' SH. MUHAMMAD ZUBAIR, J.---Muhammad Shafique (30) was convicted under section 302, P.P.C. For the murder of Ali Muhammad by the learned Additional Sessions Judge, Gujranwala vide order, dated 7-10-1990 and sentenced to death plus a fine of Rs,10,000, in default of payment of fine to further undergo R.I. For 2 yeaRs, He was also ordered to pay a compensation of Rs,10,000 to the heirs of the deceased, or in default thereof R.I. For 6 months.
' The convict filed Criminal Appeal No,705 of 1990 whereas the complainant filed Criminal Revision No,152 of 1991 against the acquittal of Muhammad Rafique co-accused of the appellant. Learned trial Court has also sent Murder Reference No,226 of 1990 under section 374, Cr.P.C. For confirmation of death sentence of the convict. We propose to dispose of all the matters by this judgment.
2. The occurrence took place on 25-5-1988 at about evening prayer time near Makki Masjid, Dinga Phatak, Gujranwala Town and the F.I.R. (Exh.PD/1) was recorded on the statement (Exh.P.D.) of Muhammad Ashraf complainant (P.W.7) by Nazir Ahmad Sub-Inspector (P.W.10), Police Station Civil Lines, Gujranwala.
3. As for the main occurrence it is stated by the complainant that he and his father Ali Muhammad (deceased) were going towards Makki Masjid near Dinga Phattak for offering their Maghrib prayer.
Muhammad Bashir his uncle (given up P.W.), Muhammad Saleem (P.W.8) and his maternal-uncle Muhammad Anwar (given up P.W.) were also going behind them at a distance of 10/15 paces for offering Maghrib prayer. When the complainant alongwith his father Ali Muhammad deceased reached near the gate of said mosque, he saw that Muhammad Shafique appellant and his father Muhammad Rafique (acquitted accused) were coming towards them from the side of their sweetmeat shop, located in the main bazar of new Civil Lines. When Ali Muhammad deceased was just going to pass through the gate of the mosque, on a Lalkara of Muhammad Rafique (acquitted accused) Muhammad Shafique appellant fired a shot with his carbine at Ali Muhammad from a very close range hitting him on the right side of his back which pierced through his body in the lower part of his chest on the right side. Ali Muhammad deceased fell down. Muhammad Bashir (given up P.W.), Muhammad Saleem P.W. And Muhammad Anwar (given up P.W.) tried to apprehend the accused but Muhammad Rafique (acquitted accused) fired a shot with his carbine on which P.Ws. Receded due to fear whereas both the accused ran away towards the side of Railway Phatak. Besides complainant, Muhammad Bashir (given up P.W.), Muhammad Saleem P.W.
And Muhammad Anwar (given up P.W.) also witnessed the occurrence. The complainant along with aforesaid persons was removing Ali Muhammad in injured condition to Civil Hospital when the injured died in the way.
' The motive as stated in the F.I.R. Is that on 20-4-1988 Muhammad Tariq son of Muhammad Rafique (acquitted accused) had been murdered, and inter alia Muhammad Asif brother of the complainant was also accused in that murder, for the innocence of whom the complainant's deceased father had been offering defence which was not accepted by Muhammad Rafique (acquitted accused) and otheRs, This incident culminated in the present occurrence.
4. The investigation in this case was conducted by Nazir Ahmad S.I. Police Station Civil Lines, Gujranwala. After receipt of the information of this occurrence he went to D.H.Q. Hospital, Gujranwala where he recorded statement Exh.P.D. Of the complainant and sent the same to the Police Station for formal registration of a case. He prepared injury statement Exh.P.H. And inquest report Exh.P.I. The dead body was handed over by him to Mazhar Iqbal and Arshad F.Cs. For getting post-mortem examination. He recorded statements of the eye-witnesses in the hospital premises.
On 26-5-1988 he inspected the spot, collected blood-stained earth, made it into a sealed parcel and took the same into possession vide memo. Exh.P.J. On the same day Mazhar Iqbal F.C. (P.W.9) produced before him last-worn clothes shirt P.3, Dhoti P.4, Parna P.5 all blood-stained belonging to the deceased, besides a sealed phial containing pellets and carbon copy of post-mortem report.
He took into possession the garments and sealed phial vide memo. Exh.P.G. He also got prepared site plans in duplicate Exh.PA. And Exh.PA./1. On 10-7-1988 he arrested both the accused. On 13-7- 1988 Muhammad Shafique accused while in custody led to the recovery of carbine P.1 from his shop in the street of Makki mosque which was taken into possession vide memo. Exh.P.E. He prepared a site plan of the place of this recovery Exh.P.E./1. On 14-7-1988 Muhammad Rafique (acquitted accused) while in custody led to the recovery of carbine P.2 from the same shop although from a separate room which was made into a sealed parcel and taken into possession vide memo. Exh.P.E. He prepared rough site plan of the place of this recovery as Exh.P.F./1. After usual investigation, the challan was submitted in the Court.
5. On 26-5-1988 at 9-30 a.m. Dr. Habib Alam M.O. (P.W.2) conducted the post-mortem examination on the dead body of Ali Muhammad deceased and found the following injuries on his person:---
(1) A fire-arm wound of entry which was oval in shape 6 c.m. Long and 5 c.m. Wide at the back on the right side of abdomen. This wound was 7 c.m. From the middle line. It was 2 c.m. From the right costal margin. There was blackening around the margins. The margins were inverted.
(2) A fire-arm exit wound 2 x 1 c.m. Longitudinal horizontally. Its edges were everted. There were 4 pellets which were pulpable. One pellet was found in the opening. The others were recovered after opening the abdomen. This wound was 9 c.m. From the amblicus on front of the abdomen. It was 1 c.m. From the right costal margin and 5 c.m. From the middle line.
(3) A wound 1 x 1 c.m. Exit with everted margins. It was 2 c.m. From the middle line and 3 c.m. From the second wound.
' In the opinion of the doctor the deceased died of haemorrhage and shock due to injury No,1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem caused by fire-arm. The probable duration of injuries and death was within one to two hours and between death and post-mortem was within 24 houRs,
6. When examined under section 342, Cr.P.C. The appellant denied the prosecution allegations and deposed that he has been involved in this case due to enmity.
7. Placing reliance on the ocular version furnished by Muhammad Ashraf (P.W.7) and Muhammad Saleem (P.W.8), the learned trial Judge convicted the appellant and gave him the sentence indicated above.
8. The learned defence counsel vigorously contended that it was an unseen occurrence, none of the eye-witnesses saw the real culprits, and the appellant has been involved due to previous enmity which is the motive in this case. The eye-witnesses are close relatives of the deceased apart from being chance witnesses of the occurrence. The occurrence took place in the darkness of the night when none was present at the spot. The eye-account given by these interested witnesses is against the medical evidence. The independent witnesses though available yet were not produced, which exposes the falsehood of the prosecution case, there are material discrepancies between the evidence of two eye-witnesses which leads to this inference that both the eye-witnesses were not present at the spot; that in the site plan, the place from where the appellant opened fire at the deceased is not shown which proves that the eyewitnesses had not seen the occurrence; that the learned trial Judge has erred in law while convicting the appellant and acquitting his father Muhammad Rafique on the basis of same evidence without any independent corroboration. In the end, he submitted, as the appellant committed the murder of the deceased to avenge the murder of his brother Muhammad Tariq, hence his sentence needs reduction.
9. The learned State counsel has supported the impugned judgment.
10. The learned counsel for the complainant submitted that presence of the eye-witnesses is established from the prompt lodging of the F.I.R. The occurrence took place at Magrib prayer time as is apparent from the evidence of Dr. Manzoor Hussain M.O. (P.W.3) that he received the dead body of the deceased at 7-30 p.m. In the hospital. The medical evidence fully corroborates the ocular evidence. Mere relationship per se in the absence of enmity is no ground to discard the evidence of the near and dear of the deceased. The acquittal of Muhammad Rafique co-accused does not lead to this inference that the prosecution case as a whole is false, when he was given benefit of doubt by way of abundant caution. He further urged that even acquittal of Muhammad Rafique is open to serious legal objection which has resulted into miscarriage of justice. The learned counsel further submitted that there is no mitigating circumstance in favour of the appellant, he richly deserves death sentence. He placed reliance on 1973 SCM R 39.
11. We have carefully examined the respective submissions of the learned counsel for the parties and have minutely perused the record with their able assistance.
12. Admittedly, the F.I.R. In this case has been lodged with promptitude which shows that the complainant was present at the scene. The complainant has furnished very plausible and reasonable explanation for his presence at the spot, because he was going to offer Maghrib prayer along with the deceased and the eye-witnesses. The occurrence took place inside the mosque which further lends independent corroboration to the ocular version. The medical evidence amply corroborates the ocular evidence, because doctor found blackening around the wound. The nature of injury also supports the prosecution version, as no layman, who has not witnessed the crime, could give correct description of the injury, sustained by the deceased which has been given by the complainant, leads to only irresistible conclusion that he has seen the occurrence. Non- examination of all the eye-witnesses is not fatal to the prosecution case. The law requires that the Court should see the quality of the evidence, and not the quantity of the evidence. The discrepancy pointed out by the learned defence counsel in the evidence of Muhammad Ashraf (P.W.7) and Muhammad Saleem (P.W.8) regarding the direction chosen by the co-accused of the appellant while running away after the commission of the crime, is too insignificant to need any serious consideration.
13. We find no force in the revision petition because there is no independent corroboration available on the record, as to the part ascribed to the acquitted respondent.
14. We have given our anxious consideration to this aspect of the case, what should be the sentence in this case. Respectfully following the decision of the august Supreme Court, we hold, there is no mitigating circumstance in favour of the appellant, hence while dismissing his appeal on merits, we confirm the death sentence imposed upon him.