2001 PLP 387 (SCMR)

JAVED IQBAL, J.

This appeal by leave of the Court is directed against judgment, dated 13-5-1997 passed by learned Division Bench of the High Court of Balochistan, Quetta, whereby the judgment, dated 28-3-1997 passed by learned Sessions Judge-cum-Special Judge (S.T.A.), Court Loralai, was kept intact by confirming the death sentence as awarded under section 302, P.P.C.

2. Briefly stated the facts of the case as enumerated in the impugned judgment are as follows:- "It is the case of the prosecution as per F.I.R. (Exh.P.G.), dated 7-7-1995 lodged by P.W.4 Abdul Salam with the Police Station, Zhob to the effect that he lives with his father in the Zarif garden (Baghicha) and his father works as 'Bazgar' in the garden and at about 8-00 p.m. while he alongwith his father (Sanzar Khan) reached opposite to the College Mohallah after having a round of the garden three persons including the convict Wazir Khan son of Muhammad Noor Levies employee armed with a Kalashnikov, were standing in segregated position while the other two could not be identified by the complainant and when the complainant and his father reached near to the convict; the deceased offered Salam ( SALAM) to him who in response replied that he will not be spared and fired four shots from his Kalashnikov on the father of complainant who fell down on the ground having sustained bullet, while the complainant ran towards the College Colony being horrified, whereas, the convict alongwith his two companions also made good their escape from the site. The complainant P.W.4 describing the motive for the commission of the offence stated in his report that a few days back Wazir Khan (convict) had brought his cow to their house for crossing it with the bull kept by his father and his father had charged Rs.100 for the purpose from Wazir Khan, who on the same day again brought his cow for crossing but his father did not allow for such crossing of the cow due to which exchange of bitter words between the two happened and according to the complainant it was a grudge in the mind of Wazir Khan due to which he alongwith his two helpers murdered his father by firing." After completion of investigation the accused was sent up for trial.

3. In support of accusation prosecution produced Dr. Muhammad Akbar Khan (P.W.1), Abid Hussain Shah (P.W.2)/A.S.I., Nizam-ud-Din (P.W.3)/H.C., Muhammad Salam (P.W.4)/complainant and Amir Muhammad Khan (P.W.5)/Inspector of Police.

4. The statement of accused was recorded under section 342, Cr.P.C. wherein he professed innocence by stating that a false and concocted case was got registered against him. He also got recorded his statement on oath under section 340(2), Cr.P.C. and stated that on the day of incident he was at Killa Saifullah to see his ailing uncle. He produced his uncle namely Allah Dad as defence witness who deposed that appellant had slept in his house during the night on 6-5-1995 and remained there for three days. On conclusion of trial the appellant was convicted under section 302(b), P.P.C. and sentenced to death by the learned trial Court vide judgment, dated 28-3-1997 which was upheld by a learned Division Bench of High Court of Balochistan, Quetta, by means of impugned judgment.

5. Leave to appeal was granted vide order, dated 21-6-1999 which is reproduced hereinbelow for ready reference:

"After hearing learned counsel for the petitioner, we are of the view that no case is made out as regard the conviction of petitioner is concerned, but on the question of sentence, matter requires detailed consideration. Leave to appeal is, accordingly, granted in this matter only on the question of sentence:"

6. Raja Muhammad Afsar, learned Advocate Supreme Court for the appellant after having read all the most entire evidence contended that prosecution has failed miserably to get the motive proved by adducing any cogent or concrete evidence. He further argued that once the motive is set up it becomes the bounden duty of the prosecution to prove it and in case of failure the sentence of death could not have been awarded. In order to substantiate his view-point reliance has been placed on 1999 SCMR 637; 1968 SCMR 1225; 1996 SCMR 1887; 1999 SCMR 1138. He also argued that the evidence which has come on record has not been appreciated in its true perspective which resulted in grave miscarriage of justice. He also attempted to raise a few other contentions which hardly deserve any consideration in view of the leave granting order which has been reproduced hereinabove.

7. Raja Abdul Ghafoor, learned Advocate-on-Record, for the State has vehemently opposed this appeal by arguing that prosecution has established its case beyond shadow of doubt and the observations of learned Division Bench regarding motive are unexceptionable. He further added that it was not for the prosecution to get the motive proved in view of sufficient incriminating material substantiating the guilt of appellant.

8. A bare perusal of leave granting order would reveal that it was granted to consider the question of sentence. We are not persuaded to I agree with the prime contention of Raja Muhammad Afsar, learned Advocate Supreme Court that since the motive could not be proved as such the sentence of death could not have been awarded for the simple reason that it is a well entrenched legal position that a weakness of a motive or its absence or where alleged but not proved would hardly make any difference in case the eye account is worthy of credence, unimpeachable, confidence inspiring and accusation established beyond shadow of doubt. Let we mention here at this juncture that the principles as laid down a few decades ago regarding motive are still in force which can be summarized as follows:-- "Proof of motive or previous ill-will is not necessary to sustain a conviction for murder in a case where a person is coolly and barbarously put to death [(1867) 7 W.R.) (Cr.) 60; 1932) 11 Pat.280] or when the offender is caught red-handed while committing murder. [(1929) 31 Cr.LJ 765, 30 P.L.R. 749]. Where the fact of murder has been clearly established, it is by no means incumbent on the prosecution to show what particular motive actuated the criminal's mind and induced him to commit the particular crime. [(1924) 26 Cr.LJ 774, (1925) AIR (L) 328]. Where however, the prosecution puts forward a substantive case as to the motive for the crime, the evidence regarding the motive has got to be considered in order to judge the probabilities. Failure to prove motive, however, cannot outweigh the positive evidence as to the crime. [(1924) 41 C.L.J. 35, (1925) AIR (C) 525]. The motive may never be discovered and the suggestion of a motive possibly a wrong motive, may lead the Court astray. [(1930) 8 O.W.N. 107, (1931) AIR (O) 119] But motive for a crime, while it is always a satisfactory circumstance of corroboration when there is convincing evidence to prove the guilt of an accused person, can never supply the want of reliable evidence, direct or circumstantial, of the commission of the crime with which he is charged." [(1926) 7 Lah. 84, 89].

9. It was held in the year 1938 in case Tun Khine v. King (40 Cr.LJ 49: AIR 1938 Rang. 331) that "it is not hart of the prosecution's duty to suggest a motive for a crime nor is it any duty of the Court to determine why an offence was committed". It is noticeable that "where there is clear proof of motive for the crime that lends additional support to the finding of the Court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this effect only, viz. that the other evidence bearing on the guilt of the accused has to be very closely examined". (Atley v. State AIR 1955 SC 807).

10. Besides what has been held a few decades ago the scrutiny of judicial precedents and principles laid down while discussing motive would reveal that no substantial change whatsoever has been made except in a few cases where benefit was given to the accused on the ground that the motive remained shrouded in mystery. We also intend to discuss the latest pronouncement to clarify the ambiguity, if any, in this regard. It was held in case Talib Hussain v. State (1995 SCMR 1776) as follows:-- "We may point out that there is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If above normal sentence is not to be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances:" It was held in case State/Government of Sindh v. Sobharo (1993 SCMR 585 as follows:-- "Absence or weakness of motive does not come in the way of the case of prosecution and can be condoned if there is otherwise strong and reliable evidence in support of the case." The same view was followed in case Mushtaq Ahmad v. Muhammad Siddique (PLD 1975 SC 160). While discussing motive it was observed in case Manzoor Ahmad v. The State (PLD 1983 SC 197) as follows:-- "Failure of motive sometimes to be found to have reacted on manner of appreciation of deposition while in other cases such circumstance not to make any dent in prosecution case in so far as question of guilt or otherwise of accused be concerned. 1982 SCMR 781; 1981 SCMR 54; 1979 SCMR 214; PLD 1978 SC 462; 1977 SCMR 175; PLD 1975 SC 227; PLD 1974 SC 87; PLD 1969 SC 127 and 1968 SCMR

502. In case Sardar Ali v. State (1969 SCMR 542) it was held that "motive is useful in, appreciating and evaluating evidence but itself no proof of crime charged". In case Ahmad Nisar v. State (1977 SCMR 175) it was held as under:- "Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely effect the testimony of the eye-witnesses if they be otherwise reliable." The concept of motive remained a subject of comprehensive elucidation and discussion in case Abdul Wahab v. State (1999 SCMR 1668) wherein it was held as follows:-- "'Motive shrouded in mystery is not a legal principle which can be applied in all murder cases for reduction of capital sentence where there is no motive alleged/proved by the prosecution or where initially a motive is alleged but the same is not proved or withdrawn or a different motive appears in the prosecution evidence. 'Motive shrouded in mystery' by itself is not a mitigating circumstance for lesser sentence. Where there is no motive alleged but the guilt of the accused is otherwise established on the basis of evidence, it could be said that in such a case the motive is "shrouded in mystery" and that it cannot be said as to what was the precise and immediate reason for the murder. But there is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved and that, if the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If the normal sentence was not awarded, the Court is required to make out a case for reduction of sentence on the basis of mitigating circumstances. Therefore; in murder cases where no motive is alleged, the same remains shrouded in mystery; yet, if the prosecution establishes its cases against the accused beyond reasonable doubt, the normal sentence awarded in such case is death, unless there are mitigating circumstances justifying award of lesser sentence. When the plea is advanced that motive is shrouded in mystery, evidence or circumstances should be such that there is a definite indication or inference that murder must have been taken place on account of provocation or other reason, of the kind that could be considered as mitigating circumstances for reduction of sentence, but merely advancing a plea that the motive is shrouded in mystery by itself is not sufficient to make out a case for lesser sentence. Facts and circumstances of each case are considered to find out whether there are any mitigating circumstances justifying reduction of sentence." The said conclusion was derived after having considered the following authorities:-- "Wali Muhammad v. Bajoo 1978 SCMR 257 + Sher Ali v. State 1980 SCMR 291 + Ghulam Nazir v. State 1981 SCMR 805 + Sher Daraz Khan v. State 1983 SCMR 266 + Arif v. State 1984 SCMR 124 + Mati-ur-Rehman v. State 1985 SCMR 489 + Ahmad Khan v. State 1985 SCMR 975 + Faqir Masih v. Mubarik Masih 1987 SCMR 697 + Nabi Bakhsh v. State 1988 SCMR 213+ Abbas Hussain v. State 1992 SCMR 320 + Roheeda v. Khan Bahadur 1992 SCMR 1036 + Muhammad Ishaque Khan v. State PLD 1994 SC 259 + Zulfiqar v. State 1995 SCMR 1668 + Intizar Hussain v. Muhammad Sarwar 1996 SCMR 872 + Ghuncha Gul v. State 1971 SCMR 368 + Muhammad Nazir v. State 1985 SCMR 507 + Fazal Ghafoor v. State 1987 SCMR 136 + Muhammad Mushtaq v. State 1973 SCMR 219 + Ali Hussain v. Mukhtar 1983 SCMR 806 + Nawaz Khan v. Ghulam Shabbir 1995 SCMR 1007 + Talib Hussain v. State 1995 SCMR 1776 + Muhammad Iqbal and another v. The State 1984 SCMR 1184 + Muzammal Din and another v. Nur Hussain and others 1985 SCMR 495 + Abdul Aziz v. The State and others 1994 SCMR 35 + Muhammad Siddique v. The State 1994 SCMR 88 + Muhammad Bashir v. Khalid Mehmood and another 1994 SCMR 1096 + Muhammad Din alias Manni and another v. The State 1994 SCMR 1847 and Noor Muhammad v. The State Criminal Appeal No. 174 of 1995 (1999 SCMR 2722)."

11. The learned Appellate Court has also examined exhaustively the question of motive and relevant portion whereof is reproduced below:-- ?8 The learned counsel for the appellant candidly argued that the motive set up in the report by P.W.4 has not been established except to the extent of the bald statement of the complainant. This argument put forth does not carry the weight as the learned counsel conceded to the fact that the alleged motive finds support from the statement of the complainant. In the report lodged by P.W.4 it has been stated that Wazir Khan had brought his cow to their house for crossing her with the bull kept by his father and his father had got Rs.100 for such crossing but on the same day he again brought the cow for re-crossing but his father refused resultantly bitter words were exchanged between the two and this event was in the mind of? Wazir Khan? and as a consequence thereof he with the help of two other persons murdered his father. While in his deposition before the Court the complainant stated that after some time the accused cam back and asked his father to permit him for the re-crossing of the cow with his bull but his father refused resultantly the accused became angry and went away, due to the reason he murdered his father. Keeping in view the stated motive of the crime as contained in the F.I.R. to that deposed in the Court, is one and the same in substance except the words expressed and altered, which is a natural phenomenon of human conduct and behaviour as it is nevertheless possible in the ordinary course of nature in a humanly conduct to narrate in verbatim what a person has stated years before on a particular point. The narration of facts in the deposition by P.W.4 remains the same as made in the report by him. In the given circumstances there could have been no evidence of the motive pertaining to the event having occurred in the presence of the complainant alone, we thus are of the considered view that the motive asserted in the report had the proposed and required proof of the event leading to the incident. The contention in this regard made by the learned counsel does not merit the objected consideration. The proof of motive requires no special rule of evidence nor there could be any special mode or standard of the required evidence to prove such an alleged fact of motive, and it could be proved through evidence that may be needed/required for proving as any other relevant fact. Motive is a phenomenon of the mental state of a person which makes him to act in a particular manner in conducting himself due to any reason, cause or self-motivated and pursuant thereto either immediately or thereafter such person acts .in a particular direction and no hard and fast rule can be laid down with regard to formation of creating motive. Some times it is noticeable on account of the conduct of a person, at times it due to certain existent fact/s or background leading to the commission of any illegal act and even the existence of motive can be perceived or conceived which may move a person to act in a particular per. The question of motive is always a question of fact which varies from case to case and depending upon the facts and circumstances of a particular case; just like in the manner as the human being varies and conduct themselves. The submission of the learned counsel that the alleged motive being of a very trivial nature could not have led to the commission of the stated offence. This objection hardly appeals to the reason as for the human conduct of the affairs no standard or cause could be determined to be sufficient to move a person to act or not to act in a particular manner: The adequacy or otherwise of an alleged motive could never be the foundation to determine or settle the sufficiency or insufficiency for the commission of any illegal act or omission. Serious crimes are committed where there could be slight motive of even committed on the basis of sudden or mementos impulses and there are even cases where motive could not be or having not been found or discovered. The argument so advanced goes to the other way round as well as the trivial dispute of the bitter exchange of words or the anger so ensued between the deceased and the appellant in our opinion lays no reason to the complainant to falsely implicate the appellant for the murder of his father as against the real culprit. As already observed hereinabove that the attributed motive has been proved by the prosecution therefore, the reported case-law i.e. Muhammad Sadiq v. Muhammad Sarwar and 2 others (1979 SCMR 214) and Hakim Ali v. The State and another (1971 SCMR 432) is of no avail to the raised contention wherein it has been respectively held that motive for crime put forward by the prosecution not proved at all, ocular evidence required to be scrutinized, in the circumstances with great caution and that once if a motive has been set up but not established, the prosecution must suffer consequences and not the defence. The other reported judgment reported in 1976 PCr.L,J 243 on the plea of motive raised by the learned counsel renders no assistance in view of the fact of the disclosed motive having been proved by the prosecution. "

12. 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. Q.M.H./M.A.K./W-9/S ????????????????????????????????????????????????????????????????????? Appeal dismissed.