2003 P Cr (PLP)

MIAN MUHAMMAD NAJAM‑UZ‑ZAMAN, J.

Appellant Ghulam Mustafa alongwith Ghulam Shabbir was tried for the murder of one Mst. Robina Kausar in case F.I.R. No.113 of 1996, dated 8‑4‑1996 registered under section 302/34, P.P.C. at Police Station City A‑Division, Okara by the learned Sessions Judge, Okara who vide judgment, dated 9‑6‑1998 while acquitting Ghulam Shabbir, convicted the appellant under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay compensation of Rs.50,000 to the legal heirs of the deceased under section‑544‑A, Cr.P.C. or in default whereof to further undergo two years' R.I.

2. Challenging his conviction and sentence the appellant filed Criminal Appeal No. 565 of 1998 while the trial Court made a reference (Murder Reference No.317 of 1998) under section 374, Cr.P.C. for the confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this judgment.

3. This occurrence took place within the vicinity of Fateh Town falling within the jurisdiction of Police Station City A‑Division, Okara on 8‑4‑1996 at about 11‑30 a.m. Matter was reported to the police by Muhammad Akram complainant P.W.7 and formal F.I.R. Exh.P.C./1 was registered.

3. The prosecution case in brief is that complainant Muhammad Akram was a resident of Canal Rest House being an employee of the Canal Department as Baildar. His sister‑in‑law Mst. Robina Kausar deceased., Habib Ahmad P.W.8 and Allah Ditta (not produced) had come to see him on 8‑4‑1996. On the same day complainant alongwith said persons went to the house of one Muhammad Asghar and on their way back to home at about 10‑30 a.m. when they reached near the house of Muhammad Abbas situated in Fateh Town suddenly Ghulam Mustafa appellant armed with pistol and Ghulam Shabbir empty‑handed emerged. The latter raised Lalkara that they would teach a lesson for not giving Lhem the hand of the girl and at the same moment appellant fired seven successive shots at Mst. Robina Kausar hitting on her chest and other parts of her body who fell down and succumbed to the injuries instantaneously. Statedly while raising Lalkara and issuing threats, the accused made good their escape from the spot. Motive behind the occurrence as narrated in the F.I.R. is that Ghulam Mustafa was asking for the hand of Mst. Robina Kausar for his brother Ghulam Shabbir accused but the complainant party refused the said demand and in order to avenge the insult the appellant and his co. accused committed the murder of Mst. Robina Kausar.

4. After the occurrence, complainant Muhammad Akram appeared before Jafar Hussain, S.‑I., P.W.1, who was present at Chowk Microwave, Okara and. made statement Exh.P.C. A copy of complaint was also sent to police station for the registration of formal F.I.R. The said Police Officer thereafter, proceeded to the place of occurrence and after examining the dead body prepared necessary documents and sent the dead body to the mortuary for post‑mortem examination. During the spot inspection the Investigating Officer collected blood‑stained earth from the place of occurrence vide memo. Exh.P.G. as well as took into possession seven empties of .30 bore pistol P.8/1‑7 from the spot vide memo. Exh.P.H. He also prepared rough site plan Exh.P.L. as well as recorded the statements of witnesses. On the same day after post‑mortem examination last‑worn clothes of the deceased were produced before the Investigating Officer which were taken into possession vide memo. Exh.P.B. During investigation this witness arrested Ghulam Mustafa on 23‑4‑1996 and Ghulam Shabbir on 25‑6‑1996. At the time of arrest pistol 1'.5 alongwith three live bullets P.6/1‑3 were also recovered from Ghulam Mustafa during his personal search and the said articles were secured vide memo. Exh.P.D. This witness also got prepared site plan Exh. P. A. and Exh. P.A. / 1 through Abaid Ullah, Draftsman and P. W .5 and after completing all other formalities submitted challan before the trial Court.

5. In order to prove its case, prosecution produced nine witnesses before the trial Court.

6. Abaid Ullah Khan, Draftsman P.W.1 prepared site plan Exh.P.A. and Exh.PA./1 Akhtar Ali Constable P.W.2 took the parcel (case property) to the relevant offices and delivered. the same intact. Munawar Taj, Constable P.W.3 took the dead ‑body of Mst. Robina Kausar to the hospital for post‑mortem examination and after the same produced last‑worn clothes of the deceased before the Investigating Officer Muhammad Iqbal, H.C. P.W.4,kept the parcels in Malkhana for safe custody and later on handed over the same to the constables for onward transmission to the relevant offices. Sadaqat Ali P.W.5 was present when pistol P..5 alongwith live bullets P.6/1‑3 were recovered from the appellant. He also signed the recovery memo. Exh.P.D. Statedly licence of said pistol was also taken into custody by the police vide memo. Exh.P.E.

7. Dr. Muhammad Ashiq P. W.6 , conducted post‑mortem examination of Mst. Robina Kausr and observed the following injuries:‑‑‑ (1) Lacerated wound 3/4 c.m. x 3/4 c.rn. with inverted and blackened margins on right and front side of chest. 4 c.m. outer to right nipple. The wound was deep going and it was the wound of entry. (2) Lacerated wound 3/4 c.m. x 3/4 c.m. with inverted and blackened margins on the right and front side of chest. 3 c.m. inner to the right nipple. Wound was deep going. It was wound of entry. (3) Lacerated wound 3/4 c.m. x 3/4 c.m. with blackened and inverted margins deep going on front and right side of chest 5 c.m inner to the right nipple 8 c.m. from midline. It was wound of entry. (4) Lacerated wound 3/4 c.m. x 3/4 c.m. with blackened and inverted margins deep going 4 c.m. above left nipple on front and left side of chest. (5) Lacerated wound 1 c.m. x 1 c.m. .on front and left side of chest with everted margins 8 c.m. outer to the left nipple. It was the wound of exit of No.4. (6) Lacerated wound 3/4 c.m. x 3/4 c.m. with inverted and blackened margins on left side and front of chest 4 c.m. below left nipple. It was a wound of entry. (7) Lacerated wound with inverted and blackened margins 3/4 c.m. x 3/4 c.m. on left side and front of chest, deep going 8 c.m. below left nipple, 4, c.m. midline. It was wound of entry. (8) Lacerated wound with blackened and inverted margins 3/4 c.m. x 3/4 c.m., 3 c.m. from midline. It was the wound of entry. (9) Lacerated wound with blackened and inverted margins ,3/4 c.m. x 1/2 c.m. on left side of chest, deep going, 12 c.m. below left nipple, 8 c.m. from midline. It was the wound of entry. (10) Lacerated wound with blackened and inverted margins deep going in the midline of the abdomen I c.m. x 1 c.m., 9 c.m. above umbilicus. It was a wound of entry: (11) Lacerated wound 3/4 c.m. x 3/4 e.m. with blackened and inverted margins on inner and middle part of left arm. It was the wound of entry from the exit wound No.5 (a lead bullet removed from this wound). (12) Lacerated wound 1 c.m. x. 1 c.m. with blackened and inverted margins on inner side of left elbow. It was the wound of entry and lead bullet was removed from this injury. (13) Lacerated wound with everted .margins 1 c.m. x 1 c.m. on the back and right side of chest 7 c.m. from midline. It was the wound of exit,. (14) Lacerated wound with everted margins 1 c.m. x 1 c.m. on the back and right side of chest 7 c.m. from midline. It was the wound of exit. (15) Lacerated wound with everted margins 1 c.m. x 1 c.m. on back and right side of chest, 6 c.m. from midline. It was the wound of exit. (16) Lacerated wound with everted margins 5 c.m. from midline, 1 c.m. below injury No.

15. It was the wound of exit. (17) Lacerated wound with everted margins 1 c.m. x 1 c.m. on back and right side of chest, 1 c.m. from midline, 3 c.m. from injury No.

16. It was the wound of exit. (18) Lacerated wound 1 c.m. x 1 c.m. with everted margins on the back of left side of chest 10 c.m. from midline in the middle area. It was the wound of exit. (19) Lacerated wound 1 c.m. x 1 c.m. with everted margins on the back of left side of abdomen 13 c.m. from midline. It was the wound of exist. In the opinion of doctor, death occurred due to severe internal bleeding and shock caused due to injuries Nos. 6, 7 and

8. Statedly, all the injuries were sufficient to cause death. In the ordinary course of nature:

8. Muhammad Akram P. W. 7 and Habib Ahmad P.W.8 being the eye‑witnesses of the occurrence while supporting the prosecution case narrated the circumstances under which the appellant and his co‑accused committed the murder of their sister‑in‑law Mst. Robina Kausar. Both of them also deposed about the motive part of this case.

9. Jafar Hussain, S.‑I. P.W.9 conducted the investigation of this case as narrated in the earlier part of the judgment. Learned D.D.A. tendered in evidence reports of Chemical Examiner Exh.P.M. that of Serologist Exh.P.N. and of fire‑arms experts. Exh.R.O. and closed the prosecution case.

10. Learned trial Court also examined the appellant and his co accused under section 342, Cr.P.C. wherein both of them denied the charges and pleaded innocence. Neither the appellant nor his co‑accused made any statement under section 340(2), Cr.P.C. nor produced any evidence in their defence.

11. Learned trial Court after analyzing the evidence available on record vide judgment, dated 9‑6‑1998 convicted and sentenced the appellant as narrated earlier.

12. Learned counsel for the appellant submitted that it was a blind murder, Mst. Robina Kausar was done to death by some unknown persons but, appellant was involved in this case due to his previous enmity with the complainant party; that the eye‑witnesses were not present at the spot but they were introduced later on to strengthen the prosecution case, that the recovery of crime weapons at the instance of appellant, the empties and the report from the Forensic Science Laboratory to connect the appellant with the commission of this offence, were manufactured during the investigation, that the motive for the commission of this murder was never proved by the prosecution before the trial Court; that the medical evidence also contradict the ocular account. Conversely learned counsel for the State while supporting the impugned judgment vehemently opposed the instant appeal.

13. Learned counsel of the parties have been heard at length and with their assistance we have also minutely ‑ examined the record. In order to prove the charge against the appellant prosecution has relied upon the statements of two eye‑witnesses namely Muhammad Akram P. W .7 and Habib. Ahmad P. W .8 and sought corroboration from the evidence of recovery of pistol at the instance of the appellant, and the empties recovered from the spot alongwith the report of Forensic Science Laboratory, the motive for this occurrence and medico‑legal report.

14. Both the eye‑witnesses who have deposed against the appellant are brothers‑in‑law of the deceased but have no blood relation inter se. The arguments of the learned counsel for the appellant that the statement of the eye‑witnesses who are related and inimical towards appellant would be of no value in the absence of any corroborative piece of evidence, has no force. It is well‑settled proposition of law that test of credibility of a witness is neither his relationship or friendship was either side nor his mere presence at the scene of offence at the time of occurrence but it is the worth of his testimony valued on the established judicial norms which finally proves or disproves his partiality or impartiality as a witness. Learned counsel for the appellant submitted that none of the eye‑witness was present at the spot but the fact of the case speaks otherwise. On the day of occurrence, both the said witnesses alongwith the deceased (their sister‑in‑law) had gone to see Mst. Razia, real sister of the deceased, who had met an accident 2/3 days prior to this occurrence. Statedly after seeing the said lady, when these witnesses and the deceased were coming back the appellant and his co‑accused launched an attack and committed the murder of Mst. Robina Kausar. The visit of both the witnesses in the house of Mst. Razia (their sister‑in‑law) to inquire about her health was a very natural conduct and their presence at the spot is normal and plausible. In the circumstances of this case, the presence of both the eye‑witnesses at the time of occurrence is proved beyond any shadow of doubt.

15. The medical evidence available on the record also supports the ocular account. The duration, nature an location of injuries as narrated by the eye‑witnesses stand affirmed by this piece. of evidence.

16. The facts of this case also reveals that the matter was reported to the police within one hour of the occurrence. The promptness in lodging the F.I.R. giving all details of the occurrence is yet another circumstance to strengthen the prosecution case.

17. It is also established from the record that during the investigation a licensed pistol was recovered from the appellant and according to the report from the office of Forensic Science Laboratory (Exh.P.Q.) the empties recovered from the spot were fired from this pistol. In this view of the mater, the recovery evidence also lends ample corroboration to the ocular account and gives strength to the prosecution case.

18. The motive for this occurrence as narrated by the prosecution witnesses was that the appellant had asked for the hand of Mst. Robina Kausar (deceased) for his brother Ghulam Shabbir co‑accused but the complainant party did not agree to that and in order to wreck the vengeance appellant committed the murder of Mst. Robina Kausar. On the other hand, the facts of this case reveal that Ghulam Mustafa appellant had divorced Mst. Manzooran, real sister of the deceased 2‑1/4 years ago. From the said wedlock appellant had two children which were residing with Mst. Manzooran. In the light of said strained relations between the parties, the story of the prosecution that appellant was asking for the hand of deceased for Ghulam Shabbir co‑accused seems to be improbable. Even otherwise during the cross‑examination the Investigating Officer had admitted that he made no attempt to record statements of the parents of ‑deceased to verify motive part of the occurrence. We have also observed that during the trial prosecution had not produced any independent witness in support of this limb of its case. In the circumstances of this case we find force in the arguments of the learned counsel for the appellant that prosecution had failed to establish the motive part of its case.

19. The learned counsel for the appellant also argued that since the prosecution had failed to prove the motive part of its case, the maximum sentence of death could not be awarded to the appellant. It is well‑settled proposition of law that when premeditated and cold‑blooded murder is committed, like the present one, and the same is established by irrefutable evidence, the motive does not play any active role. Even if the motive is not proved it could not be a ground to discard the unimpeachable evidence. This view is in line with the observations of, their lordships in case titled Muhammad Ilyas v. The State PLD 2001 SC

333. Similarly when the prosecution has proved the guilt of the accused beyond reasonable doubt, as in the present case, the proof of .motive is not a legal requirement for awarding maximum sentence. In this view of the matter, we are guided by the observations of their lordships in case titled Imtiaz Ahmad v. The State 2001 SCMR 1334.

20. Keeping in view circumstances of this case and the settled proposition of law we are of the view that the prosecution had proved its case to the hilt and there are no mitigating, circumstances to award lesser sentence. Finding no force in the instant appeal the same stands dismissed. Death sentence of Ghulam Mustafa is confirmed and the murder reference is answered in the affirmative. S.M.A.H./G‑213/L Appeal dismissed.