' RAUF AHMAD SHEIKH, J.---Muhammad Ismail alias Goga appellant has assailed the judgment dated 11-1-2007 passed by learned Additional Sessions-Judge, Gujar Khan, in case F.I.R. No,87 dated 15-2-2005 under sections 302/109, P.P.C. Police Station Gujar Khan, whereby he was convicted under section 302(b), P.P.C. And was sentenced to death with further order to pay a sum of Rs,3,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default to undergo S.I. For six months. The learned trial Court has also submitted Murder Reference No,346 of 2007 under section 374, Cr.P.C. For confirmation or otherwise of the death penalty awarded to the appellant.
2. Briefly stated the prosecution version as set-forth in the F.I.R. (Exh.PA) recorded on the statement (Exh.PH) of Muhammad Sarfraz complainant is that the complainant, a student of 7th class was present in his house on 15-2-2005 along with his brother Asif Mehmood, mother Mst. Tasleem Akhtar and father's elder brother Abdul Qayyum. At about 3-00 p.m. There was knock at the door.
Ismail alias Goga son of Khan Aslam, caste Khan, resident of Ward No,16, Chauhan Street. Dhoke Hayat Ali, Gujar. Khan, a neighbourer was standing there and asked, where Asif Mehmood was The complainant told that he was at home and he would send him immediately. He informed Asif Mehmood on his return that. Goga was calling him out of the house. Asif Mehmood went outside along with Goga towards the road. After passage of very short time, they heard the noise raised by his brother on which he, his mother and paternal uncle Abdul Qayyum followed Asif Mehmood while running. When they arrived near shop of Imran and Brothers, they saw that Ismail alias Goga, who was holding Pistols in his both hands and Asif Mehmood were quarrelling. They proceeded forward to separate them. Goga asked them not to come near and that the said day was last day of the deceased's life. Immediately thereafter, Goga made repeated indiscriminate firing with both Pistols. Asif Mehmood sustained serious injuries and fell on the ground. Goga fled away while brandishing Pistols. They immediately proceeded to hospital after putting Asif Mehmood in the vehicle but he died on the way. The motive was stated to be annoyance on petty altercation between Goga and the deceased for the last few days, who were otherwise close friends.
3. After investigation, the appellant and one Shakeel Ahmad were sent up to face the trial. The appellant was charged under section 302, P.P.C. Whereas Shakeel Ahmad was charged under sections 302/109, P.P.C. They pleaded not guilty and claimed the trial.
4. The prosecution examined 15 witnesses in support of its allegations. The medical evidence was furnished through Dr. Mushtaq Ahmad Sehr (P.W.3), who had conducted the postmortem examination of the dead body of the deceased on 15-2-2005 at about 4-30 p.m. He found 13 entry wounds and grazing of fire arm on the person of the deceased. He opined that all injuries were anti-mortem and that the deceased died due to injuries on vital organs like heart, lungs and liver, which were sufficient to cause death in the ordinary course of nature. According to him, 1 to 3 hours had elapsed between death and postmortem and the death occurred immediately after the injuries. He proved the postmortem report (Exh.PB) along with pictorial diagrams (Exh.PB/1 and Exh.PB/2).
5. The complainant appeared as P.W.13 and almost reiterated the contents of his statement (Exh.PH). Abdul Qayyum (P. W.12) stated that on 15-2-2005 he was present in the house of his brother Shakir Hussain. Sarfraz Ahmad, his nephew, Mst. Tasleem Akhtar, his brother's wife were also present. At about 3-00 p.m. There was knock at the door. Sarfraz went to the door and saw Ismail accused present there. The accused/appellant inquired about Asif so Sarfraz informed Asif that he was being called by Ismail accused and sent him outside. After five minutes, they heard noise of Asif deceased. He, Mst. Tasleem Akhtar and Sarfraz went outside. They saw that Ismail accused had two Pistols in his both hands. Asif and accused Muhammad Ismail were quarrelling. Ismail threatened that no one should interfere and said that the same was the last day of the deceased's life. Both of them were opposite to Imran and Brothers shop. Thereafter, Muhammad Ismail appellant made fires with both Pistols. Thereafter he fled away, while brandishing both Pistols. Asif Mehmood fell down. He himself, Sarfraz and two other persons and Tasleem Akhtar removed the injured to the hospital but he died on the way. It was further stated that Asif deceased and Goga appellant were friends since their childhood and quarrelled with each other few days back.
6. The recoveries were proved through Iftikhar Mehmood (P.W.10.), Imran Mehmood (P.W.11) and Muhammad Nawaz, S.-I. (P.W.14.). Iftikhar Mehmood (P.W.10) and Imran Mehmood (P.W.11) stated that the I.O. Came to the place of occurrence on 15-2-2005 and made the blood-stained cotton into sealed parcels and secured the same through memo (Exh.PD). It is further stated that the Police secured 9 empties P6/1-9 through memo (Exh.PE) attested by them. Iftikhar Mehmood (P.W.10) also stated that on 3.5-2005 the accused made disclosure and got recovered Pistols P7 and P8 and the I.O. Secured the same through memo of recoveries (Exh.PF and Exh.PG), which were attested by him and Shakir Hussain. Ghulam Murtaza (P.W.6) proved his reports on the back of the warrant of arrest and proclamation.
7. Muhammad Nawaz, S.-I./I.O. Appeared as P.W.15. He stated that after receiving the information about the occurrence; he arrived in the THQs Hospital, Gujar Khan and recorded statement of the complainant (Exh.PH). He has also proved recovery memo (Exh.PD) regarding securing of blood- stained cotton, recovery memo (Exh.PE) regarding securing of empties, memo of recovery (Exh.PC) regarding securing of last worn clothes of the deceased, memo (Exh.PM) regarding delivery of dead body of the deceased to the legal heirs and notes in red ink on the site plan of the place of occurrence with scale (Exh.PN). It is further stated that on 29-3-2005, he submitted applications (Exh.PQ and Exh.PP) for issuance of warrants and the proclamation against the accused. He handed over the proclamation (Exh.PR) to Ghulam Murtaza (P.W.6). It is stated that the accused made disclosure and led to the recovery of Pistols P.7 and P.8, which were secured through memos of recovery (Exh.PF) and (Exh.PG).
8. The prosecution has also produced the report of the Chemical Examiner (Exh.PW), report of the FSL (Exh.PU) and report of the Serologist (Exh.PV).
9. In his statement under section 342, Cr.P.C., the appellant has denied the correctness of the prosecution version and truthfulness of the witnesses produced by it. It is stated that the P.Ws. Are related inter se and also with the deceased and that they were not present at the time of occurrence. It is stated that it was a blind murder committed by unknown persons and the complaint was lodged after deliberations and preliminary inquiry. He further contended that the recoveries were falsely planted against him. He further contended that no one from the public and the occupants of the shops surrounding the place of occurrence has supported the prosecution version. He, however, opted neither to appear as witness on oath under section 340(2), Cr.P.C. Nor to produce defence evidence.
10. We have heard the arguments advanced by Raja Zaheer Ahmad, Advocate, learned counsel for the appellant, Rana Kashif Saleem Arfaa, Law Officer, for the State and Mr. Asif Ali Minhas, Advocate, learned counsel for the complainant and have minutely examined the record with their able assistance.
11. The learned counsel for the appellant has contended that the motive as alleged in the F.I.R. Has not been established as no witness in this regard is produced and, as such, the prosecution must suffer. In this respect reliance is placed on case-law reported as 2010 SCM R 97. It is contended that the dimensions of injuries are different, so it is obvious that more than one person had caused the Qatl-e-Amd during un-seen occurrence and the appellant was falsely involved due to suspicion after making preliminary inquiries at the spot. It is urged that the prosecution witnesses are interested and related inter se and also to the deceased while no person residing in the locality has come forward to lend support to the prosecution version and as such, the charge against appellant was not proved and he has been convicted on the basis of conjectures and surmises. It is urged that P.W.12 has stated that 11 fires were made by the appellant whereas the deceased had sustained 14 injuries so the presence of this witness is highly doubtful and the uncorroborated statement of the complainant cannot be relied upon in awarding capital punishment. It is urged that the P.Ws. Have stated that they were standing on the eastern side of the deceased at the time of occurrence whereas the site plan Exh.PN shows that they were present at points 2 and 3 which are towards north-west of Point No,1, the place where the deceased allegedly fell and died. It is urged that the best and natural witnesses were the shop keepers of Ashraf Market but none of them has been produced. It is urged that there is discrepancy as to the time of arrival in the hospital in the statements of the P.Ws. So they cannot be believed. It is also urged that the witnesses have not mentioned the exact place of recording their statements under section 161.
Cr.P.C. Hence their evidence does not inspire confidence. In support of the contention raised reliance is placed on 2004 SCM R 1185 and 1995 SCM R 1735.
12. Controverting these arguments, the learned counsel for the complainant and learned Law Officer for the State have contended that this was a promptly lodged F.I.R. So the question of preliminary inquiry or deliberations does not arise. It is urged that the occurrence took place in broad daylight and the appellant was neighbourer of the complainant and deceased so there was no question of mis-identification. It is urged that except minor variations in the statements which are otherwise neglectable, the witnesses have stated in straightforward manner and proved that the appellant had caused Q.Atl-e-Amd of deceased Asif Mehmood and their ocular account is duly supported by the medical evidence and the recoveries. It is urged that the weakness or even the absence of motive is no ground to take lenient view as the deceased was murdered in a brutal manner. In support of the contention reliance is placed on PLD 2008 SC 416, 2008 SCM R 1106 and 2006 SCM R 1796.
13. P.W.. Muhammad Sarfaraz has categorically stated that the appellant called the deceased from his house and after some time, on report of noise from outside he and Muhammad Ismail P.W.
Rushed and witnessed the occurrence. Muhammad Ismail P.W. Has also stated similar facts. The place of occurrence is near to the houses of the complainant and the appellant. The deceased was taken only short time ago and then the fires were made by the appellant. The contention that the report of noise could have not been heard while sitting in the house of the appellant has no force as proceeding to the place of occurrence after receiving the report of noise was not any thing un-natural on the part of the blood relations. The contention that the shop-keepers or passersby had not supported the prosecution version so it should not be believed is not accepted because people usually refrain from becoming Witness in murder cases in order to avoid any direct animosity. Muhammad Sarfaraz and Muhammad Ismail P. Ws. Had no previous grudge or enmity with the appellant and there was no reason for them to implicate him falsely and let the actual culprit scot free in spite their A close blood relationship with the deceased. The postmortem report Exh.PB shows that the deceased had received 14 firearm injuries. The contention of the learned counsel for the appellant that P. W.12. Has stated that the appellant had made 11 fires so he cannot be believed is without weight as the large number of fires cannot be exactly counted or remembered as human mind is not a computer. The other contention that according to P.Ws.. They were standing on the eastern side of the place where the deceased had sustained injuries whereas the site plan shows that they were towards north-west is also not very material in view of the above mentioned reason. The occurrence took place at about 3-00 p.m. On 15-2-2005, whereas statement of the complainant was recorded in the Civil Hospital at 4-10 p.m. And F.I.R. Was recorded at 4-25 p.m. So this is a promptly lodged F.I.R. Without wastage of a moment and as such.
The question of deliberations and preliminary inquiries do not arise. Moreover the postmortem was also conducted at 4-30 p.m., which shows that the complainant and P.Ws. Had no time to make deliberations or implicate any body other than the person who is responsible for the murder of their brother and nephew. The minor variations as to the time of arrival in the hospital or recording of the statements under section 161, Cr.P.C. Or place where the statements were recorded are insignificant and does not affect the veracity of the witnesses in any manner rather these variations indicate that the statements were being made without any tutoring or counselling. It is stated that the motive is not established rather it is disproved because the P.Ws. Have admitted that the appellant had dinner in the house of the deceased on the preceding night of the occurrence so the prosecution must fail. It is true that the witnesses have stated that on the preceding night, the appellant had taken meals in the house of the deceased and it is also correct that no person who had seen the scuffle between them few days back has been produced but the P.Ws. Have emphatically stated that the deceased and the appellant were close friends since childhood but then a quarrel/scuffle took place few days back. The motive is always in the mind of the culprit. The weakness or absence of the motive by itself is C not a mitigating circumstance. The way the deceased was done away with by making at least 14 fires with two pistols shows deep hatred and aversion in the mind of the appellant towards him. The number of the injuries sustained by the deceased and the seats of these injuries show that he was killed in a cruel and merciless manner.
The learned counsel for the appellant has contended that these injuries indicate that more than one person was responsible for the offence and as the murderers were not known the complainant opted to implicate the appellant due to suspicion. Iftikhar Mehmood P. W.10. Has categorically stated that the appellant led to the recovery of pistols P.7 and P.8 after making disclosures, which were secured by the I.O. Through Memo Exh.PF and Exh.PG. P.W.14., who conducted the investigation in this case has also stated similar facts. Both of them are also independent witnesses as they have no enmity with the appellant. The positive report of the Forensic Science Laboratory Exh.PU lends necessary corroboration. Both these pistols were semi automatic and according to P. Ws. 12 and 13 appellant was holding two pistols and making fires at the same time from both so the contention that more than one person was responsible is without force. The appellant in his statement under section 342, Cr.P.C. Could not give any reason for his false involvement as contended by him. The strong and confidence-inspiring evidence available on record proves that the appellant had caused Qatl-e-Amd of the deceased in a brutal manner. No mitigating circumstance is available. The case-law cited at the bar is not applicable on the facts of the present case for the reasons mentioned above. The learned trial Court properly appraised the evidence and arrived at just conclusion.
14. For the finding recorded in foregoing paras, we are of the considered opinion that the appeal in hand is without merits and same is hereby dismissed. The conviction recorded and sentence awarded to the appellant are maintained. The murder reference is answered in the affirmative. The Criminal Appeal preferred by the appellant is hereby dismissed.