IJAZ-UL-HASSAN, J.---This judgment will dispose of Criminal Appeal No.244 of 2002 and Criminal Revision No.88 of 2002, as both are the outcome of one and the same judgment.
2. Muslim Khan (25/26) son of Khadem Shah resident of Dhaki Mir Abad, Charsadda, was tried in case F.I.R. No.453 dated 26-11-1998 Police Station Mandani, Charsadda, for the murder of Siraj Gul (22/23), son of Muhib Gul, resident of Muliano Killi, Charsadda, by learned Sessions Judge, Charsadda, who vide his judgment dated 1-7-2002 convicted him under section 302, P.P.C. As 'Tazir' and sentenced him to suffer life imprisonment with direction to pay an amount of Rs.200,000 to legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default to undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Was also extended to him.
3. The crime in question is alleged to have taken place on 26-11-1998 at 16-00 hours in the shop of complainant Masal Khan, in Sahib Gul Mahal, Charsadda. The matter was reported to the Police the same day at 17-25 hours by the complainant in the Casualty Ward of D.H.Q. Hospital, Charsadda.
The report was recorded in the shape of Murasila (Exh.P.A./A) by A.S.-I. Tameezuddin.
4. The case of the prosecution is that on the day of occurrence i.e. 26-11-1998 at about 16-00 hours, complainant Masal Khan and his nephew Siraj Gul were present in the complainant's shop when in the meanwhile Muslim Khan accused/appellant entered into the shop and after exchange of 'Alaik Salaik' drew a pistol from the fold of his trouser and fired upon Siraj Gul with which he was hit and got injured. The victim was immediately rushed to the hospital by the complainant but he succumbed to the injuries and expired while enroute to the hospital. No motive was disclosed in the F.I.R. Leading to the offence in question.
5. Sub-Inspector Hakim Shah P.W. On the day of occurrence was on routine 'Gasht' in Mandani Bazar, when he received copy of F.I.R. He proceeded to the spot and on reaching there prepared site-plan (Exh.P.B.) at the instance of complainant. He took into possession blood through cotton vide recovery memo. (Exh.P.C.) in the presence of marginal witnesses. He recovered one empty of .30 bore and one spent bullet of the same bore and a bulb of 100 watt from the spot vide recovery memo. (Exh.P.C/1). He also took into possession one bicycle (China made) bearing No.RM00414 standing outside the shop of the complainant statedly left by the accused/appellant vide recovery memo. (Exh.P.C/2). The last-worn clothes of the deceased consisting of shirt, Shalwar white Banyan and a pullover stained with blood, brought by F.C. Shakirullah having corresponding cut marks, were also taken into possession by the witness in hand vide recovery memo. (Exh.P.C.). The blood- stained articles were sent to F.S.L., Peshawar for opinion, the report whereof is Exh.P.Z. Since the accused was absconding, he initiated proceedings against him under sections 204 and 87, Cr.P.C.
6. A.S.-I. Tameezuddin after drafting the Murasila (Exh.P.A/1) despatched the same to Police Station where it was incorporated into F.I.R. (Exh.P.A.) by A.S.-I. Siab Khan. He then prepared injury sheet (Exh.P.A/1) and inquest report (Exh.P.A/2) of the deceased and dispatched the dead body to the mortuary for post--mortem examination.
7. Dr. Nasir Khan Durrani (P.W.), the then Medical Officer, D.H.Q. Hospital, Charsadda on 27-11-1998 at 8-00 a.m. Upon identification of, Zahir shah P,W. Performed post-mortem examination of the deceased and observed the following:-- External examination: (1)Entry wound of 1 c.m. x 1 c.m. On left end of the lower lip.
(2)Exit wound of 2 c.m. x 2 c.m. On right side of neck below the right ear.
(3)A wound of 3 c.m. x 3 c.m. On the tip of right shoulder.
Internal examination: The mindible was fractured and skull, vertibrae, membrain, brain, spinal cord, thorax and its contents were healthy.
Abdomen: Mouth, pharynx and cesophagus and tongue was injured. Mouth got blood pharynx and oesophagus healthy. Stomach and its contents were containing semi-digested food.
Opinion: The deceased got injury to the right carotid altery and died within minutes due tp shock and blood loss. The injuries were due to fire-arm. Probable time between injury and death 10 to is minutes and between death and post-mortem examination 14-30 hours.
8. The prosecution in order to prove its case and substantiate the charge produced 13 witnesses in all. The eye-witness account of the incident has been furnished by complainant Masal Khan (P.W.11).
9. The accused/appellant statedly arrested on 3-5-1999 during a raid, in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged on mere suspicion. He also repudiated abscondence and claimed to have surrendered himself voluntarily to the local police. He did not wish to be examined on oath within the meaning of section 340(2), Cr.P.C. In disproof of the charges against him. He also declined to produce evidence in defence.
10. The trial culminated into conviction and sentence of the appellant as stated above.
11. Mian Muhibullah Kakakhel, Advocate in support of the appeal has argued that the learned trial Court has not -properly appreciated the evidentiary value of the prosecution case and has wrongly deprived the appellant of the benefit of doubt. To elaborate the argument he submitted that the law and the guidelines, relating to appraisal of evidence in criminal cases have not been followed; that the prosecution case is full of doubts, infirmities and contradictions and that the learned trial Judge had no legal justification to place implicit reliance on the solitary testimony of complainant Masal Khan in the absence of corroborative evidence and make the same a basis of conviction of the accused. Additionally, he urged that the medical evidence is not in consonance with the ocular testimony and it tends to suggest that two shots were fired and not one as alleged, which resulted in the murder of the deceased. Concluding the arguments, the learned counsel maintained that actual occurrence was unseen otherwise the close relative of the deceased i.e. Complainant would never have been spared in order to depose against the appellant. To add vigour to the arguments, following rulings were cited:-- (1)Saindad and 2 others v. The State 1972 SCM R 74.
(2)Faqir Muhammad v. Muhammad Ramzan and others 1982 SCM R 41.
(3)Ghulam Jafar v. Allah Dad and 2 others 1995 SCM R 173.
12. Mr. Akhtar Naveed learned Deputy Advocate-General assisted Mr. Sohail Akhtar, Advocate, learned counsel for the complainant on the contrary, attempted to argue that prosecution has succeeded to establish its case against the appellant beyond a pale of doubt and having regard to the facts and circumstances of the case, learned trial Judge had no legal justification to convict the appellant to suffer life imprisonment instead of awarding him substantial sentence of death as provided under the law. A case titled State v. Rab Nawaz and another PLD 1974 Supreme Court 87 was relied upon in this respect.
13. We have been led through the evidence by the learned counsel for the appellant and we have also heard the arguments and submissions of the learned counsel for the parties as well as learned Deputy Advocate-General.
14. It is very important to observe that while passing an order of conviction of an accused for murder the Court has not only to be satisfied that the murder has been committed but it must also be satisfied that accused committed the murder. Before recording an order of conviction all the facts and circumstances of the case must be taken carefully into consideration and the golden principle of criminal dispensation of justice must be borne in mind. There is no cavil with the proposition at all that except in the cases where by means of a special enactment onus to prove the guilt or otherwise has been placed upon the accused ordinarily under the general law it is the duty of the prosecution to establish its case independently without any shadow of doubt.
15. We have considered the submissions made by the learned counsel for the appellant with care and do not feel persuaded to agree with him that the appellant had no hand in the offence and he was implicated in the case on mere suspicion. The appellant is directly nominated in the promptly lodged report for committing the offence in question and a specific role of firing has been attributed to him. Complainant Masal Khan P.W., maker of the report has fully supported the prosecution version, justified his presence at the spot and charged the appellant for murder of his nephew Siraj Gul deceased. The complainant was subjected to lengthy and searching cross- examination but this veracity could not be successfully challenged. It is interesting to note that no enmity worth the name has been suggested or brought on record to show the false implication of the appellant nor any material exists on the record to believe that the complainant could not have been present at the scene of occurrence. The crime in question has taken place at broad daylight inside the shop of the complainant. The recovery of blood, an empty of .30 bore, a spent bullet of the same bore and a bulb of 100 watts there from, fully establishes the site of incident and tends to suggest that the victim was fired at while sitting in the shop of the complainant. Learned counsel for the appellant strongly contended that medical evidence belies the claim of the complainant having seen the occurrence. The contention of the learned counsel is misconceived. We have not been shown any conflict i.e medical evidence and the eye-witness account of the incident furnished by complainant Masal Khan. The further corroboration to link the appellant with the occurrence is provided by the report received from Forensic Science Laboratory, Peshawar regarding matching of the blood secured from the spot and appearing on the last-worn clothes of the deceased and the abscondence of the appellant for about five months and five days. It is a case of single accused. There is no question of substitution. There was no question of mistaken identity. There was also no previous background of enmity between the parties, prompting the complainant to falsely implicate the appellant and allow the real culprit go scot-free. In our view the prosecution h4 proved its case through ocular evidence of high quality corroborated by medical evidence and recoveries from the spot. Learned counsel for the appellant has remained unable to satisfy us that learned trial Court has not properly appreciated the evidentiary value of the prosecution case and has wrongly deprived the appellant of the benefit of doubt or that the law and the guidelines prescribed by the superior Courts, relating to appraisal of evidence in criminal cases, have not been adhered to which has resulted in manifest injustice. The appeal is accordingly dismissed.
16. Adverting to Criminal Revision No.88 of 2002 filed by complainant Masal Khan for awarding normal penalty of death to the appellant and for enhancement of compensation amount, we find that learned trial Judge has declined to award normal penalty of death to the appellant and taken a lenient view in the matter principally on the ground 'that prosecution case rests basically upon the testimony of a related witness and motive for the occurrence still remains a mystery. We regret the grounds found favour with learned trial Judge, do not constitute a mitigating circumstance and same cannot be considered sufficient to award lesser punishment. The mere fact that prosecution case hinges on the solitary statement of the complainant or the motive remains in mystery, by itself, cannot be considered a good ground for awarding lesser punishment to the appellant and show him indulgence in the matter of sentence. The appellant has taken the life of a young boy of 22/23 years of age stated to have been making preparation for F.A. Examination. We agree with learned counsel for the complainant that learned trial Judge has erred on the side of sentence in not awarding the normal sentence of death prescribed by law and the Islamic Injunction. The sentence of life imprisonment for the offence of murder with which the appellant/respondent is charged is against facts on record and contrary to law applicable thereto. In our opinion no mitigating circumstance existed for withholding the normal sentence of death prescribed by law for the offence of murder. Appellant has been treated with unjustified leniency and mercy and ought to have been awarded death sentence. We, accordingly, convert the sentence of life imprisonment of the appellant/respondent into death sentence. The amount of compensation, however, remains intact. The appellant shall be hanged by the neck till he is dead. The criminal revision is disposed of in the above terms.
N.H.Q./274/P Sentence enhanced.