' MAZHAR IQBAL SIDHU, J.--- ' This judgment will dispose of Criminal Appeal No.701 of 2006 filed by .Nadeem alias Dina appellant who was convicted and sentenced by learned Addl: Sessions Judge, Shakargarh, District Narowal in case vide F.I.R. No.147 dated 19-11-2005 under section 302/34, P.P.C. Registered at Police Station Lesser KaIan, District Narowal vide impugned judgment dated 274-2006. Following conviction and sentence was imposed on the appellant:- ' NADEEM ALIAS DINA, ' 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 above said appeal filed by Nadeem alias Dina convict-appellant against his conviction and sentence as well as Murder Reference No.380 of 2006 for confirmation of death sentence or otherwise have been disposed of. Through , this judgment.
3. P.W.1 Dil. Pazeer the father of deceased Muhammad Tayyib examined as P.W.1 submitted an application Exh. PA for the registration of case disclosing therein that on the day of occurrence i.e. 19-11-2005 he came back from his job in village and was told him at about 4-00 p.m. By P.W.2 Abdul Ghafoor and Shah Muhammad P.W.3 that Muhammad. Tayyib his son was proceeding towards Mosque to present up prayer at about 3-00 p.m., some miscreants who were in drunk condition watching blue prints movies on a television screen through compact disc (C.D) and were raising noises in the disused house of Ameer Hussain, were restrained by the deceased. The appellant Nadeem alias Dina was armed with pistol and his companions Mudassir Machi, Asif, alias Guggu and Muhammad Tariq (all acquitted) while holding different types of fire arms caused expletives to the deceased whereupon all the P.Ws. Attempted to subdue them whereupon Nadeem alias Dina made a fire shot with his pistol hitting on left side of chest of Muhammad Tayyib deceased who fell down dead. The appellant along with his co-accused while making fires took the heals from the spot. The incident was narrated to the complainant by the P.Ws. As mentioned above.
' The motive behind the occurrence was that the appellant along with co-accused used to perform misdeeds in the deserted house by way of drinking watching of obscene movies etc. And the deceased have been asking them to refrain from the same.
4. The complainant with an application Exh.PA was about to proceed for the registration of case towards police station but at the spot the Investigating Officer Muhammad Rafique, S.-I (I.0.) (but demoted as ASI when his statement was recorded before the trial. Court) came at the spot, the complainant presented said application before him which was signed by him, the same was sent by the I.O. After making endorsement on it sent the same to Police Station by Ashiq, constable 418/C whereupon formal F.I.R. Exh.PA/1 was recorded by Muhammad Saleh MHC 387.
5. The' Investigating Officer inspected the place of occurrence, after thorough inspection of corpus prepared inquest report Exh. PF, injury sheet Exh.PJ, drafted an application for autopsy Exh. PK and the dead body was handed over to Nazarish Ali and Manzoor Ahmad constable to escort the same for its post-mortem examination to THQ, Hospital Shakargarh.
6. Thereafter the Investigating Officer prepared site plan without scale of the place of occurrence Exh.PL, collected blood-imbrued earth from the place of occurrence made the same into sealed parcel and memo Exh.PC was prepared, collected empty bottle of liquor P1, TV set P2, C.D P3, magazine of pistol P4 cassettes P5 10 in number P5/1-10, empties bottle of Coca Cola 4 in number P-6/1-4 from the place of occurrence, took them into possession through memo Exh.PB. Both the memos were attested by the P.Ws. He recorded the statements of the P.Ws. Under section 161 Cr.P.C.
And on the same day i.e. 19-11-2005 after the autopsy last worn blood imbrued raiments of the deceased Shalwar P-9, Qameez P-10, led of bullet P-11, the clothes stained with blood were handed over to the I.O. By the constable, the same were taken into possession vide memo Exh.PG attested by the P.Ws. On the same day he arrested Mudassir alias Machi, Tariq and Asif co-accused (acquitted) and on the following day they were sent to the Hospital for medical examination through Hanif, A.S.-I.
7. On 24-11-2005 he got prepared scaled site plans of the place of occurrence in duplicate Exh.PH and PH/1 from the draftsman Tahir Tasleem P.W.6, placed the site plans on the file.
8. On 25-11-2005 Nadeem alias Dina appellant was arrested, he while in police custody on 2-12- 2005 on his disclosure and pointing out recovered pistol P7, on being unloaded 4 live bullets were emitted P8/1-7. All the articles were taken into possession vide memo Exh.PD whereas the pistol was also made into sealed parcel through the same memo. He prepared the site plan of the place of recovery Exh.PM.
9. After the completion of investigation the appellant along with his co-accused since been acquitted were put to trial, on their being denial to the charge prosecution was directed to lead evidence for the prove of the case, 10 witnesses in total were produced for the proof of the case.
' The medical evidence was adduced through the statement of Dr. Javed Iqbal MO THQ, Hospital, Shakargarh P.W.8. He on 19-11-2005 at about 10-00 p.m: conducted postmortem on the dead body of Muhammad Tayyab and observed as under:-- ' INJURIES.
(I) A lacerated wound of 3/4 cm x 1/2 cm at the left side of chest near armpit. Inward and to the right side/direction.
(II) A lacerated wound of 1 cm x half cm at the left side of chest, 1 cm away (inner side of injury No.1)/ direction.
' According to the opinion of the doctor, injuries were caused by fire-arm weapon, ante-mortem in nature. The injury damaged the lungs caused death due to haemorrhage and shock. The time between injuries and death was within twenty minutes and the time between death and postmortem examination was within eight hours. Exh.PI signed by the doctor was the correct carbon copy of post-mortem examination. Exh.PL was injury statement and inquest report is Exh.PF both were signed by him. Exh.PI/1 pictorial diagram and Exh.PI/2 showing the location of injuries also signed by him.
' In order to prove the ocular testimony the prosecution produced Dilpazeer P.W.1 complainant, Abdul Ghafoor P.W.2 and Shah Muhammad P.W.3.
' Learned S.P.P renounced the P.Ws. Namely Mansoor Ahmad No.575/C, Muhammad Hussain son of Masar Din and Muhammad Siddique son of Bagh Din as being unnecessary and after having in evidence report of Chemical Examiner Exh.PN, report of Serologist Exh.PO and report of Forensic Science Laboratory Exh.PP, closed the prosecution evidence. Then statement of the appellant was recorded under section 342, Cr.P.C. In which he negated the charge and professed his innocence.
However, appellant made a detailed statement while answering to a question why this case is against you and why the P.Ws. Have deposed against him as follows:-- "It is an admitted fact that the alleged, occurrence was not witnessed by the P.W.1 Dilpazeer complainant, father of (deceased). This fact has been admitted by P.W.1 complainant in Ex.PA and it is also admitted that he lodged the F.I.R. Exh.PA in the shape of written application on the behest of P.Ws. And other people who were not witnesses of the occurrence. P.W.2 Abdul Ghafoor alleged eyewitness contested elections and was defeated twice. P.W.3 who is brother-in-law of complainant and maternal-uncle of (deceased). These persons had ill-will, enmity, bias against me and against my other co-accused, so this being unwitnessed occurrence was lodged by the complainant Dilpazeer at the behest of these two alleged P. Ws. I am innocent and have been falsely involved in this case. An F.I.R. No.139 of 2005 under section 382; P.P.C. Was lodged against one Shahzad, Goga, Ashraf of village Kukyal at Police Station Lessar Kalan. The (deceased) had friendship and association with the said persons., Javed brother of my co-accused Asif was complainant in the aforesaid case. The complainant party might have involved me and my other co-accused for having grievance and ill will due to this case."
10. Culmination of the trial resoluted in handing down the impugned judgment of conviction.
11. In support of this appeal learned counsel for the appellant has submitted that there was no previous enmity between the parties; the occurrence took place at the spur of the moment; complainant P.W.1 is not an eye-witness of the occurrence and his statement is nothing except on dit whereas the remaining two eye-witnesses Abdul Ghaffur and Shah Muhammad are related to the complainant as well as deceased; all co-accused have been acquitted on the same evidence; no evidence has been brought of booze against any of the accused; the recovery of the alleged pistol does not support the prosecution case; the appellant at the time of occurrence was 19/20 years; a single fire shot was made by the appellant despite having opportunity to cause more injuries and the prosecution evidence is inconsistent inter se as well as with the medical evidence.
12. Learned DDPP assisted by learned counsel for the complainant has controverted the submissions. It has been submitted that parties to the occurrence were known to each other before the occurrence; the incident took place at about 3-00 p.m. Under the light of sun and the matter was reported to the police at 5-40 p.m; no undue delay has been caused by the complainant 'in laying information to the police; motive is very heinous in this case as the appellant and his co- accused have been doing obscene acts after consuming of liquor hootch by displaying blue movies on the T.V. Screen; the deceased has been asking them to avoid from the same as he was a noble young man; sufficient proof as to it has been brought on the record by taking into possession T.V set, compact disk, empty bottles of liquor and that of cocks; the deceased was the only son of his parents aged about 22 years at the time of incident; the appellant in knowingly and intentionally made a fire shot on the chest of the deceased to take his life; as per the post mortem report one led of bullet was extracted from the body; during the investigation .30 bore pistol was recovered from the appellant on 2-12-2005; its Ballistic Report shown to be in working position and the minor discrepancies/ contradictions cannot be taken parlous because with the afflux of time such like minor things may come through the P. Ws. But no such material contradictions or dishonest improvements have been brought on the record which may extirpate the prosecution case; causing of single shot by itself is no ground for toning down the quantum of sentence and thus has hankered prayed for dismissal of appeal.
13. Hearkened and record perused.
14. Perusal of the file throws up that there was no previous enmity between the parties. The motive set up by the prosecution has been proved meta any shadow of doubt by taking into possession certain articles from the spot hereinbefore mentioned and the deceased did nothing such as heinous act which was not tolerable by the appellant. It is natural phenomenon that if anybody indulges in obnoxious activities particularly in the village life' because of the same people of the vicinity are text and if anybody asked them not to do such like activities but ft never means that insult was caused to the other party but in this case contrary to this we have observed that on the way of mosque, the appellant and his co-accused used to view the blue movies, under the influence of liquor kept on shouting and they were asked by the deceased not to do this whereupon the only son of the crest-fallen complainant Dil Pazeer P.W.1 and benighted mother has been done to death. We believe that the prosecution has proved its motive against the appellant.
No doubt the complainant is not an eye-witness of the occurrence and his evidence may not be taken as on-dit but at the same time this fact cannot be glossed over that two eye-witnesses as P.
W.2 Abdul Ghaffur and P.W.3 Shah Muhammad saw the incident and in their presence, the deceased asked the appellant and his co-accused to refrain from the immoral activities. They intimated the entire occurrence to the complainant and they have also made statements during the trial. In this way, it cannot be said that source of information about the occurrence of the complainant does not exist. Had these two P. Ws. Not been examined as eye-witnesses, then it could have been said that statement of the complainant cannot be taken into consideration being.
Both the P. Ws no doubt are related to the deceased but at the same time the appellant was also related to them and in lack of any previous enmity between the parties especially being their presence natural at the place of occurrence, therefore their testimony cannot be disbelieved.
15. Post mortem examination was performed on the same day at about 10-00 p.m. By (P.W.8) Dr. Javed Iqbal. Who observed one fire shot injury on the chest of the deceased, another injury was also found but the same was not caused with the fire shot, one led of the bullet was recovered while conducting the postmortem examination. Time between the injury and the death as well as between the death and the postmortem both commensurate with the A timing of the incident.
Medical evidence fully corroborates the prosecution case and no contradiction or inconsistency has been found therein.
16. So far as the recovery of the pistol is concerned undoubtedly no positive report as' required by law is available on the file but fact remains the pistol was found in working order by the Ballisitic Expert and led of bullet was taken out from the dead body of the deceased, therefore, it is believed that the weapon used in the commission of crime was firearm.
17. So far as the causing of single firearm shot is concerned, in some times, it can be taken a stance to mitigate the quantum of sentence of an accused but it is not universal principle and cannot be applied in each and every case. Every case has to be taken within its own prospect. Deceased Muhammad Tayyab was a quite young man aged about 22 years when he was made to kiss the dust and was the only son of his parents and it cannot be said exaggeration by describing that he was the only luminous candle of his parents, and was the hope of the old parents, we have also taken note of it that appellant was of the same age group i.e. 19/20 years at the time of occurrence but his.Keeping of pistol at the time of occurrence having been indulged along with others in nefarious activities as evident from the record and just on being refrained him by the deceased, the appellant reacted so desperately by making a fire flate lined him. We have not seen any ground of mitigation in this case and any loophole in proving the prosecution case against the appellant beyond shadow of doubts.
18. For what has been discussed above, the instant appeal is dismissed, the sentence of death of appeal is confirmed and the Murder Reference is answered in the positive.