' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,109 and Criminal Revision 74 of 1990 filed by the complainant for enhancement of sentence directed against the judgment, dated 13-5-1990 passed by the learned Sessions Judge, Attock, whereby he convicted the appellant Muhammad Bashir under section 302, P.P.C. And sentenced him to imprisonment for life with a fine of Rs,5,000 or in default one year R.I. He was further ordered to pay Rs,20,060 as compensation payable to the legal heirs of the deceased under section 544-A, Cr.P.C.
Benefit of section 382-B, Cr.P.C. Was also granted to hint.
2. The occurrence in this case took place between the night of 34/6/1999 in the area of Dhok Dheer situated at a distance of 35 k.Ms. Towards south from Police Station Pindi Gheb, District Attock.
Matter was reported to the police by Noor Zaman complainant at 8-45 a.m. On 4-6-1989.
3. Brief facts as narrated by the complainant in the F.I.R. Are that complainant Noor Zaman along with his son Noor Hassan, nephew Noor Gul, daughter Mst. Bhag Bharri and his wife Mst. Mulkhan was sleeping in the courtyard of his house. At midnight of 3/4-6-1989, the appellant Bashir while armed with gun entered the house and on the noise of his foot-steps they were awakened. The appellant while coming close to the cost of Noce Hassan, raised a Lalkara and fired at Noor Hassan hitting him in the left flank who expired after a short while. The mctive behind this occurrence is that few days prior to the present occurrence the appellant had trespassed the house of the complainant on which the deceased Muhammad Noor Hassan reprimanded him and used hot words against him. Due to this grudge the appellant committed the murder of deceased.
4. After the receipt of information about this occurrence the S.-I./S.H.O. Raja Walayat Hussain completed all the necessary formalities and then along with other police officials proceeded to spot where he prepared the injury statement Exh.P.H. And the inquest report Exh.P.J. He also collected the bloodstained earth vide memo. Exh.P.D. And also picked up an empty Exh.P.5. Vide memo. Exh.P.E. He also received the last worn clothes P.1 to P.3, amulet P.4 vide memo. Exh.P.B. He arrested the accused/appellant on 10-6-1989 and on 14-6-1989 while in police custody he got recovered .12 bore gun P.6 which was taken into possession vide memo. Exh.P.F. As it was unlicensed a separate case under section 13, Arms Ordinance XX of 1965 was also registered against him. After completion of investigation challan against the appellant was prepared and submitted for trial.
5. Prosecution in order to prove its case has produced as many as 9 witnesses including Doctor, Investigating Officer and other relevant persons. After tendering in evidence the report of Chemical Examiner Exh . P. L. , the report of Serologist Exh . P.M . And that of the Fire Arm Expert Exh.P.N. Closed the prosecution evidence. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded not guilty.
6. Learned counsel for the appellant after having gone through the evidence, judgment of the learned trial Court and other documents available on the record submits that the present occurrence had taken place at midnight and there was no moonlight that no eye-witness was present at the spot, that no identification parade was held, that both the eye-witnesses are father and cousin of the deceased respectively, that two women namely, Bhag Bharri and Mst. Mulkhan were also present in the house but they were not produced in Court, that lantern was not taken into possession by the Police, that occurrence had taken place in dark hours of night and none of the eye-witnesses had tried to apprehend the appellant, that the story of the prosecution that appellant had earlier visited the house of the complainant is not believable. He submits that no case is made out against the appellant by the prosecution and he is entitled to acquittal.
7. On the other hand learned State Counsel assisted by the learned counsel for the complainant submits that appellant is named in the F.I.R., specific role is attributed to him and that it was the negligence on the part of the Investigating Officer if he had not taken the lantern into possession.
Adds that the plea of the defence that both the eyewitnesses are closely related to the deceased is of no avail as they cannot be termed as interested witnesses, that the prosecution has proved its case against the appellant, that the learned trial Court has given flimsy reasons for awarding lesser sentence, that it is the case in which proper sentence is death sentence.
8. We have heard the learned counsel for the parties and have also gone through the record available on the file. In the instant case occurrence had taken place on the night between 3/4-6- 1989, matter was reported to the police at 8 a.m. At near Ikhlas Chowk and formal F.I.R. Exh. P.A/1 was recorded at 8-45 a.m. While the distance between the place of occurrence and the Police Station was 35 k.Ms. Appellant is the only accused in this case and he is the person who had caused fatal injury on the person of the deceased. Although, both the eye-witnesses Noor Zaman and Noor Gul are father and cousin of the deceased but they are natural witnesses as they were inmates of the house. There was no previous background of enmity whatsoever between the parties. There is no question of false involvement of the appellant. It is case of single accused.
There is no substitution. Substitution is the rare phenomina. In the F.I.R. Lantern was mentioned under which the appellant was identified by the P.Ws. But it was the negligence on the part of the Investigating Officer. One can also call it an inefficiency or negligence on the part of the Investigting Officer who had not taken into possession the lantern. Court has also to see the quality of evidence and not the quantity of the evidence. It was not necessary for the prosecution to produce Bhag Bharri and Mst. Mulkhan, the real sister and mother of the deceased as two eye- witnesses were sufficient in this case. Ocular account is corroborated by the medical evidence and it may also he kept in mind that report of Fire Arm Expert Exh. P.N. Is positive. In the instant case crime empty was taken into possession on the same day i,e, 4-5-1989 while appellant was arrested on 10-6-1989. And gun was recovered from him on 20-6-1989. Crime empty matched with the gun recovered on the pointation of the appellant. Empty was also dispatched .On 4-6-1989 before the arrest of the appellant so ocular account is not only corroborated by the medical evidence but also recovery of fire-arm on the pointation of the appellant and the report of the Fire Arm Expert which is positive in nature. It may also be mentioned here that the appellant had also visited the house of the complainant party few days ' prior to the present occurrence. When the deceased woke up the appellant ran away and at that time the deceased throated the neck of the appellant and in order to take the revenge of that incident he had committed this murder. The story of the appellant before the trial Court that he had been falsely implicated in this case at the behest of his step-father is not believable as no father would spare the murderer of his son and he would not involve any innocent person on the behest of some one else. This is totally unfounded and absurd defence of the appellant. The grounds given by the learned trial Court for the lesser sentence in this case are not well-founded. In fact a false pretext was made to award the lesser sentence to the appellant which is not recognized by the criminal administration of justice by stating that the real motive for the occur rice was sufficiently suppressed and was taken to be shrouded in mystery. In the recent judgment of the Hon'ble Supreme Court of Pakistan titled as Waris Khan v. The State (2001 SCM R 387) in which dictum of motive has been explained and for ready reference same is reproduced below:- "Motive-Sentence---Weakness or absence of motive or failure to prove the same---Effect--- Where the eyewitness account was worthy of credence, unimpeachable, confidence-inspiring and accusation was established beyond shadow of doubt, weakness of motive or in absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances."
9. After scanning the evidence, hearing the submissions made by the learned counsel for the parties and going through the record, we are fully satisfied in our mind that this is not a case of lesser sentence. In this view of the matter, the sentence awarded to the appellant under section 302, P.P.C. Learned trial Court is enhanced and is converted from life imprisonment to death.
Compensation already awarded to the appellant is maintained and sentence of tine i,e, Rs,5,000 is also converted into compensation under section 544-A, Cr.P.C. Which, if recovered, shall be paid to the legal heirs of the deceased or in default six months' R.I.
Sentence enhanced.