MAZHAR IQBAL SIDHU, J. - Inayat Ullah Khan appellant was tried by learned Sessions Judge, Mianwali in case F.I.R. No. 27/1999, dated 03.03.1999 for the offence under Section 302, PPC registered at Police Station Mochh, District Mianwali. The learned Trial Court vide judgment dated 10.08.2006 convicted and sentenced the appellant, as under:- U/s. 302(b) Death and to pay Rs. 100,000/- as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C, and in default whereof to undergo six months' SI.
2. Feeling aggrieved by the impugned judgment, the appellant filed appeal i.e. Crl .A. No. 1385/2006, the complainant filed revision i.e. Crl.Rev.No. 867/2006 seeking enhancement of amount of compensation awarded to the appellant, whereas the Trial Court sent reference i.e. M.R.No. 665/2006 seeking confirmation of death sentence awarded to the appellant. Alt these matters shall be decided through this single judgment.
3. Brief facts of the prosecution case as narrated in the F.I.R. (Ex.PD) are that on 03.03.1999 at 11:00 a.m., Mushtaq Ahmed Khan complainant is resident of Mochh and is an agriculturist. On the same day, the complainant alongwith his brother Muhammad Ayub Khan deceased were present at the Dera of Pir Muzammil Shah in connection with ceremony of Urs and were serving meals of Urs there.
Besides them PWs Musa Khan son of Madat Khan and Khalid Khan son of Faiz, Ullah Khan were also present, when at about 10:45 a.m., Inayat Ullah Khan appellant armed with 12 bore pistol came there and made a straight fire at Muhammad Ayub Khan which hit on the ckack side of his chest on left side, who fell down on the ground. The appellant again loaded his pistol and raised lalkara that he had avenged the murder of his brother Abdur Rasheed Khan, no one should come near him and while brandishing the pistol slunk about the occurrence.
4. The motive behind the occurrence statedly was that about 14 years earlier brother of the complainant namely Zahoor Khan had murdered Abdur Rasheed Khan brother of Inayat Ullah appellant and the case was registered.
5. Dr. Muhammad Khan (PW.5) conducted the post-mortem examination on the dead-body of Muhammad Ayub Khan on 03.03.1999 at about 12:30 p.m., and observed the following injury:-
1. An entrance wound of fire-arm in a group of four almost circular measuring 4 cm x 3 cm on the back of left chest, 4 cm away from midline and 11 cm below the scapula.
In his opinion, the cause of death was cardio-genic shock, haemorrhagic shock caused by injury No. 1 that damaged of vital organs like heart, lung, liver and esophagus. The injury was ante- mortem and sufficient to cause death in ordinary course of nature; the probable time which elapsed between injury and death was immediate while the same between death and post- mortem was about 1 to 2 hours.
6. Investigation of this case was conducted by Qarab Ali Shah, Inspector (PW.10). On 03.03.1999 he was posted as Inspector/SHO at Police Station Mochh. On the same day at 11:00 a.m., he recorded the F.I.R. (Ex.PD), proceeded to the spot, prepared injury statement Ex.PG, inquest report Ex.PH and dispatched the dead-body to the mortuary for post-mortem examination. Then he inspected the spot, secured blood imbrued earth vide recovery memo. Ex.PE. After the post-mortem examination, the last worn clothes of the deceased were handed over to this police officer which were taken into possession' vide recovery memo. Ex.PA. On 14.03.1999, he arrested the appellant and on his personal search, recovered 12 bore pistol P.3 alongwith 4 live cartridges P.4/1-4 which were taken into possession vide recovery memo. Ex.PF, the pistol was made into sealed parcel and prepared the site plan. He also got prepared scaled site plan through draftsman Ex.PB and Ex.PB/1. He after recording the statements of the relevant witnesses and complying with legal formalities submitted challan before the Trial Court.
7. Finally the matter was placed before the learned Trial Court and at trial the prosecution produced as many as ten witnesses to bring home the charge against the appellant.
8. The learned Trial Court also examined appellant under Section 342, Cr.P.C, who while answering to question "Have you anything else to say?", made the following reply:- 7 was suffering from effective mental disorder since 1996 and I was under the constant treatment of Dr. Brgd. Fazal-e-Haq, Professor of PIMS and Advisor Psychiatry and was lunatic even after this occurrence I was subjected to medical examination regarding ailment by a Medical Board which was headed by Director General Health Services Pb., Lahore as Chairman and eminent doctors such as Professor of Neurology, King Edward Medical College, Lahore, Medical Supat, Services Hospital, Lahore, Professor of Psychiatry KEMG, Lahore, Executive Director Punjab Institute of Mental Health, Lahore and Consultant Psychiatrist, incharge Punjab Institute of Mental Health as members of the Board. The Board examined me on many occasions and every time I was declared as having Bipolar effective mental disorder. I have been assisted by my relatives in joining this trial and I cannot understand the implication of the charge against me, and I cannot even understand the evidence recorded against me in this case".
9. The appellant did riot make Statement under Section 340(2), Cr.P.C. However, he relied upon the reports of the Medical Board constituted on the orders of the Lahore High Court, Lahore as well as by the learned Trial Court. The learned Trial Court vide judgment dated 10.08.2006, convicted and sentenced the appellant as mentioned supra, hence this appeal.
10. In support of this appeal, learned counsel for the appellant submits that it is a case of remote motive; after the first incident in which Abdur Rasheed brother of the appellant was murdered, no untoward incident occurred till the instant occurrence and what erupted before the happening of the instant incident is murky. Learned counsel submits that in fact the F.I.R, was not lodged pronto as shown but in connivance with the police, the same has been shown so but the post-mortem of the deceased was conducted with delay, why it had happened. Learned counsel submits that the incident took place during the ongoing celebration of Urs but no independent person has either been cited or produced by the complainant party to support its version. Learned counsel submits that both the PWs i.e. Mushtaq Ahmed Khan is the real brother of deceased Muhammad Ayub whereas the other eye-witness Khalid Khan is also related to the deceased and he has categorically admitted in the cross-examination that he was on inimical terms with the appellant.
Learned counsel submits that the occurrence took place at the Dera of Pir Muzammil Hussain Shah situated in the area of Moazwala, whereas Khalid Khan the alleged eye-witness (PW.8) is the resident of Mochh, District Mianwali and during the days of occurrence he was working at Addah Mianwali situated at a distance of 30 miles from the place of occurrence, his presence at the place of occurrence has not reasonably been established by the prosecution. Learned counsel has also submitted that it would be parlous to rely upon the solitary statement of Mushtaq Ahmed Khan for upholding the quantum of sentence. Learned counsel lastly submits that it is a case of a single shot and in the ambient circumstances it seems condign to reduce the quantum of sentence from death to life in case of dismissal of appeal. Learned counsel submits that the alleged recovery of 12 bore pistol is inconsequential as there is no positive report of the ballistic expert to the effect that the weapon was used in the commission of crime.
11. Learned DDPP has opposed the submissions made by learned counsel for the appellant, It has been submitted that the occurrence took place during the daylight i. e. At 10:45 a.m., on 13.03.1999 whereas the F.I.R, was lodged at 11:00 a.m., on the same day, the pronto lodgment of the F.I.R. , specially by not involving any other person except the appellant shows bona fide of the complainant party. He further submits that the motive is very much attributed to the appellant, it is immaterial that he caused a single fire shot on the deceased but it has to be seen the damage caused and the same is death of Muhammad Ayub brother of the complainant, It has been submitted that during the cross-examination it has been brought that the deceased party had enmity with the other persons and it was very easy for it to involve some other enemies but it has not been done by the complainant party, this fact alone is sufficient to believe the veracity of prosecution version. He submits that the recovery of 12 bore pistol corroborates the ocular account as according to the doctor death was caused with the fire-arm weapon and four metallic pallets were also recovered from the corpse, non-availability of any positive report of the ballistic expert as tp the weapon allegedly recovered from the appellant does not demolish the prosecution case.
He submits that enmity never goes old because it remains rankling through dudgeon in the mind of demon, thus, it has been prayed for the dismissal of the appeal and answering positive to the murder reference.
12. Arguments hearkened and record gone through.
13. The incident took place in the ongoing celebration of Urs when the meal was being distributed to the visitants at about 10:4.5 a.m., and the matter was reported to the police immediately thereafter i.e. At 11:00 a.m. The pronto lodgment of F.I.R, itself is sufficient to be credited to the prosecution version especially when the sole appellant has been arrayed as an accused in this case, It has been found that about one and half decade earlier real brother of the appellant Abdul Rasheed was slain by Zahoor real brother of Muhammad Ayub deceased and since then enmity was going on between the parties and the appellant got a reasonable opportunity during the Urs proceedings for the commission of murder of Muhammad Ayub. We have also found that the deceased party had enmity with other people of the vicinity but no other person except the appellant has been involved in this case. The parties were known to each other prior to the occurrence, therefore, being a sun-lighted occurrence the question of mistaken identity of the appellant had not arisen. of course, the motive has to be regarded as a double-edged weapon and it is required to be taken as a corroborative piece of evidence, its non-proof or disproof otherwise does not make any difference in the prosecution case provided the same is proved on the basis of other cogent material available on the record but in this case the motive has not been shattered, It has been learnt from the record that the accused of the previous murder was released from jail after having served of sentences imposed upon him.
14. So far as the ocular account in this case is concerned, indubitably, complainant Mushtaq Ahmed Khan examined as PW.7 is the real brother of the deceased whereas the other PW Khalid Khan examined as PW.8 also claims to be related to the deceased but he has also not concealed this fact that he was inimical to the appellant but this fact alone is not sufficient to throw away his evidence because the prime consideration for taking into consideration the evidence of a PW is that the probable presence of a PW in the circumstances of the case has been found correct and he has been tested on touchstone of acid test of cross- examination and with rationality he endured the same, then the statement of the PW cannot be discarded, even on account of his enmity with the accused, the presence of both the PWs is quite natural because they were distributing the meals to the visitants at the time of occurrence participated in the Urs. We have not found any loophole in the evidence of both the PWs to come to a conclusion that both the PWs were not present at the spot. The statements of both the PWs are unison on the material points and no material contradiction, omissions and confrontations have been found therein.
15. So far as the non-examination of any other independent person in this case is concerned, the Honourable Supreme Court of Pakistan has held as back as 50 years that the independent persons do not become witness in a case in order to avoid unwanted enmity with the concerned parties to the occurrence. Even otherwise, the independent corroboration is not a rule of law but the same is a rule of prudence, the same cannot be applied in each and every case and the same is not applicable in this case as the occurrence took place during the day light. The appellant was nominated by the PWs, the motive goes against him and no question of false involvement has been found.
16. The medical evidence synchronizes the ocular account as four metallic pallets have been extracted from the corpse of the deceased at the time of performing autopsy, It is paddling to discuss more on it.
17. So far as the recovery of .12-bore pistol from the appellant is concerned, it is expendable to dilate upon the same in the absence of any its positive report but suffice it to say that the doctor has categorically stated that the injuries received by the deceased were caused with a firearm.
18. The motive in this case is very strong to kill the deceased by the appellant. We have not found any extenuating circumstance to reduce the capital sentence of the appellant to imprisonment for life. We have not seen any perversity in the impugned judgment, In these circumstances, we are of the view that the prosecution has been able to prove the case against the appellant. Therefore, the instant appeal fizzles of and is dismissed.
19. Resultantly the death sentence of the appellant IS CONFIRMED and Murder Reference No. 665/2006 sent by the learned Trial Court under Section 374, Cr.P.C., is answered in the AFFIRMATIVE.
20. As far as the revision i.e. Crl. Rev. No. 867/2006 is concerned, we have not found any circumstance to enhance the amount of compensation, the same is adequate in the circumstances of the case. Thus, the revision petition is also dismissed.