Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 96 of 2004 filed by Rustam, appellant, who was convicted and sentenced by learned Sessions Judge, Attack, vide impugned judgment dated 20.3.2004 to death under Section 302(b) PPC and to pay Rs, 200,000/- as compensation to the legal heirs of the deceased or in default six months SI.
Murder Reference No, 305 of 2004 for confirmation or otherwise of death sentence of Rustam appellant shall also be disposed of through this single judgment.
2. Brief fasts of the case as narrated by Taimoor Idress complainant are that his father originally hailed from village Thatti Gujran and for the last 22/23 years they have been living in their personal house situated on Railway Station road Fateh Jang. The complainant studied up to intermediate and had applied for recruitment in the education department. On 8.7.2003 at 12.15 noon he along with his father went to education office Fateh Jang to know about the progress of recruitment and were returning to their house, when they reached at CNG petrol pump road all of sudden Rustam accused appeared in front of them and demanded return of his amount from Haji Muhammad Younis saying that he would take his amount from him. There upon Haji Muhammad Younis replied that amount was not available with him and sought a little time for the return of amount but the accused brought out .30-bore pistol from his fold and fired three successive shots upon Haji Muhammad Younis which hit on left side of cheek, left side of the chest and in front Of the abdomen on the right Side as a result of which Haji Muhammad Younis was seriously injured and fell down on the ground. Complainant further alleged that Muhammad Anwar and Muhammad Safdar PW, who were present nearby hotel, of Ramzan also saw the occurrence and the accused fled away from the spot with his .30-bore pistol and his father succumbed to the injuries at the spot.
Motive for the occurrence was that an amount of Rs, 8000/- of Rustam accused was outstanding against Haji Muhammad Younis which he could not return and due to said grudge, Rustam accused committed murder of Muhammad Younis. On hearing the report of firing a number of residents of surrounding area came to the spot.
3. Investigation of the case was taken over by Riaz Hussain Inspector/PW-14. On receipt of information about the occurrence, he went to the spot, prepared injury statement Ex.PN and inquest report Ex.PO of the deceased and sent the dead body to the mortuary for postmortem examination. He inspected the spot, prepared rough site-plan of place of occurrence Ex.PB, secured blood-stained earth vide memo. Ex.PF, secured three empties P-7/1-3 from the spot vide memo. Ex.PG and recorded the statements of witnesses. On 2.9.2003 he arrested the accused and during his search, he recovered pistol P-6 and three live bullets, which was taken into possession vide memo. Ex.PH and after completion of formal investigation, the accused was sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced fourteen witnesses in all, thereafter learned prosecutor after tendering in evidence report of chemical examiner Ex.PQ report of Serologist Ex.PR and that of Forensic Science Laboratory Ex.PS closed the prosecution case. Then the statement of the accused was recorded u/S. 342 Cr.P.C. 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 as far as motive is concerned, prosecution failed to prove the same because before the learned trial Court two different motives were mentioned by the prosecution. As far as Taimoor Idrees PW- 12/son of the complainant is concerned, he submitted that he did not know when his father received Rs, 8,000/- from the accused as a loan and what was the purpose behind it while on the other hand Muhammad Anwar PW-13 stated before the learned trial Court that accused had deposited two installments regarding his insurance policy so the prosecution has miserably failed to prove the motive against the appellant and when this is the position then the law of land is that death can't be awarded.
Learned counsel further submits that in fact it was not a case of promptly lodged FIR because according to Taimoor Idrees complainant ten minutes after the occurrence he started towards the police station and at 12.35 p.m. the FIR was lodged, which is very impossible. Adds that proceedings under Section 87/88 Cr.P.C. were not yet completed when the appellant appeared before the police on 2.9.2003 because the date of appearance according to non-bailable warrants of arrest was 15.9.2003 so there was no question of abscondance of the appellant.
As far as recovery of weapon of, offence and crime empties from the spot is concerned, learned counsel submits that it is not helpful to the prosecution because report of fire-arm expert is negative in nature. He submits that as far as presence of Taimoor Idrees complainant is concerned, that is a fabricated one because office of Education Department was on Rawalpindi- Fateh Jang road while the occurrence had taken place behind CNG pump so his presence at the spot is doubtful. Learned counsel submits that conduct of the complainant is most un-natural, he did not try to save his father from the hands of the appellant, he did not follow the accused after the occurrence, although he had seen the accused from a far of distance coming to them, that no independent witness was either cited or produced by the prosecution although many persons had seen the occurrence that Muhammad Anwar PW-13 was not in a position to see the occurrence because he was on the eastern side, that he is 'an old man and also used glasses and he also stated that when he reached the accused ran away from the spot, that he did not saw the accused and the complainant corning towards the place of occurrence and he is strong supporter of P.M.L (N) where the deceased used to visit in the office of P.M.L (N), that there is no confirmative statement in support of these two eye-witnesses. Learned counsel lastly submits that if his submissions regarding the acquittal of the appellant are not accepted to this Court, then there are mitigating circumstances for lesser sentence in favour of the appellant on the ground that prosecution has miserably failed to prove the motive set up by the complainant in the FIR. Reliance is placed on 1990 SCMR 406, 2010 SCM R 97, 2002 SCM R 99 and 2006 SCMR. 1840.
6. On the other hand, learned DPG assisted by learned counsel for complainant submits that it is a case of promptly lodged FIR so there was no time of deliberation and consultation, that as far as motive is concerned, while coming at the spot appellant asked the deceased to pay a loan on which deceased replied that he be given some time to pay the same so the prosecution has proved the motive. Learned counsel submits that appellant had himself admitted the motive and learned defence counsel has also brought on record the motive from the mouth of the appellant that 10/12 days prior to the occurrence the deceased and appellant had quarreled on that ground, that name of Muhammad Anwar PW-13 is mentioned in the FIR and he is neither related to any party nor any enmity has been suggested, he is most natural witness, he had a show room near the place of occurrence, he was sitting in a hotel along with one Safdar (not produced) and taking tea. Submits that one month and 24 days after the occurrence the appellant was arrested, he was already involved in a murder case and he knew the recovery of weapon of offence and negative report of fire-arm expert can damage the prosecution case. Reliance is placed on PLD 1996 SC 53.
He further submits that there are fire-arm injuries on the vital part of the body of the deceased, appellant had come at the spot with determination to kill the deceased, that this was not required that in order to get the loan back he should commit the murder of the deceased by firing three shots, that how the eye-witnesses including the son of the deceased could interfere when the appellant was armed with fire-arm, that the prosecution has proved its case against the appellant beyond any shadow of doubt and the appeal filed by him is liable to be dismissed.
7. We 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 8.7.2003 at 12.15 noon while the matter was reported to the police by Taimoor Idrees PW-12 son of the deceased at police station which was at the distance of two furlong at 12.35 p.m. The name of the appellant, the role he played and the name of eyewitnesses have been mentioned in the FIR, the other eye-witness is Muhammad Anwar PW-13 whereas Safdar eye-witness was given up being unnecessary. Three empties P-7/1-3 were recovered from the spot vide memo. Ex.PG. On 2.9.2003 the appellant was arrested and on the same day he got recovered pistol P-6 along with three live bullets, which were taken into possession vide memo. Ex.PH.
Doctor Khalid Latif PW-2 on 8.7.2003 at about 2.00 p.m. conducted post-mortem examination on the dead body of Muhammad Younis deceased. The probable time elapsed between injuries and death was immediate and between death and post-mortem examination was within two hours. In the instant case, the motive behind the occurrence was that the deceased had taken Rs, 8000/- from the appellant and he had been demanding the same but the deceased did not return the same. While cross-examining Taimoor Idrees PW-12, the defence itself had brought on record at Page 37 of the paper book that: "accused had demanded the return of loan of Rs, 8000/- from my father 10/12 days before the present occurrence in my presence. None lese was present at that time, that demand was made by the accused in our house. At that time my father had told the accused that the amount was not available with him and he would return the same later on".
It was the defence who had brought the above said facts on record. During course of arguments, learned counsel for appellant stated that Muhammad Anwar PW-13 during cross-examination stated that in fact the appellant had paid two installments of insurance policy amounting to Rs, 4000/- each to deceased but the fact remains that Rs, 8000/- was taken by the deceased from the appellant as loan so in our considered opinion prosecution has proved the motive against the appellant.
Now we take up ocular account furnished by Taimoor Idrees PW-12 and Muhammad Anwar PW-13 who have fully supported the prosecution case, though Taimoor Idrees is son of the deceased but he has no enmity against the appellant and there was no previous background of enmity between the parties and as far as Muhammad Anwar is concerned, he is the most natural witness, he had a show room near place of occurrence, he was taking tea with Safdar (not produced), he had seen the occurrence and he is neither related to any party nor he has any enmity against the appellant.
It was argued by learned counsel for appellant that both complainant party and Muhammad Anwar PW belongs to P.M.L (N) and they were friend with each other but the fact remains that at that time there was Musharaf Government and P.M.L (N) was not in a position to support the complainant party in registration of case against the appellant.
There is another important factor which has not been raised by either side i,e, that occurrence took place at 12.15 noon and the matter was reported at 12.35 p.m. even in the brief facts of the inquest report, the name of eye-witnesses, the name of the appellant and the role he played has been mentioned by the investigator, then the appellant did not appear before the police for one month and 24 days and Abid Ali Shah, ASI/PW-1 had appeared before learned trial Court and stated that he had gone to the house of the appellant for execution of non-bailable warrants of arrest. Though the appellant appeared on 2.9.2003 before the police and got recovered pistol on the same day but as he was already involved in a murder case so he knew about the recovery of weapon of offence in this case, even otherwise recovery of fire-arm is a supportive evidence and not a corroborative piece of evidence If the empties did not match with the pistol recovered from the appellant, it does not damage the prosecution case when . ocular account has come from an - unimpeachable source having intrinsic value without any animosity, which is corroborated by medical evidence so there is no need of any further corroboration. Then there are no mitigating circumstances in favour of appellant because it is not a case of single shot but the appellant fired three successive shots on the person of deceased which resulted into his death and he had come at the spot with complete intention and knowledge having fire-arm and committed the murder of the deceased. It is a broad day light occurrence, parties were known to each other so there was no question of mistaken identity and one can't expect from a son that he will leave the actual culprits and would falsely involve an innocent person so there was no question of substitution in this case because substitution is a rare phenomenon. We have gone through answer to Question No, 9 given by the appellant in his statement u/S. 342 Cr:P.C. to the effect that one Riaz had committed murder of deceased and he has been falsely implicated in this case. We are not going to believe this story of the defence and it is out rightly rejected.
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 eye-witnesses 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 learned counsel for the appellant are concerned, that are not applicable in this case because every criminal case has its own peculiar circumstances and is to be decided accordingly. Resultantly, the appeal filed by the appellant is dismissed and the conviction and sentence 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.