2003 PLP 1230 (SCMR)

TANVIR AHMED KHAN, J.

Leave to appeal is sought against the judgment, dated 15-1-2002 of a learned Division Bench of the Lahore High Court,, Lahore, whereby, criminal appeals filed by the petitioners against their convictions and sentences recorded by the learned Sessions Judge, Mianwali, through his judgment, dated 22-12-1996 were dismissed and the Murder Reference No.44 of 1997 sent by the learned trial Judge for confirmation of their death sentence was answered in the affirmative in a case emanated out of F.I.R. No.432 registered on 22-11-1992 at Police Station City, Mianwali, under sections 302/34, P.P.C. read with section 109, P.P.C. for the murder of one Aziz Jehan Khan. The prosecution case, as reflected from the F.I.R, was that the complainant Muhammad Azeem Khan (P.W.8) alongwith Aziz Jehan Khan left for Mianwali City on a wagon from Chah Adamwala. They alighted at Chowk Watta Khail and started moving on foot towards Wandhi Ghundwali. When they reached near the old office of Muslim Pannu Khail Flying Coach, they met Sikandar Hayat (P.W.), Aziz Jehan Khan sat on a chair at the shop of Alam Gul Khan where Khan Muhammad Khan (P.W.) was already present. In the meantime both the petitioners armed with .12 bore guns arrived there on a motorcycle. They parked their motorcycle and challenged the deceased saying that they would settle the dispute regarding land. Immediately the deceased got up. Both the petitioners opened fires twice by their guns hitting on both thighs of deceased Aziz Jehan Khan. Thereafter Abdul Sattar Khan petitioner gave Butt blows of his gun on the head of the deceased; he also shouted that he had fulfilled the desire of Baba Jehan Khan. Both the then went away from the place of occurrence towards Mianwali City. The motive for the above occurrence was that the complainant owned some agricultural land in Mohallah Noorpura with their Jahan Khan, co-accused (since acquitted), which was partitioned privately. The complainant party gave this land in exchange to their brother-in-law Muhammad Iqbal Khan, which Jahan Khan co-accused wanted to occupy again. The deceased did not allow him to do so. Due to this grievance both the petitioners committed the murder of Azil Jehan Khan at the behest of co-accused Jahan Khan. After usual investigation the challan was submitted against the petitioners as well as their co-accused Jahan Khan who was stated to have conspired this offence. The prosecution, in order to prove its case, examined as many as 16 witnesses. The petitioners when examined under section 342, Cr.P.C. pleaded their innocence and stated that the witnesses had deposed against them due to previous enmity. Abdul Sattar Khan petitioner took up the plea that he appeared as a witness in a case registered against the deceased and Muhammad Azeem Khan (P.W.) under section 336, P.P.C. and due to this grudge, he had been implicated falsely while Hashmat Ullah petitioner stated that due to criminal litigation of the deceased party with Shah Wali, his relative, which took place in the year 1982 wherein he was siding with his said relative Shah Wali, as such he had been roped in falsely. Had Hashmat Ullah petitioner produced Dr. Ijaz Hussain (D.W.1) to show that he was under his treatment on 15-6-1993 and then on 15-6-1993, as such he could not have been declared as absconder. The learned Sessions Judge, Mianwali, after assessing the entire evidence brought on record through his judgment, dated 22-12-1996, convicted both the petitioners under section 302(b)/34, P.P.C. and sentenced them to death. The co-accused Jahan Khan was acquitted of the charge placed against him. Feeling aggrieved by the above judgment, both the petitioners filed appeals before the Lahore. High Court Lahore. The learned Sessions Judge, Mianwali, sent Murder Reference No.44 of 1997 for confirmation or otherwise of the death sentence imposed upon the petitioners. A learned Division Bench of the Lahore High Court through its judgment, dated 15-1-2002 dismissed the appeals of the petitioners and answered the above murder reference in the affirmative. Hence, these petitions for leave to appeal. We have considered the contentions raised by the learned counsel for the parties and have gone through the entire evidence brought on record with their assistance. We have noticed that it was a broad daylight occurrence of which F.I.R. was recorded with promptitude. The occurrence in this case took place at 2-00 p.m. while F.I.R. of the same was lodged at 2-30 p.m. describing all the details leading to the murder of the deceased. It is- also reflected from the record that after the occurrence both the petitioners absconded and they were declared proclaimed offenders. Abdul Sattar Khan petitioner was arrested on 2-3-1993 while Hashmat Ullah petitioner was apprehended on 21-8-1993: the former led to the recovery of incriminating double-barrel gun on 5-3-1993 alongwith live cartridges while the latter was arrested, with incriminating weapon. The post-mortem of the deceased was conducted by Dr. Abdul Rauf Khan, the then Medical Officer, District Headquarters Hospital, Mianwali, who proceeded abroad. Dr. Salah-ud-Din, who was conversant with his writing, appeared as P.W.13. According to the above report the deceased sustained six injuries having different number of wounds. The ocular account in this case has been established in its material particulars by Muhammad Azeem Khan (P. W.8) and Alam Gul Khan (P.W.9). Both the witnesses have successfully established their presence at the place of occurrence; the former witness though a brother of the deceased but his testimony cannot be discarded simply because of his relationship if it otherwise inspires-confidence. He has specifically attributed the injuries caused to the deceased to the petitioners. He has established his presence at the spot. The defence side in spite of lengthy cross-examination failed to shatter his testimony. The other eye-witness A namely Alam Gul Khan (P.W.9) was a photographer by profession and was running his shop over there. He is totally an independent witness and has got no animus or malice whatsoever to implicate the present petitioners in an offence entailing capital punishment. The defence side has not brought anything worth consideration on record to show why the testimony of this witness should not be believed which fully inspires confidence It is also pertinent to mention here that the ocular version is completely in line with the medical evidence. It is but natural that the deceased when fired at by the petitioners would not remain static at one place in one posture. He must have moved his body after noticing the petitioners who were firing at him. In this view of the matter, if the exit wound was at higher level as compared to the injury wound, this by itself would not negate the ocular account. It is expecting too much from the witnesses that they would depose the ocular version with mathematical precision in such a traumatic condition. The next argument of the learned counsel that the injuries caused by the petitioners were on non-vital part of the deceased as their intention was not to kill the deceased is devoid of any force. It is reflected from the medical report that the deceased suffered six fire-arm injuries having multiple wounds. These injuries had completely damaged the main blood vessel of the frontal part of thigh which resulted into H gushing/oozing of blood with full force. In the opinion of the medical officer these injuries which had damaged the big vessels of both lower limbs (femoral vessels) caused severe haemorrhage and shock which were sufficient to cause death in the ordinary course of nature. The plea of the learned counsel that the petitioners committed this offence under the influence of Jahan Khan is also without any substance and is liable to be discarded on many scores; firstly said Jahan Khan, acquitted co-accused never participated in the occurrence at the spot. It were the petitioners who came at the spot on a motorcycle duly armed with lethal weapons with the intention to kill the deceased and did not take much time in accomplishing the fatal brutal act in broad daylight in presence of the witnesses. Apart from this, the petitioners who were 39 years and 24 years of age at the time of commission of offence were not that. much immature that they would easily succumb to the influence of a person who was not even present there. Lastly the learned counsel for the petitioners has contended that since the motive has not been proved, as such the capital punishment awarded to the petitioners would not be attracted in the case in hand. As already stated, the petitioners being grown up persons having independent mind and thinking caused the fatal act at their own with the intention to do away the life of the deceased would not be entitled to lesser punishment. As far as the plea that the motive has not been proved that would not by itself be of any assistance to the petitioners. It has been held time and again that the absence of motive or non-proof of the same would not bring the case of the convicts for lesser punishment. There is only one sentence provided under the law for the offence D committed under section 302, P.P.C. and that is death. Life imprisonment can only be awarded if mitigating circumstances exist which are lacking in the present case. The role of motive is decimal in a cold-blooded murder which has been established through unimpeachable evidence brought on record and which has been corroborated by the material evidence. It would be appropriate at this stage to reproduce the determinations of this Court qua motive in the following cases:-- (i) Muhammad Ashraf v. The State. (2001 SCMR 73) "

8. The contentions that motive has not been proved and the petitioner acted .under the influence of his elders, therefore, capital sentence cannot be awarded has been considered by us. As far the motive is concerned, as discussed earlier, it was not disbelieved but was not relied upon on .account of lack of evidence. There can be cases where motive is hidden deep in the minds of the assailants or the motive can be different from what E the witnesses thought it might be, in any case it cannot be considered. Reliance was placed on the case of Noor Muhammad v. State (1999 SCMR 2722). We have noticed that at the time of occurrence, petitioner was about 30 years of age. He was a grown up man with independent mind and thinking. It cannot be presumed that he would come under influence of his elders in such a manner that he would commit the murder of 2 persons with gun. Had he been a teenager or dependant then the it argument of the learned counsel could have been available. " (ii) Muhammad Aslam and others v. The State and others (2001 SCMR 223) "It is true that in the instant case the prosecution has not shown/assigned any motive for the commission of crime but the absence of motive would not come ,in the way of the prosecution if there is confidence-inspiring evidence with regard to the commission of crime by the appellant and it would not deter the Courts from passing the normal sentence of death under section 302, P. P. C The failure to show motive would not lead to any adverse inference. It may be pointed out that the motive is always in the mind of person who intends to take life of another, so it would be only in his knowledge, therefor, the failure on the part of the prosecution to show motive would not be fatal to its case. In the instant case, the evidence adduced by the prosecution is strong, reliable and confidence-inspiring, which could not be challenged." (iii) Waris Khan v. The State (2001 SCMR 387) "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. " Last but not the least, the conduct demonstrated by the petitioners after the occurrence as well as during trial is desperate in nature. They immediately after the commission of offence absconded and were declared proclaimed offenders. Abdul Sattar Khan petitioner was arrested on 2-3-1993 while Hashmat Ullah petitioner was taken into custody on 21-8-1993. Thereafter when the trial was concluded and was ripe for announcement of judgment, the petitioners absconded on 26-12-1996 and were apprehended in March, 1999. The testimony of Dr. Ijaz Hussain (D.W.1) that one person named Dilawar was under his treatment on 23-5-1993 and on 15-6-1993 as a private patient does not advance the case of Hashmat Ullah petitioner as the doctor himself had stated in his deposition that he had not mentioned the parentage of the patient in the prescription slip. Furthermore, there is no explanation qua his absconsion after 15-6-1993 as he was apprehended on 21-8-1993. Even otherwise, his testimony does not apply to his absconsion which took place after the conclusion of trial on 26-12-1996. Both the petitioners remained proclaimed offenders till their arrest in 1999. All this goes to show that the conduct of the petitioners during the trial and thereafter was not such which may deserve any leniency to them in the award of punishment. Resultantly, taking stock of all the aforestated features of the case into consideration, we do not see any force in these petitions which are hereby dismissed and leave refused. M.B.A./H-81/S Petitions dismissed.