Abdul Hameed Dogar, J.--By this common judgment we intend to dispose of Crl. Petitions Nos, 393 and 899-L of 2002 as these arise out of a common judgment dated 17.10.2002 of a learned Division Bench of the Lahore High Court, Lahore, whereby Crl. Appeal No, 1619 of 2000 filed by petitioners Mukhtar Ahmad, Muhammad Anar, Muhammad Aslam and Haq Nawaz @ Haqqu was dismissed whereas Criminal Appeal No, 1771 of 2000 filed by Muhammad Akbar petitioner/complainant against the acquittal of accused, namely, Mazhar Hussain, Muhammad Ashraf, Nasir Mahmood, Jamal Din and Amir Sultan and Criminal Revision No, 852 of 2000 also filed by him for enhancement of amount of compensation and the sentence of above-mentioned accused were dismissed and the reference forwarded for confirmation of sentence of death awarded to Mukthar Ahmad petitioner was answered in affirmative.
2. The fateful episode in this case took place on 15.5.1995 at about 8.00 a.m. when complainant Muhammad Akbar along with Muhammad Yar, Nazir Ahmad, Muhammad Yar and Zafar Iqbal had gone to Bhera to attend the Court for hearing of a case registered against them under Section 324 PPC. As per case of the prosecution deceased Nazir Ahmed, Muhammad Yar son of Shah Muhammad and Muhammad Yar son of Mohabat were going a few feet ahead of them and when they reached near the house of Ahmed Din Awan, petitioners Mukhtar Ahmad, Muhammad Aslam, Muhammad Anar and Haq Nawaz alongwith absconding accused Muhammad Afazal and Muhammad Mumtaz with three unknown persons appeared there from behind the northern wall of the Haveli of the house, armed with fire-arm weapons. They entered from the gate of the house of Ahmad Din and came into the Baithak as the widow and the door of the Baitkak were open.
Petitioner Mukhtar Ahmad raised a lalkara instigating absconding accused Afzal to murder them, upon which he fired with his gun at Nazir Ahmad from the window of the Baithak which hit on the left side of his neck. Petitioner Mukhtar Ahmad fired second shot on Nazir Ahmad on his chin and cheek, as a result he fell down. Petitioner Muhammad Anar also fired a shot at Nazir Ahmad which hit him on the lower part of his leg. Muhammad Yar son of Shah Muhammad beseeched them but Muhammad Aslam and Haq Nawaz alias Haqqu who were standing near the door of the Baithak fired shots one after the other which hit him on his left buttock, finger of a hand, forehead, right ankle towards the left side and also on the right lower part of right leg and fell down. Three unknown culprits fired shots from their guns which hit Muhammad Yar son of Mohabat on his right cheek, right arm and right thigh. Nazir Ahmad succumbed to the injuries at the spot whereas Muhammad Yar son of Shah Muhammad expired later on in the hospital. Irrespective of the above Muhammad Yar son of Mohabat also sustained injuries in the incident. Leaving Zafar Iqbal PW over the dead body, the complainant took both the injured, namely, Muhammad Yar son of Shah Muhammad and Muhammad Yar son of Mohabat to Civil Hospital, Bhera where Arshad and Ayub PWs met him and told that on the night preceding to the incident, Amir Sultan and Jamal Din had instigated the petitioners Mukhtar, Aslam alias Haqqu, Anar, Haq Nawaz and their absconding accused, namely, Muhammad Afzal, Muhammad Mumtaz and other co-accused Muhammad Ashraf, Mazhar Hussain, Afzal, and 3 unknown persons to kill them on the way while going towards the Court. Accordingly, a case under Sections 302, 324, 148, 149 and 109 PPC was lodged at the Police Station Bhera.
3. The motive, as narrated in the FIR, was that on 10.2.1995 complainant party had caused injuries to petitioner Muhammad Aslam and a case under Section 324 PPC was lodged against them who were challaned. In order to avenge the same they retaliated and committed the instant incident.
4. Four empties of .12 bore gun, six empties of .7 MM, six empties of .303 bore and 17 empties of .222 bore were secured from the place of incident on the same day by the Investigating Officer. The petitioners were arrested on 31.1.1996 and .12 bore guns were recovered from their possession respectively.
5. On completion of investigation, the petitioners were sent up to face trial alongwith Mazhar Hussain, Muhammad Ashraf, and Nasir Mehmood before the Court of Special Judge under the Suppression of Terrorist Activities (Special Courts) Act, 1975. During the proceedings, trial Court summoned accused Jamal Din and Amir Sultan whereas declared Muhammad Afzal and Mukhtar Ahmad as proclaimed offender.
6. On autopsy (PW-8) Dr. Sher Muhammad Rana, Civil Hospital, Sargodha, found the following injuries on the person of deceased Muhammad Yar:--
1. A fire-arm wound of entrance with inverted edges of 1 cm x 3/4 cm going into the abdomen on back and outer aspect of abdomen - corresponding hole present on the shirt, shirt was also blood stained, signed and handed over to police.
2. A fire-arm wound of entrance with inverted edges 1/4 cm x 1/4 cm muscle deep on outer side of left ankle joint.
3. A fire-arm wound of entrance 1/3 cm x 1/3 cm skin deep with inverted edges, on outer side of lower 1/3rd of right leg.
4. A fire-arm wound of entrance 1/4 cm x 1/4 cm x skin deep on inner side and distal segment of right ring finger.
5. A fire-arm wound 2 cm x 1/4 cm x skin deep on left side of forehead near hairy line.
On the same day at about 12.30 noon, the post-mortem examination was conducted on the dead body of Nazir Ahmad deceased by the same doctor and following injuries were noted:--
(i) A fire-arm wound of entrance 1 cm x 1 cm underlying bone exposed with inverted and black edges on left mendable-4 cm from left angle of mouth.
(ii) A fire-arm wound of entrance 1/2 cm x 1/2 cm underlying bone exposed with inverted and black edges on left side of chin - 4 cm inside Injury No, 1.
(iii)A fire-arm wound of entrance 1 cm x 1 cm going towards chest with black and inverted edges on front and outer part of left side of neck.
(iv)A fire-arm wound of entrance 1 cm x 1 cm 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 fire-arm wound of entrance 13/4 cm x 3/4 cm 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 exit of this Injury No, 5.
(iv) A fire-arm wound of exit with inverted edges 1 cm x 1/4 cm on front and outer part of right side of neck-making 4 cm continuous track with Injury No, 5.
(vii) A fire-arm would of entrance with inverted and black edges 2 cm x 1 cm above middle part of right clavical - going toward back of chest - pellet was palpable.
(viii) A fire-arm wound of entrance 2 cm x (1/2) cm skin deep just below the Injury No, 7.
(ix)A fire-arm wound of entrance with inverted and black edges 2 cm 1 cm going towards the top of right shoulder under the skin with a palpable pallet on the top of right shoulder.
(x)A fire-arm wound of entrance 1 cm x 1 cm 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 exit.
(xi)A fire-arm wound of exit 1 cm x 1/4 cm 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 fire-arm wound (1/4) x 1/2 cm skin deep 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 cm x 1/4 cm x skin deep on right cheek.
(b) A contused wound oval shape 1/2 cm x 1/4 cm 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 cm x 1/3 cm 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 cm x 1/2 cm 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 innocence. They neither examined themselves on oath nor led any 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)
PPC 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 Sections 302(b) & 149 PPC 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 PPC 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 on 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 Cr.P.C. All the four petitioners were also convicted under Sections 148/149 PPC 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 fire-arm. 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 eyewitness 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 Haqqu to death as their case is identical to the case of respondent Mukhtar Ahmad whose death 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, (PW-16) Muhammad Akbar and (PW-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 Nos, 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 innocence 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 judgement 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 blow on proper appreciation of evidence has concurred that 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 neighbourer 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 nonreading 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 petitioners, which are accordingly dismissed and leave refused.