' MIAN FASIH-UL-MULK, J.---Appellant Masood Ahmad alias Gudoo son of Sardar Khan was tried by learned Additional Sessions Judge-III, Haripur on charge under sections 302/324/337-A(ii), P.P.C.
And having found guilty for the murder of deceased Zahoor Ahmad was convicted and sentenced to death under section 302(B), P.P.C. With a direction to pay compensation of Rs,1,00,000 under section 544-A, Cr.P.C. To the legal heirs of deceased or in default to suffer 6 months S.-I. The benefit of section 382-B, Cr.P.C. Was extended to him. He was, however, acquitted of the charges under sections 324/337-A, P. P. C .
2. Briefly stated the facts of the prosetxtion rare are that complainant Bahadur Sher Khan made a report on 28-8-1996 at 2100 hours at Civil Hospital, Haripur to the effect that on the eventful day at 2010 hours he along with Zahoor Ahmad were present near the shop of Shaukat at Sector No,1 Khalabat Township, Haripur. In the meanwhile accused Masood Ahmad alias Gudoo came there on motor bike and parked the same outside Ramzan Hotel and started abusing Zahoor Ahmed on reaching near them. He was having a pistol in his hand, on seeing of which Zahoor Ahmad ran away and entered in the shop of Shoukat. Masood Ahmed chased Zahoor and fired four shots with intention to kill him, which hit Zahoor Ahmad on his chest, who fell down. Due to firing one Zahid son of Mir Mukhtiar was also injured on his forehead. After the occurrence accused Masood Ahmad decamped from the spot. People attracted to the spot, took Zahoor Ahmad and Zahid to hospital where on reaching the hospital Zahoor Ahmad succumbed to his injuries. Motive for the occurrence was that Zahoor Ahmad was the In charge of Shaheen Green Volley Ball Team while Masood Ahmad was the captain of Shaheen Red Volley Ball Team and at the evening of day of occurrence an altercation had taken place on the issue of players.
3. Initially, due to abscondence of appellant challan under section 512, Cr.P.C. In his absence was put in Court on 7-8-1997. After his arrest supplementary challan was put in Court on 23-1-2002. At the trial formal charge was farmed against the appellant, who professed innocence and false implication and claimed trial. The prosecution in support of its case examined ten witnesses, Muhammad Zaman Moharrir Police Station Khalabat Township Haripur and Muhammad Saeed DFC were also examined as S. W.1. And S.W.2. Respectively. In the light of statement of S.W.2 regarding death of Sher Bahadur and P.W. Saeed, counsel for the complainant and SPP requested that their statements already recorded in proceedings under section 512, Cr.P.C., may be transferred to the Sessions file which request was allowed by the trial Cnii,-t and statements transferred vide order, dated 5-6-2004.
1. On close of prosecution evidence, appellant was examined Wider section 342, Cr.P.C. He did not appear as his own witness on Oath as required under section 340(2), Cr.P.C. In disproof of allegations levelled against him nor produced any evidence in defence.
5. Learned counsel for the appellant contended that P.W. Zahid, the alleged injured eye-witness of the occurrence, and Shaukat, in whose shop the alleged occurrence took place, were abandoned by prosecution, which clearly shows that they were not supporting the prosecution version and adverse inference should have been drawn by the trial Court against the prosecution on account of their non-examination as prosecution witnesses; that the ocular account is contradicted by the medical evidence. In that injury has been shown from left to right side of chest, which belies the position of deceased shown in the site plan; that the presence of so-called eye-witnesses of the occurrence is not established at the time of occurrence; that the principles of safe administration of criminal justice were ignored altogether by the trial Court as while transferring the statements of P. Ws. Bahadur Sher and Saeed, no opportunity was given to the defence. It was further argued that the case property was not produced before the Court neither at the time of recording evidence under section 512, Cr.P.C. Nor at the trial. It was further added that the impugned conviction and sentence is contrary to the evidence on record and is liable to be set aside.
' In the alternative, learned counsel submitted that it was a sudden act and a single short case, therefore, appellant is entitled for a lenient view in quantum of sentence.
6. On the other hand the learned counsel for the complainant assisted by Deputy Advocate- General contended that the prosecution has proved its case against the appellant beyond any shadow of doubt; that single accused is charged for commission of brutal murder of Zahoor Ahmed with repeated four shots and injuring Zahid effectively; that the statements of Sher Bahadur and Saeed P.Ws., were rightly transferred to the Sessions file in accordance with law and the case was not only supported by P.W. Sher Bahadur but also by P.W.4. And P.W.5. The learned counsel went on to say that there was no enmity or reason for falsely implicating the appellant.
Controverting the arguments regarding injury shown in the medical report from left to right, it was contended that person receiving injury is not supposed to be a statue and even otherwise, when the bullet hits the bone surface it changes its direction and the ocular evidence is to be given preference to medical evidence. The learned counsel finally argued that the prosecution evidence is in line with the ocular testimony and the learned trial Court has rightly convicted and sentenced the appellant, therefore, prayed for confirmation of death sentence of appellant.
7. We have heard learned counsel for the parties, who have cited plethora of case-law for and against, and perused the available record.
8. A perusal of record would show that in the facts and circumstances of the case the prosecution has proved its case against the appellant beyond any shadow of doubt. In the instant case appellant Masood Ahmad alias Gudoo is directly charged in the promptly lodged F.I.R. Within 50 minutes of the occurrence, hardly leaving scope for consultation and deliberations. A single accused is charged and substitution at the spur of moment is not believable in such like cases as there is no reason for prosecution witnesses to substitute the accused and let go the real culprit especially when appellant and complainant party have no enmity with each other. The source of light stood established by recovery of two bulbs of 100 watts from the spot.
9. Except the motive, as alleged in the F.I.R., there was no enmity amongst the parties. The ocular account is confidence inspiring and is fully corroborated by medical evidence. There is no major contradiction and discrepancy in the evidence of prosecution, rather the same is found consistent upon material points. Cogent reasons have been furnished by the prosecution for not producing Shaukat and Zahid as prosecution witnesses. Even otherwise, it is the quality and not the quantity of evidence, which is to be considered and adjudged at trial. Since the burden of proof lies on prosecution, it is, therefore, its prerogative to produce some witnesses and abandon others for proving the guilt of accused.
10. As far as the production of case property is concerned, sufficient justification in the shape of evidence has been tendered by Muhammad Zaman, Moharrir Police Station Khalabat Township Haripur as S.W.1, who has produced the record of case F.I.R. No,268, dated 22-8-1998 Exh.PK and attested copy of daily diary No,2, dated 22-8-1998 Exh.PK/1, according to which Police Station Khalabat Township was burnt and case property of the present case along with the property of other cases was burnt into ashes in the year, 1998, when the Police Station Khalabat Township was attacked by the mob and set on fire.
11. The contention of learned counsel for appellant has also no force that while transferring statements of P. Ws. Sher Bahadur and Saeed to the Sessions file, the appellant was not given proper opportunity. We hold that the trial Court was justified to transfer the statements as the same evidence was preserved under section 512, Cr.P.C. In accordance with law. In the facts and circumstances of the case the learned trial Court has rightly analyzed the evidence in its true perspective.
12. Now coming to the quantum of sentence, it would be advantageous to refer to section 367(5), Cr.P.C. Which prescribes that if the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons, why sentence of death was not passed.
13. Absence and weakness of motive, motive shrouded in mystery, revenge, sudden flare-up and Ghairat or family honour have been considered as mitigating circumstances in the judicial precedents. In the case in hand an altercation took place on the issue of players in the evening time of eventful day. At 2010 hours the appellant after parking his motorbike, having pistol in his hand started abusing the deceased. The deceased ran away and took shelter in a shop, the appellant chased and fired four shots at him with intention to kill him. Motive is proved and no mitigating circumstances exists to withhold normal sentence of death, therefore, no case for lesser punishment is made out.
14. Resultantly, the appeal being without merit is hereby dismissed. Murder Reference stands confirmed accordingly.