' AKHTAR ZAMAN MALGHANI, J.---By this common judgment we propose to dispose of Criminal Appeal No,119 of 2001, Criminal Appeal No,152 of 2001 and Murder Reference No,1 of 2001 as all these pertain to same incident.
2. Briefly stated, facts of the case are that on 14-7-2000, a case under section 324, P.P.C. Was registered in Police Station Bela vide F.I.R. No,28 of 2000 on the report of Muhammad Hassan wherein it was alleged that on the same day marriage ceremony of his nephew Abdul Wahid was performed with the daughter of Saleh Muhammad in Gadore Goth Lasbela. After the end of marriage ceremony he, his nephew Abdul Wahid and Abdul Rehman were going to Gadore Stop Hotel for taking tea. On the way near the lands of Karim Bukhsh a Tractor came from behind and stopped near them. The driver of the Tractor namely Sher Muhammad who was holding Klashnikov in his hand, fired upon Abdul Wahid who fell on the ground after receiving bullet injury. It was further alleged that the accused threatened the complainant from coming near by aiming Klashnikov at him and thereafter fled away from the spot.
3. After registration of case the investigation was carried out by P.W.11 Sher Ahmed, S.-I. Who went to Hospital where injured Abdul Wahid was admitted and after preparing injury memo. Exh.P.11-A handed over the same to the Medical Officer and thereafter he proceeded to the spot where he took into possession blood-stained earth, two empties of .222 bore and tractor. He also recorded the statements of the witnesses. After receiving information about the death of the injured, the offence was altered to section 302, P.P.C. And he prepared inquest report Exh.P.11-E. On 16-7-2000, he arrested the appellant and on his pointation recovered Klashinkov oriented .222 rifle alongwith three live cartridges. As the appellant could not produce licence or permit for possessing the rifle, therefore, a case under section 13(e), Arms Ordinance, 1965 was registered against him, vide F.I.R.
No,31 of 2000. He also took into possession blood-stained clothes of deceased. On 18-7-2000 he sent the rifle and recovered empties to Fire-arms Expert at Karachi and after receiving report Exh.P.11-B handed over the papers to S.H.O. Muhammad Arif for submission of challan.
4. At the commencement of trial charge was read over to the appellant, who pleaded not guilty and claimed innocence. In murder case prosecution produced eleven witnesses in support of its case whereas in the case registered under section 13(e) Arms Ordinance, 1965 it produced four witnesses. After close of prosecution evidence, the appellant was examined under section 342, P.P.C. Wherein he denied all the allegations of prosecution. However; he did not produce any witness in defence nor examined himself on oath. The learned trial Judge after appraising the evidence on record and hearing the parties found the appellant guilty under section 302, P.P.C. And sentenced him to death vide judgment dated 31-5-2001. Similarly he was also found guilty under section 13(e), Arms Ordinance, 1965 for possessing rifle without licence and was sentenced to two years' R.I. And fine of Rs,1000 or in default to further undergo 3 months' R.I. The learned Judge has also submitted the proceedings to this Court for confirmation of death sentence as required under section 374, Cr.P.C.
5. We have heard the learned counsel for the appellant as well as counsel for the complainant and State counsel.
6. The learned counsel for the appellant raised following contentions:--
(i) Both the eye-witnesses are closely related to the deceased and inimical towards the appellant, as such; their evidence is not reliable being interested witnesses.
(ii) The prosecution has failed to prove motive, which makes the case of prosecution doubtful.
(iii) The case was tried by Additional Sessions Judge under the regular law, whereas the alleged offence was exclusively triable under the Suppression of Terrorist Activities Act, 1975 being a schedule offence. To that Act, as such; the judgment and trial being without jurisdiction are not sustainable.
(iv) In alternative the learned counsel submitted that in the given facts and circumstances of the case death penalty was not warranted because the prosecution failed to pro've motive, which was shrouded in mystery.
' He relied upon case-law reported in 1999 SCMR 1138; 1999 SCMR 2414; 1999 PCr.LJ 373; 1999 SCMR 1030; 1994 SCMR 717; 1998 PCr.LJ 426; 1998 PCr.LJ 773 and PLD 1998 Quetta 60.
' On the other hand, the learned counsel for the complainant argued that the prosecution has successfully proved the guilt of appellant through ocular evidence of P.W. Muhammad Hassan and P.W. Abdul Rehman having no previous enmity with the appellant and their evidence is further corroborated by the recovery of weapon on the pointation of the appellant and positive report of Fire-Arms Expert. According to learned counsel the medical evidence and motive furnished by P.W.10 Muhammad Saleh further corroborates the ocular account of P.W. Muhammad Hassan and P.W. Abdul Rehman. Regarding lesser penalty the learned counsel submitted that the appellant committed murder of deceased as the deceased married the girl with whom the appellant wanted to marry and same was proved through the evidence of P.W.10 Muhammad Saleh and not denied in cross-examination, as such; he was rightly sentenced to death and requested for confirmation of the same.
7. The learned State counsel supported the arguments of complainant's counsel.
8. Before adverting to the respective contentions of the parties learned counsel, we feel it expedient to discuss the evidence available on record.
' P.W.1 Muhammad Bakhsh is father of the deceased Abdul Wahid and deposed that his son Abdul Wahid was betrothed with the daughter of Muhammad Saleh about 8/9 months prior to occurrence. On 14-7-2000, his Nikah was performed. Thereafter he alongwith Muhammad Hassan and Abdul Rehman went to Gadore Stop. At about 4-45 p.m. He was informed about receiving of injuries by his son at the hands of Sher Muhammad, whereupon he went to place of incident and found his son in injured condition and shifted him to Hospital but he succumbed to his injuries. He moved application for handing over the dead body without post-mortem, which was allowed, and the dead body was handed over to him. In cross-examination he denied the suggestion that his son died due to firing made by the participants in celebration of marriage.
' P.W.2 Muhammad Hassan deposed that on 14-7-2000, after marriage ceremony he alongwith groom Abdul Wahid and Abdul Rehman were going to Gadore Hotel for taking tea. Appellant Sher Muhammad came behind them driving a tractor and no sooner tractor reached near them the appellant fired at Abdul Wahid by Klashinkov and after alighting from the tractor fired second shot. Abdul Wahid after receiving bullet injuries fell on the ground. He tried to stop the accused but he threatened him from coming near by aiming Klashinkov at him. Thereafter he fled away from the spot. He further deposed that he sent Abdul Rehman for information and after a short while his brother and other relatives came at the spot and removed Abdul Wahid to hospital in a vehicle while he went to police station for lodging report. He also produced report lodged by him Exh.P.2-A. In cross-examination he stated that they had no previous enmity with the appellant. He also denied the suggestion that Abdul Wahid received injuries due to firing made in celebration of marriage.
' P.W.3 Abdur Rehman deposed that on 14-7-2000, he alongwith Abdul Wahid and Muhammad Hassan departed from the wedding house at about 4-30 p.m. When they reached near the lands of Master Karim Bukhsh, the appellant arrivced there driving a tractor. He fired two shots by means of Kalashnikov on Abdul Wahid which struck Abdul Wahid and he fell down on the ground. He went to the house for informing about the incident and after informing the family, he brought a vehicle in which injured was shifted to hospital. In cross-examination he deposed that no one was carrying arms and ammunition in the wedding party. He also denied the suggestion that Abdul Wahid received injuries due to firing made in celebration of marriage.
' P.W.4 Imam Bukhsh is witness to memos. Exh.P.4-A and Exh.P.4-B through which the dead body of the deceased was taken into possession by the police after noting down the location of injuries received by him.
' P.W.5 Abdul Majid deposed that on 16-7-2000, the appellant was arrested in his presence and during interrogation by police he disclosed about the concealment of the weapon of offence in a ravine and got recovered one .222 rifle alongwith three live cartridges from the ravine hidden under the bushes which was taken into possession by the S.H.O. After sealing the same in a parcel vide recovery memo. Exh.P.5-A signed by him. He also identified the rifle and live cartridges in the Court recovered at the instance of the appellant. In cross-examination he denied the suggestion that the rifle was recovered from the house of appellant and that the same belonged to his father.
' P.W.6 Muhammad Umer is witness to the recovery of blood-stained earth and two empties which were taken into possession by the Investigating Officer from the place of occurrence vide recovery memo. Exh.P.6-A and Exh.P.6-B respectively.
' P.W.7 Abdul Rashid medically examined the deceased when he was brought in hospital in injured condition and after his death issued Medical Certificate Exh.P.7-A. According to his deposition the deceased received following injuries:--
(1) Wound of entrance on the left side of ilicrest bone, which had damaged the bladder and Rt.
Kidney and exit from the Rt. Lumber region.
(2) Wound of exit on the Rt. Side of lumber region which was measured about 4 inch long one inch wide.
(3) Wound of entrance of the Rt. Side of buttock and exit wound was not found."
' P.W.8 Muhammad Haroon is also witness to the recovery of weapon of offence i.e. .222 Rifle recovered on the disclosure and instance of the, appellant from a ravine situated at about 370 paces from the place of occurrence.
' P.W.9 Raheem Bukhsh is witness to the recovery memo. Exh.P.9-A whereby blood-stained clothes of the deceased were taken into possession. He is also witness to the possession of registration book of the tractor produced by Ghulam Nabi to the Investigating Officer which was taken into possession vide recovery memo. Exh . P . 9-B .
' P.W.10 Muhammad Saleh is father of the bride with whom Nikah of the deceased was performed on the fateful day. He deposed that his lands are adjacent to the lands of Ghulam Nabi and Noor Muhammad where Taj Muhammad and his sons are tenants. He further deposed that he had family terms with Noor Muhammad who asked for the hand of his daughter for accused Sher Muhammad to which he agreed provided Taj Muhammad in return would give his daughter in marriage but he refused to accept the proposal, as such; he betrothed his daughter to Abdul Wahid and on 14-7-2000, at about 8-00 a.m. Nikah was performed, whereafter he went towards his lands. On his return he was informed about killing of his son-in-law at the hands of the appellant. In cross-examination he denied the suggestion that his daughter was in true love with the appellant.
He also denied the suggestion that both were already engaged but he betrothed his daughter with Abdul Wahid in greed of money.
' P.W.11 Sher Muhammad, S.-I./ S.H.O. Is Investigating Officer of the case.
' After registration of case he recorded statements of the witnesses, inspected the site and prepared site-plan Exh.P.11-A. He also recovered two empties and bloodstained earth from the place of occurrence and took into possession the tractor parked at the spot. On 16-7-2000, he arrested the appellant and on his pointation and disclosure, on the same day, recovered weapon of offence i.e. Rifle from a ravine situated near the place of occurrence. He sent the empties and rifle for opinion of Fire-Arms Expert to Karachi and after receiving the report Exh.P.11-B he handed over the investigation papers to his successor on his transfer who submitted the challan before the Court.
9. The appellant neither produced any witness in defence nor examined himself on oath, however; he denied the case of prosecution when examined under section 342, Cr.P.C. And claimed false implication due to previous enmity.
10. Before adverting to merits of the case we feel it necessary to first decide point of jurisdiction.
According to the learned counsel the case was exclusively triable by the Special Court set up under the Suppression of Terrorist Activities Act, 1975 as according to allegations contained in F.I.R.
Klashinkov was used in commission of offence, which was a scheduled offence under the Suppression of Terrorist Activities Act, 1975. In order to substantiate his contentions he referred to the charge which according to him was read over to the appellant by the learned Judge in his capacity as Additional Sessions Judge. He also referred to the judgment where the learned Judge while signing the judgment described himself as Additional Sessions Judge. After going through the record we failed to persuade ourselves to subscribe the contentions of the learned counsel. It may be noticed that all the Additional Sessions Judges of the Balochistan Province were conferred with the power of Special Judge under the Suppression of Terrorist Activities Act, 1975, as such; they were holding dual charge. In the instant case when challan was submitted before the Additional Sessions Judge, Lasbela at Hub, he took the cognizance of the offence as Special Judge under Suppression of Terrorist Activities Act, 1975 as is evident from the order sheet dated 2-10-2000.
Similarly the first page of the judgment reveals that the same has been delivered by the learned Judge in his capacity as Special Judge. No matter in the charge the learned Judge has not mentioned his designation as Special Judge and similarly at the end of the judgment the learned Judge described his designation as Additional Sessions Judge but it is evident from the perusal of record that the case tried by the Additional Sessions Judge in his capacity as Special Judge under the Suppression of Terrorist Activities Act, 1975 and the judgment was also rendered by him as Special Judge, as such; the objection regarding jurisdiction is overruled.
11. Adverting to the merits of the case it may be observed that the prosecution mainly relies upon the ocular testimony of P.W.2 Muhammad Hassan and P.W.3 Abdul Rehman who were accompanying the deceased at the time of incident. Both the witnesses have deposed in unequivocal terms about the receiving of injuries by the deceased at the hands of the appellant.
Their presence at the place of occurrence cannot be doubted because it was natural for them to have accompanied the groom for tAking tea being his close relatives. The occurrence has taken place in broad daylight and it is hard to believe that they would let the real culprit go scot free and instead falsely implicate the appellant in the incident with whom they had no previous enmity nor any such enmity has been suggested. Mere relationship of these two witnesses with the deceased would not make them interested witnesses, as they have no motive to falsely implicate the appellant in the commission of offence. In the judgment reported in 2000 SCMR 1784 the Honourable apex Court held that the eye-witnesses who have no against the accused cannot be termed as interested witnesses. It would be beneficial to reproduce the relevant observations hereinbelow:-- "S.302. Re-appraisal of evidence.
' Interested witness. Concept. Interested witness is one who has a motive for falsely implicating an accused; is a partisan and is involved in the matter against the accused. Testimony of interested witness. Scope. Mere friendship or relationship with the deceased does not make a witness an interested one and testimony of such a witness, who otherwise seems to be a truthful witness, cannot be rejected on such ground. Friendship or relationship with the deceased is not sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
Though the ocular testimony found truthful and confidence-inspiring is itself sufficient to sustain the conviction on capital charge, yet in the instant case the testimony of above mentioned witnesses is further corroborated by the recovery of weapon of offence at the instance and disclosure of the appellant and positive report of the Fire-Arms Expert. The appellant was arrested on 16-7-2000 and on the same day in presence of P.W.5 Abdul Majeed and P.W.8 Muhammad Haroon he disclosed about concealing the weapon of offence in a ravine near the place of occurrence which was got recovered by him. Both the witnesses remained unshaken despite lengthy cross-examination. It may be noted that P.W.5 Abdul Majeed is resident of the area having no relation with the deceased. oreover, the recovery of rifle was not denied during cross- examination but it was plea of the defence that the same was recovered from the house of the appellant and same was owned by his father but no evidence was produced to substantiate such claim. The positive report of Fire-Arms Expert which has been produced as Exh.P.11-B further confirms that the empties found at the place of occurrence were fired from the rifle recovered at the instance of the appellant.
' The medical certificate produced by P.W.7 Doctor Abdul Rashid also corroborates the statements of both the eye-witnesses with regard to the injuries sustained by the deceased and as stated by the eyewitnesses.
13. So far motive is concerned, it may be observed that murder may often be committed for no motive or on minor pretext and intention to kill is to be determined from the circumstances, the weapon used, seat of injury and damages done. In the instant case the appellant committed the murder of the deceased after chasing him and by making fires on the vital part of his body by means of Klashinkov oriented rifle which proves the G intention of the appellant which could not be other than to murder the deceased as is evident from the conduct of the appellant, seat of injuries and the weapon used for the commission of offence. In a judgment reported in 1975 SCMR 289 in the similar circumstances the Honourable Supreme Court held as under:-- "It is common knowledge that murders have been committed for no motive worth the name and at any rate on mere minor pretexts. No hard and fast rule could be laid down in regard to the determination of intention which can be spelt out from all the ambient circumstances taken together. A host of them including the highhandedness of the petitioner; the choice of the weapon of offence by him, the seat of injury and the damage done by it unmistakably establish the intention to kill or at least the knowledge that death could in all probability follow in consequence thereof.
14. Even otherwise; it has come on record through the evidence of P. W.10 Muhammad Saleh, the father of the bride, that prior to the Nikah of his daughter with the deceased, the family of the appellant through their landlord Noor Muhammad asked for the hand of the girl which suggests that the appellant was not happy with the deceased for marrying his belover as is evident from cross-examination of P.W.10 who was put a suggestion regarding existence of true love between the appellant and his daughter and it was also suggested that the appellant was engaged with girl prior to her Nikah and marriage with the deceased. During cross-examination the assertion of the witness regarding asking for hand of his daughter for the appellant was not challenged, thereby admitting the same. Thus; we find no force in the contentions of the learned counsel that the prosecution has failed to bring on record any evidence, which could suggest motive on the part of the appellant for committing the murder of the deceased.
15. Next question arises what should be the sentence. According to learned counsel as the prosecution failed to prove the motive and same was shrouded in mystery, therefore, normal penalty of death was not called for in the instant case and same is required to be altered to that of imprisonment for life. It is suffice to observe that while awarding sentence for commission of Qatl- i-Amd Court has to consider the facts and circumstances of the particular case. In the instant case as already discussed, the appellant has committed murder of an innocent young man because he married the girl with whom the appellant wanted to marry, as such; motive was not shrouded in mystery but was very much clear from the facts and circumstances of the case. Therefore, the case-law relied upon by the learned counsel was not applicable to the peculiar facts and circumstances of the present case. The Honourable Supreme Court maintained the death sentence in a case reported in PLD 1963 SC 285 where no motive was assigned and the accused had inflicted a single blow in the abdomen of the deceased. The relevant observations are reproduced hereinbelow:-- "Now on the question of sentence I feel that lesser sentence is not called for because the appellant had no justification for killing an innocent person who merely asked him not to fight. This killing of an unarmed person who had not made even a threatening gesture was a murder of most cowardly nature. It is true that there was no premeditation to kill. I am also aware that in some cases where there is no premeditation or prior enmity the Courts have awarded lesser sentence.
But in those cases at least the assault followed some quarrel or exchange of abuses. In the present case there are no extenuating circumstances whatsoever and the mere fact that the appellant may be a man of violent temper is wholly insufficient for not imposing the extreme penalty. Bearing all these points in mind I have arrived at the conclusion that the sentence of death in this case is an appropriate one, I would therefore, dismiss the appeal."
16. Likewise in the judgment reported in 2000 SCMR 383 the Honourable Supreme Court of Pakistan held that "in a case where murder is proved, insufficiency of motive would not be a bar for imposition of normal penalty of death."
17. As already observed, the appellant has committed the murder of deceased by chasing him on a tractor and his intention to kill is very much clear from the weapon used in the commission of offence and seat of injuries received by the deceased, no mitigating circumstances exist to award lesser penalty and he was rightly sentenced to death. However; we may observe that the learned trial Judge has not mentioned the clause of section 302, P.P.C. Under which the appellant was convicted and sentenced to death. In our opinion section 302(a), P.P.C. Was not attracted in the present case as neither there was any admission of guilt by the appellant nor the trial Judge has made any exercise to see as to whether the eye-witnesses fulfill the conditions of Tazkia-ul- Shahood in accordance with Injunction of Islam. In our considered view, the appellant is liable to be punished under section 302(b), P.P.C. In absence of such proof, therefore, we confirm death sentence awarded to the appellant by the trial Court under section 302(b), P.P.C.
' So far sentence awarded to the appellant under section 13(e), Arms Ordinance, 1965 for possessing unlicensed rifle is concerned, we would maintain the same in view of what has been discussed above while dealing with the question of recovery of the rifle at the disclosure and pointation of the appellant and coming to the conclusion that the rifle was recovered at the pointation of the appellant from a concealed place exclusively in the knowledge of the appellant.
Additionally it is observed that the appellant did not dispute the recovery but according to defence plea as put to the recovery witness same was taken into possession by the police from the house of the appellant and same was owned by his father having licence for possessing it, but he failed to bring on record any evidence which could show that the same was a licensed rifle or that the same was taken into possession from the appellant's house.
' For the foregoing reasons, we find no merits in Criminal Appeal No,119 of 2001 and Criminal Appeal No,152 of 2001 and same are dismissed accordingly. The murder reference is answered in affirmative.
Death .