' NAZIM HUSSAIN SIDDIQUI, J.---Petitioner, Muhammad Basharat, has impugned the judgment dated 12-9-2001 of a learned Division Bench, Lahore High Court, Rawalpindi Bench, whereby Criminal Appeal No,225 of 2000 filed by him was dismissed and the death sentence awarded to him by trial Court was upheld.
2. The occurrence took place on 24-12-1996 at about 7-30 a.m. In the house of Haji Wilayat Hussain complainant, situated in Mouza Janjur within the area of Police Station Kahuta, F.I.R. No, 253 was registered at said Police Station on the same day on the statement of Haji Walayat Hussain under section 302 P.P.C. The incident was witnessed by Haji Wilayat Hussain complainant, Muhammad Yousaf (not produced) and Muhammad Younis P.W.
3. Sajid Hussain deceased was paternal grandson of the complainant. The petitioner/accused was arrested on 5-1-1997. One 8MM rifle was recovered from him on 8-1-1997 in presence of recovery witness Muhammad Iqbal.
4. The motive as set up by the prosecution, was that few days prior to the occurrence, the petitioner and the deceased had exchanged hot words between them.
5. The case of the prosecution, in brief, is that on the day of occurrence, the complainant was reciting Holy Qu'ran in his house when the petitioner came and asked the deceased to come out, who was ready to go to school. The petitioner at that time was armed with a 8MM rifle and fired upon the deceased, which hit him at his abdomen. According to the prosecution, the petitioner had also fired in the air and decamped from there. The deceased was removed to Tehsil Headquarters Hospital, Kahuta from where he was taken to District Headquarter Hospital, Rawalpindi, where he expired on the same day.
6. On completion of investigation, the charge-sheet was submitted against the petitioner.
Necessary charge was framed against him and he pleaded not guilty. In his statement recorded under section 342, Cr.P.C. He denied the prosecution's allegations and claimed to be innocent.
Neither he examined himself on oath nor produced any witness in defence. He, however, placed on record his written statement.
7. At trial the prosecution examined as many as 11 witnesses namely, Sub. Muhammad Sabir P.W.1, Muhammad Iqbal P.W.2, Dr. Imtiaz Ahmed Qureshi P.W.3, Raja Naseer Ahmed Draftsman P.W.4, Abid Hussain A.S.I. P.W.5, Muhammad Ayub' HC-30 P.W.6, Haji Wilayat Hussain P.W.7, Muhammad Younas P.W.8, Abdul Rehman, A.S.-I. P.W.9, Noorul Hassan P.W.10, and Sibtain Shah, S.-I P.W.11,
8. The following injury was found on the person of Sajid Hussain deceased:-- ' "Lacerated wound oval in shape measuring 3 c.m x 5 c.m with evidence of bleeding penetrating into abdomen present right to the umblicus. Longest diameter of the wound was transfers to the median plane. Margins of the wound were not blackened but were abrated. The wound was 2.5 c.m. Away from the umblicus on right side. This was wound of entry. No exit wound was present."
' According to doctor, above fir-earm injury was sufficient in the ordinary course of nature to cause death. Factum of death is not disputed.
9. Learned Additional Sessions Judge/Judge Special Court, Suppression of Terrorist Activities Act, 1975, Rawalpindi having taken into consideration all the evidence brought on record, convicted the petitioner under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo six months' imprisonment.
10. Being dissatisfied with above judgment, the petitioner preferred appeal before High Court, which was dismissed, as mentioned earlier.
11. We heard learned counsel for the petitioner and perused the record.
12. It is contended on behalf of the petitioner that both trial Court and High Court have failed to appreciate the facts in their true perspective and reached wrong conclusion. Learned counsel submitted that it was an unwitnessed crime and the petitioner was falsely involved in this matter.
According to him, F.I.R. Was recorded at about 12 noon and not at 8-30 a.m. And that the matter was reported by the complainant at the police station and not at the hospital. In support of this plea, he referred to the statement of Walayat Hussain, complainant, wherein he stated that he put his signatures at Exh. PH-1 and Exh. PH-2 at the police station. He also argued that Muhammad Younis P.W. Was not named in the F.I.R., as eye-witness and he was introduced later on to give strength to the prosecution's version. According to him, no empty was recovered from scene of offence and it being so recovery of rifle had become immaterial. He submitted that Muhammad Yousuf was an eye-witness, but was not produced. It is urged that had he been examined, he would not have supported the prosecution.
13. All above contentions were also raised before High Court and the same were properly examined and repelled.
14. As regards lodging of F.I.R., it is noted that Abdur Rehman, A.S.-I. P.W.-9 clearly stated that on the day of occurrence, he was posted at Police Station Kahuta and at about 8-45 a.m. On said date, Sibtain Shah, S.-I. Sent complaint to him, which was incorporated in F.I.R. Without any addition or omission. It is significant to note that the statement of this witness had gone unchallenged and there was nothing on record to conclude that the witness had deposed falsely. This piece of evidence by itself is sufficient to hold that the time of recording the F.I.R., as given by the prosecution, is correct.
15. Learned counsel strenuously argued that Wilayat Hussain complainant clearly admitted that he put his signatures at Exh.PH-1 and Exh PH-2 at police station and this being the admitted position it stood proved that the place of occurrence was changed. High Court dealt with this contention and reached conclusion that the statement of the complainant in Court was recorded on 13-10-1999 i.e, after three years of the occurrence, and that the complainant at the time of .Occurrence was about 81/82 years old and at the time when his statement was recorded he was about 84 years.
High Court ignored said contradiction in view of his extreme old age and rightly so.
16. The plea of learned counsel to discard the testimony of the complainant is not sound. He specifically deposed that at the relevant time of occurrence, he was present in his house and reciting Holy Qur'an. He has clearly implicated the petitioner, and held him responsible for the murder of the deceased, we rely upon him and hold that his testimony inspires confidence and the same cannot be discredited.
17. Evidence of Muhammad Younis P.W. Was relied upon by trial Court and High Court. Learned counsel has challenged its authenticity and submitted that had the witness been present at the spot, his name would have been disclosed in F.I.R. It is noted that this witness is a son of the complainant and uncle of the deceased and was residing in the same house. His presence at the spot was natural. Mere fact that he was not named in F.I.R. Was not by itself sufficient to discard his testimony, which otherwise inspires confidence. The testimony of a witness cannot be believed or disbelieved simply for the reason that his name appears or does not appear in F.I.R. Real test is its own intrinsic value. In our view, High Court was justified to believe him.
18. Although, the ocular account was enough by itself to hold that the petitioner was responsible for murder of the deceased, yet, the testimony of the eye-witnesses was corroborated by the medical evidence. It was a broad daylight occurrence and F.I.R. Was lodged promptly. It is a case of single accused. There was no enmity between the parties, which excludes all possibilities of false implication or substitution. It was a pre-planned and brutal murder. The judgment of trial Court upheld by High Court is strictly in accordance with the principle laid down by this Court relating to dispensation of criminal justice. No interference is warranted.
19. In consequence, leave to appeal is refused and the petition is dismissed.