' SYED HUSSAIN MAZHAR KALEEM, J:---Above titled appeal -been directed against-'the judgmentof District Court of Criminal Jurisdiction, Kotli dated 16-7-2010, whereby the appellant was convicted and awarded sentence of Qisas under section 302, A.P.C. With two lac rupees fine under section 544-A, Cr.P.C. While he was acquitted of the charge under section 506, A.P.C. A reference under section 374, Cr.P.C. Has also been made by the said Court for confirmation of the sentence of 'Qisas'.
2. Brief facts forming background of the appeal and the reference are that a case under sections 302/34, 506, A.P.C. Was registered at Police Station, Nar on the complaint of Abdur Razzaq. It was reported that the complainant was resident of Parai. On 28-10-2006 his nephew Muhammad Rizwan son of Muhammad Bashir was also present in his house. At about 8-30, a.m. Raj Muhammad armed with .12-bore gun and Nazakat with stick came in the street near the house.
They were abusing them Raj Muhammad fired two shots which hit Muhammad Rizwan at his left thigh and hands. He fell down. Nazakat had been raising lalkara and instigating the accused not to let the victim go alive. The offenders fled away after committing the offence. The occurrence was stated to be witnessed by Muhammad Nazim, Rafaqat and Mazhar Hussain. Motive behind the occurrence was an unpleasantness which took place between the nephews of the complainant and grandsons of Raj Muhammad. The victim was taken to hospital where the doctor after examining him told that he had succumbed to the injuries.
3. After completion of investigation, the challan was submitted before District Court of Criminal Jurisdiction Kotli. The charge against the convict-appellant and the co-accused was framed on 20-11-2006. They pleaded not guilty, upon which the prosecution was directed to produce evidence in support of its case. On conclusion of the trial, the Court acquitted Nazakat Hussain on the ground of compromise between the parties, however, convicted Raj Muhammad appellant in the aforesaid manner, through the impugned judgment, hence the above titled appeal and the reference.
4. Learned counsel for the clonvict appellant argued that allegedly the occurrence took place in a thiCkly populated area but no independent witness of the locality was cited. The prosecution examined only close relatives of the deceased, whose statements were in contradiction to each other and were not supported by any independent material. Recovery of weapon of offence was highly doubtful; the convict-appellant was acquitted of the charge under section 13/20/65 of the Arms Act by Civil Judge empowered as Magistrate 1st Class, Kotli through his order dated 25-8- 2009, thus the recovery was of no help to the prosecution case. True facts were suppressed by the eyewitnesses. The convict-appellant also sustained injuries during the occurrence and no reasonable explanation was given by the prosecution. Motive was not proved. There was nothing on record indicating that the convict-appellant hatched a conspiracy or he was intending to commit the offence of murder, thus the conviction was not warranted in the circumstances, therefore, by accepting the appeal and setting aside the impugned judgment the convict- appellant may be acquitted of the charge.
5. On the other side, it was argued that the occurrence took place during broad day light, identification of the convict-appellant was not in doubt. He was nominated in promptly lodged F.I.R.
Names of the eye-witnesses were also mentioned therein. Act done by him and the manner of occurrence were also described by the eye-witnesses. Allegation of firing vith .12-bore gun and committing murder if Mohammad Rizwan was corroborated by Dost mortem report and it was further supported by the recovery of weapon of offence at instance of the convict-appellant. Claim of injuries at the person of convict-appellant was false, the injury sheet and medico-legal report pertaining to him were not proved during trial and in light of the statement of P.W doctor it was established that the said documents were fabricated. The ocular version was supported by four eye-witnesses and it was corroborated by other incriminating material. The prosecution successfully proved its case against the convict-appellant. The trial Court appreciated the evidence on record in a judicial manner and rightly convicted the appellant.
6. Learned Additional Advocate-General representing the State supported the arguments advanced by learned counsel for the complainant and further added that the convict-appellant was responsible for committing the murder of an innocent young boy. The offence was committed in a brutal manner. The prosecution successfully proved the allegations and the convict was rightly awarded the sentence of 'Qisas'. The impugned judgment being in accordance with law and facts of the case warrants no interference, therefore, the appeal may be dismissed.
7. We have heard the learned counsel for the parties and gone through the record of the case.
8. Since the appeal and the reference arise out of the same case, therefore, these shall be disposed off through this common judgment.
9. The prosecution evidence was that on 28-10-2006 the complainant was present in his house. On hearing the noise he came in the street. There he saw Raj Muhammad armed with .12-bore gun and Nazakat with stick. Nazakat accused instigated and asked the convict-appellant to kill Muhammad Rizwan, upon which he fired two shots with .12-bore gun and caused injuries at his right ,thigh and hands. He fell down and started bleeding. Nazim, Rafaqat and Mazhar Iqbal who were also present at the spot witnessed the occurrence. Motive was the unpleasantness which took place between nephews of the complainant and grandsons of Raj Muhammad. The victim was taken to hospital where the doctor told them that he had succumbed to the injuries.
10. In support of the above mentioned story, the prosecution examined four eyewitnesses. Post mortem report, recovery of weapon of offence at instance of the convict-appellant, blood-stained clay and crime empties seized from the place of occurrence etc., were also produced in the evidence. The trial Court by putting reliance on the aforesaid evidence, convicted the appellant and awarded him the sentence of Qisas under section 302, A.P.C. Along with two lac rupees fine under sections 544-A, Cr.P.C.
11. P.W complainant claimed that prior to the occurrence an unpleasantness took place between his nephews and grand sons of Raj Muhammad while on their way to Mosque. On the fateful day he was present in his house. At about 8-30, a.m. He heard noise and came out. Raj Muhammad was standing in the street near his house. He was armed with .12 bore gun. Nazakat with stick in his hand was also present there. He instigated and asked the convict-appellant to kill Muhammad Rizwan. Upon which he fired two shots which hit the deceased at his hand and left thigh. He fell down and started bleeding. Muhammad Nazim, Mazhar Iqbal and Rafaqat who were present there also witnessed the occurrence. The offenders fled away after committing the occurrence. The witnesses took the victim to hospital. The doctor after examining him declared his death, thereafter the complainant lodged the report Exh.PB. P.W. Muhammad Nazim, Mazhar Iqbal and Rafaqat were also examined by the prosecution. Their deposition regarding date, time, place and manner of the occurrence was consonance with that of the complainant.
12. A perusal of the evidence reveals that Raj Muhammad was arrested on the day, the occurrence took place. Weapon of offence .12-bore gun was shown to have been seized at his instance on 29- 10-2006 through the recovery memo Exh.PH in presence of Muhammad Idrees Khan and Ansar Khan. The said witnesses were examined by the prosecution. They successfully established the manner of recovery, however, deposed that it was effected on 30th of. October, 2006 but the most important circumstance was that two crime empties of .12 bore gun were also seized from the place of occurrence on 28-10-2006 in presence of Muhammad Idrees Khan and Ansar Khan through seizer memo Exh.PG and these along with the weapon of offence were sent to Forensic Science Laboratory for Expert's opinion. The report Exh.PR shows that the same were fired from the said weapon, thus when the manner of recovery was proved and it was also established that crime empties seized from the spot were fired from 12-bore gun seized at instance of till convict- appellant, the mere fact that ail attesters Exh.PH failed to tell the exact date was not sufficient hold that the recovery o weapon of offence was doubtful. It has also to be considered that they were examine( after more than one year from the date the recovery was effected, they might have forgotten the exact date and mistaken13 deposed that it was done on 30-10-2006 therefore, arguments of the learned counsel for the convict-appellant that the recovers be discarded from the aforesaid ground consideration on the was not work consideration. It may also be added her that where the eye-witnesses are available and their evidence rings true after the test cross- examination any variation in the statements of the witnesses of recovery 01 weapon of offence hardly matters and ii would not affect the evidence of eyewitnesses which has to be relied upon.
13. At the time, the charge was framed the convict-appellant pleaded not guilty and claimed that he was unconscious but medical report along with injury sheet Exh.PQQ showing that he was also injure( was placed on record by the prosecution. During proceedings under section 342 Cr.P.C.
While giving explanation to the aforesaid circumstance it was claimed 1:13 him that he suffered the injuries during the occurrence. A careful consideration of the evidence reveals that injuries were shown to have been caused by some blunt weapon but neither the prosecution nor the defence alleged that any altercation took place between the parties before or during that occurrence, however, during cross-examination the prosecution witnesses were suggested that the convict- appellant was beaten by Muhammad Bashir father of the deceased and others. It was evident from the record that Muhammad Bashir was no' present at the place of occurrence at relevant time. He came to see his injured son after knowing about the incident, thus there was no evidence in support of the claim that the injuries were caused to him during the occurrence. Besides Exh.PQQ does not indicate the date of its preparation. It was shown to have been received by the Dispenser of Rural Health Center Narr namely Khalid but he was not produced as witness by the defence. The said document was not signed by the doctor. Medico-legal Report pertaining to the appellant was prepared on an ordinary plain paper. It also does not indicate the date of its preparation. The date and time of examination mentioned therein was 28-10-2006 at 2-30, p.m. And duration of the injuries was shown about 5 to 6 hours. P.W doctor categorically deposed that on 28-10-2006 he left the Rural Health Center Narr and came to Kotli at about 2.00.p.m to conduct the post mortem and examined the convict on the following day of the occurrence, which shows that date and time of examination mentioned in the report was not correct as it was not supported by its scribe. It may also be added here that according to the statement of said witness the convict-appellant was examined by him on 29-10-2006. Medico-legal Report pertaining to him shows that one lacerated wound, four bruises and three scratches were found at the person of the victim. Duration of the injuries was about 5 to 6 hours, the aforesaid facts were sufficient to establish that he did not suffer the injuries in the incident which took place on 28-10-2006 at 8-30,a.m, therefore, in the circumstances it can safely be said that the injuries were not caused to him in the occurrence, however, the possibility was there that after the murder of Muhammad Rizwan, some unpleasantness might have taken place between the legal heirs of the deceased and the convict- appellant and he might have been beaten by them or the aforesaid documents were fabricated in order to create a defence plea. In this view of the matter, the claim of the convict-appellant that he suffered injuries during the occurrence being without any substance merits no consideration.
14. After considering the evidence on record we are of the opinion that the motive was proved beyond doubt. It was clear from the record that on 28-10-2006 Muhammad Rizwan deceased was murdered by Raj Muhammad appellant with .12 bore gun on account of enmity which occurred due to the unpleasantness that took place a day prior to the main occurrence between the nephews of the complainant and grandsons of the convict-appellant. The time and place of occurrence were not disputed. Presence of the eye-witnesses at the place of occurrence at relevant time was established and there was no doubt that they witnessed the incident. Mere fact that they were related to the deceased and the complainant was not sufficient to discard their evidence from consideration. It was successfully proved that the deceased was done to death by the convict- appellant with .12-bore gun. The eye-witness account was confidence inspiring besides it was corroborated by recovery of weapon of offence at instance of the convict-appellant and crime empties seized from the place of occurrence. The confirmatory Forensic Science Laboratory's repot lends support to the claim that the deceased was done to death with the said weapon, thus, the case against the convict-appellant was proved beyond doubt. There were no mitigating circumstances in his favour and since he was responsible for committing the Cold-blooded murder of an innocent young boy, any lenient view was not warranted, therefore, the trial Court rightly convicted and awarded him the sentence of 'Qisas'.
' In light of the facts listed above, the appeal filed by the convict-appellant is dismissed, consequently the Reference made by District Court of Criminal Jurisdiction, Kotli is accepted and death sentence awarded to the convict is confirmed.