MAZHAR IQBAL SIDHU, J.---This judgment will dispose of Criminal Appeal No.859 of 2006 filed by Ghulam Mustafa appellant who was convicted and sentenced by learned Additional Sessions Judge, Wazirabad in case vide F.I.R. No.315 dated 1-11-2005 under section 302, P.P.C. Registered at Police Station Ahmad Nagar, Wazirabad vide impugned judgment dated 13-5-2006 as well as the Murder Reference No.357 of 2006 for confirmation of death sentence or otherwise have been disposed of through this judgment. Following conviction and sentence was imposed upon the appellant:-- GHULAM MUSTAFA Death under section 302(b), P.P.C. And fine of Rs.100,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo six months S.I.
2. The facts in brief as contained in complaint, Exh.PA are that on 1-11-2003 at about 2-00 p.m the complainant's brother namely Khalid Mehmood was proceeding to bring fodder for the buffaloes.
When he came close to the engine of Rafique, Mustafa son of Ashiq Ali appellant who was sitting in the ambush, in the fields emerged there while armed with .12 bore pump action gun. On seeing the brother of the complainant he started abusing him and raised Lalkara to teach a lesson him for not giving the hunting dog. Meanwhile, he started firing at the brother of the complainant who was seriously wounded and succumbed to the injuries at the spot. On hearing the fire shots, complainant Abid Hussain, Karamat Ali and Muhammad Boota, P.Ws. Who were working in the fields, were attracted to the spot and accused appellant on seeing them fled away.
Motive behind this occurrence is that a day prior to the incident, the accused demanded hunting dog from the deceased one who refused which was taken as grudge by the accused appellant.
3. The investigation was initially entrusted to Waqar Haider A.S.-I. (P.W.8) who proceeded to the place of occurrence and inspected the spot, found the dead body of deceased lying in khaal (water course); inspected the same; prepared the injury statement Exh.PG, inquest report Exh.PH, drafted the application for post mortem examination Exh.PJ; handed over the dead body to Muhammad Iqbal, constable for postmortem examination, made the same into a sealed parcel and took it into possession vide recovery memo Exh.PE, four empties of cartridges of .12 bore gun were also taken into possession from the spot vide recovery memo Exh.PF, after sealing the same into a parcel. The ASI recorded the statement of P.Ws. Under section 161, Cr.P.C, prepared site plan without scale Exh.PK. On the same night at about 9-00 p.m. Muhammad Iqbal constable presented before the I.O., the post-mortem paper and the last worn clothes of the deceased comprising of Shalwar P1 and Kameez P2 blood-stained. He took the above articles into possession vide recovery memo Exh.PC. On return to Police Station, he deposited the case property to Moharrar Malkhana.
The investigation was then entrusted to Shabbir Khan S.-I. (P.W.11) on 2-11-2005 and he arrested the appellant on 8-11-2005. The said accused appellant on 14-11-2005 during interrogation while on physical remand after making disclosure led to the recovery of .12 bore gun P3 from his residential house. The S.-I. Prepared a parcel of the gun and took the same into possession vide recovery memo Exh.PD, prepared site plan of the place of recovery, without scale Exh.PD/1. On return to Police Station he deposited the case property with Moharrir. On 15-11-2005 the accused was sent to Judicial lock up through court. On 21-11-2005 the parcel of gun, which was returned by the office of Forensic Science Laboratory due to objection, after removal of the same, he again deposited the parcel of gun with Moharrar Malkhana. On 22-11-2005 the draftsman was taken to the spot who took rough notes on the pointation of P.Ws. And prepared site plans in duplicate, handed over the same to the S.I. On 24-11-2005 he made notes with red ink over the same. After completion of the investigation challan was submitted in court to face the trial.
4. Trial commenced on the denial of indictment.
5. Prosecution in order to prove its case produced as many as 12 witnesses in all. The medical evidence was adduced through the statement of Dr. Sheraz Ali M.O. THQ, Wazirabad (P.W.2) who conducted the post-mortem examination on the dead body of Khalid Mehmood on 1-11-2005 and observed the following:- INJURIES
(1) Multiple entrance wounds, 10 in number with blackening and burning present in 11 x 7 cm area on upper and lateral aspect of left arm with clinical fracture of left humerous.
(2) Fire arm exit wounds of injury No.1, five in number measuring 7 x 7 cm area .2 cm below left axila at the medial aspect of left arm.
(3) Fire arm re-entrance wounds of injury No.1 five in number without blackening and burning in 8 x 9 cm area 3 cm below left axila on lateral aspect of left chest.
(4) Fire arm entrance wounds, five in number with blackening and burning at the medial aspect of right forearm and wrist junction in 6 x 5 cm area with fracture of wrist joint.
(5) Fire arm exit wounds five in number on lateral aspect of right forearm and wrist in 8 x 7 cm area.
(6) Fire arm entrance wound in the middle lumber region measuring 4 x 2.5 cm with blackening and burning .15 cm from left and right posterior superior iliac spline and 7 cm above the end of sacral promontery.
According to the opinion of the doctor, all injuries were ante mortem in nature, especially injuries No.3 and 5 resulting in haemothorax and haemoperitonium and injured heart leading haemorrhagic shock and death.
The probable time between death and injury was 5 to 10 minutes, and between death and post mortem, was seven hours. Post mortem report is Exh.PB whereas pictorial representation is Exh.PB/1 which bore his signature.
7. Learned S.S.P gave up Muhammad Rafique, Zubair DDA, after tendering in the evidence the report of Chemical Examiner Exh.PM and the report of Serologist Exh.PM/1 closed the prosecution evidence.
Then the statement of the appellant was recorded under section 342, Cr.P.C. In which he negated the charge and professed his innocence. However, he neither produced any oral evidence in his defence nor made his statements under section 340(2), Cr.P.C. Appellant Ghulam Mustafa made his detailed statement about the occurrence while answering the following question that why this case against him and why the P.Ws. Deposed against him is reproduced infra:-- "I belong to Rajpoot Brotheri and I have enmity with the Lumberdar group of Rajpoot brotheri. The Lumberdar of the village drafted the application and due to the family dispute I was nominated in this case. I have no hand in the commission of offence. I never demanded any hunting dog nor had any interest in the hunting. The P.Ws. Have deposed against me at the behest of Lumberdar falsely."
The trial concluded in conviction and sentence of the appellant.
8. In support of this appeal, it has been argued that the complainant being tuge of lumberdar of the village and on his inkling has falsely involved the appellant in this case, the motive of the case does not appeal to reasons as on a petty matter, it cannot be believed that the appellant killed Khalid Mehmood deceased. Learned counsel has further submitted that Abid Hussain, complainant examined as P.W.6 and Karamat Ali P.W.7, both are real brothers, the occurrence took place in the fields, at the time of occurrence presence of the peasants in the nearby fields was certain as these were the working, hours of the tillers and none of those had either cited a witness or produced anything during the investigation against the appellant. Learned counsel has further argued that the whole case of the prosecution hinges upon the statements of highly blood relationship with the deceased and they can also be dubbed as inimical.
8. Learned counsel has further submitted that false recovery of four empty cartridges had been planted, the weapon of offence had also been planted upon the appellant by the police in connivance with the adversaries of the police with a view to establish the prosecution case.
Learned counsel in this regard further argued that empty cartridges as well as the alleged weapon were sent together in the office of Forensic Science Laboratory, Lahore on the same day i.e. 29-11- 2005. In this way report of the same Exh.PN carries no value in the eyes of law because there is every possibility that after making fire shots from the alleged weapon planted upon the appellant, both were sent to the said office in order to obtain positive report. Lastly it has been maintained that on the account of non prove of motive, even otherwise on being a weak motin doubtful recovery of the crime weapon, as well as the report of the Chemical Examiner and the Forensic Science Laboratory at least a case of mitigating in sentence is made out in favour of the appellant.
9. Learned D.D.P.P has opposed the appeal and it has been argued that the occurrence took place in this case on 1-11-2005 at about 2-00 p.m., the deceased died at the spot on account of injuries caused by the appellant. The complainant, without wasting any time reported the matter to the police and F.I.R. Was lodged at about 3-00 p.m. On the same day. Learned counsel submits that proximity of time in between the occurrence and the lodgment of the F.I.R. Excludes all hypothesis as to deliberation, consultations and spot inquiry. In this background, learned counsel has further argued that the deceased received as many as four entry wounds and two exit, it was very easy for the complainant party to raise number of accused in this case and to involve the appellant in this case alone again excludes any extraneous penetration in this case.
10. As regard motive it has been argued that the complainant party belonged to downtrodden clan in the society and on not giving a hunting dog by the deceased to the appellant made him so dare devil that the appellant made four fire shots on the deceased. Learned counsel for the petitioner submits that it can never be taken that false motive was set up by the prosecution and there is no rebuttal of it on the record. With respect to entry testimony, it has been argued that undoubtedly Abid Hussain complainant P .W.6 and Karamat Ali P .W.7 eye-witnesses are real brothers of the deceased but fact remains they were not inimical or hostile to the appellant before the occurrence; their statements cannot be looked suspiciously being related; the presence of the P.Ws. At the relevant time at the place of occurrence is quite natural; as the benighted deceased was proceeding to take "Parali" for his buffaloes on the way he was gun downed by the appellant whereas complainant and other P.Ws. Were busy in nearby fields saw the incident; that statement of both the P.Ws. Are consistent and have also been corroborated by the medical evidence; that medical evidence is consistent with the prosecution ocular account. Lastly learned counsel for the petitioner, submits that from the spot, four crime empty cartridges of .12-bore gun were taken into possession, placed them into sealed parcel and thereafter the appellant was arrested and on 14- 11-2005 he on his disclosure and pointing out got recovered pump action gun, both in the separate sealed parcels were sent to the office of Forensic Science Laboratory, Lahore, it's report is positive and the same again corroborates the prosecution version. Learned counsel further submits that it is foolproof case against the appellant and also deserve no leniency and has hankered for dismissal of appeal.
11. Heard. Record scanned.
12. Incipiently, it has been found that the instant case excludes either previous enmity or deep- rooted enmity between the parties. In this back ground the appreciation of evidence is made. In this background the prosecution evidence as well as the defence version shall be violated.
Occurrence took place on 1-11-2005 under the heat of sun at about 2-00 p.m., deceased lost his life at the place of occurrence, the complainant leaving P.Ws. To guard the dead body at the spot lodged the F.I.R. On the same day at about 3-00 p.m. Against the appellant. It seems that the complainant did not involve any person so far as the lodgment of the F.I.R. Is concerned. Deceased received this fire shot wound on his body and it could easily be done by the complainant to raise number of the accused in this case but how he honestly and faithfully lodged the F.I.R. Against the person who actually took the life of his brother. We have explored through the record that the complainant did not exaggerate the concerned by any means. Now the first document of the prosecution case i.e. The F.I.R. Exh.PA/1 is taken as most sacrosanct piece of evidence in the prosecution case. So as the motive of the case is concerned statutorily motive is not regarded as fact in issue but under Article 21 of Qanun-e-Shahadat Order 1984 it is only a relevent fact in issue and the same may be taken as one of the component for the perpetrator of offence. In this case motive is this that one day earlier to the happening of occurrence the appellant asked for the hunting dog of the deceased from him but the deceased regretted about the same. This act of the deceased made the appellant so revengeful and on this act, being insulted at the hands of a menial of the village. Upon this, the appellant rankled in his mind to teach a lesson on the refusal mentioned above to the deceased. The appellant being a co-villager had the knowledge about the timing pursuits of the deceased, he hid out of way of the deceased and caused him multiple fire shot injuries. Record reveals that deceased has no enmity in the vicinity where he lived and he was not only a labourer but was also a poor man. No doubt no direct evidence has been produced by the prosecution on the motive but even otherwise we have found no motive in this case for the false involvement of. The appellant. The version of the appellant that he had been involved by the complainant on the instigation of Lumberdar of the village is meta of reasons and cannot be believed.
13. Prosecution case hinges upon the statements of two eyewitnesses i.e. Abid Hussain P.W.6 and Kiramat Ali P.W.7, real brothers of the deceased and it cannot be glossed over that they are related to the deceased but at the same time we have not found any element to dub them as inimicals. No previous enmity has been found, therefore, presence of the P.Ws. At the place of occurrence is quite natural as they were working in nearby fields to the place of occurrence. Another important prospect in this case has been found by us that neither the complainant nor the P.W. Has exaggerated the prosecution case otherwise we have seen a number of cases that the complainant intentionally involved innocent person to quench his thrust or to blackmail the innocent people but this ailment does not exist in this case. Statements of the P.Ws. Or inter se unison, no material contradiction or improvement have been found. On the basis of relationship, their statements cannot be thrown out of consideration. We have also noted that generally the people belonging to other clan avoid to become a witness in the case. Searching cross- examination has been made upon both the P.Ws. But the defence remains unsuccessful to prove out anything in favour of the appellant. Statements of the PWs have been corroborated by the medical evidence. In peculiarity has been seen by us in the prosecution version that both P.Ws. Had made statements in a very natural way that the appellant made firing at the deceased, the same hit him who died at the spot. The word firing means more than one fire were made by the appellant and the doctor has found four entry wounds on the body of the deceased whereas the Investigating Officer has also taken into possession for the spent cartridges from the place of occurrence. In this way no dent has been found in the prosecution version. Deceased Khalid Mehmood was subjected to post mortem examination on the same day at about 8-00 p.m. As under the artificial light postmortem is permissible. The doctor has given the duration between the death and post-mortem as A 7 hours, the compatibility in between the time of occurrence and performing of autopsy exists. The doctor has found six injuries on his person out the same two were found as cutlet. 11 pellets were extracted by the doctor while performing autopsy; again this fact corroborates the prosecution version.
14. The Investigating Officer took into possession 4 spent cartridges from the place of occurrence, the same were made into sealed parcel, thereafter appellant was arrested on 14-11-2005 and while in police custody he on his disclosure had got recovered pump action gun on the same day. Both the articles were made into a sealed parcel on their respective dates and were sent to the office of Forensic Science Laboratory, Lahore and the report has been found positive by the expert. Now it has been noted down that both the articles were sent together in the said office but we may not be oblivious on the lethargic attitude of the police. It may be taken as an irregularity or slackness on the part of the police but the same fact cannot make recovery doubtful and also its report. 11 pellets were extracted from the body of the deceased by the doctor whereas the prosecution case is this that a weapon used in the commission of occurrence in which the cartridges are used and further more cartridges emit pellets. Now in this way we have found a complete harmony right from the beginning up to the last event in the prosecution case. So far as the plea of the appellant that he has been involved because of his enmity with the lumberdar group of Rajpoot Brotheri in the village does not appeal to reasons. It is noteworthy to reproduce the version of the appellant taken by him in his statement recorded under section 342, Cr.P.C.:-- "I belong to Rajpoot Brotheri and I have enmity with the Lumberdar group of Rajpoot Brotheri. The Lumberdar of the village drafted the application and due to the family dispute I was nominated in this case. I never demanded any hunting dog nor had any interest in the hunting. The P.Ws. Have deposed against me at the behest of Lumberdar falsely."
15. Waqar Haider A.S.-I. (P.W.8). And Sher Khan S.-I. (P.W.11) both investigated the case but during cross-examination nothing has been found favouring to the appellant. We have not found any material/substance to tone down quantum of sentence in this case. The appellant repeated fire shots on the deceased who left behind 8 orphans. He was aged about 40.
16. For what has been discussed above, the prosecution has fully proved its case beyond shadow of reasonable doubt against the appellant. Appeal tiled by the appellant fails and stands dismissed.
Murder Reference is answered in the positive and the death sentence of Ghulam Mustafa appellant is hereby confirmed. The conviction and sentence recorded against him by the learned trial Court on all the charges is hereby upheld.