' RAUF AHMAD SHEIKH, J.---Through Criminal Appeal. No,229 of 2005, the appellant Shah Zaman has challenged the judgment dated 9-6-2005 passed by Ch. Abdul Qayyum, A.S.J, Rawalpindi in case F.I.R. No 428 dated 12-8-2003 under section 302, P.P.C. Police Station Saddar Bairooni Rawalpindi whereby he was convicted under section 302(b), P.P.C. And was sentenced to death as "Tazir" and was also directed to pay a sum of Rs,1,00,000 as compensation to the heirs of the deceased and in case of default to undergo S.1. For six months. The complainant Muhammad Hamid Khan has also filed Criminal Revision No,128 of 2005 praying therein that the amount of compensation as fixed by learned trial Court be enhanced Murder Reference No,842 of 2005 has been submitted by learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant. As all these matters are interlinked and co-related so are being taken up together.
2. Briefly stated the prosecution version as embodied in statement (Ex.P-A) of Muhammad Hamid Khan son of Fazal Karim Khan, caste Pathan, r/o street No,16 Chakri Road Rawalpindi (subsequently reduced into formal F.I.R. Exh.P-A/1) is that the complainant, a retired employee of UBL had been living in Liaqat Colony, Chakri Road for nine years prior to the occurrence. In his neighbourhood Shah Zaman son of Muhammad Khan caste Awan, r/o Liaqat Colony resided, who had divorced his wife. On the preceding day in the morning he asked for hands of complainant's daughter, which was refused by him. On the preceding night Shah Zaman had been making fires with the gun. On the day of occurrence his brother in law Tafseer son of Tauqir, caste Qureshi, r/o, Satellite Town along with his wife Mst. Tasnim had come and were present in the house. At about 9-00 P.M. His son Suleman Hamid aged about 16 years and wife Mst. Mubeen Hamid in order to fetch medicine from the doctor took the motorcycle and came out of the house. In the meanwhile Shah Zeman along with his repeater gun came in the street and challenged Suleman Hamid by raising Lalkara that he would not be spared on that day. On hearing this they all came out and in their sight Shah Zaman made a straight fire, which hit his son on right temple. Thereafter Shah Zaman made two more fires, which hit his son on right leg who fell on the ground unconscious in an injured condition. The case was registered under section 324, P.P.C. But on demise of Suleman Hamid section 302, P.P.C.
Was added.
3. After investigation the accused was sent up to face the trial. He was charged under section 302, P.P.C. He pleaded not guilty and claimed the trial.
4. The prosecution examined 13 witnesses and also produced documentary evidence in support of its version. The ocular account is furnished through Mst. Mubeen Hamid P.W.12 and Tafseer Ahmad P.W.8. Mst. Mubeen Hamid P.W.12 stated that on 12-8-2003 at about 9-00 P.M. She and her son Suleman Hamid were going to see a doctor for fetching medicine. As soon as they came out of the outer gate on motorcycle Shah Zaman emerged there. The lights of the house/gate lights were on.
Shah Zaman accused raised Lalkara and made fire with repeater gun, which hit Suleman on right temple. The appellant again made two fires, which hit the deceased on right leg. Suleman fell on the ground and became unconscious. The accused fled away. The police came there and shifted Suleman to the hospital. Tafseer Ahmad P.W.8 stated that on 12-8-2003 at 3-45 P.M. He along with his wife was present in the house of the complainant. The wife of complainant was sick. She and Suleman came out of the house on motorcycle to fetch medicine. When they were on the gate of the house, the witness and others heard voices of Shah Zaman appellant that he would not spare them. He, his wife and the complainant rushed towards the gate and saw the accused while firing Suleman with repeater gun, which hit on right temple on Suleman. The second and third fires hit him on the right leg. Suleman fell on the ground and became unconscious while the accused fled away.
5. The medical evidence adduced through Hafiz Dr. Muhammad Qasim Khan P.W.11 and Dr. Muhammad Imdad A.S.-I. P.W.9. Hafiz Dr. Muhammad Qasim Khan had examined the deceased in an injured condition on 12-8-2003 at 9-40 P.M. And had found nine injuries on his person. He has proved the MLR Exh. P.H. Issued by him. Dr. Imdad Aasi P.W.9 stated that he conducted autopsy on the dead-body of Suleman Hamid Khan on 13-8-2003 at about 12-00 p.m. And found following injuries on his person:--
(1) Stitched wound 2 c.m. In length 5.5 c.m. Above from right ear situated on right temple of skull, charring and signed.
(2) Stitched wound on right of forehead of 1.5 c.m. Length half c.m. Above right eye-brow.
(3) Stitched wound 6-75 c.m. Starting form right lower eye till middle of right cheek blackening positive 12 cm below from injury No,2 from upper part of injury Nos.3 and 8 c.m. Above and lateral to right nipple blackening positive.
(4) Stitched wound 2 c.m. On right mandible 9 c.m. Abovt from chin and inwards and below lateral 6 c.m. From right ear, blackening positive.
(5) Stitched wound 1.5 cm in length on upper part of axilla 10 c.m below to top of right shoulder and 13 c.m. Below and lateral from right nipple blackening positive.
(6) Surgical wound 47 c.m. In length starting from upper portion of right thigh and vertically directed till back of right knee joint. Stitched opened and piece of bullet searched out compound fracture of right femur our.
(7) An abrasion 1.5 cm on left thigh at front above and lateral to patella.
(8) A firearm wound 1.5 c.m. x 1.5 cm on front of right shoulder above axilla blackening and burning positive.
(9) 2 abrasions 5 x 1.4 c.m. x 1.4 on right side of chest 4 c.m. Below the nipple.
(10) Multiple firearm holes blackening positive each measuring 2 x 2 c.m. Amounting about 8 c.m.
On front and lateral right thigh margins are inverted so these are entry wounds with blackening.
(11) Firearm wound 2.5 x 3 c.m. Measuring and numbering about 5 margins everted and blackening present. Wounds on inner and medial aspect of right thigh.
' In his opinion the death was caused due to firearm injuries specially No,1, which damaged vital organ i.e, brain, thus causing huge haemorrhage and shock internally as well as externally and that the abraded injuries were caused with blunt weapon. According to him the probable time between injury and death was 13 hours and between death and postmortem was within three hours,
6. P.W.4 proved the securing of blood from the place of occurrence by the Investigating Officer through recovery memo. Exh. P-C and three empties through Exh.P-B. P.W.5 proved the recovery of gun P-2 through memo of recovery Exh.P-D.
7. The investigation of this case was conducted by Muhammad Yousaf S.-I. P.W.13 who recorded the statement of Muhammad Hamid Khan complainant Exh.P-A. He proved memo Exh.PC regarding securing of blood, memo of recovery of three empty cartridges Exh.PB, site plan without scale Exh.P- K, inquest report Exh.P-L, recovery memo of last worn clothes of deceased along with phial containing pellets Exh.P-E and memo of recovery of gun 12-bore pump action Exh. PD. He recorded the statements of P.Ws. Under section 161, Cr.P.C. He further stated that on 13-8-2003 he formally arrested the accused.
8. The prosecution has also produced the report of Chemical Examiner Exh.P-M and report of Forensic Science Laboratory Exh.P-N.
9. The accused/appellant in his statement under section 342, Cr.P.C. Denied the allegations levelled by the prosecution and veracity of the P.Ws. He contended that recovery was falsely planted against him in connivance with the complainant party. However again on 14-4-2005 he stated on oath that he had produced this gun along with its licence Exh.D-D and 20 live cartridges. Dr. Muhammad Afzal Kiani proved the prescriptions Exh.D-E to Exh.D-H whereas Muhammad Afzal D.W.2. Stated that the accused produced his gun along with licence and 20 cartridges and then he was taken to Police Station and arrested. After conclusion of trial the learned trial Court convicted and sentenced the accused as above.
10. We have heard the arguments of Malik Muhammad Saeed Advocate learned counsel for the appellant, Sh. Muhammad Munir learned D.P.-G. And Mr. Muhammad Younis Bhatti Advocate learned counsel for the complainant and have also perused the record minutely with their assistance.
11. Malik Muhammad Saeed Advocate learned counsel for the appellant vehemently contended that the complainant has not come forward to support the prosecution case and as such the prosecution must fail. It is urged that there is vast discrepancy in the medical evidence and the ocular account because injuries Nos.7 and 9 as per statement P.W.9 were with blunt means whereas use of blunt weapon is not mentioned by the P.Ws. So they were not present at the time of occurrence and had not witnessed it. It is urged that there are material discrepancies in the statements of P.W.8 and P.W.12. It is further urged that the motive as alleged is not proved and that no independent eyewitness has come forward to support the prosecution version. It is finally urged that the non-existence of motive and non-appearance of any independent witness, if not considered sufficient to acquit the appellant should be taken as reasonable grounds to give concession to appellant as the same provide strong mitigating circumstances.
12. Sheikh Muhammad Munir learned D.P.-G. Assisted by Muhammad Younis Bhatti Advocate learned counsel for the complainant have vehemently contended that the natural and independent witnesses have been produced, who stood the test of cross-examination successfully and inspired confidence. It is contended that the complainant due to unfortunate demise of his young son aged about 16/17 years went to deep shock and lost his memory so he was given up through an application stating therein the above-mentioned fact specially. It is urged that the ocular account in fully corroborated by the medical evidence and the recoveries so learned trial Court rightly convicted and sentenced the appellant. It is also contended that the appellant caused murder of innocent young boy by repeating the fires so no mitigating circumstance is available.
13. The occurrence took place at about 9-00 P.M. On 12-8-2003 and the statement of complainant Exh.P-A was reduced into writing at 9-45 p.m. And the F.I.R. Was recorded on 10-20 p.m on the same day. This is a promptly lodged F.I.R. In which there is no possibility of deliberation or false implication. P.W.8 and P.W.12 had no previous enmity, ill will or grudge against the appellant. The occurrence took place in the street, which is in front of the house of deceased where presence of his mother was very natural as she was accompanying him to fetch medicine for herself and other P.W. Had given plausible explanation for his presence at the residence of complainant and coming out on hearing the noise being made by the appellant. They have categorically stated that the appellant made fires, which hit the deceased on temple and legs. Learned counsel for the appellant has contended that the medical evidence shows that the deceased had also sustained abrasions, which according to P.W.9 were caused with blunt weapon so these witnesses had not seen the occurrence and had brought the dead body at the place of occurrence subsequently. The deceased was riding the motorbike when he came out of the house so these abrasions must have taken place due to fall on the ground after having been hit by fires, as according to P.Ws. He after sustaining injuries fell down unconscious. The occurrence took place at 9-00 p.m. And the deceased in injured condition had arrived in the hospital at 9-40 p.m. And at that time his injuries were fresh so the contention that he had been killed by some unknown persons at some unknown place appears to be illogical. Above all P.W.12, real mother and complainant, real father whose young son was done to death would have not let the actual culprit go scot-free and involve the appellant falsely as they had no previous enmity or grudge against him.
14. It is true that in certain cases, the non-appearance of complainant especially when he is an eye-witness, is considered fatal but in this case it has specifically been mentioned in the application due to death of his young son he had lost his memory so non-production of complainant in the witness box is not fatal to the prosecution case by any stretch of imagination.
The ocular account furnished by P.W.8 and P.W.12 proved the guilt of appellant. The medical evidence though shows certain injures not deposed by these. P.Ws. But as the pump action gun .12 bore was used and the pellets must have hit on other parts also and which could not have been specifically mentioned at the time of lodging of F.I.R., Moreover a photo finish narration is not expected as human eye is not a camera so this minor discrepancy is not very material. Learned counsel for the appellant could not point out any material discrepancy in statement of P.Ws. Nos.8 and 12 and the minor differences such like time consumed from the place of occurrence to the hospital or time about arrival of the doctor do not minimize their veracity in any manner. P.W.4 and P.W.13 have proved the recovery of gun .12 bore at the instance of accused/appellant. The appellant at the first instance on 15-3-2005 denied the factum of recovery but then subsequently on 14-4-2005 contended that he had himself produced it along with cartridges in presence of Muhammad Afzal D.W.2. His changing stands and confidence inspiring evidence of P.W.4 and P.W.13 falsify the statement of D.W.2. Any how it stands established that the licensed gun P-2 belongs to appellant and as per report of Forensic Science Laboratory Exh.P.N, crime empties collected on the day of occurrence and test empties having been fired through this gun do match. This also lends strong corroboration to the ocular account.
15. It is established beyond shadow of doubt that the appellant is the person who was responsible for unfortunate Qatal of a young boy aged about 16 years, The motive is proved by P.W.12. Learned counsel for the appellant has contended that girl whose hands were asked for and the complainant have not appeared so the motive is not established. There was no need for the prosecution to produce the young girl and the complainant became unable to appear due to untimely Qatal of his son. The statement of P.W.12 does prove the motive as alleged by the prosecution. Moreover the weakness or even absence of motive neither causes any dent on the prosecution version nor is considered as mitigating ground. The appellant used the pump action .12 bore gun and made repeated fires. The seats and number of injuries indicate that he was doing this act mercilessly. No mitigating ground whatsoever is available in the given circumstances. The learned trial Court properly appraised and evaluated the evidence, arrived at correct conclusion and passed the sentence, which the appellant deserved. We find no reason to interfere in the impugned judgment.
16. For the reasons supra, the Appeal No, 229 of 2005 is dismissed. Resultantly the death sentence awarded to the appellant is confirmed and murder reference is answered in the affirmative. The Criminal Revision No,123 of 2005 is also dismissed.