' IFTIKHAR HUSSAIN CHAUDHRY, C.J.--- Abdul Razzaq alias Nanna and Abdul Latif have submitted this appeal against their conviction recorded under sections 302(b)/34, P.P.C. And sentence of death awarded to both of them by Syed Afzaal Hussain Kazmi, Additional Sessions Judge, Mianwali, for causing death of Fayyaz Ahmad on 3-1-1994.
2. Criminal case F.I.R. No,2 (Exh.P.H.) dated 3-1-1994 was registered at. Police Station City Mianwali, on the statement of Munir Ahmad at 5-00 p.m. Regarding an incident which had taken place at 4- 30 p.m. At Railway Chowk located 1-1/2 furlongs from Police Station. The statement of Munir Ahmad was in terms that he and his brother Fayyaz Ahmad were running a hotel/tea stall for the last 10 years. He alongwith Fayyaz Ahmad, Riaz Ahmad, Khalid Mehmood P.W. Was present at hotel when at about 4-30 p.m. Abdul Razzaq alias Nanna armed with .12 bore shot gun, Abdul Latif empty- handed, both sons of Gulbaz Khan, caste Pathan, residents of Mohallah Miana, Mianwali, came there on Rickshaw No,LEX-5976. They alighted from rickshaw. Abdul Latif shouted that he will teach a lesson for demanding return of Rs,2,000 and then fired with 12-bore shotgun at Fayyaz Ahmad.
The shot hit on left arm and left lumber region. Fayyaz Ahmed fell down. Thereafter, both the accused fled on the same rickshaw. Fayyaz Ahmad was removed in injured condition to Civil Hospital, Mianwali, but he died on arrival at hospital.
' Motive for the incident was stated to be that about 2/3 hours before the incident Abdul Razzaq had visited the hotel when Fayyaz Ahmad had called upon him to return the amount of Rs,2,000, which he had obtained on loan from him. Abdul Razzaq declined to oblige him on the ground that amount was obtained by him as "tax" at which hot wofds were exchanged between the parties and due to that grievance the accused had done to death Fayyaz Ahmad.
3. Muhammad Afzal, S.-I. P.W.10 recorded the F.I.R, (Exh.P.H.) and proceeded to D.H.Q. Hospital, Mianwali, prepared injury statement Exh.P.F. And inquest report Exh.P.G. He, later, visited the place of occurrence, prepared rough site plan of the place of occurrence Exh.P.K. He also took into possession crime empty Exh.P5 from the spot vide recovery memo. Exh.P.J. He recorded statements of prosecution witnesses. The witness arrested both the accused on 9-1-1994. The witness was transferred from police station and further investigation was 'conducted by Abdul Razzaq, S.H.O./P.W.9. He found both the accused as guilty and challaned the accused to Court.
4. Charge against both the accused was framed for offence under section 302/34, P.P.C. On 21-11- 1995: The accused did not plead guilty and claimed trial, whereafter prosecution examined 10 witnesses at trial.
5. Dr. Muhammad Khan, P.W.6, conducted post-mortem examination on 4-1-1994 at 10-15 a.m. On the dead body and noted following injuries:- Injuries
(1) One grazing wound 4 x 3 c.m. On the antro lateral aspect of left forearm, 3 c.m. From the left elbow-joint.
(2) One entry wound 3-1/2 x 2-1/2 c.m. On left side of upper, abdomen, slightly on the lateral aspect, 16 c.m. Towards the left from the left nipple, 16 c.m. Above the left anterior superior iliac crest.
(3) Two exit wounds 1/2 x 1/2 c.m. In an area of 3 c.m. On the lateral aspect of right chest, 6 c.m.
Below the right axillary fossa.
' All the injuries were ante-mortem and caused by fire-arm. The cause of death was given as haemorrhage and shock due to injury No,2, which was sufficient to cause death in the ordinary course of nature. The duration given by the Medical Officer between death and post-mortem examination was 1 to 10 hours.
6. Zaka, Ullah Constable P.W.1 had escorted the dead body to mortuary. Taaz Ullah Constable P.W.2 had taken the empty cartridge Exh.P5 from police station on 7-1-1994 and delivered the same in Forensic Science Laboratory Lahore on. 8-1-1994. Muhammad Shafiq, Draftsman, P.W.3 prepared site plan Exh.P.D./1 and Exh.P.D./2. The witness testified that the complainant and, his brother Khalid Mehmood resided in Mohallah Yateem Khana, which was located 1-1/2 miles from the place of occurrence. The place of occurrence,, according to witness, was located at Kutchery Road and was a busy road and the place of occurrence was surrounded on both sides by shops. Sher Muhammad P.W.4 had taken gun on 15-1-1994 from police station to Forensic Science Laboratory, Lahore. Hashmat Ali, A.S.-I., P.W.5 had kept the crime property in the police storeroom.
7. Munir Ahmad complainant testified as P.W.7. He re-affirmed the narrative contained in the First Information Report. In cross-examination he stated that they had obtained hotel on lease from Muhammad Aslam and others. Khalid Mehmood F..W.8 supported the version advanced by Munir Ahmad. He denied the suggestion that he was not present at the spot or had deposed falsely due to relationship with the accused. Abdul Razzaq S.-I. And Muhammad Afzal, testified as P.Ws. 9 and 10 and gave details of the investigation conducted by him.
8. Abdul Razzaq in his statement under section 342, Cr.P.C. Denied the prosecution case against him. He took the stand that the deceased and his brothers were not in occupation of the hotel, which, as a matter of fact, was rented out to one Muhammad Aslam and his brothers. He claimed that the deceased was running Fayyaz Hotel located at Coach Stand, which was located at a distance of one Km. From the hotel, where the occurrence had taken place. He claimed that he was aged 16 years at the time of occurrence and as such was a minor. The deceased was apprehended in narcotic cases and was also challaned in the case of abduction and his brother had appeared as witness and that the relationship between the parties were strained and he had not obtained any loan from the deceased. He declined to appear as his own witness but submitted that he would lead defence. Later, the accused was also examined on 4-12-1998 and he was called upon to add to his statement after the birth certificate was produced by the prosecution. Vide memo. Exh.P.M. In respect of his age. The accused replied that the entry was fabricated and submitted that he would lead defence evidence. Abdul Latif, brother of Abdul Razzaq denied the prosecution case.
9. Prosecution submitted birth certificate of Abdul Razzaq, Exh.P.M. And closed the prosecution case.
10. The trial Court believed the prosecution case on the basis of ocular account which was supported by medical evidence and evidence of recovery and convicted both the accused under section 302(b), P.P.C. And sentenced them to death. They were also directed to pay Rs,50,000 each as compensation under section 544-A, Cr.P.C. To legal heirs of the deceased. In case of default in payment of compensation, the convicts were to undergo six months' rigorous imprisonment further.
11. Criminal Appeal No,1203 of 1998 was filed by the convicts, the complainant filed Criminal Revision No,171 of 1999 for enhancement of compensation. The trial Court also referred the matter vide Murder Reference No,54 of 1999 for confirmation of sentence of death awarded to the convicts.
12. Learned counsel for the appellants contended that the prosecution had tendered in evidence birth certificate of the appellant vide Exh.P.M. On 4-12-1998, and, thereafter, the accused was not allowed any opportunity to lead evidence nor his statement Under section 342, Cr.P.C. Was recorded and this was material irregularity, and the case should be remanded to the trial Court for affording an opportunity to the accused for recording his statement under section 342, Cr.P.C. And for leading evidence in defence. It was submitted that the incident had taken place at Fayyaz Hotel at which neither Munir Ahmad P.W.7 nor Khalid Mehmood P.W.8 were present and the venue of occurrence was changed so that the availability of witnesses could be shown. It was submitted that this was .An incident which was not seen by anybody and the appellants were involved in the case on account of suspicion and previous enmity which was highlighted in cross-examination of Munir Ahmad P.W.7. It was also submitted that Abdul Razzaq appellant had claimed his age to be 18 years and he was minor and as he was minor, benefit of this ought to have been given to him in the matter of sentence, particularly, when the prosecution case was badly flawed. It was submitted that as far as Abdul Latif was concerned, no role was assigned to him and he was convicted without any justification. Learned counsel for the State and the complainant on the other hand submitted that the prosecution case was fully established against the appellants. Both of them had come to the hotel and had fired at the deceased over a trivial matter and this was a fit case in which both the accused ought to have been given death sentence and this was the proper sentence in the facts and circumstances of the case.
13. We have considered the submissions made at the bar and have gone through the entire record with care. The first contention raised on behalf of the defence was that Abdul Razzaq had claimed himself to be aged 18 years when his statement under section 342, Cr.P.C. Was recorded and later the prosecution submitted a birth certificate vide memo. Exh.P.M., thereafter notwithstanding the fact that the accused he stated that he would lead evidence, but he was not afforded any opportunity to make further statement or to lead defence evidence and trial therefore stood vitiated on that count and the matter should be remanded to the trial Court. The record reveals that the accused was called upon on 4-12-1998 to make further statement under section 342, Cr.P.C. The accused simply stated that birth entry Exh.P.M. Was fabricated. He stated that he would lead evidence in defence, and thereafter did not summon the witnesses nor moved any such application before the trial Court to lead any defence evidence. He had denied to appear as his own witness under section 340(2), Cr.P.C. The trial Court never declined any request made by the accused-convicts whereby they had desired to lead evidence in defence. The contentions now being raised on behalf of the appellants have been considered to be totally untenable and are rejected.
14. The occurrence in this case had taken place in a hotel located at Kutchery Road which according to Draftsman P.W.3 was a busy road. Though the defence had tried to show that the occurrence had taken place at Fayyaz Hotel at Coach Stand but no material was brought forth which could have supported this aspect of the defence version. The hotel otherwise was not located at an abandoned or isolated place. A mere suggestion by the accused that the incident had taken place at Fayyaz Hotel located at Coach Stand does not cause any dent in the prosecution case. Both the eye-witnesses had clearly testified that the occurrence had taken place at a hotel, which the deceased had obtained, on rent from Muhammad Aslam and others. The place of occurrence was proved to be a hotel which was being run by the deceased and his brothers and which was located at Kutchery Road. The defence plea to the contrary does not have support of any material on record.
15. It was also argued that the appellants had no motive to commit the offence as it was nowhere established that the accused had taken any amount as loan from the deceased. Such transactions ordinarily are not documented and only oral evidence is led to establish that such a transaction had taken place. Even if that aspect of the matter is not proved, it could be inferred that the incident had taken place due to some other reasons but that itself does not lessen the criminality of any accused. The absence of motive per se does not affect the prosecution case in any manner. The earlier incident had also taken place at the hotel as claimed by the complainant who also worked with his brother and since this was an affair which could have taken place as a matter or course, no evidence was required to establish that the quarrel between the parties had taken place or that the accused Lad not declined to return the money to the deceased.
16. As far as the appellants and the complainant party are concerned, there is no direct enmity of a degree, which could have prompted the complainant to involve the present appellants in the case.
The testimony of witnesses has been examined with care and from that nothing could be elicited to favor the accused in the sense that they were falsely involved in the case. The testimony of P.W.7 and that of P.W.8 clearly establishes that Abdul Razzaq was the person who had fired at the deceased. His involvement in the case is fully established. The prosecution case in this regard has been found to be believable. The incident in this case had taken place in a Bazaar where a large number of persons must have been present but no one from the locality had ever supported the defence D version even before the Investigating Officer that they were not the persons who had taken part in the incident. The place where the incident took place was a Bazaar and the incident would have been seen by a large number of persons and in such a situation false involvement of the accused was virtually impossible. The evidence of recovery further corroborates the prosecution case against Abdul Razzaq. The spent cartridge Exh.P/5 was sent to Forensic Science Laboratory. The shotgun recovered from the appellants was also sent to Forensic Science Laboratory, Lahore, subsequently, and it was shown that the gun was used and the spent cartridge was fired from that shotgun which was recovered from Abdul Razzaq. The contention of the defence that Abdul Razzaq was minor at the time of commission of offence is fully belied by birth certificate. Exh.P.M., therefore, no benefit in the matter of sentence could be given to Abdul Razzaq, either.
17. After having given our anxious consideration to all the aspects of the case, we are of the considered view that Abdul Razzaq alias Nanna son of Gulbaz Khan was the person who had fired at Fayyaz over a trivial affair. He was rightly convicted under section 302(b), P.P.C. By the trial Court, and sentence of death awarded to him was proper sentence in the case. As far as Abdul Latif is concerned he was assigned the role that he had come to the spot alongwith his brother. Other than that he did nothing. Therefore, he is extended benefit of doubt and he is acquitted of the charge. He shall be released from custody if not required in any other case.
18. The appeal is allowed to the extent of Abdul Latif, while the appeal of Abdul Razzaq is rejected.
The sentence of death imposed on him by the trial Court is affirmed.