Khilji Arif Hussain, J.--This appeal, by leave of the Court, to the extent of examination of quantum of sentence has been preferred against the judgment dated 10.5.2006 passed by the Lahore High Court, Lahore dismissing appeal of the appellant whereby, Murder Reference was answered in affirmative and death sentence passed by the trial Court against the appellant was confirmed.
2. Brief facts, to decide the appeal are that in the F.I.R lodged by the complainant Tariq, prosecution case is that Mst. Kausar sister of the complainant was married to Zafar-accused two years earlier to the registration of the FIR. Mst. Kausar had come to their house three days ago after annoying with her husband/appellant. On 18.5.1999 a day prior to the occurrence, appellant had also come to their house for reconciliation with his wife. During the course of talking, he had quarreled with Khalid (deceased) elder brother of the complainant. Thereafter, appellant went away after advancing threats of murder to him. On the preceding night the complainant, Khalid (deceased), Mst. Ramai (their mother), other inmates of the house, Humayyun and Mansha (PW.8) were sleeping in the Courtyard of the house. At about 1.30 a.m. the complainant after hearing sound of foot-fall, awoke up and saw that appellant while armed with hatchet had reached near the cost of Khalid deceased who was sleeping. The complainant raised hue and cry whereupon Humayyun, Mansha, Mst. Ramai and other inmates also awake up and within their view appellant inflicted two hatchet blows to Khalid (deceased) simultaneously, which hit him on the upper part of his right eye, at the forehead and upper part of his right ear over head. The appellant succeeded in running away from the spot while brandishing hatchet in the air. The deceased Khalid succumbed to the injuries on the spot.
3. In order to prove its case, the prosecution produced 10 witnesses. The ocular account of the incident in question was furnished by the complainant (PW.7) and Muhammad Mansha (PW.8) who also deposed about the motive. The medical evidence was led by Dr. Mushtaq Bashir (PW.6) and ASI (PW.10) stated about the various steps taken by them during the investigation of this case.
4. In the statement under Section 342 Cr. P.C. appellant denied the allegations and professed his innocence.
5. On conclusion of the trial, learned trial Court vide its judgment dated 11.6.2001 convicted the appellant under Section 302(b) PPC and sentenced him to death as Tazir'. The appeal filed by the appellant before the Lahore High Court, Lahore, was dismissed vide judgment dated 10.5.2006, which has been impugned through this appeal.
6. Heard Hafiz Aman, ASC for the appellant and Mr. Shahid Mehmood Abbasi, D.P.G. for the Sate.
7. Learned counsel for the appellant vehemently argued that Muhammad Mansha PW.8 was a chance witness and as such his evidence cannot be relied upon being a weak type of evidence.
The ocular evidence is not corroborated with the medical evidence and in this regard, he relied upon the statement of Dr. Mushtaq Bashir PW.6. Learned Advocate further argued that prosecution has not produced other eye witness to prove the case, which can be termed as mitigating circumstance for awarding sentence lesser than death.
8. On the other hand, learned Advocate for the State argued that even if for the sake of argument it is accepted that Muhammad Mansha PW.8 was chance witness, evidence of Tariq PW.7 an eye witness of the occurrence is in line with the medical evidence and facts narrated in the F.I.R are confidence inspiring and it is the prerogative of the prosecution to decide which evidence it wants to produce to prove its case.
9. We have gone through the evidence on record, judgments passed by the trial Court as well as by High Court with the assistance of the learned counsel for the parties and the leave granting order dated 25.3.2009. We are of the view that no mitigating circumstance has been pointed out by the learned counsel for the appellant nor it appears from the record to call for awarding sentence less than the normal sentence of death under Section 302(b) PPC. The appellant is brother-in-law of the complainant and the only nominated accused in committing brutal murder of complainant's brother and there was no reason for false involvement of the appellant. The appellant has caused repeated hatchet blows on the vital parts of the deceased and Dr. Mushtaq Bashir PW.6 in his report noted the following injuries on the dead body of the deceased:-
1. Incised wound 9 cm x 2 cm on the right side of fore-head, underlying bone was fractured. Brain matter was coming out.
2. Incised wound 12 cm x 4 cm on the right temporal and parietal area of skull underlying bone was fractured and brain was coming out of the wound.
3. Incised wound 8 cm x 4 cm on the right side of head underlying bone was fractured and brain matter was coming out.
4. Incised wound 5 cm x 2 cm on the right side and back of head, underlying bone was fractured and brain matter was coming out."
10. Having considered the matter from all angles in the light of material available on record, we are of the view that prosecution is duty bound to place all evidence likely to throw light on the crime before the Court, however in exercise of power under Section 540 Cr.P.C. Court can summon material witness to do justice in order to arrive at the truth. The deceased was a young man of 24/25 years of age and in the absence of mitigating circumstances to justify lesser sentence than provided under Section 302(b) PPC which are not available on record. The list appeal has no merit and the same is accordingly dismissed.