ABDUR REHMAN KHAN, J. -- This judgment will dispose of the above three matters as the criminal appeal has been filed against the judgment of the learned Additional Sessions Judge, dated 11-12- 1989 whereby the appellant was convicted under section 302, P.P.C. And was sentenced to death and a fine of Rs.30,000 to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default to suffer six months' R.I. The murder reference has been put up before us for confirmation while in the revision the complainant has prayed, `that besides the fine under section 302, P.P.C., the accused-respondent should also pay compensation to the aggrieved family as required under section 544-A, Cr.P.C.---.
2. The report in this case was lodged by Sher Akbar (P.W.5) on 31-8-1985 wherein he stated that at 8-15 a.m. He was present in his house when he was informed by Misbahuddin (P.W.6) (a student of 10th Class) that while Sher Akbar (deceased) son of the complainant was returning from school he was fired at by Fazal Ghani (appellant) with pistol and killed. Motive for the crime was shown that the accused posed himself to be in love with the deceased and used to force him for immoral relation but on his refusal to have such connection the deceased was annoyed and killed him.
3. A brief resume of the material evidence examined by the prosecution to establish the guilt of the accused is as under:-- P.W.1 is the identifier of the dead body at the time of post-mortem examination.
Wasal Khan, Chairman, Union Council, appeared as P.W.2 and in his statement admitted himself to be marginal witness of recovery memos. Exh.P.R. To Exh.P.R.4. Through recovery memo. Exh.P.R.
Blood-stained earth was taken into possession from the spot. Recovery memo. Exh.P.R./1 indicates recovery of one empty cartridge of .32 bore and one spent bullet of the same bore.
Sher Akbar, P.W.5, produced a satchel (having bullet marks) containing school books and geometry box and also a black cap of the deceased to the police, which were taken into possession vide recovery memo. Exh.P.R./2.
A constable brought from mortuary a shirt and Bunyan of the deceased and a spent bullet recovered from the body of the deceased which were taken into possession through memo.
Exh.P.R./3.
During the house search of the accused, a yoke was recovered through recovery memo. Exh.P.R./4 which contained the following handwriting of the accused:-- P.W.4 Sardar Akbar deposed to the correctness of the proceedings under which he executed warrant of arrest under section 204, Cr.P.C. And the service of proclamation under section 87, Cr.P.C.
The complainant Sher Akbar appeared as P.W.5 and stated that P.W. Misbahuddin (P.W.6, the eye- witness) was not related to him while the other ocular witness Gul Afsar (not produced) was his nephew. This witness gave the same details of the incident as were mentioned by him in the F.I.R.
And added that Wasal Khan, Chairman, Union Council (P.W.2) had also come to the spot and that he was accompanied by Wasal Khan and others to the police station where he lodged the report, Exh.P.A., which he admitted to be correct.
The eye-witness Misbahuddin was examined as P.W.6 who deposed that during the days of occurrence he was a student of 10th Class and on the eventful day he alongwith the deceased and P.W. Gul Afsar were on their way back to home at 8-15, when they reached the ---Katcha path--- there they found Fazal Ghani, the appellant, sitting, who then got up and started quarrel with the deceased. The witness and his companion tried to separate them but the appellant took out his pistol and fired at the deceased who was hit and the accused decamped from there. Gul Afsar was left on the spot while the witness rushed towards the house of the father of the deceased and informed him of the murder of his son who accompanied him to the spot. The site plan was prepared at his instance.
The Investigating Officer Muhammad Darvesh appeared as P.W.7 and made statement regarding the recording of F.I.R., preparation of, injury statement and inquest report, drawing of site-plan, the effecting of various recoveries, the obtaining of warrant of arrest and proclamation under section 87, Cr.P.C. And its handing over to D.F.C. For service. He also explained the various steps taken by him in the investigation.
Muhammad Sher Khan, Inspector C.I.A. Arrested the accused on 22-9-1989 and made a statement to this effect.
The accused when examined under section 342, Cr.P.C. Pleaded complete innocence and false involvement and while explaining abscondence stated that he did not abscond but he was not in know of the charge and when he knew about it then he surrendered to the police of his own.
4. The learned trial Judge while believing the testimony of Sher Akbar, P.W.5, in respect of the narration of facts in the promptly lodged F.I.R., the testimony of the absolute disinterested eye- witness Misbahuddin, P.W.6, which was corroborated by the medical evidence, recovery of crime empty, and blood, the prolonged abscondence of the appellant for more than 4 years and the motive which prompted the appellant to commit the offence,' found the appellant guilty. The learned trial Court was of the view that there existed no mitigating circumstance as the murder was committed, `without any provocation and without any reasons', therefore, he imposed the normal penalty of death on the appellant.
5. The learned counsel for the appellant while making submissions referred to some portion of the statements of some of the P.Ws. To prove that they were inimical towards the deceased and had a motive to falsely implicate him, therefore, being interested their evidence should not have been adopted for conviction. In this context the following portion of the cross-examination of P.W. Wasal Khan, Chairman Union Council, a witness to the various recovery memos was highlighted:-- "P.W. Misbahuddin is son of my uncle Lal Bakht. I do not know whether one Sabaz Ali uncle of father of Fazal Ghani, accused alongwith one Khan Zaman, were murdered and Lai Bakht, my uncle, was charged for it. I do not know whether the uncle of father of accused namely Noor Badin was murdered by Lai Bakht etc. About 40/50 years back. Similarly, I do not know that in retaliation of the murder of Noorbadin one Bahadur ---Tarboor--- of my uncle Lal Bakht was murdered and Gulbadin and Sharaf Din etc. Were charged for his murder."
This shows that the motive was rather on the other side than the side of the witness to substitute and involve the appellant, a student, on account of such a so-called far-flung animosity. The correctness of the testimony of Sher Akbar (complainant) father of the deceased was also doubted on the ground that he had levelled this false charge against the appellant at the actuation and exhortion of the said P.W. As appears from the following suggestion in the cross- examination of this witness:-- "It is incorrect to suggest that I have charged the present accused at the instance of Wasal P.W."
As observed above, Wasal Khan himself had no direct enmity with the appellant, therefore, his instigating the complainant for a false charge in such a heinous offence to say the least is ludicrous and to hold that Sher Akbar would substitute the real murderer of his son at the behest of Wasal is also contrary to reason. The first few lines of the cross-examination of P.W. Misbahuddin, the eye-witness reveal that the cross-examiner has tried to prove that the family of this witness had enmity with the family of the deceased and, therefore, this was shown to be an impetus for the witness to involve the appellant in the crime. The impeachment of the testimony of the witness on this score appears to be entirely absurd, unreasonable and irrational and cannot be accepted. The incident had occurred at day time and the report of it was made without any loss of time, and thus excluding any chance of deliberation and false implication. Moreover, there is no iota of evidence to prove that any of the witnesses had an axe of his own to grind or even had remote cause to involve the appellant in the offence with mala fide intention or ulterior motive. Therefore, there is no reason to doubt the deposition of either the eye-witness, the complainant, the witness to the, recovery memo and even otherwise the evidence of none of the witnesses has been falsified or shattered in any manner whatsoever. The unimpeachable recovery of incriminating articles from the spot, the corroboration of the ocular account by the medical evidence, the supporting evidence of abscondence for a period exceeding 4 years, the established motive which prompted the appellant to commit the offence are sufficient factors to prove the guilt of the appellant beyond any doubt. The learned trial Judge was, therefore, perfectly justified in holding the appellant guilty and rightly convicted him under section 302, P.P.C.
6. The learned counsel for the appellant, however, laid great stress on the factum of sentence as according to him the date of birth of the appellant has been recorded as 2-3-1970 in school certificate which makes his age on 31-8-1987 (the date-of offence) about 15-1/2 years, and therefore, according to him, being of tender age, the normal penalty of death was neither legal nor justified. In this context he also submitted that the element of pre-meditation is also wanting in this case and on this score too the maximum penalty was not proportionate to the guilt. The learned Assistant Advocate-General opposed this submission and argued that in the peculiar circumstances the sentence awarded is in consonance with the heinous and gruesome murder committed by. The appellant.
7. It is to be noted that no age certificate has been brought on record to prove the age as shown by the counsel for the appellant. The age of the appellant has been entered as 25/26 years while recording his statement under section 342, Cr.P.C. On 15-10-1990. So, if this is taken into consideration then at the time of the commission of the offence on 31-8-1985 the appellant would have been 20/21 years old and so can neither be termed as minor nor of tender age. P.W.6 Misbahuddin has stated, ---the age of the accused would also have been at that time about 16 years as he was also the student of 10th Class---. This is just a guess work and very casual and heedless manner of giving evidence about a fact which should have been proved by positive evidence which was available to the defence and which they could substantiate if they were interested in doing so in order to get its benefit. In absence of any cogent an convincing evidence on the case file it cannot be held that the appellant at the relevant time was 15-1/2 years of age. In view of the peculiar motive and the other circumstances of the case even if the appellant had been able to prove: hi age as less than 16 years we would not even then have been inclined to reduce his sentence from normal penalty of death to that of imprisonment for life. Motive for the crime as stated in the F.I.R. By the father of the deceased and reiterated by him in his Court's statement was that the appellant was posing to be in love with the deceased and wanted to force him for sodomy and on the letter's refusal to yield to this devilish, malignant and nasty designs assassinated him. The pre-planned nature of the attack is also proved from the statement of eye- witness Misbahuddin when he stated, 'when we reached the ---Katcha path' there we found Fazal Ghani sitting, who got up and started quarrelling with Siraj Akbar deceased. We tried our level best to separate them but in the meantime he took out his pistol and fired at the deceased Siraj Akbar- --. It is thus obvious that the appellant had earlier made up his mind to commit the offence and had prepared himself by waylaying the deceased and by arming himself with a pistol. The fiendish and inexorable nature of the offence is proved from the motive behind it and its brutal and beastly character is established from firing three shots at a helpless empty handed and a minor student studying in 8th Class. We would like to curb the tendency of such brutish murder by deterrent punishment otherwise this would encourage immoral and heinous offences and vagabond unscrupulous and desperate type of criminals would play with the life of the innocent persons to satisfy their lust. There appears no justification for awarding the lesser penalty than the normal sentence of death. This appeal is, therefore, without merit and is dismissed, the death sentence is confirmed and the murder reference is answered accordingly.
In matter of revision it is observed that in the impugned judgment a fine of RS.30,000 has been imposed on the appellant under section 302, P.P.C. Or in default he has to suffer six months' R.I.
However, it has been ordered that the entire amount of fine if realised should be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Although no separate order of compensation has been passed under section 544-A, Cr.P.C. But in substance this section has been complied with, as compensation required in terms of this section has been awarded to the heirs of the deceased, therefore, no miscarriage of justice has occurred on this count. The revision petition is, therefore, dismissed.