JUDGMENT SH. NAJAM-UL-HASAN, J.---Rana Muhammad Shahid, appellant was tried by the learned Additional Sessions Judge, Sargodha in case F.I.R. No. 10 dated 30-1-2005 under section 302, P.P.C. Registered at Police Station Factory Area, Sargodha. The learned trial Court vide judgment dated 26-11-2005 convicted the appellant under section 302(b), P.P.C. And sentenced him to death. The appellant was also directed to pay Rs.1,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to suffer six moths. S.I.
2. Feeling aggrieved of the impugned conviction and sentence, the appellant has filed Criminal Appeal No.406-J of 2006 whereas the learned trial Court has approached his Court by way of Murder Reference No.799 of 2005 seeking confirmation of death sentence awarded to the convict. Both these matters being interconnected are disposed of together through this single judgment.
3. The prosecution story in brief as unfolded in the F.I.R. (Exh.PE/1) is that the complainant (P.W.19) was serving in Wapda Department. On 30-1-2005 at 11-15 a.m. He was sitting along with his son Muhammad Saleem at the shop while on the opposite side of the street in a plot Muhammad Hanif father of the complainant along with Muhammad Sharaf-ud-Din and Muhammad Rafiq were sitting on cast. In the meantime Rana Muhammad Shahid appellant came at the shop and wants to purchase house hold article on credit. On refusal of the complainant the appellant became furious and gave abuses and thereafter returned back to the house. The complainant along with his son came towards the vacant plot from the shop. After some time Rana Muhammad Shahid, appellant came back from his house while armed with .12 bore gun and raised lalkara that he will teach them a lesson for not giving him the house hold article. The appellant fired with gun which hit at the head of father of the complainant namely Muhammad Hanif who was sitting on cot.
Muhammad Hanif succumbed to the injuries at the spot. Rana Muhammad Shahid appellant fled away from the spot while raising lalkara.
4. On 30-1-2005 Dr. Muhammad Afzal (P.W.1) performed autopsy on the dead body of Muhammad Hanif and found a fire-arm lacerated wound of entry 15 c.m. x 10 c.m. On top of skull with a piece of bone 6 c.m. x 4 c.m. Separated and brain matter along with blood coming out from the wound.
The doctor opined that Injury No.1 was sufficient to cause death in the ordinary course of nature and was ante-mortem. Probable time between injuries and death was less than one hour and probable time between death and postmortem was within five hours.
5. Ghulam Murtaza, Sub-Inspector (P.W.11) conducted investigation of this case. He inspected the dead body, prepared injury statement (Exh.PB) and inquest report (Exh.PC). He took into possession blood-stained earth from the place of occurrence vide recovery memo. (Exh.PG). Cot (P-1) was also taken into possession. On 13-2-2005 he arrested Rana Muhammad Shahid, appellant who in police custody led to the recovery of gun (P-5) along with 3-live cartridges (P-5/1-3), an empty (P- 6) was recovered from the gun which were taken into possession through recovery memo. (Exh.PJ).
After the completion of investigation he challenged the appellant to Court to face trial.
6. After framing of charge, the prosecution produced as many as eleven witnesses. Out of them Muhammad Nasim complainant P.W.4 and Muhammad Rafique P.W.5 provided the ocular account whereas Dr. Muhammad Afzal P.W.I. Provided medical evidence. Investigation was proved by Ghulam Murtaza (P.W.11). Investigation of this case was also conducted by Muhammad Azam Javed, D.S.P. (C.W.1.). The remaining witnesses were formal in nature.
7. The learned trial court examined the appellant under section 342, Cr.P.C. He denied and dismissed each piece of prosecution evidence and claimed innocence.
8. At the conclusion of trial the learned trial court convicted and sentenced the appellant as narrated earlier, hence, this appeal.
9. Learned counsel for the appellant contends that motive alleged in the F.I.R. Was not properly proved by the prosecution; that according to the prosecution case the motive was against the complainant who was statedly present at the place of occurrence but the appellant fired at the father of the complainant who was an old man of 90 years of age, no reason for making such fire at the father of the complainant is available in the whole prosecution case; that it the site plan the place where the deceased was lying was later on changed by the witnesses while appearing in the Court just to bring the prosecution case in line with the circumstances narrated by the witnesses; that no crime empty was recovered from the place of occurrence, later on .12 bore single barrel gun was recovered on the pointation of the appellant but the formalities of section 103, Cr.P.C. Were not fulfilled; that only two constable were shown as recovery witnesses even their names were not mentioned in the Calendar of witnesses attached with the report under section 173, Cr.P.C.; that recovery of gun has got no legal value because no empty was recovered from the place of occurrence; that the empty recovered along with the gun same was sent to the Fire Arms Expert, therefore, positive report of Fire Arms Expert doest not improve the prosecution case at-all; that during postmortem examination the doctor recovered the metallic body underneath the injury which was shown to the doctor at trial who stated that it was the chip of a bullet; that if the injury on the head of the deceased was the result of gun fire then there should have been more injuries because the fire was made from a distance of 5/6 feet. Further contends that the complainant was son of the deceased whereas Rafique P.W. Was inimical towards the appellant and other witnesses were given up by the prosecution so their statements are not sufficient for conviction of the appellant for a capital offence. Learned counsel for the appellant relied on the case reported as Muhammad Khalid Khan v. Abdullah and others (2008 SCM R 158) in which Hon'ble Supreme Court did not rely on the prosecution evidence which was brought on record through inimical witnesses.
Learned counsel lastly contends that the motive part put forward by the prosecution has not been properly proved. It is contended that Muhammad Azam Javed, D.S.P. (C.W.1) appeared in the witness-box and stated that during his investigation another motive was also brought on record that on the day of occurrence the son of the appellant went to the shop of the complainant to purchase some biscuit which was given to him not in any bag rather in the lap of his shirt, the appellant protested and in that process he was given beating. Ultimately he came along with gun and fired with which the deceased expired. Further contends that in these circumstances the motive put forward by the prosecution is not fully proved and there is a possibility of some other motive so in these circumstances the appellant is entitled to certain exception even if the prosecution case is admitted as true.
10. On the other hand, learned Deputy Prosecutor-General states that the occurrence took place in broad day light and parties were previously known to each other that the appellant has been specifically named as accused; that the place of occurrence is in front of the shop of the complainant and specific allegation of firing on the head of the deceased with the gun is assigned to the appellant, that the complainant is the son of the deceased and only single accused has been involved and no reason for involving the appellant and letting of the real culprit has come on record. Further contends that presence of witnesses is natural and is fully proved; that Muhammad Rafique P.W. Was resident of near by area and inquest report indicate that he was present at the place of occurrence when police came at the spot and he signed the inquest report; that postmortem examination of the deceased was conducted within five hours of the occurrence and such prompt postmortem report leads to only conclusive inference that no time was available to the complainant to manoeuvre or concoct the story. Further contends that even the D.S.P.
Conducted the investigation and he ultimately found the appellant fully involved in the case; that identity of the appellant is not matter in dispute; that recovery of .12 bore gun from the appellant is also a circumstances which supports the prosecution case; that the appellant had all the intention to kill the deceased and is liable to capital punishment.
11. We have heard the arguments of learned counsel for the parties and have gone through the record.
12. In this case the occurrence took place in front of the shop of the complainant and the deceased at 11-45 a.m. In the broad daylight. The deceased was sitting on the cot in an open plot in front of the shop of the complainant. The deceased was the father of the complainant and was a man of 90 years of age. The matter was reported to the police at 12-00 (noon) i.e. Just after few minutes of the occurrence.
Formal F.I.R. Was registered at 12-25 p.m. So it can be said with certainty that the F.I.R. Was promptly registered within 1-1/2 hours. The postmortem was conducted at 4-15 p.m. Within five hours of the occurrence. The inquest report was duly signed by the doctor who conducted the postmortem examination. This fact leads to only one inference that there was no time available for the complainant or the police to maneuver the case. In the inquest report name of the witness Muhammad Rafique (P.W.5) is duly mentioned. He also signed the same, so the presence of the witness at the place of occurrence when the police came is also proved. He is neighbour of the complainant and his presence at the place of occurrence is more than natural. In the F.I.R. Only the appellant has been nominated as an accused and specific role of firing with .12 bore gun on the person of the deceased is attributed to him.
13. The doctor who conducted the postmortem examination observed a firearm injury on the head of the deceased. In the F.I.R. It was stated that the appellant fired with .12 bore gun at the head of the deceased so the time of occurrence, the kind of weapon and seat of injury mentioned in the postmortem report corroborates the ocular account furnished by the eye-witnesses.
14. So far as the contention of the learned counsel for the appellant that as the doctor has observed a chip of bullet recovered underneath the injury and this indicates that the said injury was not the result of gun shot, we have seen the postmortem report in which it is mentioned that the piece of bone was separated and the brain matter along with blood was coming out. Since the skull was fractured and the brain matter was coming out, even if the injury was the result of fire made by a bullet even then there was no reason for the presence of bullet underneath the wound as it would have passed along with brain matter. The presence of metallic piece indicates that one of pallets remained underneath the injury and the remaining have passed by fracturing the skull.
So in these circumstances medial evidence fully supports the ocular account.
15. The complainant was son of the deceased whereas Muhammad Rafique P.W. Was an independent witness. The defence has tried to indicate that Muhammad Rafique P.W. Was an inimical witness but the fact remains that this is a case in which the allegation is against the single accused and the F.I.R. Was registered by the son of the deceased. No reason for the son to falsely implicate the appellant in this case has come on record. It is well settled that kith and kin of the deceased do not ordinarily substitute the real culprit because two situations arises (i) why would they involve unconcerned person in the occurrence and
(ii) why would they allow the real culprit to escape the consequences of his brutal act. The Hon'ble Supreme Court in case reported as Irshad Ahmad and others v. The State and others (PLD 1996 Supreme Court 138) has held that the substitution is a rare phenomenon because the interested witnesses would not normally allow the real murderers of their relations to escape by involving innocent persons.
16. No crime empty was recovered from the place of occurrence. This aspect of the case has been strongly criticized by the defence. Prosecution case is that the appellant came while armed with gun and fired a shot at the deceased. There is no evidence that he reloaded the gun. Gun .12113 bore ejects the empty only if the same is reloaded. In the absence of any evidence of reloading the gun or to make second shot, non-availability of crime empty is but natural and rather supports the prosecution case.
17. The recovery of gun from the appellant is also a circumstance which supports the prosecution case. As the gun was not reloaded and non-availability of crime empty is not a circumstance which goes in favour of the appellant in this case.
18. The police collected blood stained earth from the spot and the cot on which the deceased was present was also taken into possession. This also provides support to the ocular account.
19. The contention of the learned counsel for the appellant that during investigation by the DSP another motive was also brought on record. The document has been placed on the file through (Exh.DA) by the defence in which, it was mentioned that on the basis of ( ) a version was brought on record that the matter started as the son of the appellant was given biscuits on a piece of paper in the lap of his shirt and when the appellant protested an altercation took place. Thereafter the appellant went to his house and came along with the gun and made a straight fire at the head of the deceased who was sitting on the cot and ran away. Firstly, this version was brought on record not through the evidence of any person who has himself seen the same and secondly, even according to this version, the appellant came armed from his house and straight way fired at the head of the deceased, so the appellant is not entitled to any kind of leniency. The face which has been brought on record through cogent evidence is that the appellant came armed having all the intention to commit the present offence and thereafter fired at the head of the deceased who died in result of the same. The seat of injury is such that the intention of the appellant was absolutely clear and he was sure that the result of such injury would be the death and nothing else.
20. While considering all these aspects of the case we are of the considered view that the prosecution has proved its case against the appellant to its hilt. There is nothing on record entitling the appellant to any lenient view regarding the sentence. It has been held by the Hon'ble Supreme Court in the case reported as Nasir Shah v. The State (2006 SCM R 1796) that normal sentence in such like cases is death and when the case was otherwise proved knowledge and proof of motive would not be necessary as sometime the motive is only in the mind of the assailants and is known to Almighty Allah alone.
21. In view of the above discussion we do not find any reason to differ with the findings of the learned trial Court. In this case we do not find any mitigating ground for awarding lesser penalty to the appellant. Consequently, Criminal Appeal No.406-J of 2006 filed by Rana Muhammad Shahid, appellant is dismissed.