M.A. Zafar, J.--This judgment will dispose of Criminal Appeal No, 1167 of 2001 filed by Muhammad Imran appellant, who was convicted and sentenced by learned Addl: Sessions Judge, Faisalabad vide impugned judgment dated 25.6.2002 as under: Under Section 302 (b)/34 PPC. Death as Tazir and to pay Rs, 50,000/- as compensation u/S. 544-A Cr.P.0 to the legal heirs of the deceased and in default thereof to further undergo six months SI.
2. Murder Reference No, 550-2002 for confirmation of death sentence or otherwise of the appellant and Revision Petition No, 811 of 2002 filed by Shahnawaz an eye-witness shall also be disposed of through this single judgment.
3. Brief facts of the case as disclosed by Mst. Shamim Akhtar (PW. 8) widow of Haji Habib-ur- Rehman deceased in her statement Ex.PB, are that her husband was running a book shop in Amin Pur Bazar, Faisalabad and on 10.6.2000 at 9.45 p.m. she went to the said shop as she and her husband were to go to Gatwala. Electric light of tube was an in front of the shop. The deceased and PWs Muhammad Saeed (Jaith), Shah Nawaz (Dewar) and Ijaz Ahmad (employee) were sitting in front of the said shop and at some distance away, accused Rana Muhammad Sadiq, Rana Muhammad Hussain @ Khaleefa (since dead) Shabbir Ahmad (Dewar) and his son Muhammad Imran were also sitting on the chairs. The complainant said to her husband to go to Gatwala, who got up to pick up the key of car from the counter and in the meantime, accused Muhammad Imran armed with pistol .30-bore hurriedly rushed towards deceased and aimed his pistol at the complainant's husband, who while raising his arms asked the PWs to catch hold of accused Imran but at the same time, acquitted accused Muhammad Sadiq, Muhammad Hussain (since dead) and Shabbir Ahmad raised lalkara to accused Imran as to what was he seeing fire, whereupon accused Imran fired with his pistol, which hit the deceased at the right side of his chest, who fell down. PWs Muhammad Saeed, Shah Nawaz and Ijaz Ahmad while witnessing the occurrence tried to catch hold of accused Imran but accused Imran raised lalkara that if any body came near to him he would have been be done to death by him by fire and due to the fear of death, the said PWs did not come near to the said accused. The accused Muhammad Imran while brandishing pistol along with co-accused succeeded to fled away from the spot. The deceased was taken to Allied Hospital in an injured condition but he succumbed to the injuries soon after reaching the hospital.
Motive behind the occurrence was stated to be that deceased had no male issue and the accused were trying to usurp his property since long and had already attempted to murder the deceased prior to the occurrence of instant case and had injured the deceased, whereupon a case FIR No, 65 dated 28.3.1994 u/Ss. 337-F-IV, 324, 109, 34 PPC was registered at Police Station, Kotwali, Faisalabad.
The accused persons have allegedly murdered the complainant's husband in furtherance of their common intention.
4. After registration of the formal FIR, the investigation of the case was taken over by Akbar Sial Inspector/SHO PW-12, who on receiving information about the occurrence on 10,6.2000 reached Allied Hospital, Faisalabad along with other Police Officials, where Mst, Shamim Akhtar complainant (PW.8) got her oral statement recorded as complaint Ex.PB, then, examined the dead-body of the deceased prepared injury statement Ex.PD and inquest report Ex.PE. On 11.6.2000 at 11.45 a.m. he reached at the place of occurrence, prepared visual rough site-plan Ex. PL, collected blood-stained earth from the spot vide memo Ex.PH, then, collected two crime empties P. 5/1-2 of pistol .30-bore from the place of occurrence vide memo Ex,PJ. On 11.6.2000 arrested accused Rana Muhammad Hussain alias Khaleefa (since dead), accused Imran and Rana Muhammad Sadiq. On 18.6.2000 during investigation after disclosure by accused Muhammad Imran got recovered pistol .30-bore P. 6 along with four live bullets P. 7/1-4, which was taken into possession vide memo Ex.PK. However, after completion of investigation, all the accused were challaned and their names were placed in Column No, 3 of the report u/S. 173 Cr.P.C.
5. In the trial, prosecution in order to prove its case produced 12 witnesses in all, amongst, Shamim Akhtar PW.8, Shah Nawaz PW.9 and Malik Ijaz Ahmad PW.10 are eye-witnesses of the occurrence, thereafter, learned S.P.P tendered in evidence report of Chemical Examiner Ex.PM, report of Forensic Science Laboratory Ex.PN, report of Serologist Ex.PP, and closed the prosecution case, then, the statements of the accused were recorded u/S. 342 Cr.P.0 in which they pleaded themselves innocent. After conclusion of trial, accused Shabbir Ahmad and Rana Muhammad Sadiq were acquitted while the present appellant was convicted and sentenced as stated above by the learned trial Court.
6. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.0 and other relevant material available on record, learned counsel for the appellant submits that it was an unwitnessed occurrence as according to him the presence of the eyewitnesses at the place of occurrence was unnatural.' Further submits that the FIR in this case was recorded after due deliberation and consultation. Adds that no independent witness has been produced to support the case of the prosecution. The prosecution witnesses have been disbelieved qua acquitted accused persons and it is highly unsafe to place implicit reliance on their testimony without any independent corroboration. It is maintained that the police did not investigate the motive alleged by the complainant so the motive remained unproved. Next submits that the empties were sent to the office of Forensic Science Laboratory on 19.6.2000 with an in ordinate delay and after the recovery of pistol on 18.6.2000, which casts serious doubts with regard to recovery of empties from the spot and weapon of offence on the pointation of the appellant and thus the report of Forensic Science Laboratory (Ex.PN) is of no help to the prosecution. Lastly, submits that Mst. Shamim Akhtar (complainant) widow of the deceased having not supported the case of the prosecution, the conviction against the appellant recorded by the learned trial Court cannot be maintained.
The nutshell of the submissions made by the learned counsel for the appellant is that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt and he is entitled to acquittal.
7. Conversely, learned Deputy Prosecutor General assisted by learned counsel for Shah Nawaz eye- witness, who has also filed Crl. Rev. No, 811 of 2002 submits that it is a case of promptly lodged FIR; single fatal shot on the person of the deceased has been attributed to the appellant, there is no question of false implication; the occurrence having taken place in the open bazaar and the appellant being known to the PWs, there was no question of mistaken identity; the motive alleged by the prosecution is fully proved and that Mst. Shamim Akhtar widow of the deceased though had compounded the offence with the accused but there being other legal heirs of the deceased, her composition does not render any favour to the appellant. Concluding the submissions, the learned Deputy Prosecutor General submits that the prosecution has fully proved its case against the appellant beyond any shadow of doubt.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. The deceased in this case is Habib-ur-Rehman, Mst. Shahim Akhtar (widow) Shah Nawaz (real brother) of the deceased and Malik Ijaz Ahmad (employee at the shop of the deceased) have furnished the eye-witness account while appearing as PWs.8, 9 & 10 respectively. Dr. Muhammad Ishaq conducted post-mortem examination on the dead-body of the deceased. He found blackening on the front part of the sleeve of upper arm and on front of chest on shirt.
For the just decision of this case, to state the relationship of the deceased with the appellant and the PWs is very much necessary inasmuch as Imran convict/appellant is real son of Shabbir (since acquitted by the learned trial Court), who is real brother of the deceased Habib-ur-Rehman. It means that the convict is nephew of the deceased. Shah Nawaz PW.9 (eye-witness) is also paternal uncle of the convict/appellant. It does not appeal to the reason that a real paternal uncle would leave the actual culprit and falsely implicate his own nephew. Shah Nawaz PW.9 has fully supported the case of the prosecution and despite lengthy cross-examination; the defence could not create any dent in the story set up by the prosecution. There is no denying the fact that Shah Nawaz PW.9 is the real brother of the deceased but all the same he is also uncle of the convict/appellant and had no enmity or ill will against the appellant. The shop of the deceased was at a distance of 30/35 karams from the house of the PWs, so his presence at the spot was quite natural and- cannot he doubted without a pinch of salt. The other eye-witness of the occurrence was Malik Ejaz Ahmad PW.10. He was working as an employee in the shop of the deceased. This witness too had no axe to grind against the appellant. He being an employee, his presence at the spot at the time of occurrence was natural. The mere fact that the witness was an employee of the deceased could not be a ground to brush aside his confidence inspiring 'evidence.
The submission of learned counsel for the appellant that it was an un-witnessed occurrence and no one was present near the place of occurrence due to strike is not well founded in view of the statement of Shah Nawaz PW.9 that the Bazar had reopened at 2.00 p.m. Shamim. Akhtar PW.8 supported the prosecution case in all respect, her examination in chief was recorded on 10.10.2001, cross-examination was reserved and she was cross-examined on 19.3.2002 and 8.4.2002 up till that dates she was with the prosecution but on 23.4.2002 she gave concessions to accused in her cross-examination and case was adjourned to enable the learned counsel for the parties to address arguments on the point whether she can be declared hostile witness. However, on 6.5.2002 she was cross-examined by learned S.P.P on behalf of state and counsel for the witnesses/legal heir as well as by the learned defence counsel. She also made statement before the learned trial Court on 23.4.2002 compounding the offence. We, therefore, believe the presence of both these eye-witnesses, namely, Shah Nawaz & Malik Ijaz Ahmad (PWs.9 & 10) at the spot.
So far as compounding of offence on the part of Mst. Shamim Akhtar widow of the deceased examined as PW.8 is concerned, it is admitted on record that the deceased was issue-less, so according to law the legacy would fall on father, mother, brother and sister of the deceased. The brothers and sisters of the deceased have not compounded the offence with the convict/appellant, so the compromise being incomplete, would not carry any weight. The forgiveness of one of the wali of deceased cannot help the appellant as he was tried, convicted and sentences, as Tazir and not Qisas.
According to the case of prosecution, Muhammad Imran convict/appellant fired a shot with pistol, which landed on the chest towards the right side of the deceased. Dr. Muhammad Ishaq PW.5 conducted post-mortem examination on the dead-body of the deceased at 11.45 a.m. on 11.6.2000.
Presence of blackening on the front part of the sleeve of upper arm and on front of chest on the shirt was found which fact corroborates the statement of Shamim Akhtar PW.8 that Imran accused was standing at a distance of three feet away from the deceased when he fired. The occurrence having taken place at 9.45 p.m. on 10.6.2000 and the post-mortem examination having been conducted at 11.45 a.m. on 11.6.2000 (next morning), the duration given by the doctor between the death and post-mortem as 24 hours coincides with the time of occurrence. The doctor also observed a fire-arm entry wound on the upper part of right side of chest having an exit on the left side of back.
The medical evidence is thus fully corroborated by the eye-witness account.
Sajjad Hussain SI PW.11 arrested the accused on 11.6.2000 and the accused while in custody on 18.6.2000 got recovered .30-bore pistol, which was taken into possession vide memo Ex.PK. The report of Forensic Science Laboratory Ex.PN is positive in nature. The delay in sending the crime empties after the recovery of . fire-arm on the pointation of the appellant can be a negligence on the part of investigator and could not injure the eye-witness account, which has come from an unimpeachable source and is confidence inspiring. Report of Forensic Science Laboratory is entirely in nature of conformity or explanatory of direct or other circumstantial evidence. It is not of much significance in presence of direct or definite forthright and credit worthy evidence. Reliance is placed on a case titled as Yaqob Shah Vs. The State (PLD 1976 S.0 53).
The motive behind the occurrence as alleged by the complainant was that the deceased had no male issue, the accused were trying to usurp his property since long and had already attempted to murder the deceased for which a criminal case stood registered. In order to prove the motive, the prosecution examined Shah Nawaz PW.9 apart from Mst. Shamim Akhtar, complainant wife of the deceased. Both these PWs have fully supported the motive part of the case. The learned counsel for defence while cross-examining Mst. Shahmim Akhtar (PW. 8) put a suggestion to the said witness to which she replied that it was correct that case FIR No, 65 dated 28.3.1994 was registered against the accused Shabbir, Tanvir, Imran and Umar Din at the instance of Shah Nawaz PW.9 and that her deceased husband was injured in that case. By giving this suggestion the motive alleged against the appellant stood admitted and proved. To the same effect was the suggestion put to Shah Nawaz PW.9. Occurring at page 57 of the paper book. We, therefore, believe the motive part of the case. As far as acquittal of co-accused on the basis of this evidence is concerned, it is observed that the said accused were involved in the case of the allegation of raising lalkara's, therefore, failure of the prosecution to prove its case against them would not adversely effect the prosecution case, so far as the appellant is concerned. Even otherwise, by now-it has been settled that the Courts can sift the grain from the chaff.
It is a case where solitary injury on the person of the deceased has been attributed to the present appellant. Both the parties are known to each other inasmuch as Shah Nawaz PW.9 (eye-witness) is paternal uncle of the convict/appellant, so there was no question of mistaken identity and in a case where the parties are so closely related, substitution is a rare phenomena.
The ocular account having come from the mouth of real brother and an employee of the deceased, attributing solitary fatal shot to deceased with fire-arm, fully supported by medical evidence and the motive to grab the property as the deceased was issue-less having been proved, we are fully satisfied in our mind, that the prosecution has been successful in proving its case against the appellant to its hilt and even there is no mitigating circumstance in favour of the appellant. It may be observed that the normal sentence for an offence .of murder is death sentence and this is to be awarded as a matter of course except where the Court finds some mitigating circumstance, which may warrant lesser sentence namely, imprisonment for life.
For what has been stated above, appeal filed by the convict-appellant is dismissed, the conviction and sentence recorded against him by the learned trial Court is maintained. in toto, the death sentence is CONFIRMED and Murder Reference is replied in the AFFIRMATIVE.
DEATH SENTENCE IS CONFIRMED.
As far as Criminal Revision No, 811 of 2002 filed by Shah Nawaz, an eye-witness is concerned, the same is also dismissed as we are not inclined to enhance the amount of compensation awarded by the learned trial Court.