P L D 1999 Karachi 212 (PLP)

(3)?????????? Contused swelling 10 c.m. x 6 c.m. on occipital region behind the left ear fracturing the occipital and mastoid bone. (4)?????????? Incised crsh type of wound on the left eye and check 6 c.m. x 3 c.m bone deep, damaging the left eye and fracturing the maxillary bone. On internal examination, he found the following damages: "There was fracture of occipital, mastoid, and maxillary bone. The 'brain was ruptured while all other organs were normal. The stomach contained gastic juices, small intestine contained semi-digested food while large intestine contained faecal material. "

13. According to the Doctor, the cause of death was shock and haemorrhage as result of above injuries. He opined that injuries Nos. I and 2 were individually sufficient to cause death. He also opined that injuries Nos. l and 2 were caused by sharp-cutting weapon such as hatchet and janjoor, while injury No.3 was caused by hard and blunt substance like back side of hatchet and janjoor. He stated that probable time between injuries and death was within a few minutes and between death and post-mortem it was about 5 hours. He stated that inadvertently he had mentioned in the post-mortem report that injury No.3 was caused by sharp-cutting weapon. In cross-examination he denied the suggestion that his opinion was based upon inquest reports.

14. The seat of injuries, their nature, age and factum of death are not disputed. In fact, medical reports as a whole were not challenged, though some questions were put up regarding small intestine and digested food.

15. The case of the prosecution rests upon: (a) Motive. (b) Ocular account (c) Recovery.

16. Mr. Abdul Qadir Halepota, learned counsel for the appellants contends that motive as set up is not established. He also argued that testimony of eyewitnesses is not worth relying and there. is no independent corroboration to their version. It is also urged by learned counsel that recovery of crime weapons were also not proved.

17. On the other hand Mr.Habib Ahmed, learned A.A.-G. supports the judgment and contends that prosecution has proved its case beyond and shadow of doubt.

18. In order to appreciate the above contentions, it would be advantageous to have a short resume of the relevant prosecution evidence. ,

19. Complainant Abdul Latif, in his examination-in-chief, has given the facts of the prosecution case, as mentioned earlier. In cross -examination, he stated that P.W. Subhan Ali is his cousin, while P.W. Muhakim Din is his Phophat. P.W. Ghulam Nabi is his father. Mushir Nawabuddin is the son of his uncle. Mushir Imam Din is also his uncle. Dr. Zafar is Nekmard of the village. All the co-villagers are Sahito by caste except one Syed Hassan Shah. The appellants are his co-villagers. Nekmard Jan Muhammad Dodho, who had made Faisala, resides at about 2-1/2 or 3 Kms. from their village. Place of incident was about 3 jareeb away from the garden of the complainant party. The land between said garden and scene of offence was lying uncultivated. There was a watercourse adjacent to the scene of offence. There was a metal road from his village to Kandiaro. At the time of incident, the deceased were fasting and each of them had sustained four injuries. He admitted that deceased Abdul Rashid was challenged in a murder case of Abdul Hameed Qadiani, but was acquitted by the Court. He specifically denied that deceased Rashid had enmity with Qadianis. Habibullah, the brother of appellant Kamal was residing with them (complainant party). He deposed that P.Ws. had seen the appellants causing injuries to the deceased from a distance of 20 paces. He vehemently denied that the P.Ws. had not witnessed the incident. He deposed that from the place of incident he went to the metal road, stayed there for about 5 minutes, then boarded a wagon for Kandiaro. About 15 minutes time was consumed for reaching Kandiaro and he reached Police Station at 9-00 a.m. where he remained for about half an hour. He-deposed that Police reached the scene of offence at about 10-00 a.m. and remained there for about half an hour. ,

20. The evidence of P. Ws. Subhan Ali and Muqaddam is also on the same lines. P.W. Subhan Ali in his examination-in-chief has given the facts as narrated above. In cross, he admitted that complainant is his cousin. He deposed that appellants were his Phophat. According to him, 10 to 15 persons of the village had reached the scene of offence after the occurrence.

21. P.W. Muhakim Din in his examination-in-chief deposed that appellants were his 'Masat'. According to him, on the day of incident he and P.W. Subhan Ali left the village and were going to the land. P.W. Ghulam Nabi met them on the way and told them that his three sons namely, Abdul Rashid, Abdul Latif and Abdul Alim had gone to the garden and he was also going there. When they reached at the corner of the garden at about 8-00 a.m. they heard cries of the complainant from the land of appellant Kamal. They went there and witnessed the incident. They were also apprised about the earlier part of the incident by the complainant. He maintained that he had seen the appellants causing injuries to the deceased from a distance of about 15 to 20 paces.

22. Motive as a piece of evidence against the appellants is taken first. It is settled proposition of law that though, it is not necessary for prosecution to establish motive in all cases, but once it is alleged it has to be proved as such. Clear proof of motive provides additional support to fording of guilt. However, failure to prove motive cannot outweigh the positive evidence as to the crime, nor motive can be taken as a substitute of reliable evidence of the commission of the crime. F.I.R. at length speaks about motive of this crime. The complainant, in his deposition has provided all necessary details in that regard. It is significant to note that the complainant testimony, on the point of motive, has gone unchallenged. No question was put up to him in that regard. Learned counsel for the appellants contended that compromise deed (Exh.9) was not proved strictly in accordance with law, as neither Nekmard Jan Muhammad, who persuaded the parties to have settled the dispute, was examined, nor any other witness testified about the execution of said document. It is true that Nekmard Jan Muhammad and Ghulam Nabi were not examined, but the dispute between the parties on said point was known to the witnesses, including the complainant. It being so, the oral evidence to that effect cannot be ignored, particularly when its validity and credibility were not challenged. Motive is established beyond any shadow of doubt. 23 As regards the ocular testimony, it is noted that the complainant right from 7-30 a.m. till the incident was over, had remained with deceased and his presence at the scene of offence was established without any doubt. Although, his own evidence being a natural witness was sufficient for establishing his f presence at the scene of offence and the time of occurrence, yet, there is irrefutable corroborative evidence in this regard. The incident took place at about 8-00 a.m. and 9-00 a.m., F.I.R. was lodged. Looking to the distance involved and the fact that complainant had to wait and travel in a wagon, the F.I.R seems to have been lodged promptly. Had he not witnessed the incident, I the details, as mentioned in F.I.R., could never be provided. Nothing was extracted from his testimony to show that he was untrustworthy, or had concealed any material fact. In fact, his evidence is clear and unimpeachable. The dead bodies and blood were found exactly at the same place which he disclosed in the F.I.R. Just after a few minutes of the incident, he left for police station and during the time he stayed there after the incident nobody had met him. The police reached the scene of offence at about 10-00 a.m. and recorded statements of P.Ws. including the eye-witnesses. This again provides corroboration to his version that eye-witnesses were present at the scene of offence. The incident had taken place in a broad daylight and there was no reason whatsoever to falsely implicate the appellants we believe him. .24. Evidence of P. Ws. Subhan and Muhakim Din is also free from doubt and worth relying. They are also natural witnesses and belong to same village. As usual, they were going to the land when they met P.W. Ghualm Nabi. They heard cries and had also seen the incident. Both are closely related to the parties. They had no special reason to support one party at the cost of other. They had deposed what they had seen. Although, they were cross-examined at length, with the object to get from them favourable admissions or to discredit them, but none of the purpose was achieved. It is also significant to note that no evidence worth mentioning has been brought on record to indicate their alleged leaning towards the complainant party and animosity towards the appellants. Their evidence was recorded on the spot and inspires confidence. We believe them.

25. Mr. Halepota argued that status of above-named eye-witnesses was not better than that of interested witnesses and it being so they could not be relied upon. In support of above contention, he cited Bagh Ali v. Muhammad Anwar and another -1983 SCMR 1292 and (2) Janib and 2 others v. The State 1986 PCr.LJ

583. In Bagh Ali's case, it was held that if the version of witnesses was inconsistent with material facts and circumstances, the fact that he was not inimical towards the accused would be of no avail. Also, it was observed that if the Court was not satisfied that witness was telling truth, the question of corroboration becomes wholly irrelevant.

26. In case of Janib, it was observed that if the relationship of the eyewitnesses with the deceased was established, the status of such witness was no better than that of interested witnesses.'

27. Both the above cases are not attracted to the circumstances of this case. Ex facie, there is no flaw in the testimony of these eye-witnesses. They 'being natural witnesses have given correct account of the incident. Intrinsic worth of E their testimony is beyond doubt. They are neither inimical, nor friend of any of the party.

28. Next piece of evidence against the appellants is of recovery. The appellants were arrested on the day of incident at about 12-30 noon and bloodstained hatchet and janjoors were recovered from them in presence of Mushirs. Said Janjoors and hatchet were signed and sealed on the spot. Although, a suggestion was given to Mushir Nawabuddin that neither recovery was affected in his presence, nor appellants were arrested, but the same was vehemently denied by him. The appellants were arrested only after 4/5 hours of the incident. Mr. Halepoto argued that it was unbelievable that they would have possessed those weapons in the same state. It is true that they could wash those weapons, but the fact is that they did not do so. Both Janjoors and hatchet were scaled on the spot and signatures of Mushirs were obtained on those weapons. Also, it cannot be believed that S.H.O. would have stained those weapons with human blood, particularly when there was no such allegation against him: Admittedly, the report of the chemical examiner is in positive and human blood was found on those weapons. The veracity of the Chemical Examiner Report was not disputed. In fact, no question was put up in cross-examination when said report was brought on record through the evidence of Investigating Officer. .

29. Mr. Halepota also argued that alleged recovery of crime weapons was made from a place which was accessible to all the persons and it being so recovery itself was extremely doubtful. In support of this contention, he cited Rasoot Bux v. The State 1980 SCMR

225. Above case is not attracted to the circumstances of this case, as the hatchet used in the commission of said offence was produced after . the investigation was completed. Here the situation is different. The crime weapons were recovered just after 4/5 hours of the incident. So, recovery is also proved. -30. Mr. A.Q. Halepota also argued that testimony of Mst. Manzooran, the wife of deceased Abdul Rasheed, has completely shattered the prosecution's version. According to this defence witness on the day of incident she was present in the house of her deceased husband and after this murder she remained therein till her Iddat period was over. She deposed that there was absolutely no dispute between her father and her deceased husband. In cross, she deposed that she had seen dead body of her husband and it had only one injury on right side of face. The factual position however, is that the deceased had as many as four injuries, in the shape of incised wounds and contused swelling on occipital region on near left eye. She showed her ignorance that as to when and where her husband was killed. She admitted that in exchange of her marriage the sister of her deceased husband was married to her uncle Habibullah. She also admitted hat her uncle Habibullah was residing with his inlarvs. It is significant to note that deliberately she avoided to give the names of accused as they were none else than her father, uncle and brother. In her deposition, she attempted to save them. Her testimony was rightly rejected by the trial Court. Admittedly, her real uncle Habibullah was presiding with the complainant patty. This shows that he too did not approve the act of the appellants. Had the charge against the appellants been false, he would have never resided with his inlaws the complainant party.

31. Mr. Halepota also argued that the incident was not witnessed by any body and that it is the case of substitution. Suffice it to say that no foundation was laid by the appellants in support of this plea. It has no substance. Likewise, the plea that the deceased Rasheed was murdered by Qadiyani has no force, as it is simply a conjecture having no iota of evidence in its support.

32. Mr. A.Q. Halepota also argued that sentence awarded to the appellants is very harah and three persons of the same family have been sentenced to death. Two of them are real brothers and third one is a son of one of those brothers. It is noted that these murders were committed deliberately and after pre-planning. All possible steps were taken to see the deceased killed. The deceased were real brothers inter se. Not mal penalty in case of murder is death. Lesser punishment can only be given if there are mitigating circumstances. Law on this point is very clear. Reference can be made to the cases reported as (1) Allah Wasaya v. The State PLD 1982 SC 208, (2) Rasib and another v. The State 1985 SCMR 484, (3) Muhammad Nazir v. The state 1985 SCMR 507, (4) Iqbal alias Bhala and 2 others v. The State 1994 SCMR 1, (5) Muhammad lqbal v. Muhammad Akram and State 1996 SCMR 908 and (6) Ali Gohar v. State 1996 SCMR 549.

33. In the case of Allah Wasaya, the deceased had made an effort to stop accused during this attack on her (deceased sister). Appellant accused after realising that deceased might effectively stop him from killing his wife caused' a violent blow to deceased knowing to be likely to result in her death. It was held that the murder was deliberate and absolutely unjustified and call for no reduction in sentence of death. In case of Rasib the accused in a destardedly manner killed deceased, while the latter was sleeping by inflicting multiple injuries with knife in a cruel manner. It was held that no extenuating circumstances were available for awarding lesser sentence and death penalty was justified.

34. In Muhammad Nazir's case, it was observed that deceased was brutally murdered in an unprovoked attack. No mitigating circumstances were found and the death sentence was upheld. In case of Iqbal alias Bhala three appellants were sentenced to death under section 302/34, P.P.C. and also to imprisonment for life under section 307/34, P.P.C. with fine, under the following circumstances as appearing at page 260:- ? "The complainant also followed them. The aforestated persons started? indiscriminate firing on Eisab Khan and injured him and Sadiq in the bathroom. Eisab Khan was trying to save himself by hiding in the bathroom, but the accused continued firing. Thereafter they dragged Eisab Khan out of the bathroom and brought him at Chowk Tirkhanwala where lqbal brought a Toka from the house of Nazir Dhuddi and gave it to Sadiq. Iqbal and Bhola caught hold of Eisab Khan's legs while Javaid alias Jaidi and Dilawar caught hold of hands and head of Eisab Khan. Sadiq by hitting the Toka severed the head of Eisab Khan from his body, who died. The accused went away firing and carried with them the head of the deceased Eisab Khan. The learned trial Court convicted Iqbal, Muhammad Sadiq, Javaid alias Jaidi and Taj while Dilawar and Nazir were acquitted. In appeal Taj was also acquitted by the High Court." Death sentence of three appellants was maintained

35. In the case of Muhammad Iqbal it was observed that death sentence is normal sentence for murder, unless mitigating circumstances exist to justify lesser sentence. Further, it was held that the deceased had not provided any annoyance and had been killed in cold blood. Death sentence was upheld. ,

36. In case of Ali Gohar at page 554 about the mitigating circumstances following was observed by the Supreme Court and the death sentence was maintained "

17. This brings us to the question whether there are mitigating circumstances warranting leniency in the matter of sentence. In this regard, point canvassed by learned counsel for the appellants was that the appellants are alleged to have killed the deceased due to the fact that they had been disgraced earlier. Of the previous incidents, the first one had taken place 4-5 days before the murder of Ghulam Khan and the second one occurred two days before his death. Further, the most serious development which had occasioned in the second incident was that Hukam Dad appellant was given fist and kick blows. We do not think that this maltreatment warranted him to take the life of Ghulam Khan and that too after two days. If at all the appellants had to take revenge, they could also give him beating at an appropriate place and time."

37. Coming back to the instant case, it is observed that the two deceased of i this case were murdered deliberately. Before killing them a strategy was made and on a pretext they were taken to the place of occurrence frotnwhere possibly they could not escape, Attack was launched upon them suddenly, and it was so severe that both expired on the spot. Under the circumstances, we are of the II view that no mitigating circumstances are available for awarding lesser penalty.

38. Accordingly, the appeal is dismissed and the death sentence of all the ~J appellants is confirmed. The Reference is accepted. N.H.Q./K-65/K???????????????? Appeal dismissed