P L D 2004 Supreme Court 563 (PLP)

(i) A firearm wound of entrance 1 c.m. x 1 c.m. underlying bone exposed with inverted and black edges on left mendable‑4 cm from left angle of mouth. (ii) A firearm wound of entrance c.m. x 1/2 c.m. underlying bone exposed with inverted and black edges on left side of chin‑4 c.m inside injury No.1. (iii) A firearm wound of entrance 1 c.m. x 1 c.m. going towards chest with black and inverted edges on front and outer part of left side of neck. (iv) A firearm wound of entrance 1 c.m. x 2 c.m. muscle deep with black and inverted edges on front and inter part of left side of neck‑4 cm inside to injury No.3. (v) A firearm wound of entrance 1 c.m. x c.m. with inverted and black edges on front and inter‑part of right side of neck, going under the skin towards injury No.6, which was exist of this injury No.5, (vi) A firearm wound of exist with inverted edges 1 c.m. x c.m. on front and outer part of right side of neck‑‑making 4 cm continuous track with injury No.5. (vii) A firearm wound of entrance with inverted and black edges 2 c.m. x 1 c.m. above middle part of right clavical‑‑going towards back of chest‑pellet was palpable. (viii) A firearm wound of entrance 2 c. m. x 1 c. m. skin deep just below the injury No.7. (ix) A firarm wound of entrance with inverted and black edges 2 c.m. x 1 c.m. going towards the top of right shoulder under the skin with a palpable pallet on the top of right shoulder. (x) A firearm wound of entrance 1 c.m. x 1 c.m. with black and inverted margins x muscle deep on back and inner side of upper 1/3 of right leg making a continuous tract with injury No.11 which was its exist. (xi) A firearm wound of exit 1 c.m. x c.m. with inverted edges on back and outer side of upper 1/3rd of right leg‑making a continuous track of seven (7‑on) with injury No. 10. (xii) A firearm wound 1 x c.m. skin deep edges black and inverted between edges black and inverted between injury Nos. 10 and 11‑5 cm below them. He also noted the following injuries on the person of injured Muhammad Yar during his examination: (a) A contused wound oval shape 1/2 c.m. x 1/4 c.m. x skin deep on right cheek. (b) A contused wound oval shape c.m. x c.m. skin deep on outer and per one third (1/3) of left upper arm. (Corresponding hole present on shirt. Shirt was also blood‑stained). (c) A contused wound circular shape 1/3 c.m. x 1/3 c.m. x skin deep on front and upper 1/3 of right upper arm (Corresponding hole present on shirt) which was also blood‑stained. (d) A contused wound circular shape 1/3 c.m. x 1/3 c.m. skin deep on front and upper 1 /3 of right side thigh. (Corresponding blood spots were present on shalwar).

7. The prosecution in order to prove its case, examined 22 witnesses in all.

8. The petitioners in their respective statements recorded under section 342, Cr.P.C. denied the case of the prosecution and claimed evidence in defence.

9. On conclusion of trial, accused, namely, Amir Sultan, Jamal Din, Mazhar, Ashraf and Nasir Mehmood were acquitted whereas petitioner Mukhtar Ahmad was convicted under section 302(b), P.P.C. and sentenced to death and was also directed to pay Rs.50,000 as compensation to the legal heirs of the deceased Nazir Ahmad or in default to further undergo six months S.‑I. He was also convicted under section 302(b)/149, P.P.C. and sentenced to imprisonment for life for the murder of Muhammad Yar deceased and was directed to pay Rs.50,000 as compensation to the legal heirs of Muhammad Yar deceased or in default whereof to suffer RI for six months more.

10. Petitioners Muhammad Aslam, Muhammad Anar and Haq Nawaz alias Haqqu were also convicted under section 302(b)/149, P.P.C. and sentenced to imprisonment for life each on two counts with further direction to pay Rs.50,000 as compensation each on two counts to the legal heirs of deceased Nazir Ahmad and Muhammad Yar or in default whereof to further undergo six months S.‑I. each on two counts. The sentences awarded to them were ordered to run concurrently with benefit of section 382‑B, C.P.C. All the four petitioners were also convicted under sections 148/149, P.P.C. and sentenced to two years R.I. each whereas accused, namely, Mazhar Hussain, Amir Sultan, Jamal Din, Nasir Mehmood and Ashraf were acquitted.

11. We have heard Mirza Masood‑ur‑Rehman, learned counsel for the petitioners and Mian Muhammad Sikandar Hayat, learned counsel for petitioner/complainant Muhammad Akbar and have gone through the record and the proceedings of the case in minute particulars.

12. Learned counsel for the petitioners contended that they have been falsely implicated in this case as there existed an old enmity between parties. The prosecution story is not only improbable but also ocular account is in conflict with medical evidence, inasmuch as the injuries on the person of Muhammad Yar son of Mohabat had not been caused with firearm. The presence of blackening around the wounds of the deceased indicated that the firing was made from very close range which, too is in conflict with the eye‑witness account: According to him, the petitioners were found innocent during the investigation and dying declaration of Muhammad Yar deceased is of no consequence as the same was recorded without seeking any permission from the doctor Incharge. He vehemently emphasized that the actual culprit in. this case is Muhammad Afzal proclaimed offender who alongwith four unknown culprits had launched the attack in order to avenge his insult, as such, the conviction and sentence recorded against the petitioners are not sustainable in law.

13. On the other hand, Mian Muhammad Sikandar, learned counsel appearing on behalf of petitioner/complainant Muhammad Akbar vehemently controverted the above contentions and contended that there was sufficient evidence on record to enhance the sentence of respondents Muhammad Anar, Muhammad Aslam and Haq Nawaz. alias Haqque to death as their case is identical to the case of respondent Mukhtar Ahmad whose dead penalty has been confirmed. According to him, there had been no mitigating circumstances to award lesser penalty as the prosecution has been able to establish its case by producing unimpeachable testimony of eye‑witnesses, namely, (P.W.16) Muhammad Akbar and (P.W.17) Muhammad Yar who though cross examined at length yet could not be shaken. Statement under section 161, Cr.P.C. of deceased Muhammad Yar was also rightly considered as his dying declaration which was recorded by the Investigating Officer while he was in full senses. It was not necessary to seek permission from the Medical Officer as he was fit to make statement. He further contended that the prosecution has fully proved motive in this case as the accused/respondents launched attack upon the complainant party with a particular motive to avenge the earlier attack made upon them.

14. It is pertinent to note that complainant Muhammad Akbar in Criminal Petition No.899‑L of 2002 has assailed the judgment of the learned High Court against respondents Muhammad Anar, Muhammad Aslam and Haq Nawaz only and has not called in question the acquittal of remaining accused. Learned counsel for the complainant mainly emphasized that the sentence of respondents No.1 to 3 be enhanced to death as their case is identical with the case of respondent Mukhtar Ahmad whose sentence of death has been confirmed by the High Court. According to him, respondents has failed to establish any extenuating circumstance in their favour in this case entitling them to lesser penalty.

15. In our view above contentions are untenable. The contention that the petitioners were found innocent is also not borne out from the record as it was after thorough investigation, they were sent up to face trial. The contention that the ocular account is in conflict with the medical account is also devoid of force.

16. We have given our anxious thought to the contentions raised at Bar and are of the considered opinion that the impugned judgment is not only well‑reasoned but is based on proper appraisal of the evidence.

17. The argument that motive is not proved is devoid of force. Both the Courts below on proper appreciation of evidence has concurred that A the motive is established on record. It has been time and again held by the superior Courts that conviction can be recorded even in absence of motive. It is not an inflexible rule of law that there ought to be a motive for commission of every crime. Regarding interested witnesses, we are afraid, we cannot subscribe to this submission of the learned counsel as close relations, in such type of cases, happen to be natural witnesses and there is a growing tendency among general public not to come forward to depose for a neighbour or a stranger for fear of life and lack of security. Even otherwise, it is not shown whether these witnesses bore any grudge or animus against the petitioners to falsely involve or to substitute them for the real offenders. Trial Court as well as learned High Court have recorded findings of fact after due and careful consideration of the merits of the evidence and. in our view the impugned judgment does not suffer from any misreading or non‑reading of material piece of evidence. Likewise, it does not suffer from any legal infirmity or error of law or jurisdiction, warranting interference by this Court.

18. For the aforesaid facts and reasons, there is no merit in both petitions, which are accordingly dismissed and leave refused. N.H.Q./M‑60/SC Leave refused.