ABDUR REHMAN KHAN, J.--- The appellant was found guilty of the murder of Dir Nawab Khah and on conviction under section 302, P.P.C. Was sentenced to death, by the learned Additional Sessions Judge-II, Mardan vide order dated 23-9-1991. He has challenged the legality of his conviction and sentence in this appeal whereas Murder Reference is also before us for confirmation. This judgment will dispose of both the matters.
2. The facts which resulted in filing of the appeal are that on 6-8-1988 at 6 a.m. Rahim Khan, LHC, Police Station Katlang, P.W.7, alongwith police party was on routine patrol duty in Katlang Bazar. The same day at 8-30 a.m. He reported in the police station the incident of the murder of Dir Nawah wherein he disclosed, that he alongwith F.C. Nazar Ali, Zahir Ali and Khursh"l were patrolling the area of Katlang Bazar when all of a sudden he heard fire-- shots, and reached the spot alongwith other constables where he noticed the appellant firing at the deceased with his rifle. He with the help of his colleagues overpowered the appellant by disarming him of his rifle No.3471/37542 with one live cartridge of 7 mm and produced him before the S.H.O.
3. Brief resume of the evidence examined by the prosecution to establish the charge against the appellant is as under: P.W.1 Shah Sadar is the identifier of the dead body.
P.W.2 is a foot constable having accompanied the dead body to the mortuary, brought his clothes and post-mortem papers and produced it to the 1.0.
P.W.3 is Muhammad Wahab, A.S.I., who witnessed this recovery through memo. Exh. P.C. Munir Khan, P.W.4 is a marginal witness to recovery memo. Exh P.D., whereby blood-stained earth from the spot was taken into possession; recovery memo. Exh. P.E., by which two empties of 7 mm rifle giving smell of fresh discharge were picked up from the spot and also witnessed by this witness.-He is also marginal witness to recovery memo. Exh P.F. Regarding a pair of Chappals belonging to the deceased.
P.W.5 Abdul Samad, F.C., affirmed the recovery of one five-shot rifle alongwith a live round through recovery memo. Exh. P.G. He also deposed to the recovery memo. Exh P.H., whereby the identity card of the. Deceased was taken into possession. Amir Nawab, P.W.6,.Is the brother of the deceased and he stated that the motive for the crime was that for the murder o6-the farther of the deceased, his father was charged.
The complainant of this case Rahim Khan, LHC, appeared, as P.W.7 and almost narrated the same facts as given' by -him in the F.I.R. Therefore, there is no need to repeat. P.W.8 is Khurshid, Police Constable, who was on `Guest' with the informant and who helped in the arrest of the accused.
According to his statement, he heard the report of fire-shot and he alongwith his party rushed towards that side and saw the accused firing at the deceased, who expired on the spot. The accused was arrested and a .7 mm rifle alongwith a round of the same bore were recovered from him. They took the accused to the police station. In Court he identified the accused-'to be the same person, who had fired at the deceased.
The Medical Officer Dr. Nisar Muhammad was examined as P.W.9, who on external examination found the following injuries on the body of the deceased:
(1) Fire-.Arm wound of entrance on chest right side three inches above the right nipple, size 1/3" x 1/3".
(2)Fire-arm wound of exit on chest left side mid exillary line, three inches-- below the axilla.
(3)Fire-arm wound of entrance on abdomen one inch to the right of umbilicus size 1/3" x 1/3".
(4)Fire-arm wound of exit on abdomen one inch to the left of umbilicus, size 3/4" x 1/2".
(5) Fire-arm wound of entrance on left thigh anterior side 1/3" x 1/3".
(6) Fire-arm wound of exit on left thigh posterior side size 3/4" x 3/4".
P.W.10 Gul Ghazan is a witness to recovery memo whereby 5/6 metres Disco Boski cloth bearing bullet mark and a spent bullet from the roll of the cloth from within the shop of Zafar Ali of Katlang Bazar were recovered.
The Investigating Officer/S.H.O., Police Station Katlang was examined as P.W.11. He recorded the F.I.R., Exh. P.A., at the instance of Constable Rahim Khan and prepared the injury and inquest report of the deceased. The various, recovery memos were prepared by this witness and he deposed to their correctness. He also prepared the site-plan, Exh. P.B., and sent the rifle and two empties for expert opinion and the opinion received is Exh.P.2. In short, he explained the various steps taken by him in the case to complete the investigation.
4. The accused when examined under section 342, Cr.P.C. Pleaded complete innocence and denial of the charges. However; he explained that the rifle belonged to one Gul B'ahadur and is licensed in his name. In order to prove this fact, he undertook a futile exercise of producing the licence clerk of D.C. Office, Mardan and postal clerk, whose evidence were irrelevant on account of the denial of the recovery of the rifle by the appellant and in absence of any charge against the licensee.
5. The learned counsel pleading for the appellant half-heartedly argued that in the examination of the appellant under section 342, Cr.P.C. No question about the positive 'report of the Arms Expert was put to him. However, when questioned as to what would turn on it and how it would benefit the appellant or how it has prejudiced him particularly when he has denied the recovery of the rifle, then he candidly conceded that in these particular circumstances it has neither caused any bias to the appellant nor such question was necessary to be asked. Even otherwise, it is obvious that the appellant was asked to explain the recovery of the crime weapon from him and he totally denied this fact and then there was no sense to put him additional question in this context as that would have been redundant and abortive. Probably, conscious of the merits of the prosecution case against his client, the learned advocate straightaway submitted that he would confine his arguments to the factum of sentence and would pray for its reduction to imprisonment for life. In this context, it was argued that some time back father of the appellant was murdered for which father of the deceased was charged and in this part of the country, son, brother or for that matter any close relation is bound and answerable for avenging such murder. It was added that at the time of the murder of his father, the appellant was minor and having remained under the supervision and custody of her mother, she may have prompted him to take revenge of the murder of his father. To resolve this argument firstly, it is to be determined whether there is any convincing evidence on record to prove the murder of the. Appellant's father by the father of the deceased and secondly even if the said fact is proved on record whether it can be a ground for lesser penalty, for otherwise brutal and planned murder. The appellant when asked under section 342, Cr.P.C. `it is in evidence that your father was murdered for which the father of the P.W. Was charged', and his reply was, `at the time of murder of my father, I was about 2 years age. It is correct that my father was murdered, but the father of the P.W. Amir Nawab was not charged for the same'. F.I.R. Exh. P.Z., in respect of the murder of Himat Shah (the appellant's father' name is also the same) has been brought on record, but its perusal would show that none had been charged by the complainant in that case for his injuries or for the murder of Himat Shah. So, it is manifest that the appellant has neither admitted this fact nor bothered to prove it. However, on the other hand, P.W.6 Amir Nawab has given the same motive for the present murder as argued by the learned counsel. In view of this conflicting state of record, it is not possible to give a definite finding one way or the other. In any case, even if the motive advanced by the learned advocate is admitted to be correct, even then in our view the death sentence is not commutable to that of imprisonment for life on this score: The reason is that the deceased was neither charged nor suspected in any way in the murder of the appellant's father. To allow the benefit of lesser penalty for the murder of such unconcerned person would amount to placing premium over the killing of an innocent person. For example, take the case for a person, who may happen to have some relation with a certain person charged for the murder. This person himself would be a peaceful, law abiding, and civilised citizen and would avoid even remote links with the alleged murderer and would rather imprecate him and would hate identifying himself with him. He would have rather abandoned his house and hearth .And would have, settled in a far-flung place in his efforts to disassociate himself with the alleged murderer. There would obviously be no justification for a relation of the murdered man to kill such a guiltless and blameless person and, therefore, such a killer would not be given the benefit of a lesser punishment of imprisonment for life merelybecause he killed the person to maintain the dignity and honour of his family or tribe as under the tradition or custom of the society, he lived in, it was obligatory to take such step. In Islamic dispensation of justice too such a course is not permissible because right of Qisas is available only against the convict and not against his relation. In order of support his contention, the learned counsel relied on the rule laid down in the following precedent cases: PLD 1967 SC 185, 1980 P Cr. L J 556, 1986 P Cr. L J 2820 and PLD 1985 SC 25.
All these cases are distinguishable in that the deceased in these cases were either charged for murder in the case or were suspected of having a hand in the murder which is not the position in the instant case because the deceased of the present case was in no way involved in the murder of the father of the appellant. In the first case, the accused charged for the murder of the father of the convict was killed and in the second case Amir Shah, deceased, was not only pursuing the cage of the accused involved in the case, but was also being accused of having his hand in the murder. In the third case the deceased was one of those who was implicated in the murder of the father of the accused. In the last case, the motive alleged by the prosecution was, `the appellant believed that his father had been murdered by the deceased'. In these circumstances, we do not agree with the submission for the lesser penalty."
6. Leaving aside the inability of the defence counsel to point out any legal or factual flaw in the case, we also thoroughly studied the record and found the judgment of the trial Judge based on cogent reasons. The deposition of the two disinterested Police Constables Rahim Khan and Khurshid, P.Ws.7 and 8, who witnessed the occurrence and who arrested the appellant on the spot alongwith the weapon of offence, the recovery of the two empties which B according to the Expert had been fired from the rifle taken into possession from the appellant, no dispute about the arrest of the appellant from the spot or venue of the crime, are sufficient materials to prove the guilt of the appellant.
7. We, therefore, find no merit in this appeal and dismiss it.
8. The Murder Reference s answered accordingly.