' ASIF SAEED KHAN KHOSA, J.--- Sobdar Khan appellant was convicted by the learned Additional Sessions Judge, Jampur, District Rajanpur vide judgment, dated -27-9-1995 for an offence under section 302(b), P.P.C. And was sentenced to death as Ta'zir. He was also ordered to pay a sum of Rs,30,000 to the heirs of Muhammad Iqbal deceased by way of compensation under section 544- A, Cr.P.C. Or in default of payment thereof he was ordered to undergo R.I. For six months. Sobdar Khan convict has challenged his conviction and sentence before this Court through Criminal Appeal No,268 of 1995. We have heard Sobdar Khan convict's appeal alongwith Murder Reference No,222 of 1995 seeking confirmation of the sentence of death passed against him and we propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Pervaiz Iqbal complainant was a resident of village Tibbi Lundan situated within the area of Police Station Harrand, Tehsil Jampu District Rajanpur and was studying in Government High School, Tibbi Lundan. At about Depeharwela on 10- 8-1994 the complainant's paternal-cousin Mian Ahmad Bakhsh alias Mian Afsar and Mian Muhammad Akhtar had come to the complainant's house with their families from Basti Panah Ali.
At about 11-15 a.m. On 11-8-1994 the complainant and his cousins Mian Ahmad Bakhsh alias Mian Afsar and Mian Muhammad Akhtar were going towards the Bazar of village Tibbi Lundan for making household purchases when they saw that the complainant's father Muhammad Iqbal was sitting on the Thalli of the General Store of Khadim Hussain Rind situated in Ganj Bazar, Tibbi Lundan. At about 11-30 a.m. Sobdar Khan, the complainant's Phupha, emerged there armed with a rifle and shouted a Lalkara that he would teach lesson to the complainant's father Muhammad Iqbal for abusing and pushing him on the preceding evening. Then all of a sudden Sobdar Khan fired at Muhammad lqbal hitting the latter at his mouth whereupon Muhammad Iqbal fell down from the Thalli. When the complainant his companions rushed towards the complainant Sobdar Khan aimed his rifle towards them and warned them of the same treatment if they tried to go near.
Thereafter, Sobdar Khan left the place of occurrence with his rifle and went towards his house.
Muhammad Iqbal succumbed to his injury at the spot. The motive set up in the F.I.R. Was that during the preceding evening Muhammad Iqbal deceased and Sobdar accused had abused each other over settlement of Rishta whereafter Muhammad Iqbal deceased had pushed Sobdar Khan accused out of the former's house. It was stated in the F.I.R. That Sobdar Khan accused had murdered Muhammad Iqbal deceased on account of that grievance. Soon after witnessing the occurrence Pervaiz Iqbal complainant left to report the matter to the police after leaving his father's dead body at the spot in the care of the complainant's cousins Mian Ahmad Bakhsh alias Mian Afsar and Mian Muhammad Akhtar.
3. On the same day Pervaiz Iqbal complainant made a statement (Exh.P.E./1) before Jahan Khan, A.S.-I. (P.W.8) in respect of the incident in question at Police Post Tibbi Lundan. Subsequently formal F.I.R. No,77 (Exh.P.E.) in respect of an offence under section 302, P.P.C. Was registered at Police Station Harrand on the same day at 12-45 p.m. By Aman Ullah, M.H.C. (P.W.4).
4. After recording the F.I.R. Jahan Khan, A.S.-I. (P.W.8) took up the investigation of this case and went to the place of occurrence where at he prepared an injury statement (Exh.P.C.) and an inquest report (Exh.P.D.) in respect of Muhammad Iqbal deceased and sent his dead body to the mortuary for autopsy. He also inspected the place of occurrence, prepared a rough site plan (Exh.P.H.) of the same, collected blood-stained earth vide memo. Exh.P.F. Therefrom and recorded the statements of witnesses.
5. Post-mortem examination (Exh.P.B.) of the dead body of Muhammad Iqbal deceased was conducted by Dr. Faizullah Khan (P.W.3) at 8-00 a.m. On 12-8-1994. He found four injuries on the dead body which were all ante-mortem. According to him Injuries Nos.1 and 2 had been caused by fire-arm whereas Injuries Nos.3 and 4 had been caused by blunt objects. In his opinion the cause of death was injuries to spinal cord, haemorrhage and shock due to Injuries Nos.1 and 2 which were sufficient to cause death in the ordinary course of nature. Injuries Nos.3 and 4 were found by him to be simple in nature. Probable time between injuries and death was immediate and between death and post-mortem examination was twenty hours.
6. After the post-mortem examination of Muhammad Iqbal Jahan Khan, A.S.-I. (P.W.8), the Investigating Officer, secured the last-worn clothes of the deceased vide memo. Exh.P.A. He arrested Sobdar Khan accused and recovered rifle (P.3) with four live cartridges (P.4 to P.7) at his disclosure and pointing out and took the same into possession vide recovery memo. Exh.P.G. He also got a formal site plan (Exh.P.J.) of the place of occurrence prepared from a Patwari. Thereafter, he completed the other formalities, finalized his investigation and submitted a challan in respect of this case.
7. At the commencement of the trial the learned triarCourt framed a charge with one head under section 302, P.P.C. Against Sobdar Khan accused to which he pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as 10 witnesses in support of its case against the accused person. Pervaiz Iqbal complainant (P.W.6) and his cousin Mian Muhammad Akhtar (P.W.7) furnished the ocular account of the incident. Both the said witnesses also deposed about the motive. Dr. Faizullah Khan (P.W.3) provided the medical evidence. Mian Muhammad Akhtar (P.W.7) also deposed about the recovery affected from Sobdar Khan accused. Jahan Khan, A.S.-I.
(P.W.8) stated about various steps taken by him auring the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In his statement recorded under section 342, Cr.P.C. Sobdar Khan accused denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While answering a question as to why he had been implicated in this case and also as to why the prosecution witnesses had deposed against him Sobdar Khan accused stated as follows:-- ' "The case is false due to political rivalry. The P.Ws. Are relatives of the deceased and one Mian Khalil Qureshi is brother-in-law of Ahmad Bakhsh who is my opponent and have got me falsely involved in his case."
' He, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in his defence.
10. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Jampur convicted and sentenced Sobdar Khan accused as noticed above. Hence, the present appeal and the connected Murder Reference before this Court.
11. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have also gone through the record of this case with their assistance.
12. The learned counsel for the appellant has argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. He has maintained that the eye-witnesses produced by the prosecution did not inspire confidence as they were chance witnesses and also because they had failed to receive sufficient corroboration from the independent evidence produced by the prosecution. In this context he has argued that the motive set up by the prosecution had not been proved, the alleged recovery of rifle from the appellant was sham and the medical evidence contradicted the ocular account. In the alternative he has submitted that, at any rate, the peculiar circumstances of this case did not warrant a sentence of death against the appellant. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt and that there was no mitigating circumstance available on the record so as to reduce the sentence of death passed against the appellant.
13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt. It was a case of a daylight occurrence and two eye-witnesses had deposed against the appellant quite consistently. It is true that Pervaiz Iqbal complainant (P.W.6) was the son of the deceased and Mian Muhammad Akhtar (P.W.7) was the deceased's nephew but mere relationship with the deceased has never been considered to be sufficient to discard the testimonies of eye-witnesses if otherwise they inspired confidence of the Court. Pervaiz Iqbal complainant (P.W.6) was a resident of the same village and, on account of being free from his studies because of summer vacation in his school, his going to the village Bazaar with his visiting cousins at about mid-day was a claim which was neither extraordinary nor unusual. The statement of the Investigating Officer (P.W.8) that all the shops in that Bzaar were closed at the time of occurrence as all the shopkeepers had gone to Multan for making wholesale purchases has been found by us to be a dishonest concession dished out by him to the appellant as the same was neither believable nor probable. All the shopkeepers of that Bazaar could not have left en block for making wholesale purchases on one and the same day and that too from a particular city more than a hundred miles away, especially when there were other big cities available nearer.
In this context we are not unconscious of the fact that the appellant was a retired police official, Therefore, an attempt by the Investigating Officer lo help out his former colleague was understandable, although liable to be deprecated. Pervaiz Iqbal complainant (P.W.6) was a young lad of 16 years. His being the son of the deceased was not to eclipse the fact that the appellant was also his Phupha. He had no ostensible reason to falsely implicate his such a close elder relative for the murder of his father. In this context we have also noticed that the appellant was not just a brother-in-law of the deceased but the deceased had in fact been brought up by the appellant and after his retirement the appellant used to spend most of his time in the house of the deceased.
In the backdrop of such an intimate and close relationship and interaction between the deceased and the appellant, and also in the complete absence of any previous bitterness between them, it was well-nigh unimaginable for the young complainant to falsely point an accusing finger towards the appellant.
14. Mian Muhammad Akhtar (P.W.7) was also closely related to the appellant as well as the deceased. The deceased was his Mamoon and the appellant was his Khaloo. It is true that he lived in a different village but his claim of having come to the village of occurrence a day before the occurrence with his family in order to see his Mamoon is again not an extraordinary claim. Apart from a few bald suggestions to him doubting his presence at the spot or in the village in question at the time of occurrence the defence has been unable to dislodge his claim of having witnessed the occurrence. He too had absolutely no reason to falsely accuse the appellant in respect of the said murder. However, he being a chance witness, we have been a title slow in placing whole- hearted reliance on his statement alone in that regard. As we have fully believed the presence of the complainant at the spot at the relevant time, therefore, our slight hesitation qua this witness does not affect the outcome of this case in any manner.
15. We are also cognizant of the fact that the occurrence in question had taken place at aLcut mid- day in the heart of the village in question and a firearm had been used therein. Thus, the whole village would have either seen the occurrence or would have known about the culprit. In this view of the matter we have formed a view that implicit reliance could be placed on the statements of the eye-witnesses produced by the prosecution qua culpability of the appellant. Probabilities surely amount to evidence and the involvement of the appellant in the incident in question has been found by us to be most probable in the circumstances of this case. We have also found that the defence's suggestions about bad faith on the part of the eye-witnesses for the purposes of false implication of the appellant in the present case had failed to travel beyond mere verbal accusations sans any proof or be is whatever. Suffice it to observe that such bald verbal assaults on the integrity of eyewitnesses can never dislodge concrete evidence furnished by them.
16. Prompt lodging of the F.I.R. In this case has also been noticed by us as a circumstance corroborating the eye-witnesses produced by the prosecution. The occurrence in question has taken place at about 11-30 a.m. And after recording of the statement of the complainant at a police post the formal F.I.R. In that regard had also been registered at the police station situated 12 kilometres away from the place of occurrence, at 12-45 p.m. On the same afternoon. Nothing is available on the record of the present case to doubt the claimed lodging of the F.I.R. At the stated time. This promptly lodged F.I.R. Contained all the relevant details of the occurrence, including the name of the appellant as well as the role played by him during the occurrence. There was, thus, little time available in this case firstly for procuring the complainant and then for deliberations for the purposes of substitution or false implication of the appellant. A circumstance proving prompt lodging of the F.I.R. By the complainant was that at least three witnesses of the prosecution had confirmed that the police party had reached the place of occurrence at 2-00 p.m. On that day whereafter the dead body was sent to the mortuary for autopsy. That assertion about the time was never questioned by the defence. Such a prompt response from the police was possible only if the F.I.R. Had in fact been lodged at the time stated by the complainant and shown by the F.I.R. Itself and not otherwise.
17. Another circumstance which also confirmed, although obliquely the promptness of lodging of the F.I.R. Was that three of the four injuries found in the post-mortem examination of the deceased were not to be found in the F.I.R. The absence of any mention of those three injuries in the F.I.R. In fact confirmed that the F.I.R. Had indeed been lodged before the postmortem examination of the deceased had been conducted. This factor has also contributed towards our confidence that the complainant had not only witnessed the occurrence but had promptly reported the matter to the police with all its necessary details.
18. We have carefully adverted to the contention of the learned counsel for the appellant that the medical evidence contradicted the ocular account in this case because the eye-witnesses had stated about only one fire-armed injury sustained by the deceased whereas the post-mortem examination of the deceased showed his having sustained four injuries-two caused by fire-arm and two caused by blunt objects. In this context we have noticed that the dead body of the deceased had two injuries caused by fire-arm but one of them was an entry wound and the other was an exit wound. Thus, the assertion by the eye-witnesses that the deceased had received only one fire-shot is not contradicted by the medical evidence at all. Similarly the blunt object injuries sustained by the deceased also stood satisfactorily explained by the eye-witnesses. Injury No,3 on the dead body was an abrasion on its forehead and injury No,4 was an abrasion of the upper part of its nose. We have found it mentioned in the F.I.R. Itself that after receipt of the fire-arm injury the deceased fell down. Before the learned trial Court also the eyewitnesses had consistently deposed about that fall of the deceased. The complainant had also stated that the deceased had fallen with his face down. The said fall of the deceased completely explained the abrasions sustained by him on his forehead and nose. Thus, the contention of the learned counsel for the appellant about any inconsistency or contradiction between the ocular account and the medical evidence has been found by us to be utterly misconceived. As a matter of fact we have found that the medical evidence had provided full support to the ocular evidence in this case.
19. As regards the motive set up by the prosecution we have noticed that Pervaiz Iqbal complainant (P.W.6) and Mian Muhammad Akhtar (P.W.7) had maintained that they were very much present during the incident of motive. Their claim in that regard was not surprising or extraordinary. After all the complainant (P.W.6) lived in that very house where the incident of motive had taken place and P.W.7 was also residing in that house while on a visit to the deceased. Thus, in the presence of that evidence of the motive incident the Investigating Officer (P.W.8)'s failure to gather more evidence regarding the said incident has not surprised us. In the absence of any other factor suggesting poisoning the admitted love and affection between the parties we have felt no hesitation in accepting the motive set up by the prosecution as the only basis which propelled the appellant to launch the fatal E aggression against the deceased.
20. However, we are in agreement with the learned counsel for the appellant that the recovery of rifle from the appellant during the investigating of this case was legally inconsequential as there was no report of the Forensic Science Laboratory connecting the crime-empty recovered from the place of occurrence with the rifle recovered from the appellant. But, at the same time, we must observe that discarding of evidence of recovery of weapon of offence does not necessarily cast a doubt on the ocular account and that, in an appropriate case, a conviction can still be maintained on a confidence-inspiring ocular account which is supported by the medical evidence and corroborated by the evidence of motive as well as the circumstances of prompt lodging of the F.I.R.
We have found the present case to be one of such kind. Thus, for the reasons mentioned above we are convinced that the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt and, therefore, we are minded to uphold the appellant's conviction for an offence under section 302(b), P.P.C.
21. We have also given our anxious consideration to the question of sentence to be passed against the appellant for the offence .Of murder committed by him. In this context the learned counsel for the appellant has argued that even the prosecution's own case was that on the preceding evening the appellant had been abused and pushed out of his house by the deceased when the appellant had asked for the hand of the deceased's daughter for the appellant's insane son. According to the learned counsel for the appellant it was the provocation supplied to the appellant by the deceased himself that had led to the occurrence in question. In this context he has argued that very close and intimate relationship between the deceased and the appellant was admitted by the prosecution as also the fact that the appellant had brought up the deceased and, therefore, the shabby treatment meted out to the appellant by the deceased on that issue of marriage proposal had in fact provided provocation to the appellant to commit the deceased's murder. According to the learned counsel for the appellant this factor could be considered towards mitigation of the sentence to be passed against the appellant. We are, however, not in unison with the learned counsel for the appellant on this point. It is settled law that mere exchange of abuses or pushing and shoving is not considered sufficient provocation for justifying a murder or claiming a lesser sentence on a capital charge. We have also noticed that the claimed provocation was received by the appellant on the preceding evening and not on the day of occurrence. The appellant had sufficient time available to brood over the matter. The intervening night had provided him ample cooling off period. After all the appellant was not a hot-, blooded young man but a police official who had passed the age of retirement. But despite that opportunity to cool off the appellant, instead of cooling off, had utilized that period to cold-bloodedly plan the deceased's murder. We are, therefore, of the opinion that the conduct of the appellant, despite availability of a cooling off period, depicted that he had committed the said murder nor under the impulse of provocation but in a cold-blooded manner for which he deserved no leniency. Apart from that a refusal of a marriage proposal by the father of a girl, although expressed in a shabby manner, cannot justify his murder only because such a refusal or the manner of its expression had provided provocation to the proposer of that matrimonial tie. Acceptance of such a plea for the purposes of mitigation of sentence on a proven charge of murder would also offended against public policy based on our peculiar social norms.
22. It has lastly been contended by the learned counsel for the appellant that the appellant was an old man of 70 years and on this score also he deserved to be treated with leniency in the matter of sentence. Some documents relating to the appellant's pension were also shown to us by the learned counsel for the appellant to confirm the fact that the appellant was aged about 70 years at the time of commission of this murder by him. However, when asked in that regard the learned counsel for the appellant failed to refer to any statutory provision or a judicial precedent justifying mitigation of sentence on a capital charge only on the ground of old age of the convict. In this context we have noticed that there was nothing available on the record to suggest that the appellant had either become mentally senile or physically infirm. If his mental faculties were sharp enough to plan a murder and his hands were firm enough to shoot at his victim with precision then he must have also thought of the consequences of his action before pulling the trigger. He, therefore, deserves to get what he knew that he would get if caught. The normal penalty for a deliberate commission of murder is death. We have failed to find anything on the record of this case warranting treatment of the appellant in any manner other than what is normal. Therefore, the sentence of death passed against the appellant by the learned trial Court is hereby upheld and confirmed.
23. The order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs of Muhammad Iqbal deceased is also maintained with the modification that in case of his default in payment of the same the appellant shall suffer S.I. For six months and not R.I. For six months as ordered by the learned trial Court.
24. For what has been observed above this appeal is hereby dismissed and the conviction and sentence of the appellant for an offence under section 302(b), P.P.C. Recorded by the learned trial Court are upheld and maintained with a slight modification mentioned in paragraph No,23 of this judgment.
25. As the sentence of death passed by the learned trial Court against Sobdar Khan appellant has been confirmed by us, therefore, Murder Reference No,222 of 1995 is hereby answered in the affirmative.
' Death sentence is confirmed.