' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Murder Reference No,159 of 2001 and Criminal Appeal No,632 of 2000 filed by Ghulam Yasin alias Bhaidoo son of Ghazi as they arise out of the same judgment dated 25-11-2000 passed by the learned Additional Sessions Judge, Jampur (Camp' at Rajanpur) whereby appellant was convicted under section 302(b), P.P.C. And sentenced to death for causing intentional murder of Mst. Allah Bachai with a direction to pay a compensation of Rs,50,000 to the legal heirs of the said deceased under section 544-A, Cr.P.C. In default whereof to further undergo S.I. For six months. However, accused Ghulam Yaseen son of Muhammad Bakhsh was acquitted from the case after having extended benefit of doubt. Neither the State nor the complainant filed appeal against his acquittal.
2. Brief facts of the case as disclosed by the complainant Raja (P.W.7) are that on 29-4-1999 at 11-15 a.m. He along with Riaz Ahmad (P.W.10) and Mahiwal (given up P.W.) was present in his house when suddenly Ghulam Yasin alias Bhaidoo son of Ghazi, while armed with a .12 bore gun, entered the courtyard of his house where Mst. Allah Bachai deceased was also present; that the appellant raised a Lalkara to teach a lesson to the said Mst. Allah Bachai for having illicit liaison with Nadeem whom, according to him, he had already killed and directed her to recite Holy Kalma; that Mst. Allah Bachai ran to save her life and entered her Koatha; that the appellant followed her and made two consecutive fire shots which hit on near the back of her shoulder, at the chest and right kidney who fell down and breathed her last at the spot and that the complainant and other P. Ws. Did not go near the deceased and the appellant due to fear and extension of threats by the appellant. The motive behind the occurrence was that the appellant was not happy over performance of Nikah of his sister with one Nadeem wanted to marry her with one Ajmal who was brother of acquitted accused. It was further alleged in the F.I.R. That the murder was committed by the appellant with the licensed gun of acquitted accused Ghulam Yasin son of Muhammad Bakhsh which was given by him to the appellant for the purpose.
3. The investigation of the case was carried out by the police and after having completed legal formalities the accused were sent up for trial before the learned trial Court where the prosecution, in order to prove its case produced twelve prosecution witnesses whereas the accused in their statements recorded under section 342, Cr.P.C. Pleaded not guilty and claimed trial.
4. Learned counsel for the appellant in support of this appeal submitted that the learned trial Court has disbelieved the motive; that the recovery has also not been believed by the learned trial Judge; that the appellant had committed the murder of deceased Mst.. Allah Bachai under grave and sudden provocation as he saw the deceased Mst. Allah Bachai with one Nadeem in the compromising position; that on the same set of evidence a co-accused of the appellant has already been acquitted by the learned trial Court; that the eyewitnesses were not present at the place of occurrence; that it is a case of two versions one put forth 'by the prosecution and the other taken by the appellant and the version of the appellant is more plausible and convincing and that at least it is not a case of capital punishment. Learned counsel for the appellant, in support of the above contentions, placed reliance on Ghulam Yasin v. Zafar Ali and 3 others (1970 SCMR 527), Muhammad Ali v. Muhammad Farooq and 5 others (1989 SCMR 1099), Muhammad Ashraf v. The State (1996 PCr.LJ 1652) and Kamal and 2 others v. The State (PLD 1999 Karachi 212).
5. On the other hand, learned counsel for the State submits that the appellant while armed with a gun with pre-concert and pre-meditation came at the spot and committed the murder of Allah Bachai deceased; that the plea of grave and sudden provocation taken by the appellant is not plausible; that the ocular account is corroborated by the medical evidence; that the prosecution has proved its case against the appellant to the hilt and that the appeal filed by the appellant against the captioned conviction and sentence is liable to be dismissed by this Court.
6. We have heard learned counsel for the parties at a great length, have given anxious consideration to their submissions made before this Court and have also gone through the record with their able assistance.
7. The occurrence in this case had taken place at 11-15 a.m. On 29-4-1999, the matter was reported to the police at 11-30 a.m. at Eid Gah within the area of Mauza Kot Mithan while the formal F.I.R. Was recorded at 11-45 a.m. In the police station and the distance between the place of occurrence and the police station is two kilometres meaning thereby that it is a case of promptly lodged F.I.R.
8. The prosecution to prove its case produced Raja son of Allah Ditta as P.W.7 who is also complainant of this case. Although he is closely related to the deceased i.e, real husband yet he has no enmity or strong motive to falsely implicate the appellant in this case. He is also real phenomenon that a real husband of the uncle of the appellant. Moreso, it is rare deceased would substitute the real culprit of the case. He has reasonably explained his presence at the place of occurrence and we see no reason not to accept his statement. Notwithstanding the fact that he was subjected to lengthy cross-examination but nothing could be shaken from his testimony.
9. There is yet another eye-witness of the case, namely, Riaz Ahmad (P.W.9) who appeared before the learned trial Court in support of the prosecution case. He also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross- examination to which he was subjected during the trial. He corroborated the statement of the above eye-witness on the main points. Although he is also "Hamzulf" of the complainant yet he has no enmity with the appellant to falsely depose against him. He has also reasonably proved his presence at the spot to have witnessed the occurrence and nothing could be shaken from his testimony during the course of cross-examination. This Court seems his testimony to be worthy of credence.
10. Now we would like to discuss the defence version taken by the appellant. While making his statement under section 342, Cr.P.C. In reply to question as to why this case was against him, he took a specific plea of having killed the deceased under grave and sudden provocation after having seen his deceased aunt Allah Bachai in the compromising position with Nadeem in the house of his uncle Haji Khan complainant. This defence plea taken by the appellant is neither plausible nor convincing as, according to the appellant, the venue of the occurrence was the house of the complainant and not the appellant and the appellant had gone in the said house while armed with a loaded gun. It cannot be said that he was already expecting that when he would visit the house of his uncle and would find Nadeem and Allah Bachai in a compromising position. Moreover, when he would go there the door of the room was opened and he would find both of them in an objectionable position. The said plea is self-contradictory because the dead body of Nadeem was not found at the house of his uncle i.e, Mst. Allah Bachai's house but the same was found at a far-off place from the said house. In fact an abortive attempt was made to bring his case within the exceptions but the appellant has failed to substantiate the same because the said defence plea was not corroborated even by a single piece of evidence. The prosecution evidence when kept in juxta-position with the defence version it would appear that the version of the prosecution is much more reliable, confidence-inspiring and unimpeachable leaving no room of doubt to infer that the appellant is not guilty for the commission of the murder of the deceased Nadeem. No exception can be taken to the conclusion reached by the learned trial Court in awarding capital punishment to the appellant as the evidence has been legally, properly scrutinized and assessed by the learned trial Court and there has been no misreading and non- reading of evidence on record. Under Article 121 of the QanunShahadat Order, 1984 when an accused takes a specific plea to bring his case within exceptions, then the onus lies on him to prove the same but the appellant has failed to discharge the said onus. Article 121 ibid reads as limier:- "121. Burden of proving that case of accused comes within exception. ---When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code Act (XLV of 1860), or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
' In this connection, reliance can be placed on a judgment of the august Supreme Court of Pakistan in Mst. Dur Naz and another v. Yousuf and another (2005 SCMR 1906), delivered on 25th April, 2005, wherein, while dilating upon the defence plea, the apex Court at page 1912, observed as under:-- "It is also settled principle of law that when defence plea is raised by an accused, the burden to prove the same lies on his shoulders. In the instant case when said plea is examined in juxta- position to the case of prosecution seems to be untrue. Reference can be made to the case of Abdul Wahid v. The State (2003 SCMR 668) wherein it was held that initial burden to prove the guilt against the accused lies upon the prosecution, but when a specific plea has been raised by the accused in defence then both are to be considered in juxta-position and the one which is nearer to the truth is to be given weight". (Emphasis Supplied).
11. So far as motive is concerned, the learned trial Court, while discussing the motive part of the prosecution case, has observed that "..To my mind, it is always also not essential that there must be a motive behind any murder. It depends upon the psychological bend of the mind of an accused behind the commission of an offence...". It is law of the land that where the eye-witness account was worthy of credence, unimpeachable, confidence-inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death and would not constitute mitigating circumstance. This is in line with the law laid down by the august Supreme Court of Pakistan in Waris Khan v. The State (2001 SCMR 387). This view was further reiterated in yet another judgment of the apex Court of the country reported in Saeed and 2 others v. The State (2003 SCMR 747) wherein, at page 753 of the judgment, the august Court observed that "weakness and insufficiency of motive or absence of motive in murder cases cannot be considered as a mitigating circumstance for awarding lesser punishment ".
12. In this regard this Court is fortified with a judgment of the august Supreme Court of Pakistan reported in Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427), delivered in December, 2004, wherein the decision of the High Court in reducing the sentence of death into imprisonment for life, on the basis of insufficiency of motive and being single shot attributed to the convict, was set aside and the same was enhanced to death under section 302(b), P.P.C. It is imperative to quote page 429 of the judgment, which portion of the judgment of the apex Court reads as under:-- "6. It was through a judgment delivered in the case of Saeed Akhtar and others v. The State reported as 2002 SCMR 383 that this Court had declared that insufficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non-awarding of the normal penalty of death to murderer or to reduce the sentence of death to a lesser punishment. This view has been consistently followed by this Court ever since. In the case of Arshad Ali alias Acchhu v, The State reported as 2002 SCMR 1806, it was held that even where the occurrence resulting in a murder had taken place at the spur of the moment and even where only one shot had been fired and same had not been repeated, the only penalty deserved by the killer was the normal punishment of death prescribed for the said offence. This Court reiterated in Hameed Khan's case reported as 2002 SCMR 1155 that inadequacy of weakness of the alleged motive or where motive had not been proved, an assailant, if found guilty of causing the murder of another, did not deserve any leniency and the only punishment awardable in such-like circumstances would be sentence of death".(Emphasis supplied)
13. The question whether motive is a legal requirement or not came up for consideration before the august Supreme Court of Pakistan in yet another case reported in Mirza Khan and another v. The State (2005 SCMR 1110), delivered on 4th March, 2003, wherein at page 1117 of the judgment, the apex Court observed as under:- "However, it may also be observed, even if we assume that the prosecution has not proved the motive or the motive stated was a weak but the same would not affect the prosecution case considering that proof of motive is not legal requirement in presence of other convincing unimpeachable ocular version coupled with circumstantial evidence viz. Medical and absconsion.
Reference may be made to the \ decision of this Court in Imtiaz Ahmad v. The State (2001 SCMR 1334) at page 1338 wherein this Court has observed:-- "It may also be observed that allegations and proof of motive are not legal requirements for awarding maximum penalty of death in murder case when the prosecution has proved the guilt of the appellant accused beyond reasonable doubt as in the instant case considering also the fact that in the dispensation of criminal justice, decision of the case must not be taken in relation to accused's case 'but must rest on the examination of entire evidence in view of principles in Woolmingtin's case (1935 AC 462). Reference may be made to Talib Hussain v. State (1995 SCMR 1776), so also even in case of weak motive when there has been otherwise strong and reliable evidence, motive would not come in the way of the case of prosecution."
14. Apart from the above discussion it is pertinent to mention here that it is case of single accused and the parties are known to each other rather are closely related. So, no question of substitution or false implication arises. Even otherwise, there was no previous enmity between the parties to have I falsely involved the appellant in this occurrence. Further more that the ocular account in this case is corroborated by the medical evidence. So far as non-recovery of the weapon of offence is concerned, since the intentional murder of the deceased has been admitted by the appellant with .12 bore gun, so, the same is of no avail to the defence in the facts and circumstances of this case. The precedent case-law upon which learned counsel for the appellant has placed reliance is distinguishable as the facts 'and circumstances in the said case are different from the one in the case in hand.
15. The analysis of the entire record of this case coupled with anxious consideration given to the submissions made at the bar by the learned counsel for the respective parties, the defence plea taken by the appellant, perusal of the above quoted precedent case-law of the apex Court of the country and application of independent judicial mind would lead us to an irresistible conclusion that the prosecution has proved its case against the appellant through an independent and unimpeachable evidence and beyond any shadow of doubt. Resultantly, murder reference is answered in the affirmative, Criminal Appeal No.633 of 2000 filed by the appellant is dismissed and the sentence of death awarded to appellant Ghulam Yasin alias Bhaidoo son of Ghazi is hereby confirmed.
N.H.Q./G-10/L .