2001 PLP 726 (SCMR)

DEEDAR HUSSAIN SHAH, J.

This appeal by leave of the Court is directed against the judgment, dated 1-12-1997, of the High Court of Balochistan, Quetta, passed in Murder Reference No. 14 of 1997, by which the conviction of the appellants under sections 302/34, P.P.C. was maintained and their death sentence was confirmed.

2. The brief facts of the case are that Ghulam Hussain P.W.1 lodged F.I.R. No.2234 of 1995 stating therein that he was a resident of Bhuwani. On the day of occurrence he had gone to Hub Bazar and returned to his village by a bus in which the appellants were already sitting. They got down at Hub Bazar when the complainant went to his house. Thereafter, he went to the Farm of Noor Muhammad alias Nuru and found his brother Faqeer Muhammad lying seriously injured in a pool of blood. Noor Muhammad alias Nuru, Dawood and Khudana Wadera P. Ws. were present on the site, who informed the complainant that appellant Abdul Sattar and Nawaz Ali had attacked his brother with a pistol and a knife. Investigation of the case was conducted by Shahid Kaleem P.W.8, who arrested the appellants. After finalization of the investigation challan was submitted before the Court of Additional Sessions Judge, Hub.

3. The prosecution in order to prove its case examined 8 witnesses. Ocular evidence was furnished by Ghulam Hussain P.W.1, brother of Faqeer Muhammad deceased, Dawood P.W.2 and Noor Muhammad P.W.3 whereas the recovery evidence was furnished by Amir Shah, Head Constable P. W.6 and Shahid Kaleem, Sub-Inspector. A revolver was recovered from Ali Nawaz whereas a dagger was recovered from Abdul Sattar. Recoveries of incriminating articles were attested by Amir Shah, Head Constable, Shahid Kaleem, Sub-Inspector and Muhammad Siddique, A.S.-I. Dr. Farrukh Akhtari P. W.7 submitted the medical report showing the external injuries on the person of the deceased.

4. Leave to appeal was granted by this Court vide order dated 22-12-1998 with the following observations:-- "The presence of the eye-witnesses at the time and place of occurrence was emphatically challenged by the petitioners during the trial. The trial Judge and the learned Judges in the High Court for very strong reasons had recorded a definite finding that there was nothing improbable for the witnesses being present at the time and place of occurrence. There is nothing on the record to suggest that the petitioners had been falsely implicated in the case. We are, therefore, convinced that the conviction of the petitioners was justified on the evidence produced by the prosecution. Although the petitioners had alleged their false implication due to the relationship of P. Ws. with the deceased but nothing material was elicited in the cross-examination of the witnesses to support such a plea. As stated earlier, neither any , motive had been attributed to the petitioners for the murder of the deceased nor had it been established in the trial Court, which would have an ultimate bearing on the legality of sentence of death to both the petitioners. Leave to appeal is, therefore, granted to examine only the legality of the sentence of death awarded to the petitioners. "

5. We have heard Mr. Muhammad Javaid Aziz Sandhu, learned Advocate Supreme Court for the appellants, who contended that there was no motive alleged in this case and the appellants being real brothers sentence of death awarded to them may be converted into imprisonment for life.

6. Raja Abdul Ghafoor, learned Advocate Supreme Court for the State vehemently controverted the contentions of the learned counsel for the appellants and pointed out that the deceased was done to death in a brutal and gruesome manner, that the learned trial Court as well as the learned High Court very rightly believed the prosecution evidence and while granting leave this Court also observed that conviction of the appellants was justified and the only point for examination was the legality of the sentence of death awarded to the appellants. 7.In all fairness, it would be pertinent to refer to the evidence of Dr. Farrukh Akhtari P.W.7, who found the following injuries on the dead body:-- "(1) Entrance wound bullet in shape 1/2 c.m. diameter at level of 9th Rib 2 c.m. away from Mid Sternum at left lower chest. (2) Bullet entrance wound circular shape 1/2 c.m. diameter black margins. Level of left Mid inguinal region. (3) Stab wound on left lower thigh 3" x 2" through and through exit wound on back of thigh 1/2" with clear margins. (4) Stab wound 1/2" x 1/4" x 1/4" below right knee. Medial to the chin of tibia. (5) Stab wound 1"x 1/2" x 1/2" left mid thigh Post Aspect at Hamistring muscle. (6) Stab wound 1" x 1/2" through and through above the left glottal region. (7) Stab wound at back left side at level of 9th rib posteriorly 4 c.m. away from vertebral colum 2" x 1/2" through and through. (8) Bullet palpable at upper outer quarter of buttock left. Probable Cause of death:

Injuries to vital organs (Heart), massive bleeding and shock." A glance at the above injuries shows that the deceased suffered eight injuries caused by Chhurra and fire; arm i.e. revolver. According to the medical evidence the deceased died on account of the injuries caused to the vital organ (heart), shock and haemorrhage. The injuries also suggest that the deceased was done to death in a very brutal manner.

8. It has been held time and again by this Court that in case of lack of motive altogether or if the prosecution is unable to prove motive for murder, it does not affect the imposition of normal penalty of death in murder case, if the prosecution otherwise has been able to prove its case against the accused beyond reasonable doubt. Reference may be made to Ahmad Nisar v. The State (1977 SCMR 175) wherein this Court observed as follows:-- "Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable." . 9.Earlier in Talib Hussain and others v. The State (1995 SCMR 1776) it was held that there was no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If normal sentence is not to be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances.

10. The trial Court as well as the learned High Court accepted evidence produced by the prosecution and this Court also while granting leave to appeal observed that conviction of the appellants was justified on the evidence produced by the prosecution. Absence of motive, and that the appellants are brothers inter se are no grounds in law for awarding lesser punishment.

11. For the foregoing facts, reasons and case-law, referred to above, we are of the firm opinion that the appeal has no merit, which is hereby dismissed. N.H.Q./N-29/S Appeal dismissed