2001 PLP 612 (YLR)

ZAFAR PASHA CHAUDHRY, J.-- Murder Reference No.135/96, Criminal Appeal No.328/1996 as well as Criminal Revision No. 157 of 1996 have been taken up together to be disposed of through this single Judgment, as all the three arise out of common Judgment dated 24-3-1996 passed by Mr. Azad Muhammad Khan, learned Sessions Judge, Faisalabad, whereby the appellant Muhammad Khan was convicted under section 302(a), P.P.C. and sentenced to death as Qisas. He was also ordered to pay a compensation of Rs.40,000 to the legal heirs of the deceased, in default whereof to undergo six months' R.I.

2. Brief facts of the prosecution case as revealed form the statement of Nasrullah Khan P.W.6 brother of Tahir Mehmood deceased, are that Tahir Mehmood was a graduate aged about 25/26 years. On 26-3-1995 at about 3-00 p.m. the complainant and said Tahir Mehmood were proceedings towards their land to have a round. They were followed by Muhammad Latif Khan 'P.W.7 and Abdul Ghaffar Khan resident of the village. When they reached metalled road near Killa No.2, Square No.20 owned by them, Muhammad Khan appellant armed with a gun emerged there. After coming close he raised a Lalkara that Tahir Mehmood will not be spared. Simultaneously, he fired a straight shot hitting Tahir Mehmood on the chest near armpit. He fell down and succumbed to the injuries there and then. After inflicting the injury the accused-appellant fled away from the place of occurrence. The motive was stated to be that Muhammad Khan used to deal in Narcotics but the deceased used to prevent him from doing so. Previously, they had exchanged hot words in between due to this reason as well.

3. The matter was promptly reported to the police station at 4-00 p.m., just after one house, although the police station is located at a distance of ten miles. The report was recorded by Muhammad Zafrullah Khan, S.I. P.W.9, on which F.I.R. Exh.P.E was recorded. Muhammad Zafrullah Khan took up the investigation, recorded statement of witnesses and arrested the accused persons on 12-4-1995 who on 17-4-1995 led to the recovery of shot gun P-5 alongwith its licence P-6, which was secured vide memo. Exh. P. D. On completion of the investigation the appellant was sent up to face trial in the Court of learned Sessions Judge.

4. The prosecution in support of its case examined nine witnesses, out of them Dr. Javed Iqbal P.W.8 conducted the post mortem examination of Tahir Mehmood deceased and found the following injuries on his dead body:- (1) A fire-arm lacerated wound (entrance) 5 c. m. x 5 c. m. on left side of chest in lateral wall 7 c.m. infrolateral to left nipple, 17 c.m. suprelateral to xiphisternum and 10cm inferior to left anterior axillary line. (2) Four fire-arm lacerated wound (exit) incircular fashion in an area of 5 c.m. x 6 c.m., out of which three were of 1 c.m. x 1 c.m., one was of 2 c.m. x 1 c.m. on left side of chest, posteriorly 2 c.m. lateral to mid line on left side, 21 c.m. upwards from sacroilion joint and 15 c.m. medical to left posterior axillary line on left side of chest. The injury No. 1 was wound of entry whereas injury No.2 was exit wound. The same had been caused with a fire-arm, was ante mortem and sufficient to cause death in ordinary course of nature.

5. P.W.6 Zafarullah Khan and P.W.7 Muhammad Latif Khan furnished the eye witness account of the occurrence. The complainant reiterated the statement already made by him in the F.I.R. He also deposed about the motive which he has already narrated in the F.I.R.

6. P. W .7 Abdul Latif Khan made a statement in line with that of P.W.6. He supported and corroborated the P. W.6 on all material points. He also like P.W.6 deposed about the motive that the accused-appellant used to deal in Narcotics, the deceased prevented him from doing so, in which exchange of hot words took place, as a result of which the deceased was done to death. Both the witnesses unequivocally stated on oath that in their view the accused-appellant fired a straight shot on the deceased Tahir Mehmood on his chest under the armpit which went through and through, as a result of which the deceased succumbed at the spot.

7. The prosecution case hinges on the strength of eye-witness account, evidence of recovery of gun alongwith its licence at the instance of the appellant, medical evidence and evidence of motive.

8. On conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. He denied the allegations against him. He also denied the motive attributed to him. With regard to recovery of gun and licence, at his instance, he explained that he voluntarily appeared before the police on the day of occurrence i.e. 26-3-1995 because he had been suspected of the commission of the offence. Shotgun and the licence belong to him which were produced by his father before the police. On a question as to why this case against him, he made the following reply:- "The P.Ws. are closely related to each other and inimical towards me. In fact it was a blind murder. The P.Ws. had not witnessed the occurrence. I was suspected like many others and for that I had voluntarily appeared before the police on 26-3-1995. I had also produced witnesses in my defence during investigation. The police had incorrectly shown my arrest on 12-4-1995. "

9. We have gone through the evidence and other relevant record with the help of learned counsel for the parties. On behalf of the appellant, the learned counsel has argued that the incident appears to be unwitnessed, both the witnesses being closely related to the deceased are as such Partisan and that the prosecution has failed to substantiate the motive as set up by them. The corroborative evidence in form of recovery of shot gun is of no help to the prosecution. As against that the learned counsel for the prosecution have supported the Judgment and argued that the appellant fired a straight shot on most vital part of the body, as a result of which the deceased succumbed to the injury at the spot, appellant's conviction and sentence, therefore, is quite sustainable.

10. After perusing' the relevant record and assessing the prosecution evidence, we find that the complainant Zafarullah Khan P.W.6 who is elder brother of Tahir Mehmood deceased, as well as Muhammad Latif Khan P.W.7, both have no reasons or motive to falsely implicate the appellant. Even if both the witnesses are closely related to the deceased, the relationship alone is not sufficient to discard or to discredit their testimony. The occurrence took place within the vicinity of the village during broad daylight at 3-00 p.m. The matter was reported to the police immediately by the complainant himself at 4-00 p.m., although police station s located at a distance of ten miles. The promptness with which the F.I.R. has been recorded strongly suggests that the complainant and the witnesses had seen the occurrence, therefore, the matter was reported and the appellant was named as an accused in the F.I.R. without any reservation. Presence of the witnesses at the place of occurrence, is quite natural. The complainant being brother of the deceased was proceeding towards his land in order to take a round of the same. The occurrence took place in the land of the complainant and the deceased. Following by Muhammad Latif P.W.7 or his presence at the place of occurrence does not appear to be unnatural. During the month of March at about 3-00 p.m. residents of the villages are normally present in the fields, in order to look after their crops or to have a general survey of, their holdings. Statement of both the witnesses apart from being consistent and corroborative to each other, are strongly supported by the medical evidence. It is not a case where the. allegation is made that deceased received a fire-arm wound and the same is supported by the medical evidence. In the present case according to the witnesses, the appellant came closer to the deceased, he fired a shot from his shot gun on the chest under the armpit. According to the medical evidence the fire-arm shot has been received by the deceased, the dimension of the same and the recovery of three pellets from beneath the injury, fully establish that the same had been caused with a shot gun. The fact that four ribs were found fractured and the shot made an exit wound as well, supports the eye witness account that the same had been caused from a close range. Otherwise, nature of the injury would not have been that severe so as to fracture the ribs and to make an exit wound as well. Apart from that, if viewed from the angle that the deceased had two fire-arm wounds on his person, and the witnesses had not seen the entire occurrence, they being lay men, could have been easily misled by two wounds on the person of the deceased and would have thought that two fire-arm injuries had been caused. It is difficult for a lay man to distinguish in between the wound of entry and wound 'of exit. Both the witnesses categorically stated that one injury had been caused and the same was found to be correct during post mortem examination. We, therefore, find that eye-witness account received a credible support from the medical evidence.

11. As regards the evidence of recovery of shot gun at the instance of the appellant, it is stated that the shot gun produced by the appellant was his licenced gun and according to the appellant himself, the same had been supplied to the police by his father. Possession of gun or its licence is not denied. It is true that in case of recovery of any empty or its matching with the gun, could have provided a strong corroboration to the prosecution, version yet the fact r8mains that recovery of licenced gun is at least an indicator of a circumstance in favour of the prosecution.

12. About the evidence of motive, the learned counsel had laid much stress on the point that no documentary or even oral evidence substantiates the allegation that the appellant dealt in narcotics. Three is mere assertion which is not even supported by the Investigating Officer, because he expressed his inability to produce any previous record regarding appellant's indulgence in business of narcotics, etc, The contention raised by the learned counsel cannot be held to be without substance but the fact remains that no other material justification, has been made by the defence to point out, as to why the appellant could be implicated falsely. Although allegations of infliction of fire-arm injury as well as motive have denied by the appellant yet he himself stated that he appeared before the police on the same day i.e. day of occurrence. Had the incident been unseen or a blind murder, then how the appellant would have gone and appeared before the police. Be that as it may, as discussed above, the eye- I witness account as furnished by P.W.6 and P.W.7, which is materially supported by the medical evidence and that the fact of prompt reporting of the matter to the police without any reservation, inspires confidence and leave no doubt to believe that the appellant committed the offence alleged against him. Appellant's conviction therefore, under section 302(a), P. P. C. is thoroughly maintainable and as such the same is upheld.

13. The learned counsel has argued rather with vehemence that the motive remains shrouded in mystery therefore, the same provides a mitigating circumstance in favour of the appellant. He should be awarded lessor penalty. We are not persuaded to accede to the same. Even if it is presumed that there was no motive, mere absence of motive does not by itself in any manner reduces the criminal liability of the appellant and does not provide an extenuating circumstance for imposition of lessor penalty. Apart from that if in a case it is demonstrated that there existed some circumstances and there ambiance suggested that the offender acted in a manner which created some mitigating in his favour then of course, benefit of the same can be extended for imposing lessor penalty but the mere fact that murder had been committed without motive or the prosecution did not come forward with a motive by itself does not provide any mitigation or extenuation in favour of the accused person. If there is any circumstance or even suggestion that the offence possibly was committed as a result of sudden flare-up or on account of some provocation or there could be some moral or social justification then in that event ignorance of motive or possibility of some reason of the like nature, may provide a mitigation to the offender and lessor penalty may be justified. In the present case, however, we do not find existence of any such circumstance, as a result of which, normal penalty of death should not be imposed.

14. After carefully assessing the attending facts and circumstances, we are not persuaded to accede to the prayer of lessor penalty, therefore, are of the view that learned trial Judge has rightly imposed the sentence of death. The amount of compensation of Rs.40,000 is also not excessive. The conviction and sentence as awarded to the appellant by the learned Sessions Judge, is hereby upheld and maintained. Criminal Appeal No.328 of 1996 is dismissed.

15. For the reasons recorded above, this Criminal Revision No. 157 of 1996 also is dismissed.

16. Murder Reference is answered in affirmative. Sentence of death is confirmed. N. H. Q. /M-607/L Death sentence confirmed.