1. Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 184 of 2005 filed by Naveed Ahmed, appellant, who was convicted and sentenced by learned Addl. Sessions Judge, Rawalpindi vide impugned judgment dated 25.5.2005 to death under Section 302(b) PPC and to pay Rs, 300,000/- as compensation to the legal heirs of the deceased or in default six months SI.
2. Murder reference No, 703 of 2005 for confirmation or otherwise of death sentence of Naveed Ahmad appellant and Crl. Revision No, 176 of 2005 filed by Aurangzeb complainant against Naveed Ahmad respondent shall also be disposed of through this single judgment.
2. Brief fasts of the case as narrated by Aurangzeb complainant are that on 13.5.2002 he along with his son Ghulam Ali, Muhammad Iqbal and Sain Mangi Khan was sitting in vacant plot in front of Ghausia Mosque Aziz Colony and were talking with each other. At about 12.00 noon, Naveed Ahmad came there, who took out the pistol .30-bore from the right dub and raised a lalkara towards his son Ghulam Ali that he will teach the lesson to the deceased for not marrying Mst. Saima his sister.
3. The accused fired from his pistol, hitting Ghulam Ali on his head. The accused fired another shot, which hit on the left side of the chest of Ghulam Ali. The accused fired third shot hitting Ghulam Ali on his abdomen. Complainant and other PWs raised hue and cry. The accused armed with his pistol decamped from the place of occurrence towards his house.
4. Motive behind the occurrence was that Ghulam Ali deceased refused to marry with the sister of accused namely, Mst. Saima and in order to take revenge of refusing to marry with his sister, accused committed the murder of Ghulam Ali.
3. Investigation of the case was taken over by Muhammad Hussain ASI/PW-10. He after receiving information about the occurrence reached at the spot, examined the dead body of Ghulam Ali deceased, prepared inquest report Ex.PL and application Ex.PD for autopsy and delivered the dead body for post-mortem examination, recorded the statement of complainant Aurangzaib Ex.PA, prepared rough site-plan Ex.PJ, secured blood-stained soil from the place of occurrence, secured three empties of .30-bore pistol vide memo. Ex.PG. Thereafter the investigation was entrusted to Rashid Ahmed SI/PW-9 who on 28.5.2002 arrested Naveed Ahmed accused who while in custody on 31.5.2002 got recovered .30-bore pistol P-6 which was taken into possession vide memo. Ex.PH.
5. However after completion of remaining formal investigation the accused was challend to face his trial.
4. At the trial, the prosecution in order to prove its case produced eleven witnesses in all, thereafter learned prosecutor after tendering in evidence report of chemical examiner Ex.PM regarding blood-stained grass and earth, report of Serologist Ex.PN and that of FSL Ex.PP regarding weapon of offence closed the prosecution. Then the statement of the accused was recorded u/S. 342 Cr.P.C.
6. However, after conclusion of trial, the accused was convicted and sentenced as mentioned above by the learned trial Court.
5. After having read the entire prosecution evidence, the statement of appellant recorded u/S. 342 Cr.P.C. and other material available on record, learned counsel for the appellant submits that both the eye-witnesses could not justify their presence at the spot, that it is also not possible that both the eye-witnesses choose the place which is on the bank of Nala Lai from where foul smell and detestable oduor, which is more vigorous in the month of May and entire filth drainage water including human ascreata contained in the water of Nala Lai and the complainant said that he had gone there only for the purpose of gossip and remained there for 5/7 minutes, that the meeting of both the eyewitnesses was sheer one according to their own statements before the learned trial Court, that both the eye-witnesses are disciples of Pir Syed Iftikhar Hussain Shah, that both the eye-witnesses could not justify their presence at the spot so the conviction on their statements can not be maintained, that complainant is inimical towards the appellant, that the investigating officer had also admitted that the complainant and the appellant were inimical to each other., that in such like situation strong corrobqration is required, which is not available in this case and he has relied upon 2007 SCM R 1812, 2008 P.Cr.LJ. 318, that the crime empties were sent to the office of Forensic Science laboratory after the arrest of the recovery of pistol and especially those were sent together, he has relied upon 2008 S.C. 1, 2008 S.C.M.R 707, 2002 S.C.M.R. 96, 2009 Y.L.R. 418, 2008 P.Cr.LJ. 1075. He further submits that we are left with the motive and submits that motive is double edged weapon; it is equally responsible for the false implication of the appellant.
7. Learned counsel for the appellant submits that it was admitted by the complainant that the FIR was recorded at the spot and he has relied upon 2008 S.C.M.R. 1001, 2009 P.Cr.LJ. 906, 2009 Y.L.R. 536 and PLD 2008 S.C. 9, that the FIR was recorded after due deliberation and consultation, that the doctor who conducted the post-mortem examination admitted in his cross-examination that possibility cannot be ruled out after seeing the dimension of injuries, that those can be caused by two different weapons. Further submits that if this Court is not convinced about the acquittal of appellant then there are mitigating circumstances, which caused lesser sentence to the appellant and in this regard he has relied upon N.L.R. 1990 Cr.L 530, NLR 1991 Crl. 99, 2008 YLR 3290, 2002 P.Cr.LJ.
8. 636, 2008 YLR 1290, 2000 SCMR 1473 and submits that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
9. On the other hand, learned DPG assisted by learned counsel for the complainant, who has filed criminal revision for enhancement of amount of compensation, submits that it is a case of single accused, day light occurrence, fires were repeated by the appellant, ocular account is corroborated by medical evidence and recovery of crime empties from the spot and weapon of offence. He stated that complainant volunteered stated in his examination-in-chief that electricity was off. Also submits that the complainant in examination-in-chief stated that he lodged FIR in the hospital where he had taken his son for treatment after the occurrence and this fact is corroborated by PW.10 Muhammad Hussain ASI who had stated that he reached the hospital, recorded the statement of the complainant and the same was read over to him who signed the same as token of its correctness, that near the place of occurrence there is Jamia Masjid and also houses around the place of occurrence according to site-plans Ex.PJ and Ex.PK, that as for as dimension of injuries given by the doctor is concerned, it cannot be said that two weapons were used for causing injuries on different parts of the body of the deceased where he received the injuries so it was natural for those dimension to occur that the doctor during cross-examination had also given obliging statement in favour of the appellant. He has relied upon 1990 SCM R 1272, 1986 SCM R 1027, 1999 SCM R 1991 and PLJ 2002 SC 3. Adds that the defence has himself admitted the motive of the occurrence; that the empties were taken into possession from the spot on the day of occurrence i,e, 13.5.2002 and the same were received by Muharrir of Mallkhana on the same day, that the recovery of empties on 13.5.2002 has not been challenged, that the recovery was not effected on last day of the arrest of the appellant i,e, 28.5.2002 but it was effected after 31.5.2002, that as far as, the delay in sending of fire-arm and empties to the office of Forensic Science Laboratory, is concerned, the Apex Court has given the opinion in PLD 2001 SC 107, that the delay for sending recovered articles to the concerned agency is not fatal to the prosecution case. Further submits that there are no mitigating circumstances as the appellant repeated the fire shots on the person of the deceased which resulted into his death. He has relied upon 2008 SCM R 1228 and 1229.
10. Lastly submits that the appellant committed brutal murder of an innocent person and no leniency can be shown towards the appellant.
11. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 13.5.2002 at 12.00 noon while the matter was reported to the police by Aurangzaib complainant father of the deceased in the hospital where he had taken the dead body of the deceased at 1.30 p.m. and the formal FIR was recorded on the same day at 2.00 p.m. Aurangzaib complainant was examined as PW-1 while Sain Mangi Khan not related to any party was examined as PW-2. Muhammad Iqbal PW was not produced by the prosecution and was given up being unnecessary. Appellant was arrested on 28.5.2002 and pistol was recovered on his pointation on 31.5.2002 vide memo. Ex.PH. On the day of occurrence i.e on 13.5.2002 police had taken into possession three crime empties of .30- bore pistol from the spot. The report of fire-arm expert Ex.PP is positive in nature.
12. Dr. Syed Muhammad Anwar PW-5 conducted post-mortem examination on the dead body of the deceased on 13.5.2002 at 5..00 p.m. He gave the time between injuries and death half an hour and between death and post-mortem within six hours.
13. Learned counsel for the appellant laid much stress during the arguments that place of occurrence where the two eye-witnesses were sitting was not proper as adjacent to the place of occurrence there was Nala Lai because the entire filth and drainage water including human. ascreata contained water in the Nala Lai. Learned counsel for the complainant has drawn our attention to Page 48 of the paper book and stated that during the cross-examination of Aurangzaib complainant PW-1 it has come on record that houses of both the eye-witnesses are at 250/300 feet from the place of occurrence. The reasons for coming out from their houses was the result that electricity had gone and for the relief they had come out from their houses and sat near the bank of Nala Lai. We had also gone through the site-plans Ex.PJ and Ex.PK prepared by the investigating officer and the draftsman according to which there is a Jamia Masjid and lot of population in the adjacent to the Nala Lai. It has been argued by learned defence counsel that there was previous background of enmity between the parties but we are unable to understand that there was no previous enmity between the parties because the motive of the occurrence was that sister of the appellant was engaged with the deceased for the last one year and the deceased had refused to marry her on the ground that the deceased was graduate but Mst. Saima sister of the appellant had taken education upto 5/6 class and this motive has not been denied by the appellant himself.
14. We have gone through statement of the investigating officer especially at Page 78 of his cross- examination which was brought on record by the defence himself that the resenting of engagement of sister of accused with deceased was talk of town The resenting of engagements of female are considered laughable in our culture" so this was the motive which forced the appellant to commit the murder of deceased. The complainant being father of the deceased cannot be termed as an interesting witness. As far as Sain Mangi Khan PW-2 is concerned, he is most independent and natural witness and he is not related to any party. The presence of both the eye-witnesses having their houses adjacent to the place of occurrence is natural. It is broad day light occurrence and is a case of single accused. There is no question of substitution because substitution is a rare phenomenon. Why the real father of the deceased would leave the actual culprit and would falsely implicate the present appellant in this case. In our society when the deceased is killed by any one the complainant usually involves 4/5 persons being blood relations with the accused party but in the instant case the complainant had not involved any blood relation of the appellant so it cannot be said that the complainant had falsely involved the present appellant in the present case. It cannot be said that there are mitigating circumstances in favour of the appellant in this case because the deceased had broken the engagement of his sister. The appellant made three fire shots on the person of the deceased which resulted to his death so it cannot be said that the mitigating circumstances are available in this case. As far as the arguments advanced by the learned counsel for the appellant that the FIR was recorded at the spot is concerned, it also does not appeal to reason that the complainant in his statement stated that he took his son to the hospital in order to save his life but he died there, police came to the hospital and recorded his statement Ex.PA which was read over to him and he signed the same in token of its correctness.
15. As far as the contention raised by learned counsel for the appellant that the doctor has admitted in his cross-examination that possibility cannot be ruled out after seeing dimension of the' injuries because those can be caused by two different weapons is concerned, it may be mentioned here that the deceased received injuries on different parts of his body, some time fire hit and some time did not hit so the dimension of the injuries will be different. In cross-examination doctor had stated that the injuries were caused by two different weapons but this was only done by giving benefit to the appellant by making such like statement. We may also state here that the complainant Aurangzaib PW-1 appeared before the learned trial Court on 11.11.2002, his examination-hi-chief- was recorded on the same day, his cross-examination was reserved and cross-examination was recorded on 17.1.2003, again he was cross-examined on 17.4.2003, 27.5.2003 and 17.6.2003 it means that on four dates of hearing his cross-examination was completed which consists of 17 pages but during lengthy cross-examination of this witness nothing was shattered by the defence.
16. After having heard learned counsel for the parties and going through the record, we are of the considered opinion that it was appellant who had committed the murder of the deceased, the eyewitnesses were present at the place of occurrence, they are natural and independent witnesses, they appeared before the learned trial Court and corroborated with each other. Ocular account is fully corroborated by medical evidence. The weapon of offence i,e, pistol has been recovered from the appellant. The recoveries are supportive piece of evidence and are not corroborative piece of evidence. When the Court is of the considered opinion that the eye- witnesses were present at the spot and the appellant had committed the murder of the deceased then there is no need of any further corroboration. There are no mitigating circumstances in favour of the appellant for the reason that he repeated fire shots on the person of the deceased which resulted into his death. As far as the judgments cited by both the parties are concerned, every criminal case has its own peculiar circumstances and is to be decided accordingly.
17. The result of above discussion is that the prosecution has proved its case against the appellant beyond any shadow of doubt, so the appeal filed by the appellant is dismissed and the conviction and recorded against him by the learned trial Court vide impugned judgment is maintained in toto. The death sentence is confirmed and, murder reference is replied in affirmative.
18. For the above reasons, the Criminal Revision No, 176 of 2005 filed by the complainant against the appellant/respondent for enhancement of compensation is dismissed.