' SYED AFSAR SHAH, J.---This criminal appeal is directed against the judgment dated 11-3-2008, passed by the learned Sessions Judge, Karak, whereby Zahidullah, the appellant was convicted under section 302(b), P.P.C. And sentenced to death with a compensation of Rs,1,00,000 (one lac) payable to the LRs of the deceased or in default thereof to undergo six months' S.I. Further.
' Murder reference has also been put up before us for confirmation.
2. The story of prosecution as disclosed in the F.I.R. Exh.PA may briefly be narrated as follows:-- On 7-4-2007 at 2000 hours Muhammad Khalid (P.W.8), the complainant brought the dead-body of deceased Muhammad Addrees to Police Station Sabirabad, Karak and made a report to Gul Faraz Khan ASI (P.W.7) to the effect that:- [[URDU TEXT ]] 3 After writing report of the complainant, it was read over and explained to him, who after admitting it to be correct signed the same in token of its correctness, where after, Gul Faraz Khan ASI prepared the injury sheet and inquest report in respect of the deceased, and thereafter referred the dead-body for post mortem examination under the escort of Rahm Zaman FC.
4. Investigation was started in the case and on its completion, complete challan was submitted to the Court of learned Sessions Judge, Karak, against the accused Zahidullah. The learned trial Court on conclusion of trial convicted the appellant under section 302(b), P.P.C. And sentenced him to death with a compensation of Rs,1,00,000 (one lac) payable to the LRs of the deceased or in default thereof to undergo six months' S.I. Further, vide judgment dated 11-3-2008 and aggrieved from the same the appellant filed a criminal appeal in this court, which was accepted, resultantly, the conviction and sentence of the appellant was set aside and the case was remitted back to the trial Court with the direction to determine the age of the appellant and thereafter decide the case within four months positively, vide judgment dated 14-6-2011. Aggrieved from the judgment of this Court the complainant filed a petition in the august Supreme Court and on 17-11-2011 the petition was converted into appeal and was allowed, resultantly, the judgment and order of this Court were set aside and conviction and sentence of the appellant awarded by the trial Court was restored and accordingly Criminal A. No,109 of 2008 along with the murder reference were directed to have been pending before this Court for decision on merits.
5. We have heard arguments of learned counsel for the parties and gone through the record of the case.
6. It appears from the F.I.R. (Exh.PA) that in this case the occurrence took place on 7-4-2007 at 1855 hours, whereas the report has been lodged on the same date at 2000 hours. Muhammad Khalid having a stamp of injury on the dorsal surface of his right hand is the complainant of the present case and he has charged the appellant for the murder of deceased Muhammad Idrees and injury on his person, which he sustained at the time of catching hold of the appellant. The occurrence in addition to the complainant is stated to have been witnessed by P.Ws. Muhammad Ayaz, Sahib Zali and Peish Imam of the Masjid, (the venue of wardaat). Motive behind the offence is that the appellant was suspected the deceased of his having illicit relation with his sister.
7. So far as the case of prosecution is concerned, it mainly hinges on the following categories of evidence.
(i) The ocular account furnished by P.Ws. Muhammad Khalid, Sahib Zali and Sardar Ali Khan.
(ii) The investigation conducted by Muhammad Nafal Khan SI.
(iii) Arrest of the appellant at the venue of wardaat, which is a Mosque of the village.
(iv) Recoveries along with the report of the Expert and
(v) Motive.
8. Admittedly and as is evident from the record in the present case the occurrence has taken place in Madni Masjid situated in village Deli Melia at the time when the deceased, eye-witnesses and other residents of the Mohalla were offering their Maghrab Prayers and were in the third Raka'at of the prayer.
9. Appearing as P.W.8, Muhammad Khalid, the complainant has stated in support of his first information report. According to him on the day of occurrence, he along with Muhammad Idrees, Sahib Zali, Muhammad Ayaz and other residents of the Mohalla were offering their Maghrab prayer in the said Masjid and were in third Raka'at when heard the report of fire shot and when he offered his final salam, he noticed that appellant Zahidullah was firing at the deceased; that he along with Muhammad Ayaz and Sahib Zali caught hold of the accused, but he remained busy in firing at him (deceased); that during the process of catching hold of the accused, he was also injured at his right hand; that they handed over the accused appellant to other persons of the mohallah present in the Masjid, from where he was taken out, whereas they remained with the deceased. According to the complainant, when they caught hold of the accused/appellant, P.W. Sahib Zali took the crime weapons. Pistols from him; that after arranging for a cot and pick-up the deceased, who by that time had already succumbed to the injuries was taken to the Police Station, where he lodged the report (Exh.PA), which is correct and correctly bears his signature. Motive behind the offence as stated by the complainant is that the appellant was suspected that the deceased was having illicit relation with his sister.
10. Sahib Zali, who has been examined by the prosecution as P.W.9, has also stated in support of the version of the complainant. According to him when they overpowered the appellant he took the pistols from him, which he handed over to the police on their arrival to the spot of occurrence.
Again he has stated about the handing over of the appellant/accused to the police who was already in their custody. They were subjected to lengthy and taxing cross-examination by the learned counsel for the convict/appellant, but absolutely with no premium to him (defence). The deposition made by the P.Ws. Muhammad Khalid and Sahib Zali is consistent and confidence- inspiring regarding the offering of prayer, hearing the report of fire shot, firing by the appellant at the deceased, catching hold of the appellant and recovery of pistols from his possession.
11. Another important witness of the present case is Sardar Ali Khan, Pesh Imam of the Masjid and appearing as P.W.10, he stated that on the day of occurrence, he was performing the duty of Imam and as such was in Sajda of the third Raka'at, when heard the report of fire shot; that on turning of salam; he noticed that appellant Zahidullah was firing at Muhammad Idrees; that he also noticed that Sahib Zali, Muhammad Khalid and Muhammad Ayaz were trying to catch hold of the appellant; that he also rushed to there, overpowered the appellant and took into possession the pistols which he was having, where after, he (the accused/appellant) was taken to the house of Sahib Zali and confined him in a room. According to this witness on arrival of the police, they handed over the appellant along with the pistols to them and thereafter he was shifted to the Police Station. This witness also faced the test of cross-examination on behalf of the learned counsel for the appellant but could not diminish the probative worth of his testimony. His account is consistent and in line with the testimony furnished by P.Ws. Muhammad Khalid and Sahib Zali.
12. Muhammad Nifal Khan SI, is the I.O. Of the present case and appearing as P. W.11, he has stated in support of the investigation, which he has conducted in the present case. Being an I.O. He has prepared the site plan (Exh.PB), made recoveries of blood through cotton, eight empties of 7.62 bore in scattered position from the spot of occurrence, vide memo Exh.P.W.6/1 and P.W.6/2. He has also stated about the two .30 bore pistols produced to him by brother of the deceased, which were taken into possession vide memo Exh.P.W.6/4. Again he has recorded the statements of the P.Ws.
Under section 161, Cr.P.C., sent the pistols along with empties recovered from the spot for opinion of the Expert, the report whereof as Exh.PK/1, is on record. He was also subjected to a searching cross- examination by the learned counsel for appellant regarding the site plan and confinement of the appellant by one of the P.W. Sahib Zali, but with no premium to the defence as there is no significant discrepancy in his statement.
13. Recovery memo Exh.P.W.6/2 is available on record and it appears from the same that the I0 during the spot inspection have recovered eight empties of .30 bore freshly discharged from the spot of occurrence. He also recovered four spent bullets almost in de-shaped condition from the place of wardaat, vide memo Exh.P.W.6/3. As stated earlier in this case the accused/appellant was arrested at the spot and from his possession two pistols of .30 bore were taken by the P.Ws. Present there, which they handed over to the police on their arrival to the venue of occurrence. The pistols along with empties recovered from the spot were sent for opinion of the Firearm Expert, the report whereof as Exh.PK/2 is on record and is in affirmative, which is reproduced as below:-
(i) Two .30 bore crime empties marked Cl and C2 were fired from .30 bore pistol No,FF 9375 marked A in question, in view of the following major points i,e, striker pin marks, breach face marks, chamber marks, etc. Are similar.
(ii) The six .30 bore crime empties marked C3 to C8 were fired from .30 bore pistol No,1380 marked B in question, in view of the following major points i,e, Striker pin marks, breach face marks, chamber marks, etc. Are similar."
14. As per version of the prosecution motive behind the offence is that the accused was suspected the deceased of his having illicit relation with his sister. Muhammad Khalid, the complainant has categorically stated about the motive behind the offence, not only in his first information report, but also in his court statement. The appellant during his statement recorded under section 342, Cr.P.C.
Has denied the same, but the account furnished by the complainant in this respect is absolutely unshaken as he was not cross-examined on this score even remotely. We are clear in mind that nothing is concealed about the motive, as it is consistently given not only in the F.I.R./but also in the testimony of the complainant. Again there is no suggestion even remotely on behalf of the appellant regarding the motive for his false implication.
15. We are of the view that guilt of the appellant has been proved from the confidence-inspiring testimony of the eye-witnesses, which lends support from his (appellant's) arrest from the spot, recoveries and report of Experts. It is a case of single accused and in the circumstances, it is highly improbable to say that the appellant has been substituted with the real culprit and thus we have no doubt in our mind that the charge against the appellant has been proved beyond any shadow of doubt and that he has rightly been convicted.
16. Now the question arising for the consideration of this court is as to what was the quantum of sentence and whether in view of the motive behind the offence which is the family honour, the normal penalty of death would meet the ends of justice?
17. Admittedly and as discussed earlier, in this case the appellant appears to be adamant to kill the deceased. He has come to the Masjid where the deceased was offering his maghrab prayer and was so much committed that he was having two pistols of .30 bore out of which one was exhausted fully, whereas from the other two fire shots were made and which fact is proved even from the report of Firearm Expert. It is not the case of grave and sudden provocation rather the offence was committed due to gharit/family honour. In a case "Muhammad Amir v. The State" (PLD 2006 Supreme Court 283), it was held by their lordships that:- "Commission of offence due to "Ghairat" or family honour and on grave and sudden provocation-- Distinction---Commission of an offence due to "Ghairat" or family honour must be differentiated from grave and sudden provocation in consequence to which crime is committed in the light of facts and circumstances of each case---Plea of grave and sudden provocation may not be available to an accused who having taken plea of "Ghairat" and family honour committed to crime with premeditation."
In the instant case, there is no two opinion about the commission of the crime with premeditation by the appellant and therefore, we are of the view that he has rightly been held guilty of murder and has been awarded the punishment which he deserves i,e, the normal penalty of death. The appeal is, therefore, dismissed, conviction and sentence of the appellant stands maintained and the death sentence is confirmed, resultantly, the murder reference is answered in affirmative.