ASIF SAEED KHAN KHOSA, J.--- Aziz Ullah Khan appellant was convicted for an offence under section 302(b), P.P.C. vide judgment dated 6-5-1999 handed down by the learned Special Judge, Suppression of Terrorist Activities Court No,II, Mianwali and was sentenced to death and to pay a sum of Rs,20,000 to the heirs of Mukhtiar Ahmad deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo rigorous imprisonment for six months.
The appellant was also convicted for an offence under section 452, P.P.C. and was sentenced to rigorous imprisonment for seven years and a fine of Rs,20,000 or in default of payment Thereof undergo further rigorous imprisonment for six months. The appellant has challenged his convictions and sentences before this Court through Criminal Appeal No,444 of 1999. Malik Abdul Ghaffar complainant has also filed Criminal Revision No,254 of 1999 before this Court seeking enhancement of the compensation and fine ordered by the learned trial Court to be paid by the appellant. We have heard both these matters together and we propose to decide the same through the present consolidated judgment.
2. The case of the prosecution set up in the F.I.R. was that Malik Abdul Ghaffar complainant's son namely Mukhtiar Ahmad had borrowed a sum of Rs,2,000 from the present appellant and two days prior to the present occurrence the appellant had demanded return of the said money but the complainant's son had told him that he would return the money within the next 10/12 days upon which both of them had exchanged hot words. At that occasion the appellant had threatened the complainant's son that if he did not return the money within the next two days then he would be done to death. At about 4-00 p.m. on 7-7-1996 the complainant's son namely Mukhtiar Ahmad was sitting in the Baithak of the complainant's house alongwith the complainant's other son namely Saleem Arshid and the complainant's brother namely Muhammad Suleman when the appellant came inside that Baithak and required the complainant's son namely Mukhtiar Ahmad to immediately return the borrowed money if he wanted to remain alive. - Upon hearing the voice of the appellant the complainant, who was present in the compound of his house, also came into that Baithak and within the view of the complainant as well as Saleem Arshid and Muhammad Suleman P.Ws. the appellant took out a pistol from his right dub and fired a shot at Mukhtiar Ahmad hitting him on his right cheek. Upon the hue and cry of the complainant and the other witnesses the appellant fled from the scene while brandishing his pistol. Mukhtiar Ahmad was removed to the hospital in an injured condition but he succumbed to his injuries soon after his arrival at the hospital. The complainant' then proceeded to Police Station City, Mianwali whereat he lodged F.I.R.
No,171 at 5-00 p.m. on the same day, i,e, 7-7-1996 for offences under sections 302/452, P.P.C.
3. After registration of the Rafiullah, A.S.I (P.W.10) took up the investigation of this case and went to the District Headquarters Hospital, Mianwali whereat he inspected the dead body of the deceased, prepared an injury statement and an inquest report and sent the dead body to the mortuary for autopsy. He then recorded the statements of witnesses at the hospital and then proceeded to the place of occurrence where he inspected the same, prepared a rough site-plan thereof, secured a crime-empty therefrom and collected the bloodstained earth.
4. Dr. Sher Ali Khan (P.W.7) conducted the post-mortem examination of the dead body of Mukhtiar Ahmad deceased on 7-7-1996 and found a tire-arm injury on the same which was found by him to be ante-mortem, fatal and sufficient to cause death in the ordinary course of nature. In the doctor's opinion the probable time elapsing between the injury and death was within half an hour and that between the death and post-mortem examination to be within 3 to 4 hours.
5. After the post-mortem examination Rafiullah, A.S.I (P.W.10), the Investigating Officer received the last-worn clothes of the deceased on the same day, i,e, 7-7-1996. On 9-7-1996 he got a formal site- plan of the place of occurrence prepared through a draftsman. On 18-7-1996 he arrested the appellant and on 20-7-1996 he recovered a pistol .30 bore and seven live bullets from the residential house of the appellant. Thereafter, after completing the other formalities, the investigation of this case was finalized and a challan was submitted.
6. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 452 and 302, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as ten witnesses in support of its case against the appellant. Malik Abdul Ghaffar complainant (P.W.8) and Saleem Arshid (P.W.9) furnished the ocular account of the incident in question and they also deposed about the motive. Saifullah Khan (P.W.6) stated about the recovery of a pistol and seven live bullets from the residential house of the appellant during the investigation of this case. Dr. Sher Ali Khan (P.W.7) provided the medical evidence. Rafiullah Khan, A.S.I (P.W.10) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. In this statement recorded under section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While responding to a question as to why he had been implicated in this case and why the prosecution witnesses had deposed against him the appellant had maintained that he had been falsely involved in this case due to enmity and suspicion. However, the appellant had opted not to make any statement on oath under section 340(2), Cr.P.C. and he also did not produce any witness in his defence.
9. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and thus, the appellant was convicted and sentenced as mentioned and detailed above. Hence, the present appeal I and the revision petition before this Court.
10.We have heard the learned counsel for the appellant as well as the State and have gone through the record with their assistance. Neither the complainant nor his learned counsel has entered appearance so as to prosecute the complaint's revision petition. It has been argued by L. learned counsel for the appellant that the prosecution had failed to prove its case beyond reasonable doubt. In the alternative he has maintained that the case in hand was not a fit case for imposition of a penalty of death. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the appellant's convictions and sentences recd ded by learned trial Court do not warrant any interference by this Court.
11. After hearing the learned counsel for the parties and going through the record we have noticed . that Malik Abdul Ghaffar complainant (P.W.8) and Saleem Arshid (P.W.9) were both natural witnesses of the occurrence inasmuch as the occurrence had taken place in the very house in which they lived with the deceased as the deceased was the son of Malik Abdul Ghaffar complainant (P.W.8) and a brother of Saleem Arshid (P.W.9). It was a daylight occurrence and the F.I.R. in this case had been lodged with sufficient 'promptitude wherein the present appellant had been specifically nominated the sole perpetrator of the offences in question. The time of the occurrence was such that both the abovementioned eyewitness were expected to be present at their house where the occurrence had taken place and, thus, their presence at the spot has not been found by us to be either unnatural or unusual. Both the said eye-witnesses had no serious animus against the appellant and there was no serious background of or bitterness between the parties so as to prompt these eye-witnesses to falsely implicate the appellant in a case of this nature. The said witnesses had made consistent statements and their credibility could not be shaken during their cross-examination. The statements made by these witnesses have inspired our confidence so as to place implicit reliance upon them.
12.The motive set up by the prosecution vis--vis borrowing of money by the deceased from the appellant and a previous altercation between them on that score had been sufficiently proved on the record as Saleem Arshid (P.W.9) had himself witnessed the motive incident and his claim in that regard had never been seriously questioned or doubted by the defence.
13.A crime-empty was recovered from the place of occurrence soon after the incident and subsequently a pistol was recovered from the appellant's possession. It is available on the record that the crime-empty had been dispatched to the Forensic Science Laboratory prior to recovery of the weapon from the A appellant. The report of the Forensic Science. Laboratory (Exh.P.M) confirms that the said crime-empty had been fired from the pistol recovered from the appellant's possession. The recovery of pistol from the appellant had been witnessed by Saifullah Khan (P.W.6) who was an independent witness.
14. The medical evidence provided by Dr. Sher Ali Khan (P.W.7) confirms the time of occurrence, the weapon used and the locale of the injury as maintained by the ocular account and, thus the medical evidence goes a long way in providing ample support to the statements made by the eye -witnesses.
15. For what has been discussed above we have arrived at a confident conclusion that the prosecution had indeed succeeded in proving its case against the appellant beyond reasonable doubt as the eye-witnesses produced by the prosecution were natural witnesses having no serious animus against the appellant to falsely accuse him on a capital charge and the statements made by the said witnesses had received ample corroboration from the promptly lodged F.I.R., the motive and the recovery of weapon besides receiving sufficient support from the medical evidence.
16. We have also anxiously attended to the question of sentence but have failed to find any mitigating circumstance warranting reduction of the sentence of death passed by the learned trial Court against the appellant. The appellant had demonstrated a desperate character by indulging in extreme high-handedness in killing a young man inside his own house over a petty dispute involving a paltry sum of Rs,2,000. The normal wages of a crime of murder is death and we have found that in the circumstances of this case the appellant deserved no less.
17.Neither the complainant nor his learned counsel has entered appearance before this Court today to prosecute the complainant's revision petition seeking enhancement of the compensation and fine ordered by the learned trial Court to be paid by the appellant. In this context we have noticed that the appellant was a student and he had apparently no independent source of income. Thus, in the circumstances of this case we have not felt persuaded to enhance the amount of compensation and fine as prayed for in the complainant's revision petition.
18. Pursuant to the discussion made above Criminal Appeal No,444 of 1999 preferred before this Court by Aziz Ullah Khan appellant is hereby dismissed, his convictions and the sentences recorded by the learned trial Court are maintained and upheld subject to a modification that in default of payment of compensation the appellant shall undergo simple imprisonment for six months instead of rigorous imprisonment for six months as ordered by the learned trial Court. For the reasons stated above the complainant's Criminal Revision No,254 of 1999 is also dismissed.