Muhammad Ahsan Bhoon, J.--This judgment shall dispose of Criminal Appeal No, 1279 of 2002 filed by Shahzad Ahmad, appellant and Murder Reference No, 532 of 2002 submitted by the learned trial Court for confirmation of death of appellant-accused or otherwise, as both arise out of same judgment dated 06.07.2002.
2. The appellant Shahzad Ahmad through this appeal has challenged the Judgment passed by the learned Addl. Sessions Judge, Gujranwala, whereby he convicted the appellant Shahzad Ahmad under Section 302(b) PPC and sentenced him to death for the murder of Mst. Razia Bibi along with compensation of Rs, 1,00,000/- and in case of default to undergo S.I for six months while acquitted his co-accused Muhammad Nawaz in case FIR No, 172 dated 23.06.2000, offence under Sections 302/109 PPC with Police Station, Saddar Kamoke District Gujranwala.
3. The prosecution story in brief is that an FIR was lodged on the statement of Muhammad Aslam, complainant (PW-13), wherein he has stated that on 23.06.2000, he along with his son in law Imtiaz Ahmad and his daughters Asima and Aasia Bibi were sitting in the room of his house. His wife Mst.
Razia was sitting in the door of the room. Shahzad accused while armed with .12 bore gun (double barrel) came in his house and raised lalkara that he would not spare them and also fired from his .12 bore gun which hit Razia Bibi on her chest who fell down and succumbed to the injury. He, his son in law Imtiaz and daughters Mst. Aasma and Mst. Aasia concealed themselves into the room due to fear. Shahzad accused decamped from the spot while raising lalkara. The occurrence took place on the abetment of Muhammad Nawaz.
The motive behind the occurrence is that accused Shahzad Ahmad and his parents were demanding the hand of Mst. Asima, daughter of the complainant for Shahzad and wife of the complainant refused the proposal.
4.After due investigation, report under Section 173 Cr.P.C. was submitted in the learned trial Court.
Charge was framed against the appellant and his co-accused who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant was examined under Section 342 Cr.P.C. In answer to Question No, 7 he replied as under:- "I am innocent in this case. In fact complainant Muhammr Aslam abducted Mst. Razia deceased who was wife of Muhammad Sarwar the real brother of complainant Muhammad Aslam. Deceased Razia Bibi and Muhammad Aslam complainant were living without Nikah. The ex-husband Muhammad Sarwar in fact murdered Mst. Razia Bibi du'e to the grudge of abduction and living without Nikah with Muhammad Aslam. The complainant falsely involved me to save the skin of his brother Muhammad Sarwar and also suppressed the fact of abduction of Mst. Razia Bibi deceased.
I am innocent in this case.
The appellant neither opted to appear as his own witness in disproof of the allegation levelled against him as required u/S. 340(2) Cr.P.0 nor did he adduce defence evidence. The learned trial Court after hearing the learned counsel for the parties, passed the above said conviction and sentence, which is being assailed through, this criminal appeal.
5. We have heard the learned counsel for the parties, scrutinized the evidence available on record with their able assistance.
6. The occurrence in this case took place on 2.30 p.m. in the house of the deceased as well as the complainant and eyewitnesses and FIR was lodged at 3.25 p.m. just after 55 minutes of the occurrence. So this is a case of promptly lodged FIR. The time, date and venue of occurrence in this case is not disputed.
7. The FIR was lodged by the complainant Muhammad Aslam (PW-13), who was the husband of the deceased. He stated before the trial Court that he along with other PW Imtiaz, his son in law, was sleeping in the room and on hearing fire reports he saw the accused along with gun while fleeing away from the spot, also saw his wife Mst. Razia Bibi (deceased) and noticed that the blood was oozing out from the chest of his wife. He also deposed that the motive of the occurrence was that his wife Mst. Razia Bibi (deceased) had refused to marry her daughter Mst. Asma Bibi with the accused Shahzad Ahmad, (appellant). The story narrated by the complainant is very natural and even nothing surfaced on record that he was not present in the house at the relevant time. Mst.
Asma Bibi (PW-11) and Mst. Aasia Bibi (PW-12), both daughters of the deceased and the complainant furnished the ocular account who being inmates and residents of the same house where the occurrence took place, were quite natural witnesses and their presence at the spot at the relevant time was also quite natural. Even nothing was suggested to both eye-witnesses that they were not present at the spot at the relevant time. They have categorically deposed that it was the appellant-accused Shahzad who fired a single shot with gun whereby the deceased/their mother suffered injuries on her chest and died at the spot. The ocular account further gets corroboration from the medical evidence of Dr. Nasreen Akhtar (PW-2), who found only two injuries on the body of the deceased. Injury No, 1 was found on her chest while Injury No, 2 was an exit wound with averted margins. So, in our view, the ocular evidence supported by medical evidence was quite natural and confidence inspiring.
8. The motive part of the occurrence in this case was that the deceased refused to marry her daughter Mst. Mina with the appellant, Muhammad Aslam (PW-13) being husband of the deceased and father of Mst. Asma Bibi was the best witness to depose about their family affairs and he while lodging the FIR narrated about the motive and same fact was deposed by him in the Court. More over Mst. Asma Bibi (PW-11) herself deposed about the same fact while appearing in the Court and PW-12 Mst. Aasia Bibi, another sister of Mst. Asima Bibi also corroborated the motive story. It was not suggested by the defence that the deceased refused to marry her daughter with the appellant rather defence suggested that the appellant refused to marry with Mst. Asima Bibi due to bad character of her father but nothing was brought on record in support of that suggestion. So in view of the evidence of PW-11 and PW-12 and PW-13, the motive of occurrence was fully proved.
9. The recovery of weapon of offence i,e, .12 bore gun P.4 taken into possession through recovery memo Exh. PE was proved by Yasar Irfaat PW-14 and Safdar Ali SI, PW-15, who had no animus with the appellant-accused for planting fictitious recovery, which was duly effected from the house of the appellant. As far as non-recovery of empties from the spot is concerned, that is of no material because it was the case of prosecution that the accused made a single fire and he did not re-load the gun and after making fire he ran away from the spot. So the question of falling of empty on the spot does not arise, and the injury on the person of the deceased as reflected from the statement of Dr. Nasreen Akhtar (PW-2) was of 12 bore gun from a very close range whereby blackening and tattooing was available on the wound and a plastic part of cartridge and two metallic foreign body were also recovered from the posterior chest walls that is another corroborated piece of evidence which connect the appellant qua the weapon used.
10. As far as contention of the learned counsel for the appellant that the appellant was juvenile offender at the relevant time as is reflected from Exh. DC, a birth certificate, according to which his date of birth was 19.6.1983, is concerned, we have found that during the course of trial at the time of recording of statement under Section 342 Cr.P.C. the document Exh. DC was produced by father of the accused which was regarding the juvenility of appellant, but an application to the effect was moved that the said birth certificate was procured through fraud as the Secretary has issued certificate to the complainant that such entry did not figure in the record of Union Council Chak No, 34, so Secretary Union Council was summoned by the learned trial Court vide order dated 22.5.2002. The Secretary did not appear on 5.6.2002 and thereafter non bailable warrants of arrest of Secretary Union Council were issued for 6.6.2002 but unfortunately the order dated 6.6.2002 is not available on the file and thereafter nothing was brought on record to prove the document i,e, birth certificate Exh. DC by the appellant nor any such plea-was raised by the appellant during the trial. We are fortified with the view expressed by the Hon'ble Supreme Court in Nasir Shah v. The State (2006 SCM R 1796). His age at the time of arrest was recorded by the police officer as 21/22 years, whereas the age of appellant in statement under Section 342 Cr.P.C. could not be recorded by the learned trial Court. Hence production of birth certificate at such belated stage, which was not proved in accordance with the provision of Articles 75 & 78 of Qanoon-e-Shahadat Order, 1984, does not strengthen the plea of juvenility.
11. In view of what has been discussed above, we are of the considered view that the prosecution has successfully proved its case beyond any reasonable shadow of doubt against the appellant particularly this is a case of single accused, broad daylight occurrence and substitution is a rare phenomena. Resultantly, this appeal having no 'merits is dismissed and conviction and sentence passed by the learned trial Court is maintained.
Murder Reference is answered in affirmative.