' FALAK SHER, J.--- A learned Additional Sessions Judge, Gujranwala having tried the appellant Khan
(35) alongwith his brother Lal sons of Mallah, Manzoor and Khizar Hayat in the case registered vide F.I.R. No,104 of 14-7-1990 under sections 302, 307 and 109, P.P.C. Police Station Jalalpur Bhattian for the murder of Lal alias Lalu (35) son of Khan and murderously assaulting his brother Bashir convicted and sentenced the appellant on both the counts viz. Under section 302 to death with a fine of Rs,20,000 or in default to suffer 2 years' R.I. And Rs,50,000 compensation payable to legal heirs of the deceased or to suffer 6 months S.I. And, under section 307, to 5 years' R.I. With a fine of Rs,1,000 or to undergo 3 months' R.I. In default, acquitting the co-accused of the conspiratorial charge vide the impugned judgment, dated 26-7-1992 seeking confirmation of the awarded death sentence within the contemplation of section 374 of the Cr.P.C. Being the subject-matter of Murder Reference No,289 of 1992 legality whereof has been assailed by the appellant through Criminal Appeal No,742 of the same year which are disposed of together hereinbelow:--
2. Nazar P.W.7, brother of the deceased, resident of Kot Daim, cultivator by profession, on 14-7-1990 at 8-10 a.m. Lodged F.I.R. Exh.P.H. With Nasim Ahmad Bhatti, Inspector S.H.O. P.W.12 at the police station.
3. Alleging that on the preceding night having retired alongwith the deceased and Ali Muhammad P.W.9, paternal-cousin, in the courtyard waking up around sun rise was engaged in harnessing the oxen at which juncture the appellant equipped with a .12 bore gun sneaked in and woke up the deceased and as soon as he got up from the cot fired at him landing at his left hip, as a result whereof he collapsed on the ground. Attracted by the gun shot his brother Bashir P.W.8 who was asleep at the roof came in, who too was subjected to a gun shot fired by the appellant landing on his left thigh. The complainant Ali Muhammad P.W.9 and Ahmad given up endeavoured to apprehend The appellant who exhorting extenuating threats vanished away while both the injured were transported to Civil Hospital, Jalalpur on cots enroute whereto the deceased succumbed to the injuries whose body was then diverted to the police station while Bashir injured was dispatched to the Civil Hospital, Hafizabad.
4. Regarding motive it was averred that the deceased had solicited hand of the appellant's niece Fatima Bibi for his brother Bashir injured P.W. Which proposal despite her inclination he declined and was eventually avenged having conspired with the acquitted co-accused.
5. Nasim Ahmad Bhatti, Inspector S.H.O. P.W.12 embarking upon the investigation prepared the deceased's injury statement Exh.P.J., inquest report P.K.; dispatched the dead body to the mortuary for post-mortem examination through Shaukat Ali F.C. P.W.3 who subsequently tendered his last- worn blood-stained clothes shirt PA loin cloth P.2 secured into possession vide memo. Exh.P.A.; collected blood-stained earth alongwith two crime-empties P.3 and P.4 from the spot vide memos.
Exhs.P.E. And P.F. Respectively, attested by Muhammad Nawaz P.W.5, Muhammad Hussain given up and the Investigating Officer, which were entrusted to Ahmed Khan F.C. P.W.10 on 23-7-1990 for transmission inter alia of the latter to Forensic Science Laboratory where the same were duly received on 25-7-1990; prepared rough site plan. Exh.P.L. Formal site plan Exh.P.1 whereof was got prepared from Bashir Ahmad, Patwari P.W.11; arrested the appellant on 27-7-1990 (acquitted co- accused Khizar Hayat and Lal on 17-8-1990 placing Manzoor in Column No,2 of the challan) who the same day led to the recovery of .12 bore single barrel unlicensed gun Exh.P.5 from his house, taken into possession vide memo. Exh.P.G. Attested by Muhammad Hayat P.W.6, Ismail given up and the Investigating. Officer which was transmitted to the Forensic Science Laboratory through Yar Muhammad F.C. P.W.2 on 11-8-1990 who delivered it the same day and was opined to have matched with the crime-empties referred to supra vide memo. Exh.P.O. In cross-examination affirmed that none came forward to divulge first hand information qua the spelt out motive nor on that count Mst. Fatima Bibi or any of her relations was examined.
6. Dr. Capt. Khalid Farooq P.W.4 Chief Medical Officer, Tehsil Headquarter Hospital Hafizabad on the day of occurrence i.e 14-7-1990:--
(i) At 11-15 a.m. Examining Muhammad Bashir injured P.W.8 vide medico-legal report Exh.P.B.
Noticed:-
(1) Multiple fire-arm wounds of entry (numerous in number) each about 1/4 x 1/4 c.m. On outer and front part of left thigh in its middle and lower part in an area 25-1/2 c.m. x 23 c.m.
(2) Multiple fire-arm wounds of entry 4 in number each about 1/4 x 1/4 c.m. In an area 2 c.m. x 2 c.m. On inner part of right thigh in its lower 1/3rd. Edges were inverted and margins were tattooed.
' Of fire-arm origin and within 12 hours duration.
(ii) At 3-30 p.m. Conducted autopsy on the deceased body observing the following vide post- mortem report Exh.P.C.:--
(1) Fire-arm wounds of entry 8 in number each about 1-1/4 c.m. x 1-1/4 c.m. In an area 7 c.m. x 5 c.m.
On left side of lower most part of the abdomen just on iliac bone, 11 c.m. Towards left from mid line of the abdomen, edges were inverted and margins around were tattooed.
(2) Fire-arm wounds of exit 2 in number each about 3/4 c.m. x 3/4 c.m. On back of left abdomen lower most part 2 c.m. Towards left from vertebral colmn that is near sacral area, edges were everted."
' Under injury No,1 iliac bone on left side was broken into pieces sufficient to cause death in the ordinary course of nature; injury No,2 was the exit to which death instantaneously ensued within 12 hours whereof post-mortem was conducted; three foreign metallic bodies were recovered; stomach contained digested and semi-digested food matter."
7. Complainant Nazar P.W.7 testifying the prosecution story explained that the deceased being the eldest brother was head of the family; Bashir P.W.8 suffered injuries while being 1 Karm away from the deceased's cot from which blood had emitted on the floor but was not taken into possession by the Investigating Officer though the same was collected alongwith the crime-empties from the deceased's place who had succumbed to the injuries on way to the hospital after covering four miles.
8. To whom Bashir injured P.W.8 and Ali Muhammad P.W.9 corroborated on all material particulars while the remaining evidence was of formal nature.
9. The appellant recording his statement contemplated by section 342 of the Cr.P.C. Entered the plea of denial and false involvement on account of suspicion in a blind murder preferring not to depose on oath in terms of section 340(2) (ibid) which stance was adopted by the acquitted co- accused.
10. Whereupon the verdict impugned was delivered legality whereof has been assailed by the learned counsel contending it to be an unwitnessed night time blind murder wherein the appellant has been falsely involved; the medical evidence in terms of the stomach contents contradicts the ocular account and the recovery of crime weapon is violative of section 103 (ibid); alternatively the appellant having ascribed only solitary injury capital punishment is not called for.
11. While learned counsel appearing on behalf of the State has supported the judgment.
12. Having examined the entire evidence adduced we are not impressed with the contentions urged by the learned counsel for the appellant because the prosecution's case stands proved to the hilt beyond the realm of doubt by the ocular account furnished through confidence inspiring unimpeached testimony of the complainant whose presence at the time and venue of occurrence remains uncontroverted who in view of the antecedents should have not experienced any difficulty in identifying the appellant even if the urged plea qua time acceleration is kept in mind because the day of occurrence being 20th of Zil Hijjah the moon ought to have been in full bloom: who promptly lodged the F.LR. At the police station travelling with the deceased's body alongwith Bashir injured P.W.8 bearing fire-arm injuries, which patently vouches their presence at the venue.
' Similarly Ali Muhammad P.W.9 is placed, being an immediate neighbour.
13. Who had no motive to falsely substitute the appellant as the sole assailant leaving the culprits go scot free being a phenomenon of rarity.
14. Corroboration whereto stands furnished by the medical evidence affirming the fire-arm injuries as well as the timing through the stomach contents by approximation in addition to positive report of the Forensic Expert Laboratory qua the crime-empties recovered from the spot and received by the latter agency much prior to the recovery of the crime weapon qua which the urged plea is misconceived for the same having been vouched by Muhammad Hayat P.W.6 a co-villager.
15. So, is the submission in alternative for infliction of fatal fire-arm injury at vital part from close range having trespassed into the deceased's place of abode patently demonstrates the requisite mens rea without needing repetition which in any case he did recourse to by causing likewise injury to Bashir injured P.W.B.
16. Consequently, there being no mitigating circumstances the appellant's conviction and sentence is unexceptionable, thus, accordingly, the appeal being devoid of any substance fails and is hereby dismissed.
17. As necessary corollary of the aforegoing answering the Murder Reference in the affirmative the death sentence is hereby confirmed.