' FALAK SHER, J.--- Muhammad Tufail appellant (22) having been tried conjunctively with the acquitted co-accused Khalid Mahmud (24) for the murder of Wazir Ali alias Kaka (32/33) was convicted and sentenced under section 302, P.P.C. To death with a fine of Rs,50,000 or in default to suffer two years' R.I. With the like amount of compensation payable to legal heirs of the deceased or to suffer another term of one years' R.I. By the learned Additional Sessions Judge, Lahore vide the impugned judgment, dated 26-3-1991 referring Murder Reference No,133 of 1991 for confirmation of the appellant's death, who assailing legality of his conviction and sentence has preferred Criminal Appeal No,286 of the same year which are disposed of together emanating out of the following facts; the State appeal directed against the co-accused's acquittal Criminal Appeal No,984 of 1991 having been dismissed in limine.
2. Rahim Bakhsh alias Baba Dani, Gujjar by caste father of the deceased (70), passed away preceding trial, on 21-2-1989 at 8-30 a.m. Got his statement Exh.P.H. Recorded with Muhammad Sadiq, S.I. P.W.13 at the Mayo Hospital on the basis whereof formal F.I.R. Exh.P.H./1 was registered by Muhammad Yasin, S.I. P.W.11 at Police Station, Shandara, Lahore at 10 a.m. The same day.
3. Alleging that he was running fodder cutter alongwith his son Wazir Ali alias Kaka deceased at Chowk Begum Kot 2-1/2 kilometres away from the police station where around 8-30 a.m. While he was sitting with the deceased and daughter-in-law Mst. Barkat Bibi alias Batto wife of his elder son Bashir Ahmad P.W.10, the appellant coupled with the acquitted co-accused equipped with Carbines showed up and on the latter's exhortation to teach the deceased a lesson for having deposed against them fired at the deceased landing on left side of his head as a consequence whereof he collapsed on the ground, whereafter the assailants under fire cover vanished away. The deceased in injured condition with the help of Amanat Ali P.W.12 and Faqir Muhammad (given up P.W.) was removed to Mayo Hospital Emergency Ward where he succumbed to the injuries.
4. The averred motive of the occurrence was the deceased being an eyewitness of the murderous assault launched by the appellant's relations Nazar, Shaukat and Liaqat on Ghulam Safdar.
5. Muhammad Sadiq, S.I. P.W.13 after recording the statement prepared the deceased's injury statement Exh.P.J., inquest report Exh.P.K., despatched the dead body to the mortuary under Ghulam Rabbani, F.C. P.W.3's escort who later on tendered the deceased's last worn clothes Shirt P.1 Vest P.2, Chaddar, P.3, sealed phial containing pellets P.4 taken into possession vide memo. Exh.PA., collected blood-stained earth from the venue vide memo. Exh.P.C. On 24-2-1989 got prepared site plan Exh.P.B. From Syed Abdur Rahim Kazmi P.W.4, arrested the appellant as well as the acquitted co-accused on 4-3-1989 who the next day led to the recovery of Carbine P.5, unlocking his cattle shed, secured into possession alongwith lock P.7, Key P.8, wrapped in polythene bag P.6 vide memo.
Exh.P.G. Attested by Allah Ditta P.W.7, Mansab Ali P.W.8, Masud Aziz, D.S.P. P.W.14.
' Responding to the query affirmed to have not entered number of the F.I.R. In the injury statement and inquest report prior to arrival of Mumtaz, F.C. Through whom complainant's statement was despatched for registration of the case, refuting the suggestion of having drawn up the same after formal recording of the F.I.R.
6. Dr. Muhammad Farooq Bhatti P.W.6 on the same day at 2-30 p.m. Conducted autopsy on the dead body of the deceased brought by Ghulam Rabbani, F.C. P.W.3 identified by Amanat Ali P.W.12 affirming his death, observed the following vide post-mortem report Exh.P.E.
"Multiple fire-arm entry wounds 11 in number each measuring 0.7 c.m. In diameter spreading in an area of 13 x 5 c.m. On left temporoparietal region with brain matter oozing out.
' Left prietal, frontal bone of the skull fractured, 8 pellets and 3 metallic fragments recovered, stomach full of semi digested food, all injuries ante-mortem of fire-arm origin, causing death within few minutes with 12 hours whereof the post-mortem was conducted."
7. Mst. Barkat Bibi alias Batto P.W.10 testified to the prosecution story being present there having brought over the complainant's breakfast which he was engaged in consuming with the deceased occupied in reading newspaper on a cot and Nur Muhammad P.W.9 weighing the hay. Affirmed to have known the appellant as well as the acquitted co-accused being maternal-nephew of Nazar, Liaqat and Shaukat and son of the latter respectively. Detailing the ocular account inclusive of the motive impetus she deposed that the appellant's carbine shot landed on the left side of the deceased whereafter the acquitted co-accused also fired but did not notice its hitting the target, the complainant was running a hotel at the spot as well for serving tea and meals but he himself used to take domestic meals which she used to bring over while the deceased used to take yoghurt from the market, pleading ignorance as to whether at the time of firing the deceased was holding the newspaper in his hands or it fell down hastening to add that it was not lying there when the blood-stained earth was picked up, the deceased was sitting on a cot with crossed legs at the time of firing, no crime-empty was recovered from the spot since none was ejected, repelling the suggested tutoring to bring her statement in conformity with the medical evidence.
8. Nur Muhammad P.W.9 an employee of the fodder cutter with a week's standing deposing to the same effect stated to have seen the assailants for the first time particulars whereof were furnished to him by the complainant party, appellant's shot landed on the deceased's left temporal region, pleading ignorance as to the seat of the acquitted co-accused's fire shot, neither of the assailants have muffled faces repeated the shot.
9. Amanat All P.W.12 a local Ice Vendor testified to have witnessed the appellant alongwith the acquitted co-accused holding Carbine in their hands with the deceased lying on the ground in injured condition bleeding profusely who was shifted to the Mayo Hospital in a wagon in contrast to his statement to the police Exh.D.C.
10. Chemical Examiner's report Exh.P.N. Qua earth and that of the Serologist Exh.P.M. Respectively was tendered by the Public Prosecutor with the remaining evidence being of formal nature.
11. The appellant as well as the acquitted co-accused entering the plea of denial pleaded false involvement due to suspicion to extract compromise in the murderous assault case.
12. The learned trial Court disbelieving the recoveries as well as Nur Muhammad P.W.9 placing reliance on the ocular account furnished by Mst. Barkat Bibi alias Batto P.W.10 coupled with Wajtakkar evidence tendered by Amanat Ali P.W.12 and the motive incident returned the verdict under appeal.
13. Legality whereof has been assailed by the learned counsel for the appellant contending that the same evidence having been disbelieved qua the acquitted co-accused cannot furnish the basis for returning the guilty verdict for the capital charge on the appellant specially in view of the improvement without any unimpeachable corroborative piece of evidence which is lacking.
14. Having gone through the entire evidence we are not persuaded by the contentions urged by the learned counsel for the appellant because the prosecution case stands fully proved through the confidence inspiring ocular account furnished by Mst. Barkat Bibi alias Batto P.W.10 of broad daylight occurrence explicitly attributing first shot to the appellant responding to the acquitted co- accused's exhortation having no motive to falsely implicate the appellant, whose presence at the time and venue of occurrence stands convincingly explained, viz., catering for the complainant's breakfast with the deceased availing local facility, factum whereof stands corroborated by the medical evidence inter alia as to timings qua the stomach contents as well as the spelt out motive with particularity coupled with the Wajtakkar evidence of Amanat Ali P.W.12 whose presence has been vouched by Dr. Muhammad Farooq Bhatti P.W.6 accompanying the dead body for post- mortem examination in the Emergency qua which the pointed out discrepancies are inconsequential.
15. Consequently the appellant's conviction and sentence being unexceptionable the appeal is hereby dismissed being devoid of any substance.
16. Answering the Murder Reference in the affirmative the death sentence is confirmed.