sharif (P.W.6) stated about a conspiracy allegedly hatched by the appellant and his co-accused for doing away with Shaukat Ali Shah deceased. Absconscion of the appellant was proved by Muhammad Yaqub, F.C. (P.W.3). The medial evidence was provided by Dr. Khalid Mahmood (P.W.10). Muhammad Tariq, Inspector (P.W.14) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was of more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court acquitted the appellant's three co-accused but, after finding the prosecution's case against him to have been proved beyond reasonable doubt, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal, revision petition and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. He has maintained that as a matter of fact Shaukat Ali Shah deceased had been murdered by some unknown culprits in the wilderness outside the relevant village and the present case against the appellant had been cooked up after bringing his dead-body to the complainant's house and procuring and planting the complainant and the other witnesses as eyewitnesses. He has gone on to maintain that the motive set up by the prosecution had remained far from being established, the evidence regarding hatching of a conspiracy by the appellant with his co-accused had been discarded by the learned trial Court itself, the recovery of a gun from the appellant's possession was legally inconsequential, the appellant had never been properly declared as a Proclaimed Offender, the medical evidence contradicted the ocular account and the investigation of this case had been conducted in a dishonest manner. With these submissions the learned counsel for the appellant has maintained that it would be unsafe to uphold the appellant's conviction in such state of the evidence available on the record. In the alternative he has argued that in the absence of properly proved motive the appellant does not deserve the capital punishment in this case. As against that the learned counsel for the complainant as well as the learned counsel for the State have maintained that the prosecution had succeeded in establishing the guilt of the appellant to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been found by us that the motive set up by the prosecution was indeed unbelievable and the same had also remained far from being conclusively established. According to the prosecution's case Mst. Shamim Akhtar, the wife of Munir Ahmad acquitted accused, did not enjoy good moral reputation and Shaukat Ali Shah deceased had forbidden the appellant and his two brothers/co-accused from visiting the house of the said lady and the appellant and his co- accused had murdered the deceased on that score. We have found such a motive to be unreasonable inasmuch as it is not believable that the husband of the said lady would join the appellant and his co-accused in killing the deceased only because the deceased used to forbid the appellant and his two brothers/co-accused from visiting the house of that lady. It is also unbelievable that, as maintained by the prosecution, the appellant and his two brothers/co- accused would simultaneously be visiting the house of that lady in furtherance of their illicit relations with that lady. The evidence produced by the prosecution shows that the said lady was about 35/40 years old and was a mother of 6/7 children. No positive or independent evidence had been produced by the prosecution to establish bad moral character or reputation of that lady nor any incident hinting at that had been referred to by the prosecution witnesses. None of the prosecution witnesses had claimed to have seen that lady committing zina with the appellant or with anybody else. Both Syed Fida Hussain Shah complainant (P.W.7) and Talib Hussain (P.W.8) had admitted before the learned trial Court that they had cordial relations with Munir Ahmad accused and his wife Mst. Shamim Akhtar and they themselves used to meet them and used to visit their house. It had also been admitted by them that even Shaukat Ali Shah deceased was on visiting terms with the said accused person and his wife. Apart from that both the said witnesses had failed to mention any date, time or place where Shaukat Ali Shah deceased had admonished the appellant and his co-accused and had forbidden them from visiting the house of that lady.
Muhammad Tariq, Inspector (P.W.14), the Investigating Officer, had admitted before the learned trial Court that he had never associated that lady with the investigation of this case. In these circumstances a conclusion is inescapable that the motive set up by the prosecution had never been properly proved or established before the learned trial Court.
10. The prosecution's allegation regarding hatching of a conspiracy by the appellant and his acquitted co-accused for doing away with Shaukat Ali Shah deceased had been discarded by the learned trial Court itself after recording reasons for that and we have found such reasons to be cogent, plausible and acceptable. Thus, no support or corroboration could be sought by the prosecution from the evidence produced by it in this regard. Even the complainant or the State has not challenged the acquittal of the appellant's co-accused by the learned trial Court.
11. Although a gun had been recovered from the appellant's possession during the investigation of this case yet it is not disputed that no crime-empty had been recovered from the place of occurrence so as to connect the recovered gun with the alleged offence. In this view of the admitted position the recovery of a gun from the appellant's possession was surely legally inconsequential in this case.
12. Muhammad Yaqub, FC (P.W.3) was produced by the prosecution before the learned trial Court in order to prove efforts made. By the local police for getting the warrants of arrest served upon the appellant and to establish that the appellant had become a fugitive from law and had been declared a Proclaimed Offender. It had, however, been admitted by this witness that he did not know the appellant personally and his description was also not known to him, none of the members of the complainant party had accompanied him to the relevant village so as to identify the appellant for the purposes of service of warrants of arrest upon him and he had also not met any relative of the appellant in the relevant village as such relatives did not reside in that village.
This witness could not tell as to who was contacted by him in that village for the relevant purpose and he had admitted in so many words that the report prepared by him in respect of the appellant's absence from the relevant village was not , attested or verified by any numberdar, councillor or respectable person of that village. He had gone on to admit that as a matter of fact no witness at all had been cited in the report prepared by him in that regard. As if all this were not enough to discard the evidence produced by the prosecution regarding the appellant's alleged absconsion Muhammad Tariq, Inspector, (P.W.14), the Investigating Officer, had not even uttered a single word about the appellant's absconsion. In this view of the matter even this piece of evidence produced by the prosecution against the appellant is of no avail to the prosecution.
13. The discussion made above leaves us with two other pieces of evidence led by the prosecution against the appellant, i.e. The ocular account and the medical evidence and we have found these pieces of evidence to be so strong and unimpeachable as to be sufficient by themselves to maintain a conviction of the appellant in this case.
14. The ocular account in this case was furnished by Syed Fida Hussain Shah complainant (P.W.7) and Talib Hussain (P.W.8). It may be true that Syed Fida Hussain Shah complainant (P.W.7) was an elder brother of the deceased and Talib Hussain (P.W.8) was also admittedly a relative of the deceased but at the same time it is equally true that both these eye-witnesses were also related to the appellant as they all A belonged to the same brotherhood living in the same village. Both these witnesses had absolutely no personal background of enmity or against the appellant so as to prompt them to falsely implicate him in a case of this nature. Both the said eye-witnesses were also most natural witnesses as a cursory glance at the site-plan (Exh.PG) shows that the house of Syed Fida Hussain Shah complainant is situated on one side of the haveli where the present occurrence had taken place and on the other side of that haveli the house of Muhammad Sharif, a brother of Talib Hussain (P.W.8), abuts the place of occurrence. It has not been disputed before us that Shaukat Ali Shah deceased used to live with his elder brother Syed Fida Hussain Shah complainant (P.W.7) and Talib Hussain (P.W.8) used to reside with his brother namely Muhammad Sharif. The occurrence in this case had taken place being opposite the house of Syed Fida Hussain Shah complainant (P.W.7) and in the haveli of this very complainant which adjoined the house where Talib Hussain (P.W.8) used to live. The time of occurrence, i.e. 5-30 p.m. In the afternoon/evening in the sizzling month of August was such that these witnesses were, in the normal course of things, expected to be present outside their houses and sitting in the haveli of the complainant which was the only open place nearest to their houses. The cot whereupon these witnesses were sitting had duly been shown in the above mentioned site-plan. It was suggested to Syed Fida Hussain Shah complainant (P.W.7) during his cross-examination by the defence itself that it was the complainant who had taken Shaukat Ali Shah deceased in an injured condition to the hospital. We have also pertinently observed that both the eye-witnesses produced by the prosecution before the learned trial Court had never been seriously cross-examined by the defence regarding the presence of these eye-witnesses at the scene of the crime at the relevant time. The place of occurrence shown in the site-plan had duly been established before the learned trial Court to be the place from where the bloodstained earth had been secured through the memorandum of recovery (Exh. PF). The report of the Chemical Examiner (Exh.PN) and the Serologist's report (Exh-PO) provided support to this aspect of the prosecution's case and, thus, we have entertained no manner of doubt that the occurrence in this case had taken place at the spot specified by the prosecution and the same had been witnessed by the eye-witnesses produced by the prosecution before the learned trial Court. The said eyewitnesses had made absolutely consistent statement before the learned trial Court regarding the main occurrence and such statements had not only been found by the learned trail Court to be worthy of implicit reliance but the same have also inspired our full confidence. It may also be relevant to mention here that the time and the place of occurrence as well as the weapon used by the assailant were such that it was well nigh impossible for the culprit to have escaped from the spot unnoticed or unidentified.
15. The only criticism of these eye-witnesses advanced before us by the learned, counsel for the appellant has been that the bucket being used by the deceased for milking the cow and the cot whereupon the eyewitnesses were sitting at the relevant time had not been taken into possession by the investigating officer; the site-plans prepared in this case by the investigating officer and the draftsman did not show the mangers or pegs for feeding or tethering of the cow; and no injury of the spreading pallets had been received either by the cow or by the eyewitnesses. It has, thus, been maintained by the learned counsel for the appellant that the claim made by these eye- witnesses regarding the occurrence taking place at the spot specified by the prosecution was not believable. We have, however, not been able to take these arguments of the learned counsel for the appellant very seriously as it was not the availability of the cow or the action of the deeased in milking the said cow which was critical in this case but it was the availability of the deceased and of the eye-witnesses at the relevant spot which was of pivotal importance in this case. We have already observed above that the place of occurrence had been duly established in this case and we have found the availability of the eye-witnesses at the said spot at the relevant time also to have been fully proved in this case. Thus, the minor lapses committed by the investigating officer or by the draftsman pointed out by the learned counsel for the appellant were utterly insufficient to shake the credibility of the eye-witnesses in the present case. The diagram (Exh.PE/1) of the injuries sustained by the deceased showed that the pallets had hit the deceased before their spreading and, thus, there was little likelihood of causing of any injury by any spreading pallet to the witnesses or to the cow.
16. The medical evidence produced by the prosecution through the statement made by Dr. Khalid Mahmood (P.W.10) had provided a wholehearted support to the ocular account furnished by the eyewitnesses inasmuch as the date and time of occurrence, the weapon used and the locale of the injuries had all been confirmed by the medical evidence. It has been argued by the learned counsel for the appellant that the occurrence in this case had taken place at 5-30 p.m. On 31-8- 1993 but the post-mortem examination of the dead-body of the deceased" had been conducted by the above mentioned doctor at 12-45 p.m. On 1-9-1993 which showed that the complainant party did not know till then as to who had committed the alleged offence. The delay in conducting the post-mortem examination of the deceased has, however, been found by us to be quite explainable as the F.I.R. In this case had been lodged at 8-00 p.m. On 31-8-1993 and the investigating officer had inspected the. Dead-body for the first time in the hospital at 9-00 p.m. By which time darkness of the night had already set in. Post-mortem examination of the dead-body, thus, could not be conducted after dark. It was in that backdrop that the dead-body had been escorted by Muhammad Riaz, FC (P.W.9) to the mortuary for autopsy during the next morning whereafter it was subjected to post-mortem examination around mid-day. The above mentioned criticism of the medical evidence by the learned counsel for the appellant has, therefore, been found by us to be not worthy of any serious consideration.
17. The occurrence in this case had taken place during broad-daylight and the F.I.R. In respect of the same had, in the circumstances of this case, been lodged by the complainant with reasonable promptitude. The appellant had specifically been nominated in the said F.I.R. As the sole perpetrator committing the offence of murder at the spot. We have found the depositions made and the ocular account furnished by Syed Fida Hussain Shah complainant (P.W.7) and Talib Hussain (P.W.8) to be worthy of implicit reliance and capable of inspiring complete confidence. The ocular account furnished by these eye-witnesses had found full support from the medical evidence and corroboration from the promptly lodged F.I.R. In the peculiar circumstances of this case we have found these pieces of evidence to be amply sufficient to bring the guilt of the appellant home.
18. Adverting to the alternative submission made by the learned counsel for the appellant regarding reduction of the appellant's sentence we have observed that the said submission is primarily based upon an argument that the motive set up by the prosecution had not been established in this case. It has already been held by the Hon'ble Supreme Court of Pakistan in many a judgment delivered by it in recent years that mere failure on the part of the prosecution to establish that motive set up by it may not by itself suffice to reduce the sentence of an adjudged murderer from death to imprisonment for life. The learned counsel for the appellant has maintained that as the motivation on the part of the appellant to murder Shaukat Ali Shah deceased had remained shrouded in mystery, therefore, it would be unsafe to uphold and maintain the sentence of death passed against him by the learned trial Court. We have, however, not felt impressed by this submission of the learned counsel for the appellant. If there was, any background of hostility between the appellant and the deceased and if such a background provided any moral or factual justification to the appellant to launch an aggression against the deceased then the appellant should have himself come out with the said background and he should have taken the learned trail Court into confidence in that regard so as to claim a concession in the matter of sentence. The appellant cannot be allowed to take advantage of his own silence in that regard or to claim a premium upon his own inaction and self-created mystery in that respect. A basis for a sympathetic treatment in the matter of sentence had to be laid by the appellant himself and if he had kept mum in that regard then the law had to take its normal course. An accused person, before establishing of his guilt before a Court of law, may sometimes be called a darling of the Court but the moment his guilt is established before the Court the romance about his innocence disappears and in ordinary course of things he is to be visited with the normal rigours of the law. The appellant had cold-bloodedly murdered an innocent man in the prime of his life without disclosing any justification whatsoever for such a dastardly act and, thus, he had failed to evoke any sympathy with us in the matter of sentence. The normal wages of a crime' of murder is death and in the peculiar circumstances of this case the appellant deserves no less.'
19. For what has been discussed above we have reached an irresistible conclusion that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt and the appellant has failed to disclose any mitigating circumstance warranting reduction of his sentence. Criminal Appeal No.849 of 1999 preferred by Zulifqar Ali Shah appellant before this Court is, therefore, dismissed and the conviction and sentence of the appellant recorded by the learned trial Court are upheld and maintained. The learned trial Court had failed to pass any order regarding treatment of the appellant in case of his failure to pay the requisite compensation to the heirs of Shaukat Ali Shah deceased. It is hereby ordered that in case of his failure to pay the requisite compensation the appellant shall undergo simple imprisonment for six months.
20. The, learned trial Court had passed a sentence of death against the appellant and we have upheld and maintained the said sentence. In the peculiar circumstances of this case of the amount of compensation ordered by the learned trial Court to be paid by the appellant to the heirs of the deceased has not been found by us to be inadequate. Criminal Revision No.474 of 1999 filed by Syed Fida Hussain Shah complainant before this Court is, therefore, dismissed.
21. Murder. Reference No.389 of 1999 is answered in the affirmative and the sentence of death passed by the learned trial Court against. Zulfiqar Ali Shah appellant is hereby confirmed.