JUDGMENT RAUF AHMAD SHEIKH, J.---The appellant Muhammad Shabbir has challenged the judgment dated 11-1-2007 passed by Rana Nisar Ahmad Khan, learned ASJ, Rawalpindi, in case F.1.R.
No.158 dated 26-4-2006 under section 302. P.P.C. Police Station Airport, whereby he was convicted under section 302(b), P.P.C. And sentenced to death and was further ordered 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.326 of 2007 under section 374, Cr.P.C. For confirmation or otherwise of the capital punishment awarded to the appellant. As both these matters arc inter-linked and inter-connected so are being decided through this single judgment.
2. Briefly stated the prosecution version as set-forth in the F.I.R. (Exh.PG/1) recorded on the statement (Exh.PG) of Wagar Ahmad Abbasi son of Haji AziZ, resident of house No.4113, Street No.11, Gulzar-i-Qaid, Rawalpindi, is that at 4-30 p.m. On 26-4-2006 the complainant and his brother Shakeel Ahmad Abbasi, his brother's were Mst. Nasreen Bibi and their employee Muhammad Shabbir son of Muhammad Bashir were present in their house. Shakeel Ahmad Abbasi, complainant's brother, said to Muhammad Shabbir that he was involved in corruption at his shop and should not do so and on this Muhammad Shabbir immediately flared up and after few minutes Shakeel Ahmad Abbasi went to the Kitchen and when came out, Muhammad Shabbir appellant who was standing in T.V. Lounge immediately pulled out Pistol .30 bore from the fold and made repeated fires on Shakeel Ahmad Abbasi, which landed on front of his chest and right hand and he died at the spot. On alarm raised by him and his brother's were Abdul Majeed Khan son of Abdul Rehman's resident of CL-21, Marrier Hassan, also arrived there but Muhammad Shabbir fled away.
3. The appellant was arrested on 24-5-2006. After investigation he 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 has produced 12 witnesses. The ocular account is furnished by Waqar Ahmad Abbasi (P.W.6) and Mst. Nasreen Bibi (P.W.7). Wagar Ahmad Abbasi complainant almost reiterated the contents of his statement (Exh.PG). He added that Shakeed Ahmad Abbasi deceased was running a shop and accused Muhammad Shabbir was the Incharge of the same and used to maintain the accounts. The deceased Shakeel Ahmad Abbasi suspected Shabbir accused for misappropriation. Couple of days earlier the deceased had seen a valuable mobile phone in possession of the accused and this developed suspicion about mis- appropriation. The deceased asked the accused to settle the accounts, the accused flared up and stated that he would settle the account forever and then pulled out a Pistol .30 bore from his fold and started firing on deceased Shakeel, who received bullet injuries on his chest and right hand. The deceased fell down and the accused fled away along with the Pistol. P.W. Abdul Majeed, who was attracted on hue and cry made by him and Mst. Nasreen Bibi saw the accused while fleeing along with Pistol. He stated that the statement (Exh.PG) was read over to him and he put his signatures on the same in token of its correctness. Mst. Nasreen Bibi (P.W.7) stated that on 26-4-2006 at about 9/10-00 a.m. Her husband Shakeel asked accused Shabbir to clear the accounts as he was suspecting; that the accused was misappropriating the accounts. Muhammad Shabbir said that he will clear the account in the evening. When her husband came back at 4-30 p.m., he asked the accused to settle the account and on this the accused pulled out a Pistol from the fold by saying that he will settle the same forever and made repeated fires, which hit the deceased on the chest and right hand. He fell down. Wagar Ahmad P.W. Also witnessed the occurrence. On their hue and cry, Abdul Majeed P.W. Who was constructing the supper storey of the house on contract and was present there' saw the accused while running from the spot along with the Pistol. Her husband succumbed to injuries.
5. Abdul Majeed Khan (P.W.8) stated that on 26-4-2006 at about 4-30 p.m. While he was present in the upper storey of the house of Shakeel Ahmad, where he was raising construction, was attracted to the ground floor of Shakeel Ahmad Abbasi after hearing reports of fire and hue and cry arising therefrom and saw Shabbir appellant while running along with a Pistol in his hand. He entered the premises and saw Shakeel Ahmad was lying in an injured condition and P. Ws. Mst. Nasreen and Waqar Ahmad said that Muhammad Shabbir had fired shots at Shakeel Abbasi, who succumbed to the injuries.
6. Syed Zaman Ali Shah, S.-I. (P.W.12) and Ch. Khurshid (P.W.4) proved the securing of three crime empties of Pistol .30 bore P1/1-3 and blood through cotton vide memo of recovery (Exh.PE). Safdar Hussain, S.-I. (P.W.11) stated that on 28-5-2006 he recovered Pistol .30 bore through memo of recovery (Exh.PF) on disclosure and pointation of the appellant from the vacant plot in the area of New Gulzar-e-Qaid. Muhammad Almas (P.W.5) has stated that the recovery was made by the I.O.
Who secured it through memo of recovery (Exh.PF) attested by him and Muhammad Sarwar P.W.
Khurram Shahzad (PW-2) proved the site plan with scale (Exh. PJ).
7. The medical evidence has been furnished by Dr. Amjad Ali Shah (P.W.3) who conducted the autopsy of the dead body of the deceased on 26-4-2006 at about 8-00 p.m. In DHQ Hospital, Rawalpindi. He found 10 fire-arm injuries on the person of the deceased. He proved the postmortem report (Exh.PD) and his signatures on inquest report (Exh.PC). He was of the opinion that Injuries Nos.1, 4 and 7 damaged both lungs, heart, liver, spine and other viscera of the deceased and caused severe hammerage hypovolimic shock and death. These injuries were anti-mortem and sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate and time between death and postmortem was 4 to 6 hours.
8. The investigation of this case was initially conducted by Syed Zaman Ali Shah, S.-I. (P.W.12), who stated that on receipt of the information about the occurrence, he arrived in Civil Hospital, Rawalpindi, where he 'recorded the statement of the complainant (Exh.PG), which was read over to him, who signed the same in token of its correctness. He proved the inquest report (Exh.PC), application for postmortem (Exh.PB), memo of recovery (Exh.PE) whereby the blood and empties were secured from the place of occurrence, rough sketch plan of the place of occurrence (Exh.PJ), memo of recovery (Exh.PH) whereby he secured the last worn clothes of the deceased and postmortem report, etc. After the postmortem examination. Safdar Hussain, S.I. (P.W.11) took up the investigation on 10-5-2006. He has proved his notes on the site plan (Exh.PA and Exh.PA/1) and memo of recovery (Exh.PF) whereby the weapon of offence i.e. Pistol .30 bore was recovered on the pointation of the accused in presence of the witness. The prosecution has also produced the report of the Chemical Examiner (Exh.PK), report of Serologist (Exh.PM) and report of FSL (Exh. PL).
9. The accused in his statement under section 342, Cr.P.C. Denied the truthfulness of the prosecution allegations and veracity of the witnesses produced by it. He contended that he had no concern with the business dealings of the deceased and was serving as domestic servant in the house for 8/9 years prior to the occurrence. He also denied the allegations regarding suspicion in the mind of the deceased over misappropriation of the money from the General Store and demand allegedly made by him to settle the accounts. According to him, nothing was recovered on his pointation or disclosure. He asserted that he was treated as real son by the deceased and his were and he considered them as his parents who had arranged his marriage after bearing all expenses. According to him, the aunt of his were was murdered on 23/24-4-2006 in village Mamarhal and they had gone to the said village. He asserted that Waqar complainant, who had a small vegetable shop considered him as a hurdle in his way to get the belongings of the deceased and in connivance with the local Police concocted a false story to involve him in the false case. On attaining knowledge about death of Shakeel Ahmad, he came Rawalpindi and appeared before the Police of Police Station Airport when he learnt that the case has been registered against him.
He, however, did not opt to lead defence evidence or to appear as witness under section 340(2), Cr . P. C .
10. We have heard the arguments advanced by Raja Ghaneem Aabir Khan, Advocate, learned counsel for the appellant and Ch. M. Waheed Khan, learned A.P.-G. For the State and have minutely examined the record with their able assistance.
11. Raja Ghaneem Aabir Khan, Advocate, learned counsel for the appellant has contended that the presence of P. Ws at the time of occurrence is not natural; that the time of occurrence as per F.I.R. Is 4-30 p.m. Whereas according to Dr. Amjad Ali Shah the death had taken place 4 to 6 hours before the postmortem examination, which was conducted at 8-00 p.m. So the occurrence must have taken place between 2 to 4-00 p.m. And as such there is vast contrast between the ocular account and the medical evidence; that the motive is not established so the appellant is entitled to the benefit for this failure on part of the prosecution and that the appellant is a young man aged about 26 years so he deserves a lenient view and in view of this aspect of the matter, capital punish was not warranted.
12. Controverting the above arguments, the learned A.P.-G. Has contended that Mst. Nasreen Bibi (P.W.7) and Waqar Ahmad Abbasi (P.W.6) live in the same house and their presence in the house was a natural phenomena and P.W. Abdul Majeed Khan was raising construction of the upper storey as contractor so his presence also cannot be doubted. It is urged that it is a broaday-light occurrence, which was reported to the Police just after 1-1/2 hours so the question of false implication or substitution does not arise. It is urged that the positive report of the FSL and medical evidence as adduced by Dr. Amjad Ali Shah fully corroborate the prosecution version so there is no room left even for slightest doubt regarding guilt of the appellant.
13. The star witness of the case is Mst. Nasreen Bibi (P.W.7). She is widow of the deceased and her presence in the house cannot be disputed. She is the person who had arranged marriage of the appellant and used to treat him as real son as stated by him in his statement under section 342, Cr.P.C. She has categorically stated that the appellant was suspected for misappropriation and was asked to clear the accounts, who at 4-30 p.m. By saying that he will settle the account forever made repeated fires on the person of the deceased. She has narrated the events in a very natural manner. Waqar Ahmad (P.W.6), a brother of the deceased, who was living in the same house had also no reason to depose falsely against the appellant. It is contended that his presence at 4-30 p.m. In the house was not possible. He according to the appellant was running a vegetable shop, where the business ends in the afternoon so his presence at home cannot be questioned. He has also fully reiterated the motive part as put forth by the prosecution. It is established by both these witnesses that the deceased had suspicion regarding misappropriation of money by the appellant, over which he caused untimely death of a young man. The contention that the complainant had eyes on the wealth of the deceased so he has involved him in a false case cannot be accepted because the were of the deceased has categorically stated that the appellant had caused Qatal- e-Amd of her husband. Another important and independent witness is Abdul Majeed (P.W.8). He was making construction on the upper storey. He has stated that he was attracted to the ground floor on hearing of the reports of firing and hue and cry and saw the appellant while running along with the Pistol and Shakeel Ahmad lying in an injured condition. He has also given natural account of what he had seen. The evidence given by these witnesses inspires confidence and the same is trustworthy and cannot be ignored due to minor differences as to arrival of the deceased or accused at the residence on the day of occurrence.
14. Dr. Amjad Ali Shah (P.W.3) has proved that all the injuries were caused by fire arm as is alleged by the prosecution. Out of these injuries, 4 were entry wounds whereas two were superficial of injuries of fire-arms and the remaining were exit wounds. The P.W. Has stated that the appellant had made repeated fires, which landed on the chest and right hand of the deceased. Nature and seats of injuries are in line with the ocular account. It is true that the witness had stated that the death had taken place 4 to 6 hours prior to the time of postmortem i.e. 8-00 p.m. But this does not negate the prosecution version in any case. According to the prosecution, the occurrence had taken place at 4-30 p.m. So difference of maximum 1/2 hour is the result of estimation. This opinion does not belief the prosecution version in any manner.
15. The empties were secured from the spot on 26-4-2006 as proved by Syed Zaman Ali Shah (P.W.12) and Ch. Khurshid (P.W.4). Noor Muhammad (P.W.1) has proved that he kept the parcel of the empties intact in the Malkhana and handed it over to Abdul Hameed on 9-5-2006, who proved that he delivered it on the next day in the office of Chemical Examiner at Lahore. The appellant was arrested on 24-5-2006. It is proved by P.W.11 and Muhammad Almas (P.W.5) that he led to the recovery of Pistol P2, which was secured through memo of recovery, (Exh.PF). The learned counsel for the appellant has contended that Muhammad Almas is closely related to the deceased and complainant so his evidence cannot be believed. This witness has no enmity' with the appellant so his evidence cannot be disbelieved due to his relationship with the deceased. This Pistol in a sealed parcel was delivered in the office of the FSL on 7-6-2006. The report of the FSL (Exh.PL) proves that the empties were fired from this Pistol. This report lends necessary support to the strong ocular account. Half-heartedly it was argued that the deceased was killed at some other place and the dead body was brought at the place of occurrence. The blood, was secured through cotton from the palace of occurrence and as per report of the Chemical Examiner (Exh.PK) the article collected was blood and as per report of the Serologist (Exh.PM) the same was human blood. The contention of the learned counsel for the appellant that the deceased was killed by the complainant cannot be accepted because has this been true the widow of the deceased, would have not left him and had not levelled allegation against the appellant, who was treated like real son by her.
16. The contention that due to youth the appellant deserves lenient view is totally devoid of force.
The appellant is about 26 years old. He is fully grown up and is aware of the nature of his acts and consequences of the same. He brutally and mercilessly killed the person, who brought him up and arranged his marriage for the sole reason that he was asked to furnish true account.
He does not deserve leniency in the given circumstances. No sentence other than the normal sentence of capital punishment can be awarded in these circumstances. The learned trial Court appreciated the evidence in its true perspective and arrived at just conclusions. The findings recorded by it are well reasoned and do not call for any interference. The appeal is without merits and the same is hereby dismissed.
Consequently the death sentence awarded to the appellant is confirmed. Murder Reference No.326 of 2007 is answered in the affirmative.