1984 PLP 646 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑These two appeals (Criminal Appeals Nos. 77 and 78 of 1982) through special leave of this Court are directed against judgment; dated 14‑3‑1982 of the Lahore High Court ; whereby the conviction (and sentence of life imprisonment as also fine of Rs. 10,000) under section 302, P. P. C., of Mst. Farah Naz (appellant in Criminal Appeal No. 77 of 1982) was affirmed and her appeal was dismissed. Leave to appeal was granted to Mst. Farah Naz by this Court for re appraisal of the evidence to see whether correct principles of criminal justice were followed in rendering the verdict of guilty against her. Leave to appeal was also granted in a separate petition filed by Fazal Elahi brother of the deceased (appellant in criminal Appeal No. 78 of 1982) to examine whether the normal penalty of death under section 302, P. P. C. should not have been awarded in this case. The facts and circumstances of the case briefly noticed for granting leave to appeal are that the father of Mushtaq (deceased) and father of bliss Farah Naz were old friends‑ and as such the deceased and Farah Naz (the appellant) were engaged to be married. Later on, her family did not feel happy over this match. Therefore, they wanted to get rid of the said engagement. This, according to the prosecution, was the motive for the murder of Mushtaq. On 22‑6‑1978, it is alleged, that the appellant went to the hotel of the deceased and from there both of them went in a Suzuki Van to Shakar Parian Hills in Islamabad. The van was parked at West View‑Point parking site. Abdul Ghafoor, Imtiaz Hussain, Murid Hussain Shah Police Constables Shaukat Ali, Supervisor, C. D. A. and Muhammad Iqbal, gardener, were present at Shakar Parian Hills in connection with their respective duties, when at about 4‑30 p.m. they heard the report of gun‑fire ; ran towards the park area where the Suzuki Van of the deceased was parked ; and, saw Mst. Farah Naz firing at the deceased. One of the witnesses snatched the revolver from her, and she was taken into custody. The deceased, who was hit with the shots, had died at the spot Abdul Ghafoor, Constable, P. W. went to the Police Station Aabpara (at a distance of three miles) and lodged the F. I. R. at 5‑15 p.m. which was recorded by Arshad Hussain S. I , S. H. O. He then proceeded to the spot, arrested the appellant there. At the same time a revolver was produced by Imtiaz Hussain P. W.

8. It contained 4 empties and two live cartridges in its chamber. They were sealed into a parcel. On personal search of the appellant, a wrist watch P‑16, bunch of keys P‑17, currency notes of Rs. 10,001, two bags containing personal clothes and cassette records along with certain other articles were taken into possession from her. The doctor found four fire‑arm wounds on the body of the deceased. Out of them one (No. 3) was an exit wound. Death was due to shock and haemorrhage. At the trial the prosecution examined witnesses regarding motive, ocular account, recoveries and medical evidence. The accused denied the commission of offence and stated that she was betrothed to the deceased and was happy with the engagement. But as the deceased's father owed Rs. 2,50,000 to her father, he and her brothers changed their mind about her marriage and wanted to wriggle out of the commitment but she was firm about her marriage with the deceased. She further stated that on the fateful day she had accompanied the deceased to the Shakar Parian hills to make future plans and when they were talking to each other in the park somebody fired at them. The deceased got hit with the shots. She asserted that none of the P. Ws. was at the spot at that time. Later on, a Constable came and she reported the matter to him but in a way different from what is recorded in the formal F. I. R. lodged by the Constable himself. The learned trial Judge as also a learned Single Judge in the High Court relying mainly on the ocular account held the accused guilty of murder. She was awarded lesser sentence on ground of tenderness of age and what the learned trial Court described "desperate sentimentality." Learned counsel for the convict reiterated all the arguments advanced at the leave granting stage and contended that there was no reason for the appellant to commit the murder of Mushtaq, deceased. She ‑vas happy with her engagement and was waiting for her marriage with him rather eagerly. There was no evidence to the contrary. He further urged that the testimony of eye‑witnesses i e. P. W. 6, P. W. 7 and P. W. 8 is totally belied by the attending circumstances of the case as none of them could be present at the spot at the time of actual firing, and that they came only when the de‑eased bad already fallen to the ground‑their testimony is further belied by the medical evidence which shows that there were only three inlet wounds none of which had any gun‑powder marks or charring although the said eye‑witnesses had stated that they had seen the appellant firing at the deceased from a very short distance i.e. about six feet ; that both the deceased and the appellant, according to the ocular evidence, were standing on the same level whereas the direction and location of injuries revealed in the post‑mortem examination would show that the entry wound was on the lower level while the exit wound was at higher level and it could have been caused only when the assailant was on the lower level than the deceased. The learned counsel for the complainant side argued that it was deliberate and preplanned crime for which the accused had come prepared armed with a revolver, which was recovered from her. Thus, it is a case where normal penalty or death should be awarded. We have heard the learned counsel at length and have also gone through the evidence. The eye‑witnesses are natural and independent. After a detailed scrutiny by the two learned Courts below, they have been held to be reliable. The criticism of their testimony by the learned counsel for the appellant with reference to some possibilities deducible from the medical opinion has not shaken their credibility. All attending circumstances support them insofar as the act of firing three shots by the accused at the deceased is concerned. But that would not, by itself, be enough to each a conclusion that the only explanation for this act is the one alleged by the prosecution; namely, that she hated the deceased and thus in order to get rid of him planned to kill him ; regarding which their is no evidence. It is an admitted position that the firing of the first shot was not witness by the eye‑witnesses. That being so it is also not known as to what preceded the first shot; except for the fact that when the witnesses emerged at the scene after they had heard the first shot from a long distance, they saw the accused then firing at the deceased at three shots, which produced the three entry wounds. There is no evidence at all that the revolver was with her before the firing of the first shot. Admittedly also there is no evidence on record to show as to whom the revolver belonged and who had brought it. There are the findings of the learned Courts below with regard to the elaborate prepara tion of the accused to elope with the deceased. He had taken the risk of enticing her away. It is most likely that the male would have brought the revolver. It does not at all fit in with other admitted circumstances, that the girl would have procured and brought the weapon. She at the time of occurrence was 1 3/14 years of age while he was 22 years of age. In this behalf presumption was sought to be raised that because it was taken from her hands by Abdul Ghafoor P. W and given to Imtiaz Hussain P. W. who then produced it before the police, therefore, she might have owner brought it. But these two circumstances were neither mentioned by Abdul Ghafoor in the F. I. R. nor by Imtiaz Hussain in his police statement. Moreover, none of them signed the relevant recovery memo. And above all the revolver produced in Court assumed to be the one taken from‑ her, a opined by tire ballistics report, was not used in the occurrence. The surmise by the complainants' counsel that it might have been changed to help the accused, is without any material support. The trial Court took into account these infirmities and rightly refrained from relying on this part of the prosecution case. All these circumstances indeed present a confused situation which does not admit of an easy solution, Be that as it may, the accused cannot be denied the due benefit. In addition to these unexplained circumstances some other important facts have also to be viewed. The shirt of the deceased removed from his dead body was examined b us during the hearing. It appeared to be new and made of silky cloth with elaborately embroidered front. It was found torn with an irregular tear of about six inches near the lower left end of the button tape. One button near the top end also appeared to have been subjected to force with the thread broken lose and protruding out of one hole thereof. It is typical tell‑tale evidence of application of force. It means that the accused cultched her hands on the front chest part of the shirt of the deceased and used such fore that it pulled the button loose, partly broke the thread and also tore open the mid part of the front. How did it happen? There is no direct evidence. The explanation offered from the side of the State (perhaps based on surmise and that too by the Assistant Superintendent of Police, who partly investigated the case) that the deceased must have himself tore off his shirt during the pains of death, is too weak to be accepted. It is more so when it is found that it does not fit in with the nature of the damage done to shirt. The other explanation by the complainants' counsel that it might have been torn at a later stage, of the proceedings in order to create evidence in favour of the accused, is without any basis. In fact the complainant side itself had formally complained through written application that tine police was not paying due attention to this very important piece of evidence which according to them showed that some one ha i grappled with the deceased before he was shot at. It is yet so to be seen, despite this, what is the effect of the tearing of the shirt. Two cassettes and an empty cassette cover were recovered from the pocket of a saluka which the deceased was wearing under the shirt. They are not available in the case property now. On the other hand one cassettes containing the conversation of the accused and the deceased immediately before elopement and seventeen other cassettes containing music are available. There was a complaint that the two first mentioned cassettes had direct bearing on the case and yet the police was trying to conceal this circumstances. What is the reality about all this is not known. Whether this circumstance be of any advantage to the accused, is also to be seen. It must be straightaway observed that the accused tore open the shirt of the deceased with sufficient force. It so appears from the type of cloth of the shirt, the stitching, buttons and damage done to them. She must have done so either to drag him by the shirt or when preventing him from doing something she did not like. According to the prosecution, before the firing, no question could arise of her dragging him. The Suzuki car belonged to him and the key was in it. He could easily run away if she had run amuck; of which, otherwise there is no evidence and the prosecution case is of planned murder. On the other hand it is possible that if the revolver was in the pocket of the shirt of the deceased it could have been torn when each might have attempted to take it out first. Why such a situation might have arisen is again difficult to answer. A suggestion about an attempt at rape by the deceased, was discussed during the arguments. Even if as argued by the prosecution but without evidence, they had enough previous opportunity of sexual act, it is not impossible to assume that she might not have liked it before the nikah. There is no vulgarity or other such type of conversation in the tape‑record produced by the prosecution which could lead to such a supposition. But an attempt at rape by the deceased would be excluded on an other stronger reason‑it was most unlikely place and situation, for such suicidal adventure. Though, other amorous advances (short of use of force for rape) by the deceased, cannot be excluded. She could have resisted that because all this is a matter of attitude before marriage. She might have disliked any molesta tion and it might, have led to some altercation and then scuffle. Two tape cassettes recovered from the saluka under garments of the deceased by police are not now available. They might have thrown some further light. However, due benefit can be extended to the accused in this behalf. The deceased might have told the accused of his having kept a record of some talk in the two cassettes in the saluka which he was wearing under the shirt. And then it having been suspected as an act of black‑mail, struggle might have started to secure the cassettes and that is why in order to reach the saluka the shirt above might have been torn. The distance from where the witnesses heard the first shot and started running towards the spot is 120 feet. Imtiaz P. W. 6 explained that they covered about 30/32 yards before seeing the occurrence. It must have taken them some time to reach that point from where they saw the three shot being fired by the accused. During the intervening period they did not hear any shot. Why was there a pause? If the revolver was, with the accused from the beginning, she could have fired all the three shots in" continuation of the first one before their arrival. It needs to be seen whether there is a possibility that the first shot was not fired by her. There were only three inlet wounds on the deceased the fourth was an exit. The witnesses stated that all the shots fired in their presence hit the deceased. It means the first shot which had been fired earlier had not hit the deceased. That being so, in absence of any evidence about the said ineffective shot having been fired by the accused it is not 'proper to presume the same as fired by her. Is there any other possibility? Another similar but comparatively more important unresolved contro versy is as to why the accused who admittedly was the fiance of the deceased, took his life. The motive alleged by the prosecution according to the High Court finding has failed. It is not correct to say that in all case of murder, the decision on the question of guilt or other is to be reached without the consideration of the question of motive. On the other hand it is well‑known that in all criminal cases to start with, the machinery of law whether at the investigation stage or during inquiry and trial, tries to discover the motive. Thus, it is always relevant. But the extent to which it would be relevant depends upon the circumstances of each case. It is not necessary to re‑examine in any detail all the questions relating to the motive in this case; firstly, because of the admission by all parties concerned that prior to the occurrence the accused was engaged to be married to the deceased and that all the articles found in her possession including large sum of money and private articles of use in considerable number, indicated that she had come with the deceased after a final decision to elope with him. There is no material to indicate that between the departure from Rawalpindi City and arrival in Islamabad either or both of them met any other person or faced any such situation which might have changed these facts. And secondly, both the Courts below having faced this question have expressed views which cannot be ignored. The learned trial Court made the following observations in this behalf: To my mind the factum of any motive in this case has faded into insignificance. The prosecution bad only alleged that there were previous relations between the two families, that the accused was engaged with the deceased, prior to the occurrence relations became strained between the two families and that the accused took the deceased to the place of occurrence on the day of occurrence with a view of murder him. The defence has admitted engagement of the accused with the deceased and has not denied the relationship between the two families. Even the straining of relations between the two families was admitted by the accused. It was also admitted by the accused that she had gone to the place of occurrence and was present with the deceased at the time of occurrence . . . . . . . . . . . . "The accused has however stated that despite wishes of her brother she had come to make plans about their future, with the deceased with whom she was engaged and it was with this view that she had met the deceased at Shakar Parian, the place of occurrence. On the basis of all this on record. one conclusion is in escapable that the deceased and the accused were present at shakar Parian at the time and place of occurrence." It would appear from what has been reproduced above that the learned trial Court being fully aware of the complexity of the circumstances involved in the motive of this case did not squarely face it and proceeded to decide the case on the finding that both the deceased and the accused being present at the place of occurrence prior to the three effective shots when both were facing each other, it was no more significant as to what was the motive for the accused to take the life of her fiance. In view of the earlier discussion on several major antecedent controversies involved in this case, it would not be correct to say that the question of motive would have faded into insigni ficance, for purpose of determining the guilt of the accused. Though it might be a different matter that despite all efforts, the complexity of the motive was such that it was not easy to ascertain in the real motive. The learned Judge in the High Court not only considered the motive as important and significant but also expressed a definite opinion in regard thereto. In the impugned judgment it was observed and held as follows "In the end it may be mentioned that reference to the conversation contained in the cassette (P. 1) of which Exh. P. C. is the transcript will not be necessary in this case. According to the brother of the deceased appellant's father had complained to the deceased's father that his son has been ringing up the appellant. Though the two were engaged to‑be married yet in the oriental culture to which they belonged it is normally expected that the boy and the girl should have no contact whatsoever before "Rukhsti". Through cassette P. 1 the deceased's family wanted to prove that in fact it was Mst. Farah Naz who always took the initiative to ring up to Mushtaq. Be that as it may, this did not materially affect the case of either side I have already concluded that the motive story was one of the weak points of the prosecution case the benefit of which has already been extended to the appellant by way of lesser penalty. What actually transpired between the" appellant and her fiance just before the occurrence is not known. Had there been a third person near about and had been involved in the occurrence, then the three eye‑witnesses would not have substituted the appellant for him. The defence has not been able to crack the reliability of the eye‑witnesses. I am, therefore, satisfied with the guilt of the appellant. Dismissing her appeal, I direct that the benefit of section 382‑B, Cr. P, C, be Extended to her and the period that she remained in custody during the trial shall be excluded from the remaining period of her sentence." Earlier the learned Judge while commenting on the argument advanced from the defence side that the accused had gone with full preparation to elope with him and that she wanted to marry him and it was not at all explained as to why she should have changed her mind and instead should have planned to kill him, observed that the prosecution had failed to produce any reliable evidence to show that the accused "wanted to get rid of the deceased". It was accordingly held that "May be the appellant desired to elope and something happened between them which enraged her to kill him". It is in this connection that finally it was held that the motive part was the weakest point in the prosecution case. As already discussed it is not always necessary that the failure of motive must adversely re‑act on the other remaining prosecution case. It might however effect the process of reasoning, regarding individual items of material/evidence against the accused; when considering their reliability or force in connection with the determination of the question of guilt and/or enormity of the offence. In the circumstances of this case it has already been noticed that some, thing highly important transpired between the deceased and the accused which led to the unfortunate firing of three effective shots by the accused at the deceased. That would not necessarily mean that whatever happened earlier has to be ignored. With respect, what the learned Judge in the High Court thought as something which happened "between them which enraged her to kill him", was needed to be commented upon and given effect to because in the circumstances this case there was enough material to do so. It appears that the complexity of the motive and a feeling of helplessness on the question as to what in reality had happened immediately before the firing of the three shots, led him to conclude that this omission on the part of both the sides to face the situation squarely and to assist the Court, would benefit the accused in the matter of sentence only. But the discussion on other vital questions in the earlier part of this judgment : the torn shirt, the ownership and production of the weapon of offence though it was proved not to have been used and lack of evidence as to who fired the first ineffective shot, as also others, would not reflect on the question of sentence alone but also would affect the question of offence. It has already been demonstrated that there could have been a scuffle due to deceased making amorous advances towards the accused on arrival at the spot and the same as observed by the High Court, having been resisted by the accused under the stress of oriental training, it led to the enragement visualised by the High Court. It has also been shown that the tearing of the shirt could reasonably be connected with the use of force by the accused to prevent the deceased from making such an advance. Furthermore, it has also been visualised as a serious possibility that during the planning for elopement some difference arose between them in which the two (now) missing cassettes which the deceased was keeping in his saluka (the under garment) might have played some role which might have been treated as controversial. Then a struggle ensued for securing those cassettes, during which the shirt was torn. Another equally strong possibility cannot be excluded that the revolver Was initially with the deceased and on account of the differences and struggle alluded to above the securing of the revolver by one or the other party, became essential and during the ensuing struggle over the same, the shirt got torn. And it is in this context that the first ineffective shot might have been fired accidentally. Otherwise there is absolutely no explana tion that when the three successive shots fired from a very close range by the accused on the deceased were effective, the very first shot would not have hit the deceased. In fact one of the eye‑witnesses, it appears, honestly thought that the first shot was also effective one; but, as held by the Courts below, this in reality was not the correct position. When the witnesses reached the spot the first ineffective shot bad already been fired. There is nothing on record to contradict the above reasoning that in view of the attending circumstances the revolver could have been triggled accidentally without hitting anybody. The fact that the crime revolver disappeared during the investigation and/or trial might be due to the reason that if produced in Court it might have revealed some identification, connecting the same with the deceased. The question as to whether a possibility of the deceased having made an attempt to rape the accused could be visualised, has already been discussed. It is not as reasonable and strong as the possi bilities aforevisualised. It is not every possibility of which a benefit can be extended to the accused. Only those possibilities which are reasonable and are in accord with the statutory mandate that a prudent man should consider the existence of a certain fact not only as possible but also probable. The attempt at rape even though possible could not be rationally considered to be probable in this case; as compared to the other more strong reasonable possibilities which reach the mark of probability as discussed above. In the light of the above discussion the accused can be extended the benefit either or more of Exceptions 1, 2 and 4 to section 300, P. P. C. If the deceased tried to outrage the modesty of the accused against he will and she got suddenly and gravely provoked (as an oriental girl impressionable age in case, as assumed earlier, she was not a person of easy virtue but believed in true love but no liberties before marriage) she could be allowed the benefit of Exception. If in the same situation it be treated as a case of assault by the deceased with use of some force to make r amorous advances towards the accused other than to commit rape, she had a right of private defence to cause any harm subject to the limitations contained in sections 99 and 100, P. P. C. It extended to the causing of any harm to the deceased, other than death. Thus, she would be deemed to have exceeded the right of private defence in taking the life of the deceased and her case would thus be covered by Exception 2 to section

300. If on the other hand it is treated as a case of uncertainty involving Exception 1 and/or 2 then the conditions laid down in Exception 4 to section .500 would also be deemed to have been satisfied in this case. As thought by the High Court the accused and the deceased on arrival at West View of the Shakar Parian Hill fell apart on account of some difference of opinion (or line of conduct in the common venture of elopement) with the result that, in the heat of passion upon sudden quarrel they struggled with each other during which shirt of the deceased was torn. And during this struggle there could be a fight over the possession of the pistol or the missing cassettes ; which resulted in the accused (when coming in possession of the revolver) firing at the deceased which resulted in his death. As there was no premeditation the case would fall under Exception

4. The question of her s being a cruel act on account of firing with a revolver at an empty‑handed person, would in the antecedent circumstances as highlighted in the earlier discussion, would lose importance. She at the relevant moment could have apprehended that the other party being male would be able to snatch the revolver from her. The distance between the two was only six feet. Such a possibility could pot be excluded. The fact that it was not one shot but three shots which killed the deceased would also in the same circumstances lose significance, as an unusual and cruel act ; because, in case it is assumed that there was a struggle regarding the revolver prior to the occurrence as evidence by the tearing of the shirt, the deceased would not in this case be deemed to be an incapacitated adversely when she fired at him. In this context it would not be out of place to mention that according to the contents of the remand orders the accused at the time of occurrence was suffering from some ailment. She was admitted in the hospital under the orders of the authorities. It also appears from the magisterial orders passed on medical opinion that her constant medical observation had become essential. It could have been argued on the side of the defence that in these circumstances it was necessary to examine the doctor who treated her soon after the occurrence so as to discover whether she had not suffered any invisible bodily harm during the occurrence ; and that, it was not that very harm; at least as a contributory agent that led to the deterioration of her condition in the hospital. But the same not having been pursued by the defence it is not necessary to examine this aspect any further. However, it can be taken note of in connection with the question whether a young girl of about 13/14 years of age in ill‑health would be deemed to have acted unusually or cruelly, if she in the above analyzed circumstances fired thrice at the deceased (22 years of age) and thus prevented him from pouncing upon her from 6 feet distance even, after one or two shots had hit him. Accordingly, looked at from whatever angle the prosecution has failed to establish beyond reasonable doubt that the accused committed the offence of murder. On the other hand by application of one or more of the afore discussed Exceptions Nos. 1, 2 and 4 of section 300, P. P. C. she is held to be guilty of an offence of culpable homicide not amounting to murder which is punishable under section 304, Part I. On the question of sentence, it is essential to observe that both the learned Courts below held that whatever the offence, the accused in the circumstances of this case was entitled to lesser penalty. For the same reasons the High Court also granted her the benefit under section 382-B, Cr P. C. Therefore, in the circumstances of this case for the offence under section 304‑1, P. P. C. the sentence is reduced to the imprisonment she has already undergone, and a fine of Rs. 50,

000. On failure to pay fine the convict shall undergo further rigorous imprison ment for 2 years. The amount of Rs. 10,000 awarded as fine by the learned trial Court shall now be paid separately by her as compensation to the heirs of the deceased under section 540, Cr. P. C. On her failure to pay this amount as compensation she shall suffer six months' R. I. The amount of fine of Rs. 50,000 now imposed when recovered shall also be paid as com pensation to the heirs of the deceased under section 545, Cr. P. C. With the afore-recorded modifications in conviction and sentence the appeal of Mst. Farah Naz (Cr

1. A. No 77 of 1982) is partly allowed. Con sequently, the appeal filed by Fazal Elahi brother of the deceased (Crl. A. No. 78 of 1982) for enhancement of sentence to death, is dismissed. MUHAMMAD HALEEM, ACTG. C. J.‑Having gone through the opinion to be delivered by my learned brother Mr. Justice Muhammad Afzal Zullah, I am unable to agree that it is a case of "culpable homicide not amounting to murder"_ While being examined under section 342, Cr. P. C., the appellant has set up a case that the deceased was fired at by some unidentified person at a time when she and the deceased were at Shakar Parian engaged in making out, for themselves, a plan for their future as her father and brothers had resiled from the promise to marry her with the deceased. No case of any provocation is suggested nor is it discernible from the evidence particularly when the prosecution evidence is silent as to what transpired immediately before the occurrence. In this view of the matter, it was for her to give some explanation which she had failed to give. Even if the shirt of the deceased was, torn this would only go to show that it was the appellant who had used force, and it was for her to explain as to why she did so. In its absence it will be only conjectural to infer as to what may have happened between them. Accordingly, I would uphold the conviction and also the sentence awarded to her. There is, however, no reason to enhance the sentence as the motive was obscure qua the intentional firing of four shots at the deceased in the background of her own statement that she was ready and willing to marry the deceased. Therefore, I would dismiss both the appeals. I have had the benefit of reading the judgment proposed to be delivered by my learned brother Mr. Justice Muhammad Afzal Zullah. I am in' respectful agreement that the eye‑witnesses in the case inspire confidence. They are natural, disinterested consistent. Their testimony has the effect of demolishing that part of the defence case according to which, a third person, unidentified and unseen, fired at them killing the deceased and sparing the convict. However, with utmost respect to my learned brother, I find it difficult, if not possible, to extract either from the evidence or from the attending circumstances a likelihood of an assault short of rape on the convict, or a case of her being blackmailed over the unrecovered recorded cassette or a fight over it. This is so because it was not a routine meeting of two ardent lovers in a secluded corner of a picturesque setting. The statement of Fazal Elahi (P W. 4) as well her own version at the trial fully established that their engagement existed but the marriage was in jeopardy. Finding the obstacles to her marriage insurmount able she on her part had left the home to elope with the deceased. She had brought cash, clothes and articles of immediate need. She had asked even the deceased to bring cash with him. The deceased exhibited no such pre paredness. Their meeting at that place and at that hour was decidedly for a more serious purpose than mere love‑making. She wanted to elope with the deceased. His torn shirt followed by firing at him established that he was not submitting or concurring in any such proposal. She had, on her part, almost burnt her boats. Finding not an equally receptive or concurring response from him she fired repeated shots at him, not from too close a distance, not while she was physically accessible to him at arm's length. The un-supporting evidence of the Arms Expert has not the effect of outweighing the direct creditworthy evidence of the eye‑witnesses as held by this Court in Yakoob Shah v. The State (P L D 1976 S C 53 ). Her tender age, her emotional affliction and impasse, are amply reflected in the sentence passed. No other mitigation capable of further legal recognition is discernible to merit interference with conviction or sentence. Hence I am of the opinion that both the appeals should fail. M. S. H. QURAISHI, J.‑I find no basis in the material on record to support the convict's plea that some one other than she had fired the fatal shots. Admittedly, she had been present with the deceased at the time of the occurrence. The ocular witnesses who are independent and natural witnesses had seen her firing three shots and had, thereafter, secured the weapon from her possession. What had actually preceded the shooting is not known but the circumstances, in my humble view, do not justify the supposi tion that she was under a threat of molestation by the deceased. The law does not place any invariable duty on the prosecution to prove motive and its failure to do so would be immaterial if direct and reliable inculpatory evidence is otherwise available. This Court had in State v. Rab Nawaz (P L D 1974 S C 87) observed that " . . . . in criminal cases motive more often than not remains shrouded in uncertainty. To the complainant, it is generally a matter of speculation, for it is a fact within the special knowledge of the accused. Even motiveless crime is not unknown. Therefore, the mere fact that the prosecution case as to motive has beer disbelieved by the Courts below is no reason for disbelieving direct evidence on the main incident, which has to be judged on its own merits, and if such evidence is creditworthy, it can form a valid basis for conviction, obscurity of motive notwithstanding." If there was any motive other than that asserted by the prosecution, the same would be within the special knowledge of the convict and it was for her to have come out with the same in order to satisfy that the offence committed fell within any of the Exceptions I am satisfied that the case against Mst. Farrah Naz appellant under section 302, P. P. C. was well‑established and the same is not open to any interference by this Court. I am also satisfied that the sentence awarded to her is in accord with the special features of the case and calls for no interference either. I am, therefore, inclined to dismiss both the appeals. MIAN BURHANUDDIN KHAN, J.‑I have gone through the opinion of my learned brother M. A. Zullah, J. and, with respect, differ from the finding arrived at regarding the nature of the offence.

2. None of the witnesses produced at the trial, has got any personal motive or reason to have falsely implicated the accused/appellant. Their presence at the spot at the relevant time is established by the fact that these witnesses were on duties assigned to them.

3. Shaukat Ali, P. W. 6 Supervisor CDA stated that he, along with Abdul Ghafoor, Imtiaz and Murid Hussain Constables and Muhammad Iqbal gardener, was patrolling at Shakar Parian Hill at West View‑point when they heard report of a fire‑shot and rushed towards the Car Park and saw a girl standing, with a revolver in her hand, and within their view she fired thrice from her revolver at the deceased who fell to the ground after having been hit by the firing. The girl was relieved of her revolver by Abdul Ghafoor. The boy, victim of firing, was waiting.

4. The medical evidence on this score is also consistent with the ocular evidence. The doctor who performed the post‑mortem examination, found four lacerated punctured in wounds of entry of 0.3 cm 0.3 cm ; 0.3 x 0.2 cm; exit wound 0.5 on 0.5 cm and the fourth was wound of entry 0.3 x 0.3 cm, and in the opinion of the doctor, the victim was hit with three bullets. He was, however, not definite as to the possibility of two weapons having been used.

5. It may also be considered in view of the evidence on record that nothing has been brought out from the witnesses to establish that there was a preliminary scuffle or exchange of hot words between the two before the firing and thus it would not be reasonable inference that the deceased either wanted to criminally assault her or had the intention of doing so before the firing. Both the deceased and the accused/appellant were friendly and used to go about together. In such circumstances no one will have much courage to seduce a girl of the age of the accused/appellant at a place like Shakar Parian Hills where normally people are present at any time of the day.

6. The fact remains that the deceased accompanied the accused/appellant and both had cordial relations and their families were planning to get them married but due to certain financial problem between the father of the deceased and that of the appellant, their relations had cooled down a bit. It appears from the evidence of the brother of the deceased namely Fazal Elahi who was examined as P. W. 4 that his father Muhammad Afzal and the father of the accused Muhammad Yunus were fast friends for the last 30/35 years and as a result of their friendship the accused/appellant Farah Naz was promised in marriage with the deceased Muhammad Mushtaq but this marriage was opposed by the sisters and brothers of the accused/appellant on the ground that the deceased was suspected of having a deranged mind. But the accused still used to visit his hotel of and on to meet the deceased.

7. From the investigation it also appears that she had come prepared to marry the deceased no matter what may come. This conclusion was supported by the fact that she was carrying a bag containing some clothes and Rs. 10,000.

8. Where the evidence of the accused, having committed the offence of murder, is clear, it is immaterial whether the motive alleged for the offence is or is not adequate. What has to be seen in the circumstances of each case is the fact that the murderous attack was made with a weapon which normally would cause death. In the instant case, the deceased was hit with three bullets directly causing injuries to the vital organs resulting in the immediate death of the deceased. The accused, on the other hand, has not come out with any plausible reason as to why the witnesses have denounced her as the culprit.

9. In the light of above discussion, I would dismiss Criminal Appeal No. 77 of 1982 and maintain the conviction of the accused/appellant Mst. Farah Naz under section 302, P. P. C. She has already been given the lesser penalty, therefore, there appears no reason to enhance her sentence from life imprisonment to death (in Criminal Appeal No. 7s of 1982) as it is not a case where the normal penalty of death should be exacted. I would, therefore, dismiss both these appeals. In view of the separately recorded and signed majority opinions these appeals are dismissed. M. Z. M. Appeal dismissed.