2002 P Cr (PLP)

ABDUR RAUF KHAN LUGHMANI, J.‑‑‑ Gul Muhammad, aged about 32/33 years, resident of Mansoor Khel, Tehsil and District Kohat, was tried by the learned Additional Sessions Judge, Kohat, under section

302. P.P.C., for having committed the murder of his mother, namely, Mst. Naseem Akhtar on 8‑6‑1997 at about 6‑00 a.m. He was found guilty of the offence charged with and was convicted under section

302. P.P.C. and sentenced to death as "Qisas", vide judgment, dated 21‑7‑1999.

2. The convict has challenged his conviction and sentence through the present appeal and we have also before us a reference from the learned trial Court for confirmation of the sentence of death. This judgment shall dispose of both the matters.

3. The occurrence took place, in the house of the deceased on 8‑6‑1997 at 6‑00 a.m. The F.I.R. was lodged by Akram Khan (P.W.6), brother and maternal‑uncle of the deceased and the appellant, respectively, on the same morning at about 7‑30 a.m. with Muhammad Yaqoob, A.S.‑I. Police Station Cantt. (Police Post Bannu Gate), P.W.7, who allegedly on the receipt of information that an injured has been brought to the L.M.H., Kohat, rushed there. It was alleged in the initial report recorded in the shape of Murasila (Exh.P.A./1) that Mst. Naseem Akhtar. his sister, used to reside alongwith his son Gul Muhammad in a rented house and he also used to sleep at night in the house of his sister. At the time of occurrence, he came out of the bathroom and noticed Gul Muhammad holding iron rod in his hand and altercating with his mother. He (the appellant) also threatened her by saying he would not leave her alive and gave blows with rod, with which she was hit on the left side of the head and fell down. The accused bolted away from the spot and Naseem Akhtar became unconscious. It is also mentioned in the report that she was taken in the same condition to the hospital. The appellant was a vagabond and used to often quarrel with his mother over demand of money/maintenance.

4. Muhammad Yaqoob, A.S.‑I. (P.W.7) after recording Murasila, sent the same to the police station for registration of case and thereafter, he went to the spot. During the spot inspection, blood‑stained earth and iron rod were taken into possession which were subsequently sent to the Forensic Science Laboratory. The site plan was also prepared by him. On the conclusion of investigation, the challan was submitted before the Illaqa Magistrate who sent it up to the Court of Session, Kohat.

5. Dr. Syed Jamal Anwar, Medical Officer, L.M.H., Kohat (P.W.2), examined Mst. Naseem Akhtar, then injured and unconscious, on 8‑6‑1997 at 6‑45 a.m. and f )und one lacerated wound of 3' in size and 1/2" in breadth on the left lateral side of the skull. The injury was grievous, the skull being fractured. Therefore, she was referred to the L. R. H., Peshawar where she succumbed to the injury and the charge was altered to section 302, P.P.C.

6. Due to refusal on the part of appellant to plead guilty to the charge, the prosecution produced nine witnesses in all including one eye witness Akram Khan (P.W.6), the Investigating Officer Muhammad Yaqoob (P.W.7) and Dr. Syed Jamal Anwar (P.W.2). There is nothing significant in the statement of the appellant recorded under section 342, Cr.P.C. The appellant appeared in the witness‑box in terms of section 340(2), Cr.P.C. and pleaded innocence and claimed that the case was fabricated against him by his maternal‑uncle Akram Khan (P.W.6) as he did not have cordial relations with him.

7. The learned trial Court based the conviction of the appellant on the ocular testimony furnished by Akram Khan (P.W.6), the recoveries and abscondence of the appellant.

8. Malik Fakhar Azam Khan, learned counsel for the appellant, has assailed the conviction of his client on the following grounds:‑‑ (a) The presence of P.W. Akram Khan in the house of the deceased was not probable, having his own family and a separate house. .He was an interested witness who has given contradictory statements regarding the number of blows and in this connection reference was made to the contents of Murasila, wherein the witness alleged that the deceased was given blows while the victim suffered one injury. (b) It has not been proved by the prosecution that the report recorded in the shape of Murasila was made by P. W. Akram Khan as according to this witness, he made F.I.R. by saying to the effect my report in this regard is Exh. P.A.', which in fact is F.I.R: and not the Murasila. (c) No attempt was made by Akram Khan (P. W .6) to make report in the police station on way to the hospital, he could do so. (d) The investigation is dishonest as the injured was examined at 6‑45 a.m. while the report was made at 7‑30 a.m. as there is reference in the medico‑legal report of one Aurangzeb, F.C. No.894 and also case F.I.R. was given in the memos. According to the prosecution, the Investigating Officer after recording the Murasila, went to the spot and prepared the site plan and the recovery memo., wherein he mentioned the case F.I.R. No., this would suggest that after preliminary investigation, the report was recorded. (e) 'The absence of sufficient motive for the commission of crime is a mitigating circumstance in the circumstances the case, requiring lesser punishment. (f) The award of death penalty by way of Qisas is not warranted in terms of section 306(c), P.P.C. and the case should be sent back for retrial in the light of judgment .given in case of Abdur Rauf v. State 1998 SCMR 1773.

9. We have also heard the learned counsel for the complainant as well as the State and have gone through the record with their assistance.

10. Akram Khan (P.W.6) has no enmity or ill‑will against the appellant and similarly, there is nothing on the record to suggest that the deceased had any enmity with anyone. One person has been charged, therefore, the question of substitution does not arise. It was brought on record during the course of cross‑examination that he used to go every night to the house of the deceased as none else was living with her. In other words, the deceased was used to live alone and being her brother, he had to spend night there. However, on the eventful morning, the occurrence took place and nothing has been, brought on record to suggest as to whether or not the appellant also stayed for the night or he came in the morning. One thing is clear and P.W.6 has been consistent that the occurrence took place in his presence. Had the charge levelled by this witness been false, other heirs (one brother and six sisters) of the deceased would not have allowed him to do so or they would have compromised the case with the appellant. Again mother of the appellant was murdered and no effort whatsoever was made by him to make a report of the occurrence. In initial report, blows have been attributed to the appellant but in the witness‑box, the eye‑witness spoke of one blow given by the appellant to the deceased. He was not confronted with the report and so no benefit can be given to the appellant.

11. The report was made in the hospital with P.W.7 Muhammad Yaqoob, A.S.‑I. P.W. Akram Khan did say to the effect:‑‑ "My report in this regard is Exh. P.A. It correctly bears my signatures. " Exh.P.A./1 is F.I.R. which incorporates Murasila (Exh.P.A./1) and the latter bears his signature. It was a typographical mistake and even the witness did state that the report was signed by him. The witness is a literate, working as an Accountant in the Beacon Public School, Kohat since 1996. The Murasila does bear his signature in English. Similarly, Muhammad Yaqoob, A.S.‑I. (P.W.7) confirmed that in the hospital Akram Khan (P.W.6) made report which was recorded in the shape of Murasila.

12. The primary concern of Akram Khan (P. W.6) was to take his injured and unconscious sister to the hospital immediately for medical aid and if he was not stopped on the way to the hospital for making report that would not cast any reflection on the prosecution case. It was done in the best interest of Naseem Akhtar to save her life.

13. As regards the fourth ground, the date and time of arrival mentioned in the medico‑legal report (Exh.P.W.2/1) is stated to be on 8‑6‑1997 at 6‑45 a.m. Since the injured was unconscious, therefore, obviously, the concern of the Medico‑legal Officer was to give initial medical aid after checking etc. which must have consumed some time. The time of report is 7‑30 a.m. Assuming that the deceased was examined earlier than the report, that would not adversely affect the prosecution case for short and good reason that the prosecution got no advantage and for the negligence of the Investigating Officer, the prosecution is not to suffer. There is no question of deliberation or concoction of case before making report. One person has been charged, who is real son of the deceased, by a maternal‑uncle in a very straightforward manner. The iron rod with which the deceased was attacked, the blood picked up from the spot with the help o cotton, the blood‑stained shirt of the deceased, reveal human blood of the same group as is evident from the report of the Forensic Science Laboratory.

14. As regards the absence of sufficient motive, suffice to say that the conduct‑of the appellant needs to be pointed out. Previously, he was involved in the murder of his brother‑in‑law. Just ten days before the occurrence, he was acquitted in the said murder case on the basis of compromise as is evident from the judgment of the Court of Session, dated 25‑5‑1997 (Exh. C.A.). Had he not been guilty of the crime, he would not have absconded after the occurrence and was arrested about two months thereafter. When asked to account for abscondence, the appellant in his statement under section 342, Cr.P.C. simply denied it. No plausible explanation has been given. The complainant (P.W.6) who also happened to be maternal‑uncle of the appellant, describing the motive in his report did state that the appellant was a vagabond and he demanded money/maintenance from his mother and during the altercation with his mother, he gave iron rod blow to her which proved fatal. However, insufficient motive or failure to prove motive cannot out weight the positive evidence as to the crime. There is convincing and reliable ocular testimony corroborated by unexplained abscondence and various recoveries with regard to the guilt of the appellant. The contention of the learned counsel for the appellant that failure to prove motive, which in the circumstances is insufficient, would make out a case for lesser sentence, is not valid, for the Honourable Supreme Court of Pakistan in the case of Waris Khan v. The State, decided on 11‑2‑2000, reported as 2001 SCMR 387, repelled such plea in the following words:‑‑ "In the light of foregoing discussion we are of the considered opinion that the weakness of a motive or its absence or where alleged but not proved, would not constitute mitigating circumstances and hence the question of alteration in the sentence of death as awarded by the learned trial Court under section 302, P.P.C. and upheld by the learned Division Bench of High Court of Balochistan, Quetta, does not arise specially when the prosecution has established the case beyond shadow of doubt. The appeal being devoid of merit is dismissed."

15. The proof of Qatl‑i‑Amd liable to Qisas is given to section 304, P.P.C. which states that if an accused makes confession before the competent Court of trial or the required number of witnesses in accordance with Article 17 of the Qanun‑e‑Shahadat are available. Indeed in the instant case, the prosecution is in possession of one eye‑witness and the appellant has not confessed his guilt. So, the case of Abdul Rauf v. The State relied upon by the learned counsel for the appellant proceeds on distinguishable facts and is not applicable.

16. The learned trial Court awarded death penalty by way of Qisas which for want of required number of witnesses or confession of the appellant, is not proper and the sentence of death should have been imposed as "Ta'zir", under section 302(b), P.P.C. We would, therefore, amend the conviction order to the extent that the appellant is to suffer death as "Ta'zir".

17. The compensation under section 544‑A, Cr.P.C. is mandatory unless the Court gives reasons to the contrary. While convicting the appellant, the learned trial Court gave no reasons for not awarding compensation to the heirs of the deceased.

18. We would, therefore, order the appellant to pay compensation under section 544‑A, Cr.P.C. to the heirs of the deceased (other than the appellant) to the tune of Rupees one lac, recoverable as arrear of land revenue. The death penalty is confirmed and consequently, the murder reference is answered in the affirmative. H.B.T./507/P Order accordingly.