' TARIQ PERVEZ, J.--Appellant, Israr, aged 33 years resident of Hoti Mardan was tried and convicted by the learned Additional Sessions Judge, Peshawar and was sentenced to life imprisonment under sections 302/109/34, P.P.C. With a fine of Rs,10,000 and in default of payment of fine he was to further undergo two years' R.I. Fine, if realized, was to be paid to the legal heirs of the deceased as required under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was, however, extended to the accused.
2. Our this judgment shall dispose of Jail Criminal Appeal No,200 of 1994 filed by the convict- appellant and also Criminal Revision No,114 of 1994 filed by the State for the enhancement of the sentence.
3. Put shortly, the facts of the case are, that Imtiaz Ahmad, S.I. (P.W.8) was present in Bazar Misgaran, Peshawar along with other police contingency, heard the report of fire shots and noticed a person running away having a 'Tamancha' in his hand and was being chased by some other person who were saying that the person running ahead has killed another person by firing at him.
On this, P.W.8 along with his companions started running after the aforesaid person and apprehended him near Kocha Mohallah Khuda Dad and recovered a pistol of .30 bore country- made with round in the chamber. The person so apprehended disclosed his name to be Israr (the appellant).
4. While in the process, Muhammad Jamil (P.W.3) complainant of the case arrived and made the report by stating that his maternal uncle namely, Shahabuddin, is running a hotel in the vicinity with whom he is employed; that he (complainant) and the deceased Shahabuddin were going towards Bazar Shah Wali Qatal to make purchases of tea cups for the hotel and having reached the place of occurrence, the accused arrested, came and made firing on Shahabuddin, as a result Shahabuddin was hit and died on the spot. It was further alleged in the report that the instant murder has been committed by the appellant with the abatement of Shah Zarin and Azeem with whom the complainant party had enmity.
5. The Investigating Officer (P.W.8), after the report was recorded, prepared the injury-sheet and inquest report and sent the dead body for postmortem examination to the mortuary. He inspected the spot and recovered blood-stained earth through memo. Exh.PC/1. He also took into possession the pistol, referred to above, with a round and prepared memo. Exh.PC. The bloodstained garments of the deceased were taken into possession vide memo. Exh.PC/2. He also prepared the site plan Ex.PB on the pointation of the complainant and on his personal observation. Points No,12 to 14 were added to the site plan on 8-5-1993 on the pointation of the accused. Similarly a pointation memo was prepared as Exh.PW8/4 when the accused, Israr, was taken to the spot.
6. Muhammad Ajmal Khan, Magistrate (P.W.5) has recorded the confessional statement of the appellant on 9-5-1993 which is Exh.PK/2. At the trial, the prosecution produced 10 witnesses, out of which Muhammad Jamil and Abdur Rauf furnished ocular account of the occurrence while Gul Khan, H.C. (P.W.6) and Imtiaz Ahmad, S.I.(P.W.8) have deposed about the apprehension of the accused immediately after the occurrence. Dr. Muhammad Rasool Jan (P.W.10) has carried out the post-mortem on the dead body of the deceased and has foupd two fire-arm entry wounds, both on the back of the deceased and of the same size i,e, 1 x 1/2 c.m.
7. Learned counsel for the appellant, challenging the conviction, argued that it is a case of misidentity as to the extent of apprehension of the appellant as according to him the occurrence took place in busy bazar and the real culprit escaped while the appellant was made the scapegoat; that, the two eye-witnesses were not present and even if they are presumed to be present there, their statements are not only inconsistent inter se but are belied by the medical evidence as well as site plan. Explaining, it was argued that according to P.W.3 the report was made in the Police post after the dead body was taken in a Datsun where after the complainant went to the mortuary and having identified the dead body, went to his native town and came to Peshawar to associate with the investigation on the following day. Whereas, according to P.W.4, the report was made to the police in the Police Post and thereafter they left for their village and came back after six days of the occurrence. Further, that the site plan in view of the above circumstances could not have been prepared on 3-5-1993. It was also argued that according to P.W.3 the accused came from the front side but injuries on the person Of the deceased are on the back; that, P.W.4 who has been shown at point No,5 of the site plan could not see the occurrence and in this respect reference was made to the statement of Imtiaz Ahmad, S.I. (P.W.8).
8. As regards the confession, it was argued that the same was recorded on 9-5-1993 and the delay by itself would show that the confession was not voluntarily made. Further, that the same has been retracted and that while put to the accused under section 342, P.P.C. He has denied having made any confession.
9. The apprehension and recovery of pistol was challenged on the ground that in thickly populated area where hundred/thousand people are going around, the firing must have created panic and everybody started running and in that the appellant has been arrested on suspicion. The pistol was said to 130 planted as it was argued that the same being licensed in the name of one Noor Nabi, no one generally uses a licensed weapon for committing crime of the nature.
TO In reply to the arguments of the learned counsel for the appellant, the learned Additional Advocate-General assisted by the counsel for the complainant argued that it is a case of single accused, the accused was apprehended on the spot with a pistol giving smell of fresh discharge; that the statements of P.Ws. Muhammad Jamil and Abdur Rauf find sufficient corroboration from independent sources like recovery of blood from the spot, the medical evidence and the apprehension of the accused by disinterested persons like P.Ws. Gul Khan, H.C. And Imtiaz Ahmad, S.I. It was also argued that mere delay in recording the confession would not make the same inadmissible being involuntary. Further, that the complainant side had no enmity with the present accused and they were so fair that they charged the real culprit otherwise they could have attributed the effective role to their enemies named in the F.I.R on whose behest the present occurrence is said to have been committed, namely, Shah Zarin and Azeem.
11. We will first take up the ocular evidence and find that the report has been made promptly as the occurrence took place at 1-30 p.m. And the report was made at 1-45 p.m. i,e, within a span of 15 minutes which period would also include the chase, the apprehension and then making of report.
The name of the present accused was not even known to the complainant and it was accused himself who disclosed his name to the Police. The statements of P.W.3 and P.W.4 who have furnished the eye-witnesses account has gone unchallenged as far as the real occurrence is concerned i,e, the presence of the two witnesses with the deceased, the firing being made by the present appellant and that two shots having hit the deceased on the back, which fact is supported by the medical evidence. The two witnesses have got no animosity with the present appellant which will rule out the possibility of false implication. Otherwise too, it is now well-established principle that in case of single accused being charged, the substitution is a rare phenomena. The presence of P.W.3 has not been even challenged in the cross-examination by putting him a remote suggestion as to his absence. The ocular testimony as to the main feature of the case is consistent and confidence inspiring. Some differences in the statements of the two witnesses as to the facts after the occurrence cannot tarnish their statements, to the extent that they be disbelieved as to the main occurrence.
12. The confession, though recorded after lapse of six days, appears to be voluntary and true. It cannot be a rule that confession recorded after some days should be considered involuntary on the score of delay alone. Of course, where there is no direct evidence and an accused person is apprehended during investigation and when there is circumstantial evidence alone, in such cases the confessions are generally required and one can say that the Investigating Agency may coerce the assailants to make the confession. In such cases, delayed confession would be looked with caution but in the instant case, the accused was arrested on the spot by independent witnesses Gui Khan, H.C. And Imtiaz Ahmad, S.I. With weapon of offence and there was direct evidence of the eye- witnesses and there was neither need nor the police was under compulsion to secure a confession. In this view of the matter, we will hold that the confession is not only voluntary but as the facts disclose tally with the facts given by the complainant in promptly made report would establish the confession to be true as well. For the reasons stated above we are of the considered view that the prosecution has successfully proved its case beyond doubt against the accused- convict and he is guilty of the offence charged with. As such the appeal is dismissed.
13. Now coming to the revision where the State has challenged the awarding of lesser sentence to the accused-convict, we would refer to the judgment Of the learned trial Judge who in para. 11 of his judgment has made the following observations:-- "So, in the light of the above resume of discussion, the prosecution has succeeded in bringing home the guilt against the accused facing trial beyond any shadow of doubt. Since the accused had no enmity with the deceased and he had committed the murder for monetary consideration, therefore, deserves no leniency."
' The reasons given above are neither legal nor on facts shown to be mitigating circumstance. The accused once found guilty and in particular when according to the confession he has committed the murder for monetary gains, he deserves no leniency in awarding of sentence. The stand of the prosecution is so consistent with the confession that in the F.I.R. And later at the trial the motive attributed is to the real enemies but the present accused is said to have committed the crime on their behest. If the hired assassins, who commit the crimes particularly the crime of killing, are dealt with such a manner that they are given the benefit of lesser sentence on the ground that they have no personal motive or enmity, would tantamount by putting premium on the conduct of the hired assassins to keep on killing people for money sake and escape the normal sentence of death. We cannot subscribe to the view taken by the learned trial Judge while awarding the sentence. The accused-convict has admittedly committed the murder for no personal reason or rhyme but to get reward in terms of money, he is to be given the normal penalty as prescribed by law. We, therefore, accept the revision petition and order that the accused be sentenced to death under section 302(b), P.P.C. He be hanged by his neck till he is dead. The fine could not have been imposed under the amended law of Qisas and Diyat Ordinance (now Act and part of Pakistan Penal Code). The said amount be paid to the legal heirs of the deceased as compensation in terms of section 544-A, Cr. P .0 .