' FAZAL-I-HAQ ABBASI, J.---We intend to dispose of Criminal Appeal No,676 of 2010, filed by Mukhtar Alam against' the judgment dated 15-7-2010, passed by Additional Sessions Judge/Izafi Zilla Qazi- III, Swat, whereby the appellant was convicted under sections 302(b)/34, P.P.C. And sentenced to death as `Ta'azie, with Rs,2,00,000 (two lac), as compensation, payable to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default thereof to suffer six months' S.I. And Murder Reference No,25 of 2010, under section 174, Cr.P.C., sent by the trial court, through this common judgment.
2. Brief facts are that an occurrence took place on 13-1-2009, at 12-30 p.m., which .Was reported on the same day at 13-50 hours, at Casualty Ward of Saidu Sharif Hospital, by Fazal Nawab, P.W.8 and recorded by Wazir Hussain A.S.-I., P.W.2, in shape of Murasila Exh.P.W.2/1. It was stated in the report that he along with his maternal cousin Asghar Ali, aged 16/17 years, in a Taxi Motor Car, driven by Fazal Ghani, P.W.9, had come to attend the court of Sessions Judge, Gulkada. On return, when at the time (given above) reached .The place of occurrence, there Mukhtar Alam and Sardar sons of Sargand, residents of Nawagai along with two unknown persons, having Fire Arms, stopped the vehicle, deboarded them forcibly and the driver was sent away. Unknown persons caught hold and started slapping him. Mukhtar Alam and Sardar started firing at his companion, who, with the firing of Mukhtar Alam was hit on the abdomen and face and sustained injuries. Accused decamped after the occurrence. Injured was being taken to the hospital, but succumbed to the injuries on the way. Occurrence was witnessed by the persons present there. Motive was previous enmity between the deceased and the accused. He charged the above-mentioned accused for beating him and murder of his cousin. Wazir Hussain, A.S.-I., P.W.2 after recording the report, obtained thumb- impression of complainant on the same, verified and thumb-impressed by Aqal Wazir. Sent the report for registration of the case to P.S., prepared injury sheet and inquest report Exh.P.W.2/2 of the deceased and handed over the dead body to the doctor for post mortem examination. On the basis of report Exh.P.W.2/1, case vide F.I.R. No,8 dated 13-1-2009; under sections 302/34, P.P.C. Was registered at Police Station Ghalagai, District Swat, by Fazl-ur-Rehman, A.S.-I., P.W.10, in shape of Exh.PA.
3. After registration of the case investigation was carried out by Fazl-urRehman, A.S.-I. P.W.10. He visited the crime spot, prepared site plan Exh.P.W.10/1. During spot inspection, he took into possession blood-stained earth through memo. Exh. P.W.6/1 and three empty shells of .30 bore, vide recovery memo Ex.PW.6/2, sealed the same in separate parcels, in presence of marginal witnesses, recorded their statements under sections 161, Cr.P.C. Arrested accused Mukhtar Alam in presence of Sartaj Khan, S.H.O., P.W.11 and prepared card of arrest Exh.P.W.10/2. S.H.O. Took into possession pistol P.1, produced by the accused, sealed the same in parcel and prepared memo Exh. P.W .3/1. As accused could not produce any license, therefore, S.H.O. Registered the case under section 13 A.0 and entrusted investigation to him. He recorded the statements of marginal witnesses under section 161 of Criminal Procedure Code. Through application Exh. P.W.10/3, he produced the accused before the court for recording his confessional statement. He took into possession garments of, deceased consisting of shirt and "banyan" both blood-stained having corresponding cut marks and sealed the same into parcel through memo Exh.P.W.3/2 in presence of witnesses. He sent the pistol and empty shells to the Fire Arm Expert through application Exh.P.W.10/4, report whereof is Exh.P.W.10/12. He also sent blood-stained earth and garments of deceased through application Exh.P.W.10/5 to the Laboratory and the report of Serologist is Exh.P.W.10/13. He placed on file list of legal heirs of deceased Exh.P.W.5/6. Through application Exh.P.W.10/7 obtained copy of order sheet 'Exh.P.W.10/8, from the court of Sessions Judge/Zilla Qazi, Swat and placed the same on file. He recorded the statements of witnesses and Mst. Amida, mother of deceased and got recorded the statements of Mst.Hamida and ".Fazal Ghani, under sections 164, Cr.P.C. On 20-1-2009, applied and obtained warrant under section 204, Cr.P.0 against accused Sardar Alam, as he was intentionally avoiding his lawful arrest. He also applied and obtained proclamation notices under section 87, Cr.P.C. Against aforesaid accused. After completion of proceedings against Sardar Alam accused and the investigation, handed over case file to Amjad Khan, S.H.O., who after signing the complete challan submitted the same to the court for trial.
4. After receipt of the .Complete challan, the trial court, recorded the statement of Muhammad Hanif DFC as SW-1, regarding abscondence of Sardar Alam, complied with section 265-C, Cr.P.C, framed the charge against Mukhtar Alam accused, who did not plead guilty and claimed trial. Trial court recorded the statements of eleven P.Ws. And thereafter statement of accused; who pleaded his innocence, however, did not opt to produce defence evidence or to appear and give statement under section 340(2), Cr.P.C. Learned trial court after hearing the arguments of the parties, convicted and sentenced the accused as stated in para-1.
5. Learned counsel for the appellant argued that Dr. Sajjad Karim P.W.1 stated in cross-examination that dead body was identified by police and as such presence of complainant at the spot and lodging the report by him in the hospital is doubtful. He further contended that it is highly unbelievable that the accused on the following day of his arrest, made confession without any police custody. It was submitted that the statement of complainant P.W.8 is contradicted by the confessional- statement to the effect that complainant stated that Mukhtar Alam and Sardar made firing and with the firing of Mukhtar Alam deceased was hit, while in confessional statement of Mukhtar Alam, he stated that he and Sardar Alam fired at deceased with which he was hit.
Learned counsel submitted that confession should be believed or discarded in toto. He further averred that no identification parade of the accused was conducted through Fazal Ghani Taxi Driver P.W.9 as such the prosecution case was doubtful. In the alternative, learned counsel submitted that in the light of confessional statement, if it is relied upon then it is not clear that whose shot proved fatal and that as the deceased was charged for the murder of the brother of accused then it was "revenge" and the appellant deserves leniency in the matter of sentence and case of mitigating circumstances is made out. Learned counsel relied on PLD 1994 Peshawar 126, 2007 SCM R 1639, 1998 SCMR 1815 and 2001 SCM R 1363.
6. Learned counsel for complainant and Additional Advocate-General for the State argued that accused is charged in a promptly lodged F.I.R. With a specific role. Medical evidence is in line with the prosecution case. Accused was arrested having crime weapon in his possession, made confessional statement, corroborated by the recoveries and positive reports of the laboratories and that motive stood proved, as such prosecution proved its case against the accused to the hilt, therefore, he is liable to normal penalty of death as provided under the law. They relied on 2002 SCM R 1493, 2003 SCM R 522 and 2009 SCM R 825.
7. We have heard the learned counsel for the parties and perused the record.
8. In the present case report was lodged by P.W. Fazal Wahab within one hour and 20 minutes of the occurrence in the hospital, with reasonable promptitude giving a specific role to the present appellant that with his fire shots deceased was hit on the abdomen and face. There was hardly any time for deliberation or consultation because the injured was being shifted to the hospital to save his life but he succumbed to the injuries on the way. It was quite natural that the complainant opted to take the injured to the hospital to save his life than taking him to the Police Station because everyone would prefer to save the life than to lodge the. Report. Statement of complainant could not be shattered by the defence. Dr. Sajjad Karim P.W.1 stated in his examination-in-chief that the dead body was identified toy Miraj Khan and Muhammad Wazir, therefore, his statement in cross-examination that the dead body was identified by police is of no consequence and cannot in any negate the presence of complainant at the spot or in the hospital at the time of "lodging the report. So far argument of the learned counsel for appellant that it was not' believable that accused Mukhtar Alam made confession on the following day of his arrest.
Wajid Ali Khan, Judicial Magistrate P.W.5 stated that accused wanted to record his confessional statement with his sweat will, which fact is A further corroborated by the confessional statement Exh.P.W.5/2 that he voluntarily made confession and admitted the occurrence. He stated that they inquired from Asghar Ali as to why he, murdered their brother Muhammad Razzaq, he while bowing his head, kept standing, thereafter, he and his brother Sardar Alam opened fire, with which he was hit and fallen to the ground. He stated in his confession that he has got no repentance. He also stated that he produced the crime weapon i,e,, .30 bore pistol to the police. As far as contradiction in between the statement of complainant P.W.8 and the confession is concerned, P.W.8 stated that with the firing of Mukhtar Alam, deceased was hit on the abdomen and face, while accused stated that he and Sardar Alam opened fire with which Asghar Ali was hit. He has not stated that with his firing deceased was not hit as such in our humble view there is no contradiction in between statement of P.W.8 and the confession.
8A. As far the contention regarding non-holding of the identification parade of accused through Fazal Ghani Taxi Driver P.W.9 is concerned, there was no need of the same because the accused were known to the complainant P.W.8. Fazal Ghani, P.W.9 proved the going of the complainant and the deceased to the Court of Sessions Judge, coming back and their arrival at the place of occurrence which fact is further corroborated by the recoveries from the spot, from the accused and positive reports Exh.P.W.10/12 and Exh.P.W.10/13. Attending the court by Asghar Ali on the day of occurrence is further proved by order sheet Exh.P.W.10/8 recorded by Sessions Judge.
9. Now coming to the next contention of the learned counsel for the appellant that as the deceased was involved in the murder of brother of accused, therefore, he murdered him in revenge and it should be taken as mitigating circumstance is concerned, if this argument is accepted then there is no need to have a recourse to law and the courts. In case reported in PLD 2001 SC 94 in Para 4 it was held by the apex court that "this court in number of occasions has held that private revenge is not a mitigating circumstance." Motive stands proved by the statements of P.W.7, P.W.8 and the confessional statement.
10. Commission of offence of Qatl-eAmd of Asghar Ali, deceased has been proved beyond any shadow of doubt. P.W.8 categorically stated that with the fire shot of the present appellant, deceased was hit on the abdomen and face, which is corroborated by medical evidence, recoveries from the spot and the weapon recovered from the possession of the appellant with positive laboratory reports, confessional statement of the accused and the motive. Case-law cited by the learned counsel for appellant is not applicable to the facts and circumstances of the present case.
11. Appellant and his co-accused pursued the deceased with pre-planning. He fired two shots on the vital parts of the body of deceased, which proved fatal. Murder of deceased, a young boy of 16/17 years, was committed by the appellant in a callous, brutal and cold-blooded manner. No leniency can be shown to him. In our view charge of Qatl-e-Amd of Asghar Ali stands proved against the appellant. Normal penalty provided for the offence is death. There being no extenuating circumstances in the case, we do not find Any reason to interfere in the findings arrived at by the trial court. Therefore, the appeal in hand is dismissed and death sentence awarded under section 302(b)/34, P.P.C. By the trial court is confirmed.
' Murder reference is answered in affirmative.