2008 PLP 997 (SCMR)

CH. EJAZ YOUSAF, J.

This appeal with leave 'of the Court is directed against judgment, dated 25-10-2002 passed by a learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby conviction and sentence of death recorded against the appellant under section 302(b), P.P.C. were upheld and criminal appeal bearing No.88 of 1999 filed by the complainant against acquittal of the accused persons, namely Karim Bakhsh and Rahim Bakhsh was dismissed.

2. Facts of the case as gathered from the available record are that on 16-2-1997 in the evening the complainant along with Imam Bakhsh and Amin was on his way from Pucca road to Chak Kaura Khan, on motorcycle. The complainant and others were ahead of the deceased Nabi Bakhsh. When they reached near Primary School Kot Gujri, the present appellant Musa armed with a kalashnikov and acquitted accused Karim Bakhsh allegedly armed with a China rifle crossed them on another motorcycle. The accused raised Lalkara to Nabi Bakhsh that he would not be spared for having illicit relations with wife of Rahim Bakhsh. The complainant and others stopped their motorcycle and within their sight, appellant Musa fired a burst with his kalashnikov at Nabi Bakhsh. Kareem Bakhsh also fired two shots which landed on the chest and arm of Nabi Bakhsh who fell down and succumbed to the injuries, instantly. Motive alleged was that Rahim Bakhsh had suspected illicit relations of his wife with Nabi Bakhsh. At the trial, the prosecution, in order to prove the charge and substantiate the allegation levelled against the accused produced nine witnesses in all, whereafter, the appellant/ accused was examined under section 342, Cr.P.C. In his above statement, appellant denied the charge and pleaded innocence. On conclusion of the trial, the appellant was convicted by the Court and sentenced to the punishment as mentioned in the opening para. hereof whereas co-accused persons, namely, Karim Bakhsh and Rahim Bakhsh were acquitted of the charge, for want of proof.

3. Sardar Muhammad Siddique Khan, learned counsel for the appellant has contended that since motive in the instant case was not believed by the High Court, therefore, conviction could not have been recorded on' the basis of the evidence produced by the prosecution because it had cast doubt on the prosecution story. It is further his case that since corroboration to 'the statements of eye-witnesses was not available from any independent source, therefore, the medical evidence as well as the report of Forensic Science Expert were not sufficient to bring home charge against the appellant. Lastly, it was pleaded that since the motive was shrouded in mystery, therefore extreme penalty of death could not have been inflicted on the appellant.

4. Ch. Munir Sadiq learned Deputy Prosecutor-General, Punjab, on the other hand, while controverting the contentions raised by the learned counsel for the appellant submitted that since it was a broad day light murder and ocular account was fully corroborated by the medical as well as other evidence, therefore, the appellant was rightly convicted for the offence.

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, minutely with their assistance.

6. It would be pertinent to mention here that in the instant case occurrence took place on 16-2-1997 in the afternoon and the F.I.R. was lodged at the police station, which was seven kilometers away from the place of occurrence, at 3-00 p.m. on the same day, hence there was no delay in reporting the occurrence. Prosecution case rests on the statements of eye-witnesses, namely, Pir Bakhsh, P.W.6 and Amin P.W.7. Though P.W. Amin was given up by the A.D.A. to the extent of recoveries yet, with regard to murder he fully corroborates the testimony of P.W.6. Record reveals that both the above witnesses, at the trial, were cross-examined at length but nothing favourable to the accused and damaging to the prosecution was elicited from them. Statements of both the eye-witnesses find support from the medical evidence, account whereof, at the trial, was furnished by P.W.8 Dr. Muhammad Fakhar ud-Din Hashmi, who had conducted post-mortem examination on the dead body of the .deceased. It would be pertinent to mention here that as many as fifteen injuries were found at the dead body, and the recovery of fifteen empties from the place of occurrence, implies that the medical evidence in no way was inconsistent with the prosecution story. Further, the kalashnikov allegedly used in the crime was also got recovered by the accused and as per Forensic Science Laboratory report, i.e. Exh. P. N., the empties recovered from the place of occurrence were found to have been fired from the said kalashnikov. It would be pertinent to mention here that crime empties, as per record, were taken into possession and sealed at the spot on the same day, and had reached office of the Forensic Science Laboratory on 10-3-1997. Since recovery of kalashnikov was effected on 27-3-1997 and as per report, dated 20-5-1997 of the Forensic Science Laboratory, the crime empties matched with the kalashnikov recovered from appellant Musa, therefore it not only excludes the possibility of implication but leaves no room to disbelieve the prosecution story.

7. As to the contention raised by learned counsel for the appellant that since motive in the instant case was not believed by the High Court, therefore, conviction could not have been recorded on the basis of the evidence produced by the persecution at the trial, it may be pointed out here that it is well-settled that motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed for no motive even or on a minor pretext; what to speak of proving motive, in certain cases where the-motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken, as a mitigating circumstance even. Reference in this regard may usefully be made to the cases reported as: (i) Syed Mushtaq Ahmad v. Siddiqullah and others PLD 1975 SC 160, (ii) Wazir Gul v. The State 1975 SCMR 289, (iii) Mukhtar Ahmad and others v. The State PLD 2004 SC 563, (iv) Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676, (v) Khurram Malik and others v. The State and others PLD 2006 SC 354, (vi) Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453 and (vii) Ashfaq Ahmed v. The State 2007 SCMR 641.

8. Upshot of the above discussion is that in our view, guilt of the appellant was fully brought home at the trial by the prosecution and the consideration which weighed with the learned trial Judge as well as the appellate Court fully conform to the requirement of law and do not call for interference by this Court. Resultantly, this appeal having been found without merits is hereby dismissed. M.B.A./M-17/SC Appeal dismissed.