Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 530 of 2004 filed by Malik Muhammad Hanif appellant, who was convicted and sentenced by the learned Sessions Judge, Islamabad vide impugned judgment dated 26.10.2004 under Section 302(b) PPC, to Death as Taazir and to pay a fine of Rs, 200,000/-(two lac only) or in default six months R.I. in a case bearing F.I.R No, Murder Reference No, 728 of 2005 for confirmation or otherwise of death sentence of the appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Abdul Qayyum complainant vide complaint Ex. P.A that he is resident of Mohallah Nain Sukh, Bhara Kahu. His son Muhammad Arif, had been driving Suzuki Pick up No, 3045/RIR and was doing the duty of pick and drop of school children. On 07.11.2003, at about 11 a.m. the complainant and his "Humzulf' Ghulam Hussain PW-8 were going to the house of Barkat Shah in village Bherra Syedan and when they reached near the place known as "Thandi Tooti" they saw that Muhammad Arif was returning with the Suzuki after dropping the school children. The complainant further saw from a distance of 20/25 paces that Malik Hanif accused, fired a pistol shot upon his son Muhammad Arif from driver seat side. The Suzuki started dwindling and it was trapped inside a heap of sand and crush. The complainant and Ghulam Hussain PW rushed towards the Suzuki of Muhammad Arif and saw that the pistol shot had hit Muhammad Arif on the right shoulder and right side of the neck and Muhammad Arif, on receipt of injury had become unconscious. He and Ghulam Hussain PW brought Muhammad Arif out of the Suzuki and put him in another Suzuki, which was being driven by Shahid driver and proceeded to the Hospital but while on was to the poly clinic Hospital, Muhammad Arif succumbed to the injuries. It was on the basis of the said complaint Ex P.A that formal F.I.R Ex P.A/1 was chalked out by Ahmad Kamal S.I.
3. Muhammad Iqbal S.I. who conducted the investigation has stated that on 07.11.2003, on receipt of the information went to Poly Clinic Hospital, Islamabad, where the complainant presented his complaint EX. P.A. He recorded the proceedings Ex. P.A/3 on the complaint and sent the same to the Police Station for registration of case. He also prepared the inquest report of the dead body Ex P.L.
He recorded the statements of the complainant, Muhammad Arif PW and Ghulam Hussain PW in the hospital and then reached at the spot. He inspected the spot and during spot inspection, he secured the bloodstained earth vide memo. Ex.P.G. He also recovered the empty of .30 bore from the spot vide memo. Ex.P.H. He also took into possession the Suzuki P.4 of Muhammad Arif vide memo. Ex P.F. He arrested the accused on 14.1.2003 and on his pointation, recovered the .30 bore pistol from his house vide recovery Ex.P.K.
4. At the trial, the prosecution in order to prove its case produced nine witnesses in all, thereafter, learned D.A after tendering in evidence the report of Chemical Examiner Ex.P.N, report of Serologist Ex. P.P, report of Forensic Science Laboratory Ex P.Q and closed the prosecution case, then, the statement of the accused was recorded u/S. 342 Cr.P.0 in which he pleaded false implication.
However, after conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court.
5. Learned counsel for the appellant in support of this appeal submits that Abdul Qayyum and Ghulam Sarwar are closely related to the deceased, so they are interested witnesses; that both the eyewitnesses have failed to prove their presence at the spot because they were not resident of place of occurrence i,e, "Thandi Tooti"; that both the witnesses are chance witnesses; that there is material contradiction in the statements of both the eye-witnesses regarding purchase of plot; that Abdul Qayyum stated that it was in the name of Barkat Shah, who has already died while Ghulam Hussain on the other hand stated that it was in the name of legal heirs of Barkat Shah; that no description of appellant was given in the FIR, no identification parade had been held of the appellant although it was stated by Ghulam Hussain that the appellant was, known to him since his child-hood; that there is no motive to commit murder of the deceased on the part of the appellant.
6. Learned counsel for the appellant submits that, as far as Forensic Science Laboratory Report is concerned, it is maneuvered one because empty and pistol was sent after the arrest of appellant.
Reliance in this regard has been placed upon 2002 SCM R-1986.
7. Learned counsel next submits that there is conflict between ocular account and medical evidence because in the FIR it was stated by the complainant that one fire was shot but according to post-mortem report there are two fire-arm injuries on the person of the deceased. Learned counsel further submits that the witness is simultaneously complainant as well as witness of recovery of crime empties, bloodstained earth etc, so, reliance cannot be placed upon him.
Reliance is placed upon 2010 SCM R 97. Learned counsel lastly submits that if this Court is not convinced with the arguments about the acquittal of appellant, then it is not a case of death sentence and is of life imprisonment for the reasons that it is a case of single shot.
8. Learned counsel for complainant as well as learned Standing Counsel submits that parties were known to each other and the first question 'which was asked to complainant was that "do you know the accused, he replied that he knew the accused from his childhood being Mohaladar", so there is no question of mistaken identity; that both the witnesses are passerby and are not chance witnesses. Reliance is placed upon 1987 SCMR 89; that the prosecution has proved itscase against the appellant and there is no mitigating circumstance.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case has taken place on 7.11.2003 at 11.30 a.m. at "Thandi Tooti". Matter was reported to the police by written complaint by father of deceased Muhammad Arif at 12.40 p.m. in the Hospital. Formal FIR was recorded at 1.15 p.m. by Muhammad Iqbal, S.I. on the application of Abdul Qayyum. Complainant was examined as PW-7 and Ghulam Hussain as PW-8. Both the eye-witnesses are father and maternal uncle of the deceased respectively. One crime empty was recovered from the spot. Appellant was arrested on 14.11.2003 and the recovery was affected on 21.11.2003. Dr. Rashid Saleem Qureshi PW.4 conducted post- mortem examination on the dead body of Muhammad Arif on 7.11.2003 at 4.30 p.m. He found following injuries on his person: I. Wound No, 1 was just lateral to tip of right shoulder on the upper arm and 1.5 cm in the diameter with elliptical shape, pointing medially.
II. Wound No, 2 was just medial to tip of right shoulder with averted margins, the track was straight to Injury No,
1. There was communication between the injuries. Blackening of skin around Wound No, 2 was found, due ecchymosis.
III. Injury No, 3 was on the postero-lateral aspect of neck, just below the hair line of scalp about 5 cm behind the lobule right ear.
The dissection was carried out from the left side of left ear, down to the manubrium sterni, a bullet was recovered from the deep muscle of fact, opposite to the angle of jaw internally. According to the opinion of doctor the deceased had died due to bullet, causing severing of the blood vessels of neck leading hypo-volemic shock. Probable time between injury and death was immediate and between death and post-mortem was within six hours.
10. The main point which was raised by the learned counsel for the appellant was that the appellant was not named in the FIR and second that only one fire was alleged to have fired by the appellant but there are two injuries found on the dead body of the deceased. First of all we will explain the non-mentioning of name of appellant. In the FIR it was stated as under-- {{URDU TEXT}} When the complainant appeared before the Court he stated that fire was shot by Malik Hanif accused present in the Court. Not a single confrontation was brought on record by the learned defense counsel and when he started cross-examination, the first question answered was as under: "I know Malik Hanif accused since his childhood as he is my co-villger" Defense counsel himself had brought the name of appellant on record and also proved that complainant and accused were known to each other. So, It was not a case of mistaken identity. The other witness is Ghulam Hussain, "humzulf' of the complainant, who has named the appellant in his statement under Section 161 Cr.P.C. It is a case of broad day light occurrence. The parties, as cross-examined by the learned counsel were known to each other. There seems no reason with the complainant to leave the actual culprit and falsely involve the some-one else."
11.As far as the contention of learned counsel that only one shot was fired, we may clarify here that complainant has clearly stated that the shot fired by the appellant hit on shoulder and neck and so two injuries were caused. Another contention of learned counsel for the appellant that it has been held in 2010 SCM R 97, that complainant is himself witness of crime empty and pistol, so he cannot be believed. We have gone through the said judgment of Hon'ble Supreme Court of Pakistan. First we may state here that this is one of thousands cases which we have come across where the complainant and other witnesses are mentioned in the FIR not only signatory of complaint but they are also signatories of blood-stained earth, recovery of Suzuki and crime empty. It shows and proves that the eye-witnesses were preset at the spot and if it was not so, they could not have signed the recovery memos. This shows that they are truthful witnesses. As far as judgment cited by the learned counsel is concerned, there were so many other points agitated on which acquittal had taken place. This is not that type of case. More-over the time of occurrence also coincide with the post-mortem report.
12.Ocular account is corroborated by medical evidence. Motive is always in the mind of accused.
We have gone through the first version of appellant and we have come to know that what was the motive behind this occurrence.
13.As far as contention of learned counsel about the positive report of Forensic Science Laboratory is concerned, we rule it out from the consideration for the reasons that the occurrence has taken place on 7.11.2003, appellant was arrested on 14.11.2003, recovery was affected on 21.11.2003 but the crime empty was sent after the arrest of appellant i,e, 20.11.2003 and pistol was recovered on 24.11.2003, we do not rely upon this recovery.
14.As far as ocular account and medical evidence is concerned we are fully satisfied that it was the appellant who has committed the murder of Muhammad Arif deceased.
15.As far as question of lesser sentence is concerned, it is not a case of single shot. In this case two fire shots were received by the deceased, one on the shoulder and the other on the neck and the second proved fatal. After dissection a bullet was recovered from the deep muscle of face, opposite to the angle of jaw and this is a reason given that the Malkhana was burnt, so bullet could not be produced before the Court.
16. After hearing the learned counsel for the parties, going through the record, we are fully satisfied that the prosecution has proved e its case beyond any shadow of doubt against the appellant and there is no case for lesser sentence also.
17.Result of above discussion is that conviction and sentence awarded to the appellant by the learned Trial Court is maintained and death sentence is confirmed. Murder Reference is answered in affirmative. This appeal stands dismissed.