' DOST MUHAMMAD KHAN, J.--- Appellant Muhammad Ali was tried on charges under sections 302/324/337-D/34, P.P.C. And by judgment, dated 9-9-2002 the learned Sessions Judge, Mardan upon conviction has sentenced him to death under section 302(b), P.P.C. On two counts. He has through the instant appeal questioned his conviction and sentence while the learned trial Judge has sent reference for confirmation of the sentence.
2. Briefly but relevant facts are that Riaz Ghani P.W.8 reported the crime on 15-8-1998 at 15-30 hours to Muhammad Ali I.H.C. In Casualty Ward of Civil Hospital, Mardan wherein he stated that his deceased father Ghani Usman had come to the Courts on that day in the morning and he being in the service of local Income Tax Department went to the Courts and met his father from where both proceeded and when they reached near the crime spot (Flying Coach New Adda Mardan) firing was made and he saw an unknown culprit fleeing away chased by other persons who apprehended him alongwith .30 bore pistol who disclosed his name Muhammad Ali (the present appellant). He further stated that the appellant alongwith Asmat, absconding accused, came on Motor-bike No,2860 RNG Yamaha and fired at his father who was hit and died while Fazle Wahid and Wajid Ali also got hit and injured. Motive disclosed therein was a dispute over property. On this Murasila report case F.I.R. No,1012, dated 15-8-1998 was registered by Police Station "A" Division, Mardan.
3. One of the injured, namely Fazle Wahid succumbed to the injures in the hospital while the second injured Wajid Ali survived, who was dropped at the trial having been won-over by the defence.
During spot inspection the Investigating Officer recovered 3 crime-empties of .30 bore which were taken into possession alongwith the motor-bike of the accused. He also collected blood-stained earth from the spot. The accused was apprehended by Marjan All and Asad Khan P.Ws.9 and 10, police constables alongwith the crime pistol. Marjan Ali was also examined on the same day at 4- 20 p.m. By the same doctor, namely, Gul Rehman and found a lacerated wound on the back of his right forearm extending to elbow joint.
4. After completion of investigation, charge-sheet against the appellant was submitted in the trial Court while Asmat co-accused still absconding was proceeded against under section 512, Cr.P.C.
' At the trial the prosecution examined 13 witnesses in all and at the conclusion of the same the appellant was convicted and sentenced as above.
5. Mr. Asadullah Khan Chamkani, the learned counsel for the appellant came out with three-fold contentions firstly that the presence of the complainant at the fateful time is highly doubtful, secondly the recovery of the pistol from the appellant has not been proved in a legal manner according to the laid down standards and that due to improvements made at the trial the complainant is absolutely undependable witness. He also questioned the recovery of 3 crime- empties from the spot because Muhammad Khan, A.S.-I. The marginal witness omitted to mention the same in his Court statement and that both the pistol and empties were received in the Laboratory with a delay of about 40 days, the Expert Report, therefore, is not credible. Lastly he argued that attempt has been made to show that the appellant was a hired assassin thereby creating a prejudice against him albeit on this point no evidence of judicial efficacy has come on record.
6. Malik Ahmad Jan, the learned D.A.-G., however, supported the impugned judgment on the same reason given therein.
7. Mr. Maqsood Aziz, learned counsel for the complainant vehemently argued that the appellant was apprehended red-handed with the crime pistol in his hand at a close distance from the crime spot during a chase by the two police constables to whom no mala fide has been attributed and that he is not related to the absconding accused nor have any other nexus in the dispute between the parties, therefore, the prosecution version that he acted as a hired assassin is quite plausible and believable. He contended that there is overwhelming evidence both ocular and circumstantial connecting the neck of the appellant with the commission of the crime and being a hired assassin, therefore, in view of the principle laid down in the case of Muhammad Israr v. The State PLD 1998 Pesh. Page 73 in the matter of sentence the appellant does not deserve any lenient treatment.
8. The prosecution for proving guilt of the appellant has relied on ocular account furnished by complainant Riaz Ghani P.W.8 Marjan Ali P.W.9 and Asad Khan F.C. P.W.10, the recovery of crime- empties from the spot and crime pistol from the appellant at the time of his arrest, the medical evidence, the positive report of the Fire-arms Expert and the motive for the crime furnished by the complainant which relates to the absconding accused.
9. Besides the ocular testimony of the complainant the evidence of the two witnesses, namely, Marjan Ali and Asad Khan F.Cs. Who apprehended the appellant there and then on the spot after commission of the crime in our view possess a high degree of credibility.
' According to site plan the appellant was apprehended at point 8-A by the two Constables alongwith the crime pistol. He after committing the crime had covered a distance of about 28 paces while the two constables who chased him continuously also covered the same distance.
There is no visual obstacle in between the two places. Both the said P.Ws. While appearing at the trial consistently deposed on the arrest of the appellant with crime pistol. A very taxing and searching cross-examination on both the P.Ws. Was carried out but their testimony could not be shattered in any manner. To the contrary the line of cross-examination adopted by the defence has amply established their presence and arresting of the appellant with crime pistol. At page 60 of the printed book in reply to a cross-question P.W. Marjan Ali F.C. Deposed:-- ' "We overpowered the accused swiftly. We caught the accused Muhammad Ali from a distance of 10/12 paces from the injured. It is correct that due to firing people started running here and there.
The firing was made at a distance of 6/7 paces from the place of our presence."
' Again at page 61 while replying to a cross-question he stated in the following terms:-- ' "I saw two persons firing with pistols on a person and as a result of which there arose confusion. It is also correctly recorded in my police statemefit that one of the accused whose name was disclosed as Asmat son of Toor resident of Kati Garhi slipped away from the spot."
' Asad Khan, Constable at page 63 made a reply to a question in the following words:-- ' "I got hold of the accused first and I snatched away the pistol from him. When I was taking the pistol from the accused nobody from the public came close to us. We might have chased the accused for 40/42 paces."
10. The arrest of the appellant at short distance from crime spot with the crime pistol by the two P.Ws. Who gave him swift chase from the first place of crime is a very strong rather an iron clad evidence of a first degree linking his neck with the crime. The same could neither be shattered through cross-examination nor any suggestion has been put to them attributing any mala fide or for false implication of the appellant.
' The appellant when was confronted with the above incriminating evidence while examined under section 342, Cr.P.C. He could not extenuate its high rated value, therefore, fadedly denied it furnishing no explanation about time and place of his arrest. This in our view goes a long way against appellant eliminating chance of false implication. Some strong evidence in defence was required for diminishing the credibility of such solid and cogent proof but nothing in rebuttal has been adduced suggesting or hinting upon another theory in juxtapose.
' The recovery of the 3 crime-empties from the crime spot of .30 bore provides further corroboration to the testimony of the two Constables. When these empties were sent to the Expert with the crime pistol two of it were found wedded with the same. This fact lends further support to the prosecution version about use of two weapons of the same bore in the commission of the crime, the one recovered from the appellant and the other carried away by the absconder.
' The recovery of motor-bike of accused from the crime spot is yet another circumstance fully endorsing the prosecution version. The same has been attributed by P.Ws. To the accused which version too has gone unchallenged. Additionally the same was also not claimed by anybody else, therefore, it is established to have been used by the accused in the commission of the offence. It is a common phenomenon that for committing such crimes in City/Bazaars, the culprits frequently use motor-bike for escape after the occurrence.
11. The defence plea that the complainant presence is not established on the spot, is also belied by many physical facts on record.
It is not uncommon in our society that villagers when come to Courts or cities in connection of some work then they look for help or guidance of the close relatives working in Offices/Departments in Towns to get the work through with convenience. The complainant being son of the deceased, therefore, has not acted in an unnatural way to give rise to H an adverse presumption. He has given plausible explanation about the visit of his father to the Court.
According to him the deceased had come to the Court to get his pistol on Superdari from the Civil Judge concerned which was a case property in a murder case registered against them. This assertion of the complainant has not been challenged rather the defence has accepted the same in view of the subsequent trend of cross-examination on the complainant. The complainant in ordinary course was required to go back to his village after the office hours thus his giving a company to his deceased father cannot be held to be either unnatural or unbelievable one moreso when the F.I.R. Was lodged within 30 minutes when by then the 'dust of the crime has settled down.
Both the deceased and injured were swiftly shifted to the hospital. In such a short time he could not be procured from his village, office or from any where else, therefore, his presence on the spot at the time of 'occurrence is proved beyond doubt. Moreover, he has given sufficient details of the occurrence and has also explained in his report the post occurrence events including the arrest of the appellant which took place in quick succession, therefore, his testimony which otherwise goes unshattered cannot be doubted on any premises.
12. The recovery of the 3 crime-empties from the spot is fairly established. The facts on record exclude the possibility of fabrication and plantation. According to medical evidence all the victims have sustained six fire-arm entry wounds and if the police wanted to indulge in dishonesty then it would have shown greater number of empties at least to commensurate with the number of injuries on the victims. The missing of at least 3 crime-empties is but natural because the crime spot is located in a crowded bus-stand. Mere delay in sending, empties and pistol to the Expert by itself is not sufficient to discard its evidentiary value when no serious suggestion has been put to the Incharge of investigation about its substitution or tampering with the same. Mere omission on the part of the marginal witness to mention the crime-empties in his statement seems to be inadvertent one or may be with a motive to extend illegal favor to the defence bUt the fact is that a separate case was also registered against the appellant under section 13, Arms Ordinance for possessing unlicensed crime pistol and the original recovery memo. Was placed on that file and the above omission could be due to this reason. Anyhow the learned trial Judge recalled and re- examined Anwar Khan, P.W.13 who has explained the above anomally. In the cross-examination too the omission was further got explained from him, therefore, the objection of the defence in that regard is not legally sustainable.
13. The combined study and appraisal of the entire evidence on record lead us to a definite conclusion that the prosecution has succeeded in proving guilt of the appellant beyond any reasonable doubt, therefore, he has been rightly convicted by the learned trial Court. On the question of sentence, we equally do not find any mitigating circumstance to help the appellant in reducing his sentence from death to life imprisonment not only because he has been branded by the prosecution as a hired assassin which fact get support from other circumstances on record as discussed earlier but also for the reason that he alongwith the absconding accused acted desperately and in a cruel manner not only causing the murder of the deceased Usman Ghani who was the real target but also caused the murder of another innocent person, namely, Fazle Wahid and also caused injuries to other innocent victims. The selection of such a crowded place by them for commission of the crime demonstrate that they were having no respect for human life, therefore, the cumulative effects of all the circumstances justify the awarding of normal penalty of death, hence the sentence awarded is accordingly maintained and the reference sent by the trial Judge is confirmed. The appeal fails which is accordingly dismissed.
' These are the detail reasons for our short order of today.