' SHAHZAD AKBAR KHAN, J.--- The convict/appellant, namely, Umer Keyaz alias Rakeyaz, son of Umer Ayaz Khan alias Adam Khan, Caste Pasthoon, resident of village Nusrat Shal Khel, situated within the jurisdiction of Police Station Cantt. Tehsil and District Bannu, was initially tried by the learned Sessions Judge, Bannu, on the charge firstly, that he on 12-12-1991 at 8-00 hours, committed Qatl- e-Amd of Sher Ayub by firing at him with a kalashnikov and thereby committed an offence punishable under section 302, P.P.C. Secondly. That he on the same date, time and place had thrown the said kalashnikov which was subsequently recovered but he failed to produce any permit for its possession and, therefore, committed an offence under section 13, Arms Ordinance.
The accused pleaded not guilty to both the said charges and claimed innocence. The learned trial Judge, therefore, recorded the prosecution evidence and after weighing the same came to the conclusion that guilt of the accused was proved beyond any shadow of doubt and, as such, on conviction he was sentenced to undergo imprisonment for life under section 302, P.P.C. With a fine of Rs,30,000, and in default whereof to further suffer two years' simple imprisonment, vide judgment, dated 26-4-1994.
2. The convict challenged his aforesaid conviction and sentence before this Court through Criminal Appeal No,42 of 1994, which was accepted on the ground of jurisdiction alone and the case was sent back to the trial Court for trial de novo by the Special Court, vide judgment, dated 10-2-1998.
3. After remand, the accused was tried afresh by the Special Judge, Bannu under sections 302, P.P.C. And 13, Arms Ordinance and on conclusion of the trial, he was again found guilty for committing Qatl-e-Amd of the deceased and, therefore, he was convicted and sentenced to death sunder section 302(b), P.P.C. He was further directed to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Besides, he was also found guilty for possession of unlicensed kalashnikov and cartridges and was, therefore, convicted and sentenced to three years' R.I. And a fine of Rs,5,000 or in default thereof to further undergo six months' simple imprisonment, vide judgment, dated 16-9-1998. Hence the instant appeal.
4. The prosecution story, as gleaned from the F.I.R. (Exh.P.A.), is that on the eventful day the complainant alongwith his brother Sher Ayub were busy in making shoes in their Baithock when at 8-00 hours, Umer Qiaz alias Raqiaz son of Umer Ayaz alias Adam duly armed with a kalashnikov entered in the courtyard of the said. Baithock and on seeing him (the accused), Sher Ayub also came out of the Baithock when in the meanwhile Umer Qiaz fired two shots at Sher Ayub with which he was hit, fell down to the ground and expired there and then. Thereafter, the accused ran towards the road-side who was followed by the complainant and overpowered at some distance.
However, the complainant could not see the throwing of the kalashnikov in question by the accused during his running. In the meantime, Naqibullah, brother of the complainant, who was present inside the house, also reached near the complainant and they both brought the accused with them and detained him in their Baithock. However, no motive was given for the offence. On the basis of this report, case F.I.R. No,503 was registered against the accused, who after conclusion of the trial was convicted and sentenced as stated above, which is under challenge through the appeal in hand.
5. In order to prove its case against the convict/appellant, the prosecution in all examined nine witnesses. Of them, P.W.1 Latifullah, Foot Constable had accompanied the dead body of the deceased to the mortuary for post-mortem examination, while P.W.2, Ghulam Farid Khan, A.S.-I.
And P.W.3 Muhammad Khan, Head Constable are marginal witnesses to the recovery memos.
Exh.P.R., Exh.P.R./1 and Exh.P.R./2, vide which the Investigating Officer had taken into possession blood-stained earth, two empties of 7.62 bore, blood-stained shirt, a kalashnikov with its magazine and 19 cartridges. P.W.4, Rashid Gul is complainant of the case who has supported his first information report, while P.W.5, Naqibullah Khan is an eye-witness of the incident and also brother of the deceased. He had accompanied the deceased to the mortuary, and has fully supported the story disclosed in the first report.
6. P.W.6, Doctor Khalid Farooq Khan, Medical Officer, District Headquarters Hospital, Bannu, had conducted autopsy on the dead body of the deceased on 12-12-1991 and found the following injuries on his person:--
(1) One fire-arm entry wound 1/4" x 1/4" on right side or face 1" to right side of right angle of the mouth, blackening marks are present.
(2) Fire-arm injury entry wound on right side of chest 1/4" x 2" below the right side of face blackening marks are present.
(3) Fire-arm injury outlet wound 6" x 5" on the right back of skull. The skull bones are scattered.
Scalp bone scattered. Membrane and brain damaged. Stomach contained semi-digested and semisolid food.
7. In his opinion, the deceased had died due to fire-arm injury to the vital organs, i,e, brain, leading to severe haemorrhage, shock and death. Time that elapsed between injuries and death was opined instantaneous while that between death and post-mortem examination was given to be 1- 1/2 to 2-1/2 hours.
8. P.W.7, namely, Ras Ali Khan, co-villager of the deceased had identified his dead body in the hospital. P.W.8, namely, Muhammad Sikandar Khan was, during the days of occurrence, posted as S.H.O. Of Police Station Cantt., Bannu and has partly investigated the case and after completion of the investigation had submitted complete challan against the accused. P.W.9, Hashmat Ali Shah, Additional S.H.O. Of Police Station Cantt., Bannu had registered the case vide F.I.R. (Exh.P.A.) prepared the injury sheet (Exh.P.M./2) and inquest report (Exh.P.M./1) of the deceased and sent his dead body for post-mortem examination to the hospital under the escort of Latifullah Khan (P.W.1).
He had, therefore, completed the remaining requisite formalities.
9. Mr. Dost Muhammad Khan, learned counsel for the appellant has assailed the judgment and the ensuing conviction and sentence recorded by the learned trial Court on the following grounds:-- ' Firstly; that the entire story of the prosecution and the mode of happening of the event is unnatural and does not appeal to the faculty of mind, as according to the learned counsel, it was impossible that the complainant could give a chase to the accused, who was equipped with a kalashnikov and in such a situation, the capturing of the appellant and overpowering him is not believable, ' Secondly; that the kalashnikov was not recovered from the possession of the appellant and a fake kalashnikov was planted upon him by the Investigating Officer.
' Thirdly; that the Investigating Officer had not mentioned in the site plan the point wherefrom he had arrested the accused and this omission plus the recovery of kalashnikov attributed to the appellant are the eloquent indicators towards the dishonest investigation carried out by the Investigating Officer.
' Fourthly; that the recovery of empties from the scene of occurrence, if compared to the location of the point where the appellant was shown firing on the deceased is not acceptable, as it appears contrary to the mechanical action of the weapon, as the accused was shown on the spot in the site plan wherefrom he statedly fired at the deceased Sher Ayub, whereas the empties were recovered from points Nos.4 and .5, which falls on the left side of the accused when he was shown firing at the deceased who was allegedly hit by the same, ' Fifthly; that the locale of the injuries shows that the deceased was not in a standing position but was hit in the lying position, ' Sixtffly; that the blackening marks present on the body of the deceased would show that the fire was made on the deceased from a distance not beyond two feet, whereas the distance, in the instant case as is appearing from the site plan, is five feet. These factors go a long way to show that the complainant had not witnessed the occurrence, nor he was present at the crucial time, ' Seventhly; that P.W.5 Naqeebullah was a witness to the occurrence from the stage when the appellant was resisting the struggle of the complainant and he was overpowered by Naqeebullah and the complainant and was brought back to the Baithock where he was detained, ' Eightly; that conviction cannot be based on the solitary statement of the complainant, who is closely related to the deceased and no independent corroboration is forthcoming to substantiate the tainted testimony of the complainant; and ' Ninethly/lastly that in case his submission did not find favour for the outright acquittal of the appellant, then in the circumstances of the case, the punishment of death is not warranted and a request for its reduction was made.
10. On the contrary, the learned counsel appearing on behalf of the complainant and the learned Assistant Advocate-General for the State have, with full force, defended the impugned judgment and the ensuing conviction and sentence. They argued that right from the beginning the appellant has been indicated for the offence being nominated in the F.I.R. And the version of the prosecution was consistently supported by the complainant being an eye-witness and P.W. Naqeebullah, who was also a material witness having seen the occurrence from the stage when immediately after the occurrence, the complainant and the appellant were grappling with each other close to the scene of occurrence. They further argued that testimony of both the witnesses is of such a high order and quality which despite a lengthy cross-examination was not shattered even minutely. The occurrence is of broad daylight and no question of identity is involved. No motive of false involvement has been established against the prosecution. The medical report fully corroborates the version of the complainant. They went on arguing that the kalashnikov used by the appellant having been found by the children in the nearby field and handed over the womenfolk of complainant's house was produced before the Investigating Officer on the next following day and the empties recovered from the venue of occurrence were sent to the Forensic Science Laboratory for expert opinion, which was received back with the report that the empties were wedded to the crime kalashnikov. The appellant was apprehended on the spot. Thus, all the above circumstances go a long way to establish the case of the prosecution beyond any doubt and, as such, the impugned judgment of the trial Court and the conviction and sentence recorded by it are not open to interference on any point.
11. We have heard the rival arguments of the parties and carefully gone through record of the case with the able assistance of the counsel for the parties.
12. We may observe that the points raised by the learned counsel for the appellant when placed in comparison to the prosecution evidence, none of the points so raised is so weighty and forceful as to outweigh or in any manner annihilate the evidentiary force of the prosecution evidence.
However, for the sake of convenience and clarity of the matter, the points of the defence counsel are dealt with hereinafter.
13. The first point of the learned counsel for the appellant is that it is not conducive to the natural disposition of the mind that a person having committed a murder being in a desperate position could be given a chase by the brother of the deceased. This is neither unnatural nor falls within the orbit of impossibility, because the real brother of the complainant was murdered before his eyes and the relationship which naturally boils the bloods does not care about the possible danger. The awe of committing a murder is also a factor which could dominate the murderer and moreover, the appellant had thrown the crime weapon in the nearby fields most probably under the influence that he may not be exposed to the general view and somebody may not see him running with the crime weapon in his hand as it was a day time. By the time when the complainant was grappling with the appellant, the appellant was empty-handed. Besides this, the brother of the complainant had also very immediately reached to give support to his struggle. Thus, we cannot agree to the submission of the learned counsel that it was either unnatural or unlikely of a man to chase the appellant.
14. The second point is that the kalashnikov was fakely planted upon the appellant as it was produced subsequently. In this respect, we observe that if the Investigating Officer, or for that matter, the complainant, had any mind to produce a fake weapon, they could very conveniently do so on the very day of the occurrence and there was no logic for them to postpone the matter to the following day. In this regard, the Investigating Officer and the complainant were so upright that instead of showing the recovery of kalashnikov on the same day, it was very genuinely shown to have been produced on the following day. As is evident from the F.I.R., the weapon attributed to the appellant was a Kalashnikov from the very first moment. Thus, the Investigating Officer being expert in the field of investigation could direct the complainant to manage for the Kalashnikov on the very first day as the identity of the weapon was not in doubt. The story is quite natural that the children of the area found the Kalashnikov who handed over to the ladies of the victim's house and in turn it was produced by the complainant to the Investigating Officer. Therefore, we do not feel ourselves in agreement with the learned counsel for the appellant on this point too.
15. The third point of the learned counsel is also immaterial. It is a matter of evidence that the appellant after he was overpowered by the complainant party was detained in the Baithock of the complainant till the arrival of the S.H.O. Wherefrom he was arrested. The fourth point is with regard to the recovery of two empties from two different points is contrary to the mechanical action of the weapon is also of no significance, as firstly the empty ejected by the weapon is neither a nail on or a peg which remains firm in the ground. An empty is obviously a loose object lying on the surface and a kick of the human toe or strike can disturb its place without having been noticed even. In the instant case, when the deceased was being taken by the people and the empties were lying close to the deceased, there could possibly be moved from one point to another by the foot strikes of the people gathered there. It is a common phenomenon that when a murder takes place, large number of people would gather on the spot. Thus, the point is not of any significance.
16. The fifth point of the learned counsel for the appellant is rather misconceived. The deceased was fired in a standing position by the appellant and the medical report shows that one fire-arm entry wound 1/4" x 1/4" was present on the right side of the face 1" to right side of right angle of the mouth. The second injury was observed by the doctor as the fire-arm injury entry wound on right side of the chest 1/4" x 2" Jelow the right side of the face and the third was a fire-arm injury outlet wound 6" x 5" on the right back of the skull. The complainant at the very initial stage in F.I.R. Had categorically stated that the appellant had fired two consecutive shots with which his brother Sher Ayub was hit on the head. Thus, the medical report is completely in line with the evidence of the complainant. The sixth point is that the blackening is not possible from a distance of five feet.
Undoubtedly, the site plan shows that the distance between the assailant and the victim was five feet, but the stretch of hands and the length of the weapon undoubtedly had curtailed the distance to a measure wherefrom the blackening could not be said to be impossible. Regarding the seventh objection that the P.W.5 Naqeebullah was not a witness to the occurrence from the initial stage, it too holds no water and is misconceived, as he had reached the spot soon after the incident and had very much witnessed the crime from the stage of grappling of complainant with the appellant.
Regarding the 8th objection that the complainant is related to the deceased and no independent corroboration is forthcoming is also incorrect, because the complainant who is the real brother of the deceased cannot be termed as interested merely because of his relationship with the deceased, because there is no animosity existing between the complainant and the appellant.
Moreover, the testimony of the complainant finds strong support from the statement of P.W.
Naqeebullah and the circumstantial evidence in the form of recovery of the empties of Kalashnikov which were found wedded to the crime weapon. The medical report fully corroborates the version of the complainant and no circumstance exists which should have even a remote tendency of undermining the evdentiary value of the ocular or circumstantial evidence. We, therefore, regret our inability to agree with the learned counsel on the point that the complainant is an interested witness.
17. It may also be observed that the trend of cross-examination of the defence counsel to evolve a theory for establishing lovely relations of the sister of the deceased with the appellant was incorrect. Such questions were put as a matter of suggestion which were strongly refuted by the witness. The effort of the defence was to prove that the deceased was willing to give the hands of his sister to the appellant, over which the complainant and P.W. Naqeebullah were unhappy and such unhappiness persuaded the complainant and P.W. Naqeebullah to kill their own brother Sher Ayub. The accused was examined under section 342, Cr.P.C. And no defence was produced. We understand that if there had been any such affair between the sister of the deceased and the appellant, the appellant would have very conveniently produced some defence witnessses to prove the love affair. Moreover, it is also a matter of evidence that the sister of the complainant had died about 8/9 months prior to the occurrence.
18. The above discussed circumstances leave no difficulty in making a considered opinion that the prosecution has succeeded in proving its case beyond any shadow of doubt against the appellant.
Thus, the finding of the learned trial Court with regard to the conviction of the appellant is correct and not open to any interference. However, the punishment of death, in the circumstances of the case, is not justified, as in the instant case, neither there is any motive for the commission of the offence, nor immediate cause of attack is known and in such-like circumstances where the motive is shrouded in mystery and the immediate cause of the attack is not known, the awarding of the maximum punishment of death is normally abstained. In this respect, we feel ourselves guided by the judgments reported in 1984 SCMR 836 and 1999 SCM R 1138.
19. Resultantly, the appeal is partially accepted and the sentence of death is commuted to life imprisonment, while the amount of fine and compensation as ordered by the trial Court are kept intact. The murder reference is answered in negative.