ASIF SAEED KHAN KHOSA, J.---Muhammad Amir Khan appellant was convicted for an offence under section 302(a), P.P.C. Vide judgment dated 24-4-1999 handed down by the learned Additional Sessions Judge, Khushab and was sentenced to death as Qisas and a fine of Rs,1,00,000 or in default of payment thereof to undergo rigorous imprisonment for two years. Half of the fine, if realized, was ordered to be paid to the heirs of Muhammad Khan deceased by way of compensation. Through the same judgment the learned trial Court had acquitted the appellant's co-accused namely Ahmad Khan mad Muhammad Iqbal. The appellant has challenged his conviction aria sentence before this Court through Criminal Appeal No,63-.1 of 2000. Criminal Appeal No,445 of 1999 filed by Fateh Khan complainant against the acquittal of Ahmad Khan and Muhammad Iqbal accused has already been dismissed by this Court in limine on 5-7-1999. The complainant has also filed Criminal Revision No,240 of 1999 seeking enhancement of the appellant's sentence. We have heard the appellant's appeal against conviction and the complainant's revision petition seeking enhancement of the appellant's sentence alongwith Murder Reference No,170 of 1999 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant and we propose to decide all these matters together through the present consolidated judgment.
2.' The prosecution's case unfolded in the F.I.R. Was that Fateh Khan complainant was a resident of village Goliwali situated in the area of Police Station Gunjial, District Khushab and was an agriculturist by passion. The complainant's brother namely Muhammad Khan had to appear before a Court on 8-9-1997 and, therefore, in the morning of 8-9-1997 the complainant and his brother namely Muhammad Khan left their Dera for going to Jauharabad to attend the relevant Court and at about 7-00 a.m. On that day they arrived at the Goliwali bus-stop when suddenly Muhammad Amir Khan appellant armed with a rifle 7 MM, Ahmad Khan accused armed with a rifle 7 MM and Muhammad Iqbal accused armed with a pistol .30 bore, who were already present at the said bus-stop, came close to the complainant and his brother. The appellant and his co-accused raised a Lalkara that the complainant and his brother would not be spared alive and then Muhammad Amir Khan appellant fired a shot at Muhammad Khan hitting him on the right side of his chest. Upon receipt of that injury Muhammad Khan fell down and then Muhammad Iqbal and Ahmad Khan accused fired shots at the complainant but the complainant was net hit and he took refuge behind an octroi post. The said incident was witnessed by Muhammad Zaman and Sher Samand who were already present at the said bus-stop and they were also attracted to the spot.
Thereafter the appellant and his two co-accused left the place of occurrence while raising Lalkaras. Muhammad Khan breathed his last at the spot. The motive set up in the F.I.R. Was that the accused party was locked in a murder feud with the complainant party and during such feud the paternal grandfather of the appellant was murdered by the complainant's father, the appellant had murdered a Maternal uncle of the complainant and thereafter Muhammad Khan deceased had fired at the appellant and it was in connection with the said firing made by the deceased upon the appellant that the complainant and Muhammad Khan deceased were proceeding to the Court in connection with a date of hearing in that regard. Leaving the dead body of Muhammad Khan deceased at the spot in the care of Muhammad Samand and Sher Samand P. Ws. The complainant left for reporting the matter to the police. F.I.R. No,181 was subsequently registered at Police Station 'Gunjial. District Khushab at 7-15 a.m. On 8-9-1997 at the instance of Fateh Khl-a complainant for offences under sections 302/324/34, P.P.C.
3. The investigation of this case was conducted by Naveed Murtaza, S.-I. (P.W.12) who inspected the place of occurrence, got thedead body of Muhammad Khan deceased subjected to post-mortem examination, recorded the statements of witnesses, arrested the appellant and his co-accused, recovered weapons of offence from the appellant and his co-accused, got a site-plan of the place of occurrence prepared and then completed the investigation. Finally a challan was submitted before the learned trial Court against the appellant and his co-accused.
4. At the commencement of the trial the learned trial Court framed a charge for an offence under section 302, P.P.C. Read with section 34, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced twelve witnesses in support of its case against the appellant and his co-accused. Fateh Khan complainant (P.W.9) and Sher Samand (P.W.10) furnished the ocular account of the incident in question. Fateh Khan complainant (P.W.9) also deposed about the motive. Ghulam Hussain, S.-I. (P.W.7) and Muhammad Hayat (P.W.11) proved the recoveries of weapons from the appellant and his co-accused during the investigation of this case.
The medical evidence was provided by Dr. Muhammad Ilyas Saleem (P.W.1). Naveed Murtaza, S.-I.
(P.W.12) 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.
6. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. They had maintained in their statements that they had been falsely implicated in this case on account of their enmity with the prosecution witnesses. They, however, opted not to make statements on oath under section 340(2); Cr.P.C. And they did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court acquitted the appellant's two co-accused but, after finding the prosecution's case against him to have been proved beyond reasonable doubt, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal, revision petition and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, therefore, the appellant is entitled to be acquitted by this Court. In the alternative he has submitted that the appellant was an old man of sixty-three years at the time of the alleged occurrence and he had fired only one shot at the deceased and, therefore, his sentence of death may be converted into a sentence imprisonment for life. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained in unison that the prosecution had succeeded in proving the appellant's guilt to the hilt and, therefore, his conviction and sentence of death do not warrant any interference by this Court. The learned counsel for the complainant has gone on to maintain that the amount of compensation ordered by the learned trial Court to be paid by the appellant to the heirs of the deceased is inadequate and, therefore, the same may be suitably enhanced.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have arrived at an inescapable conclusion that the case in hand is an open and shut case as far as culpability of the appellant for the murder of Muhammad Khan deceased is concerned. The occurrence in this case had taken place in broad-daylight and at a bus-stop in close proximity with a number of shops. The F.I.R. In this case had been lodged with great promptitude and Muhammad Amir Khan appellant had been specifically nominated in the F.I.R. As the person 'who had caused the fatal fire-arm injury on the chest of Muhammad Khan deceased.
Both the eye-witnesses produced by the prosecution, i,e, Fateh Khan complainant (P.W.9) and Sher Samand (P.W.10) had made straightforward and consistent statements before the learned trial Court which had not only impressed the learned trial Court but the same have also inspired our complete confidence. Fateh Khan complainant (P.W.9) was a brother of Muhammad Khan deceased and in the background of a murder feud between the complainant party and the accused party it was nothing but natural for this witness to have accompanied Muhammad Khan deceased to the relevant Court for a date of hearing thereat as the accused party was also expected to be present there. It was never suggested to this witness by the defence that the place of occurrence did not fall on the way of the complainant and Muhammad Khan deceased to the relevant Court premises. Sher Samand (P.W.10) was remotely related to the complainant and Muhammad Khan deceased and his claimed presence at the relevant bus-stop in the morning of the day of occurrence in connection with his personal business was neither unusual nor extraordinary. Both these eye-witnesses had unanimously pointed their accusing fingers towards none other than Muhammad Amir Khan appellant as the person who had fired at the chest of Muhammad Khan deceased and had caused his death. Notwithstanding the appellant's denial in this regard in his statement recorded under section 342, Cr.P.C. There are indications available on the record of this case to suggest that at different stages prior to making of his statement under section 342, Cr.P.C. The appellant had not seriously denied his presence and participation in the alleged occurrence and the factum of his causing the fatal fire-arm injury to Muhammad Khan deceased. The first version advanced by the appellant before Naveed Murtaza (P.W.12), the Investigating Officer, and a suggestion made by the defence to Fateh Khan complainant (P.W.9) during his cross-examination before the learned trial Court are clear pointers in this regard. In view of such first version of the appellant before the Investigating Officer and the suggestion made to Fateh Khan complainant (P.W.9) before the learned trial Court the question regarding presence and availability of the above mentioned eye-witnesses at the scene of the crime at the relevant time had paled into relative irrelevance.
10. The motive set up by the prosecution stood finally established in this case as the same had not even been denied by the appellant in his statement recorded under section 342, Cr.P.C. The statement made by Fateh Khan complainant (P.W.9) before the learned trial Court and the statement made by the appellant under section 342, Cr.P.C. Go a long way in showing that the parties to this case were pitched against each other and were locked in a murder feud since the year 1946. Initially the paternal grandfather of the present appellant had been murdered by the father of Muhammad Khan deceased who was convicted for the said offence. Thereafter a maternal uncle of Muhammad Khan deceased was murdered by none other than the present appellant himself and for the said murder the appellant was convicted by the learned trial Court.
But he was acquitted upon acceptance of his appeal by this Court. Later on a person by the name of Khan belonging to the appellant's family was assaulted upon and injured by the complainant party of this case and still later the appellant himself had been fired at by Muhammad Khan deceased on 21-6-1997, i,e, less than three months prior to the present occurrence. A criminal case was lodged by the present appellant against Muhammad Khan deceased in respect of that incident of firing and it was in connection of that criminal case that Fateh Khan complainant (P.W.9) and Muhammad Khan deceased were proceeding to a Court at the time of the present occurrence. The F.I.R. In that criminal case and the challan submitted against Muhammad Khan deceased in that case had been brought on the record of this case as Exh.PL and Exh.PM respectively. This chequered history of relations between the complainant party and the accused party of this case shows, and shows quite clearly, that a retaliation of an earlier incident was nothing but usual between the parties. As the last of the series of incidents between the parties was an incident of firing by Muhammad Khan deceased at the present appellant, therefore, it was expected of the appellant to launch an assault upon Muhammad Khan deceased in return. In this backdrop the motive set up by the prosecution had stood amply established and the same provided corroboration to the ocular account.
11. As no crime-empty had been recovered from the place of occurrence, therefore, the rifle recovered from the appellant's possession during the investigation of this case could not be connected with the offence in hand, and, thus, the prosecution could not receive corroboration of the ocular account on this score. However, the medical evidence had provided full support to the statements made by the eye witnesses inasmuch as the same had confirmed the date and time of occurrence, the weapon used and the locale of the injury sustained by the deceased as deposed by the eye-witnesses.
12. The discussion made above leads to an irresistible conclusion that the prosecution had succeeded in establishing the guilt of the appellant beyond reasonable doubt. We have failed to find any mitigating circumstance in this case favouring reduction of the appellant's sentence of death passed against him by the learned trial Court. The learned counsel for the appellant has maintained before us that the appellant was an 'old man' of sixty-three years at the time of the present occurrence but we have refused to accept such an age of the appellant to be a valid mitigating circumstance by itself in a case of this nature. The argument of the learned counsel for the appellant regarding the appellant having fired only one shot at the deceased has also failed to impress us. Committing a murder of a person was not new to the appellant or to his family and if the appellant had achieved that objective by firing one shot at the chest of Muhammad Khan deceased there was hardly any occasion for him to repeat the fire. The appellant cannot be given a premium in the matter of sentence for being a good marksman. The normal wages of a crime of murder is death and in the peculiar circumstances of this case the appellant deserves no less.
13. For what has been discussed above Criminal Appeal No,63-.1 of 2000 filed by Muhammad Amir Khan appellant is dismissed and his conviction and sentence of death recorded by the learned trial Court are upheld and maintained with the modification that his conviction shall be treated as a conviction under section 302(b), P.P.C. And his sentence of death shall be treated as one of Tazir and not of Qisas as erroneously recorded by the learned trial Court. The sentence of fine passed by the learned Court against the appellant as well as the sentence of imprisonment in default of payment thereof shall be treated as an order regarding payment of compensation of Rs,1,00,000 by the appellant to the heirs of Muhammad Khan deceased and in default of payment thereof the appellant shall suffer simple imprisonment for six months. With this conversion of the sentence of fine into an order regarding payment of compensation by the appellant to the heirs of the deceased the compensation receivable by such heirs automatically stands enhanced and, thus, Criminal Revision No,240 of 1999 loses its purpose and the same is, therefore, dismissed.
14. Murder Reference No,170 of 1999 is answered in the affirmative and the sentence of death passed by the learned trial Court against Muhammad Amir Khan appellant is hereby confirmed.