Raja Fayya z Ahmed, J.--This Criminal Appeal by the leave of this Court is directed against the judgment dated 13.5.2003 passed by the learned Division Bench of the Lahore High Court, Multan, Bench Multan, whereby Criminal Appeal No, 126 of 1999 preferred by the appellant against his conviction under Section 302 (a) PPC, having been sentenced to death by the Additional Sessions Judge, Burewala; was dismissed by altering his conviction to that under Section 302 (b) PPC consequently by maintaining his sentence to death as Tazir, Murder Reference No, 166 of 1999 forwarded to the learned High Court under Section 374 Cr.P.C. was answered in affirmative by confirming the death sentence besides the Criminal Revision No, 81 of 1999 filed by the complainant was accepted by awarding Rs, 100,000/- as compensation to be paid to the legal heirs of the deceased by the convict under Section 544-A Cr.P.C. and in default thereof to further suffer six months SI.
2. Appellant Haji son of Wali Dad was tried by the learned Additional Sessions Judge, Burewala in Sessions Case No, 1/SC of 1995. (Sessions trial No, 7 of 1995) alongwith his co-accused Naseera son of Eida, Fareed son of Naseera and Mureed son of Naseera under Sections-302/34 PPC in case FIR (Exh. PF) No, 345 of 1993 dated 17.12.1993 of PS Gaggo, District Vehari registered on the report of Faqeer Hussain complainant (PW-6). Vide judgment dated 15.3.1999 passed by the Additional Sessions Judge, Burewala, hereinafter referred to a the 'trial Court' convicted and sentenced the appellant Haji as above mentioned, while his co-accused were acquitted of the charge by extending benefit of doubt in their favour.
3. The appellant alongwith his co-accused were indicted for committing Qatl-e-Anzd of Ghulam Rasool deceased in the light of accusation, as contained in the FIR and the incriminating material produced with the report submitted under Section 173-Cr.P.C. to which they did not plead guilty. In order to substantiate the accusation, the prosecution produced (8) witnesses namely; Abdul Ghaffar, Constable (PW-1), Dr. Fayyaz Mahmood, Medical Officer (PW-2), Ghulam Fakhar-ud-Din, Patwari (PW-3), Ahmad Din Head Constable (PW-4), Muhammad Anwar (PW-5), Faqeer Hussain (PW-6), Manzoor Ahmad (PW-7) & Ghulam Fareed, the then SHO, PS Gaggo (PW-8).
After close of prosecution evidence, the appellant and his co-accused were examined by the learned trial Court under Section 342-Cr.P.C. in the light of the accusation and the incriminating material adduced at the trial by prosecution to which they each denied and disputed, The appellant pleaded to be innocent in the case. In answer to Question No, 13 the appellant stated as under: "I am innocent. The occurrence took place during the night hours. It was an unseen occurrence and a blind murder. The complainant and other PWs learnt about the murder of Ghulam Rasool, deceased, and then they came to the spot on the next morning. The police summoned tracers to the spot to locate the culprits by tracing out their footprints and the police hauled up many persons as suspects for the murder of Ghulam Rasool deceased who were let off and we were falsely challaned in this case. The appellant did not opt to record his statement on oath in disproof of the charge within the meaning of Section 340 (2) Cr.P.C. nor produced any evidence in defence except that he produced a certified copy of Khasra Gridawari as (Exh.D-A).
4. Dr. Fayyaz Mahmood, M.O., Basic Health Unit Chak No, 351/EB, District Pakpattan was produced as (PW-2) by the prosecution. According to him, he was posted at RHC, Gaggo and on 17.12.1993 at 4.00 p.m. he conducted postmortem examination of the dead body of the deceased Ghulam Rasool brought by Abdul Ghaffar, Constable No, 137/C. The dead body was identified by Ijaz Hussain and Muhammad Anwar (PW-5). He deposed as under before the trial Court:-- " On examination it was a dead body of a male aged about 35 years, well built, eyes closed, mouth closed, face pale, lying flat on the cot. Rigor mortis was present and post-mortem staining were also present. The body was wearing Qameez cream coloured, white Bunyan, black and gray sweater and chadar having blue colour and black and brown lines. Following injuries were observed on the dead. body:--
1. A punctured wound 1 cm x 1 cm x going deep with inverted margins on the front of chest on left side, 9 cm below the nipple and 2 cm medial to the mid mammary, line.
2. A punctured wound 1 cm x 1 cm x going deep with inverted margins on the left side of abdomen, 13 cm transversely away towards the left side.
3. A punctured wound 1 cm x 1 cm x going deep with inverted margins on the left anterior superior iliac spine.
4. A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock, 5 cm below the anterior superior iliac spin.
5. A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock 1 cm below the Injury No, 4.
6. A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock below the Injury No, 5.
7. A punctured wound 1 cm x 1 cm x going deep with inverted margins, 5 cm vertically below the lateral edge of left inguinal ligament on the buttock.
8. A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock 14 cm below the anterior superior iliac spine.
9. A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock 8 cm below the Injury No, 8.
10. A punctured wound 1 cm x 1'A cm with inverted margins on the scrotum 3 cm below the penis.
11. A bluish swelling 4 cm x 4 cm on the lateral side of right chest, 20 cm below the right axila.
12. A bluish swelling 10 cm x 8 cm on the right side of right abdomen, 13 cm above the anterior superior iliac spine.
13.A bluish swelling 4 cm x 4 cm on the right lateral abdomen 7 cm below the right upper lateral edge of inguinal ligament.
On dissection.
A. Pellet from Injury No, 1 entered, traveled below skin and passed into abdomen and passed through the right lobe of liver and torn it and then through right lobe lied at the site of Injury No, 11.
B. Pellet entered from Injury No, 2 and passed through descending colon, through me sentry of small gut, injured the superior mes enteric artery and passed through the jejunum at two places and after passing through the abdominal wall lied at Injury No, 12 below the skin from where it was recovered.
C. After passing from Injury No, 3 pellet entered into abdomen and after passing from the dysentery of small gut and coecum it lied under skin at site of Injury No, 13 from where it was recovered. Scalp, skull and vertebrae, membranes, brain, spinal cord, were normal and not required to be opened. Walls, ribs, and cartilages were normal. Pleurae, larynx, tracheae, right lung, left lung were normal. Pericardium was normal and heart was also normal and was contracted. Blood vessels are mentioned above.. Injuries on the wall of abdomen have been mentioned above. Peritoneum has already been mentioned, above and was full of blood. Mouth, Pharynx and Esophagus, Diaphragm were normal. Stomach was normal and contained dirty white one ounce semi digested food, Pancreas were normal. Small intestines have already been mentioned and it contained blood and gas and semi digested material. Large intestine have already been mentioned and contained gas and faecal matter.. Liver has also already been mentioned. Spleen kidneys, and bladder were normal. Injuries on organs of generation and external genitalia have already been mentioned.
Injuries on muscles have already been mentioned and there was no disease, deformity, fracture or dislocation of bones and joints.
In my opinion the cause of death was shock and severe hemorrhage as a result of Injuries No, 1, 2 and 3 were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem and were caused by fire arm. The time between the injuries and death was about 5-15 minutes and between death and post- mortem examination was about 8-10 hours. After post-mortem examination the dead body of the deceased, postmortem examination report, police papers, last clothes of the deceased and one sealed bottles containing three pellets were handed over to the police." Correct carbon copy of the post-mortem examination report containing the above noted findings was produced as (Exh.PB) by PW-2 and the diagram showing the locale of the injuries observed on the dead-body of the deceased was produced as (Exh.PB/1). He further stated that he also medically examined Haq Nawaz PW but the original MLR and carbon copy thereof was not available on the file. His statement in this context was not completed on the date.
5. Faqeer Hussain complainant (PW-6) disclosed in his report (Exh.PF) that he alongwith his relative Manzoor Ahmed (PW-7) had jointly obtained one square of land on contract from Malik Jaffar whereas; towards the east of this parcel of land, out of Square No, 14 a piece of land measuring 15- acres was taken on lease by one of his relatives namely Ghulam Rasool. He alleged that on 16.12.2003 at evening time the wheat crop standing on the leased land held by Ghulam Rasool was damaged by the cattle let loose by the sons of Haji son of Wallu & Naseera son of Eida on which said Ghulam Rasool snubbed the sons of the abovesaid persons and the cattle were moved out of the crop field. At about 8.a.m. the complainant alleged to have been standing with Manzoor Ahmed (PW-7) and Haq Nawaz PW (not produced) on the eastern 'watt' of Killa No, 15 of square No,
14. Haq Nawaz had irrigated the wheat crop on the preceding night. PW Haq Nawaz brought meal for Ghulam Rasool along with Muhammad Anwar on a motorcycle and no sooner he alighted from the motorcycle, Haji (appellant) armed with .12 bore double barrel gun, Naseera equipped with scimitar (barchhi), Mureed with a hatchet, Naseera and Famed raised lalkara that Ghulam Rasool should not go alive today on which Haji (appellant) fired two shots with his .12 bore double barrel gun straight on Ghulam Rasool which hit at his left side of the chest, left flank and on left pelvis, whereas, the pellets also hit on the upper part of the left arm of Haq Nawaz. Ghulam Rasool, according to the complainant succumbed to the injuries on the spot and they were warned by the abovesaid persons not come near to him, else they will meet the same fate thus; due to fear they kept silent. Thereafter; on their hue & cry the accused persons fled away from the spot with their weapons.
6. The learned counsel for the appellant, as well as; Mr. Shahid Mahmood Abbassi, DPG for the State have been heard at length in the light of the impugned judgment and evidence available on record, gone through carefully with their assistance. The judgment passed by the trial Court has also been perused.
The learned counsel for the appellant contended that Haq Nawaz PW according to the prosecution case also suffered pellet injuries in the occurrence but was not produced by the prosecution at the trial who if produced might not have supported the prosecution case and secondly; non- production of the injured witness whose presence at the place of incident could not be doubted cast serious doubt on the prosecution story. The learned counsel vehemently argued that on the same set of evidence, the co-accused namely, Naseer, Fareed and Mureed have already been acquitted by the trial Court by extending benefit of doubt arisen from the prosecution evidence; essentially required to have been extended in favour of the appellant as well. In the alternative the learned counsel submitted that in case his contention do not persuade the Court, the punishment of imprisonment for life instead of death penalty would meet the ends of justice in the circumstances of the case.
7. The learned DPG by controverting the arguments put forth on behalf of the appellant, argued that no piece of evidence available on record has been mis-appraised, misconstrued or non-read by both the learned Courts which concurrently found the appellant guilty on the charge as well as; appropriately punished under the law to which no exception could be taken. According to the learned DPG, no mitigating circumstance appeared in evidence which could militate against the gravity of the offence committed by the appellant to justify lesser punishment, as for no fault on the part of the deceased; the appellant committed his cold blooded murder. The case of the co- accused acquitted by the trial Court was justified as the prosecution failed to substantiate the charge against them beyond shadow of any reasonable doubt, therefore, in accord with the principles of criminal administration of justice by extending benefit of doubt in their favour, the co- accused were acquitted by the trial Court.
8. The contentions put forth on behalf of the parties have been considered and evaluated in the light of the entire evidence scanned and re-appraised in its entirety as well as; the submission made for lesser punishment. From the unimpeded testimony of Dr. Fayyaz Mahmood, MO., (PW-2) it was proved by the prosecution that the cause of death of the deceased was the shock and severe hemorrhage resulted on account of gun shot Injuries No, 1, 2 & 3 suffered by the deceased which were sufficient to cause his death in ordinary course of nature and were antimortem in nature.
The time between the injuries and the death was about 5 to 15 minutes and between the death and post-mortem examination was 8 to 10 hours which coincide with the prosecution case. On the same day at 10.45 a.m he (PW-2) medically examined Haq Nawaz and found the following injuries on his person:--
1. "A lacerated wound with flapping skin and blackened margins at some places, wound measuring 9 cm x 5 cm muscle deep some places going deep on the outer side of right arm 11 cm below right shoulder.
2. A punctured wound 0.5 cm x 0.5 cm back to Injury No, 1 and 12 cm below the top of shoulder." The injuries suffered by. PW Haq Nawaz were kept under observation for X-Ray and the probable duration of the injuries were observed to be 4-hours, caused by firearm. Photostat copy of MLC was tendered in evidence as (Exh.PE) being the true copy of the original attested by PW-2.
Two ocular witnesses of the occurrence namely; Faqeer Hussain complainant and Manzoor Ahmed PW were produced by the prosecution at the trial. The account of the incident as given by the complainant in his deposition before the trial Court is consistent on all material particulars as narrated by him in his report lodged with the PS mentioned above. He specifically alleged that shots were fired by the appellant straight on the deceased which hit him on his chest, left flank and left pelvis on which the pellets landed on the person of the deceased stand fully corroborated from the medical evidence of Dr. Fayyaz Mahmood, M.O., (PW-2). Manzoor Ahmed (PW-7) also deposed at the trial in line with the prosecution case and he also spoke about the motive part of the prosecution story by stating that a day prior to the main occurrence Ghulam Rasool had abused the children of Haji and Naseera accused as the cattle of the accused had damaged the wheat crop of Ghulam Rasool deceased. The date, time and the venue of the offence and the presence of Haq Nawaz PW who brought the meal for Ghulam Rasool on a motorcycle and no sooner he alighted from the motorcycle Haji accused armed with .12 bore gun, Naseera equipped with scimitar (barchhi), Fareed having hatchet with him and Mureed armed with lathi' came there out of whom Fareed and Naseera accused exorted lalkara that Ghulam Rasool should not go alive today, whereupon, Haji accused fired 2 shots from his .12 bore gun which hit on the chest of Ghulam Rasool hitting at his left flank and left pelvis as well as; the pellets hit on the right upper arm of Haq Nawaz. Ghulam Rasool having suffered gun shots fell down and breathed his last. Furnishing full and complete corroboration to the prosecution story, both these ocular witnesses were subjected to lengthy cross-examination by the defence but their testimony remained firm, consistent and reliable on all material particulars. Some minor variations in their evidence are insignificant, having no material effect on the incriminating nature of their testimonies which get due corroboration from the medical evidence of PW-2 reproduced hereinabove. Both the ocular witnesses undoubtly are interse related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere interse relationship as above noted would not be a reason to discard their evidence which otherwise in our considered opinion is confidence inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident. The appellant in his statement recorded under Section 342 Cr.P.C. mentioned above, stated that it was an un-seen occurrence as the complainant and the other PWs having learnt about the murder of the deceased visited the spot on next morning. He further stated that police also acquired the services of a tracker for finding out the culprits and during the process many persons were rounded-up as suspects but latter on they were roped in the case falsely. The occurrence had taken place during the day light at about 8.00 a.m. and the presence of the PWs in the given circumstances of the case at the place of occurrence could not be doubted. Haq Nawaz PW no doubt as per medical evidence referred to above had also suffered two pellets injuries on his person caused by firearm discharge which further lend support to the ocular account of the PWs 6 & 7 about the incident. PW Haq Nawaz is the nephew of the acquitted accused Naseera, as also related to the other accused and thus in such circumstances, non-production of the PWs by itself would not adversely reflect upon the prosecution case and, therefore, no adverse inference against the prosecution could be drawn. The defence could have produced the said PW or in alternative could have applied to the trial Court to examine the said witness as the Court witness under Section 540 Cr.P.C. but none of such admissible course was adopted. Hence; it could not be rightly said that the prosecution withheld a material piece of evidence from the Court or that if produced would not have supported to the prosecution story. The evidence of the ocular witnesses i,e, PWs 6 & 7 corroborated by the medical evidence and in overall facts and circumstances of the case is capable of safe reliance for purpose of conviction of the appellant on the capital charge. Besides the above-mentioned pieces of prosecution evidence; crime weapon 12 bore gun (P.7) was recovered at the instance of the appellant on his plantation including two empties secured from the place of incident by Ghulam Fareed, LO (PW-8) in presence of PW Manzoor Ahmed Report of the FSL confirmed that gun (P.7) was used and the crave empties were fired from the said gun. There is no reason to disbelieve the recovery of the gun on plantation of the appellant and the empties secured from the place of incident during first visit of I.O. to the place of occurrence. The bloodstained earth was also secured from the place of incident and bloodstained clothes of the deceased after postmortem examination on the dead body of the deceased were also taken into possession by the I.O. and sent to the Chemical Examiner and Serologist for report. Positive report of these articles received from expert tendered in evidence by Ghulam Farted, I.O. further lends support as circumstantial piece of evidence to the prosecution story which could not be discredited or impeached by the defence. Hence; appropriately have been believed by the learned High Court and the trial Court.
The motive part of the prosecution case has also been proved which the defence at the trial failed to impeach hence; in our considered opinion the learned Courts rightly believed the aforementioned incriminating pieces of evidence, for valid reasons based on evidence correctly appraised and scanned by both the learned Courts. As regards the case of the co-accused of the appellant; the prosecution since failed to substantiate the charge against them in the light of the role assigned to them by the complainant beyond shadow of any reasonable doubt nor they were even alleged to have actively participated in the commission of the crime, thus; their case was distinguishable' and for such a reason, the evidence of the ocular witnesses could not be discarded which otherwise is convincing, straight forward and fits in the circumstances of the case, hence; no benefit on this score could be extendable to the appellant. There is no mitigating or extenuating circumstance available on record so as to justify for awarding lesser punishment for life to the appellant. The appellant had without any justifiable reason committed the cold blooded murder of the deceased, therefore, normal penalty of death awarded by the trial Court and confirmed by the High Court is un-exceptionable
7. Thus, for the foregoing reasons, this Criminal Appeal having no substance is dismissed.