ABDUR REHMAN KHAN, J.---By the impugned judgment dated 11-11-1991, the appellant was found guilty of the murder of Farid Khan and on conviction under section 302, P.P.C. He was awarded death sentence plus fine of Rs.5,000 or in default six months' R.I. He was also ordered to pay an amount of Rs.50,000 or to suffer six months' R.I. Under the requirement of section 544-A, Cr.P.C. The appellant has preferred appeal against his conviction and sentence while the murder reference has also been put up before us for confirmation. Moreover, the complainant side has filed Cr.R. No.9 of 1993 with a prayer to enhance the amount of fine and compensation. This order will dispose of all the said matters.
2. Nadir Khan (P.W.5) reported the murder of his son in the Police Station on 7-5-1992 at 7-45 a.m.
Which had occurred the same day at 7-00 a.m. It was stated in this report that last night his brother Ahmad Sher (P.W.6) was proceeding towards the mosque but on the way he coughed over which the appellant cursed him by saying. In reply his brother asked him that he should be ashamed of saying so, which infuriated him and he gave fist blow to his brother injuring him on his nose: In the morning he and his son Farid Khan were coming from their house to their Hujra when Murda Khan, the appellant, armed with Klashinkov fired at them with which his son was injured and died on the spot while he escaped unhurt. Motive was shown to be the last night incident referred to above while his brother Ahmad Sher was described as eye-witness.
3. In order to understand the factual position of the case in its correct perspective it would be relevant to give a brief summary of the material evidence. P.W.1 had escorted the dead body from Police Station to C.M.H. Hangu while P.W.2 is the identifier of the dead body. P.W.3 is witness to the recovery memo. Exh.P.C. And Exh.P.C/1 as by the former blood-stained clothes of the deceased were taken into possession while through the latter blood-stained earth, five empties and one spent bullet were picked up from the spot and were sealed. P.W.4 is police officer who arrested the accused on 21-5-1990-alongwith Klashnikov. He also placed on file Chemical Examiner's Report Exh.P.E. And report of Forensic Science Laboratory Exh.P.E/1. The complainant Nadir Khan was examined as P.W:5 who almost supported the contents of the F,I.R. In his examination-in-chief. The other witness P.W.6 Ahmad Sher also furnished ocular account of the incident. He stated that on the night preceding the occurrence he was going to mosque but on the way he happened to cough. The accused who was sitting in the shop abused him and.Cursed him over it. He blamed the accused for his behavior which annoyed him and he, was given blow with fist on his nose with which he started bleeding and so he returned back to his home. The matter could not be reported to the police as that was night time and no vehicle was available. In the morning while he had come out of the house he noticed his brother and his nephew. He also saw the accused armed with Klashnikov coming out from a street who fired at the deceased with which the deceased was hit and expired on the spot. P.W.7 Abbas Khan had investigated the case and who explained the various steps taken by him in the investigation of the case. The Medical Officer Umar Khan was examined as P.W.8 who on external examination had found the following injuries on the body of the deceased:--- (1)Entry 1/4" in diameter on occipital region, left. No charring (2)Entry 1/.4" in diameter buttock left. No charring.
(3)Entry lumber region left 1/4" in diameter misaxillary line. .No charring (4)Entry back lumber region 2" lateral 2 vertebral column. 1/4" in diameter. No charring on left.
(5)Entry buttock right 1/4" in diameter. No charring Two grazing forearm left 3" x 3" each. Direction from back forward.
(7) Entry dorsam and left 1/4" in diameter. No charring The accused when examined under section 342, Cr.P.C. Pleaded innocence and false and malicious involvement.
4. The learned counsel for the appellant argued that P.Ws.5 and 6 who had furnished eye account of the incident were not present on the spot and were, therefore, not eye-witnesses of the occurrence, as their statements are full of grave errors and are discrepant on material points. He strenuously stressed that in the heading of the F.I.R. The place of occurrence has been shown as -- -Hujrah Diya--- and the same place has been described as the place where murder took place in the inquest report Exh.P.D/1 but according to the ocular account of the two P. Ws. And the site plan the place of occurrence .Has been shown to be thoroughfare. He was, therefore, of the view that the murder has not taken place in the way as alleged and as such benefit of doubt should be given to the accused. This point was controverted by the learned Advocate appearing for the complainant as well as the State. It is correct that the place of occurrence in the relevant column of the F.I.R. Has been shown as 'Hujra Deh' but if the F.I.R. Is read as a whole then it manifestly conveys the sense that the place of occurrence was the thoroughfare. It has been clearly and unequivocally stated therein that while the complainant and the deceased were proceeding towards the ' Hujra' when they were fired at there. In the site plan the place of occurrence has been described as thoroughfare and the blood-stained earth and 5 empties and one spent bullet were also recovered from the thoroughfare. The 1.0. Who appeared as P.W.7 also showed the thoroughfare as the place of occurrence. He rather stated "at the time of my visit I had not seen any blood inside the Hujra. Similarly, at the time of my arrival there, the people of the village were not present inside the Hujra. Point No.1 is situated in the path. Adjacent to the outside wall of the house of Yaqoob Khan". It could not be shown as to how the prosecution wanted to get benefit from changing the scene of occurrence from Hujra to the thoroughfare. As is clear from the F.I.R. The complainant and the deceased were proceeding on the thoroughfare when the incident occurred and P.W. Ahmad Sher the other eye-witness also supported this fact. The entry of Hujra as place of occurrence in the inquest report is not that much material as this is prepared in routine and the place of occurrence having been shown as Hujra in the relevant column of F.I.R. Was also shown in the inquest report.
The lines in the cross-examination of the complainant to the effect "it is correct that my deceased son was murdered in the Hujra", was also referred to show the place of occurrence as the Hujra. But if the F.I.R. And the examination-in-chief of the complainant P.W. 5 as well as the entire statement of P.W.6 are read as a whole then it would be obvious that the place of occurrence has all along been shown as the thoroughfare. It. Appears that the said sentence is typographical mistake because it is not in sequence with the entire statement -of P.W.5. However, we think that nothing material would turn on this point as over--whelming material on record showed the place of occurrence to be the thoroughfare and not the Hujra. It was next argued that the inquest report does not bear the number of the F.I.R in the relevant column. However, we failed to understand as to how this inconsequential omission would detract from the otherwise truthful nature of the F.I.R. It was next contended that the number of F.I.k. Has neither been given in the inquest report nor in the medical report, therefore, it apparently means- that these were prepared before the report could be recorded. In this context PLD 1973 Lahore, page 475 was referred. This argument could not, however, be taken to its logical conclusion as to how the omission of the number of the F.I.R. In the inquest report would nullify the effect of the allegations in the F.I.R. And the deposition of the eye- witnesses. The case relied upon is distinguishable as in the instant case the complainant is himself an eye-witness and have also named the other witness in the F.I.R. It could also not be elaborated as to what benefit the prosecution could take for purposely omitting the number of the F.I.R. In the inquest report and what advantage the -defence can get from the non-mention of the number.
The report has been made in the Police Station and it is complete by itself and it is not the case of the defence that subsequently either some witnesses were added in the report or the narration of facts were changed therein. This inquest report is prepared in routine by the police officer and any defect in it would never render as doubtful the otherwise proved prosecution case. It was also argued that the recording of the report in the Police Station appears to be intriguing because of the testimony of P.W. 1 Faqir Hussain Constable wherein he stated the report of this occurrence was lodged on the spot". We could not be persuaded to accept this argument as the statement of the said witness appears to be concessional on that account as he has nothing to do with the recording of the report. Moreover, his statement cannot be preferred over the statement of the scribe of the report wherein it - has been stated that it was recorded in, the Police Station. P. W .7 Abbas Khan, A.S.I. Has recorded the report and in his statement he stated "The complainant alongwith the dead body of the deceased came to the P.S. And lodged the report-which I took down in F.I.R. Exh. P.A. Which is correct and bears my signature". The veracity of this witness has not been doubted in respect of the place of recording the F.I.R. As no question whatsoever has been asked from him in the cross-examination. Moreover, if the report had been recorded on the spot then the mistake of recording the place of occurrence would not have occurred and the place of occurrence would not have been written as ---Hujrah Diya---.
Therefore, it is obvious that nothing material turns on this point. It was next argued that the recovery is doubtful as although the opinion of the Expert in respect of two empties and spent bullet is in positive but regarding the remaining three empties it does not support the prosecution case. The statement of marginal witness Alam Khan (P.W.3) was also referred who in his cross--- examination stated that he was made to sign(blank paper). There is no force in the submission as the testimony of the police officer who effected these recoveries is intact on this point and he has not been asked any question whatsoever regarding the recoveries so as to suggest that the recoveries were not effected from the place shown in the site plan but from elsewhere. The recoveries were supported by the marginal witness in his statement and, therefore, his obliging concession cannot bypass and make ineffective the statement to the 1.0. It was also pointed out that the site plan does not support the F.I.R. This argument would not prevail as it overlooks the recovery of blood, empties from the spot and also the testimony of the ocular witnesses and the I.
O. Who all have shown the spot to be the same from where the recoveries were made. It was next argued that the ill-will was against Ahmad Sher then why the deceased was killed. The act of the accused is to be judged from the evidence on record and whatever has been proved against him.
As the guilt is to be determined from the assessment of the allegations made against the accused and not from the supposition that in particular situation he was required to act in a particular manner and not the way he is alleged to have acted. It appears that the accused happened to confront the deceased first and, therefore, fired at him to satisfy his vanity. It was also argued that the presence of Ahmad Sher at the relevant time is not believable. This argument would also hold no good as Ahmad Sher has been shown in the site plan at point No.4 which is just in front of his house and, therefore, he could see the spot from that place. His deposition is consistent and confidence inspiring and he is also natural witness as he was present in front of his house when the occurrence took place. It was also argued that why after all Ahmad Sher was not fired at but as has been stated earlier the accused happened to see the deceased first and, therefore, he did away with him and so he is to be adjudged by whatever he had done and not by whatever he ought or should have done. It was also submitted that the deceased was proceeding towards south when he was fired at from the west, therefore, he should have been hit on the right side and-as such the ocular evidence is not compatible with the medical evidence. It is to be noted that the deceased had also received one injury on right buttock. Moreover, Klashnikov moves about at the time of firing and cannot target a particular place when at random firing is made from it. In the end the appellant's Advocate argued that there is some mystery about the motive as if at all the accused had to commit murder then that would have been of Ahmad Sher and not of the deceased, therefore, according to him on such mysterious motive the death penalty was not justified. We are of the view that nothing is hidden or concealed about the motive as the same motive has been consistently given in the F.I.R. As well as in the testimony of the eye--witnesses. The prosecution put forward the motive for commission of the offence which could neither be discredited nor the accused could even remotely suggest any motive for his false implication. We are of the view that the guilt of the appellant has been proved from the confidence inspiring testimony of the eye- witnesses, which finds support from the recovery from the spot and the Expert Report. The report in this case was lodged without any loss of time as the occurrence took place at 7-00 a.m. While the report was made at 7-30 a.m. In Police Station at a distance of 7/8 miles. It is pertinent to note that the B complainant side had no serious enmity with the accused and except the night occurrence as mentioned in the F.I.R. There was no other ill-will between them. Therefore, it is highly improbable to say that the appellant had been substituted for the real culprit. We also find no mitigating circumstance as the appellant had acted in a very relentless, cruel and rapacious manner and he killed an innocent person who had neither given him any cause for murder nor had remotely harmed him in any way. We are, therefore, of the view that he has rightly been held guilty of murder and has been awarded the punishment he deserved. The appeal is, therefore, dismissed, conviction and sentence of the appellant are maintained and the death sentence is confirmed. We consider the amount of fine and compensation as adequate and decline to interfere in revision and accordingly dismiss it. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.