' TARIQ SHAMIM, J.--- Through this judgment we intend to dispose of Criminal Appeals Nos.316 of 2003 filed by Gulraiz Akhtar and Mst. Mehr-un-Nisa, 184-J of 2003 filed by Naseer Ahmad and Muhammad Younas Shah, Criminal Revisions No,238 of 2003 and 239 of 2003 filed by Raja Shamshad Hussain, Murder Reference No,142 of 2003 filed by the State and Criminal Miscellaneous No,379-M of 2004 filed by Raja Shamshad Hussain arising out of the judgment, dated 6-3-2003 passed by the learned Additional Sessions Judge, Kharian whereby he had convicted Naseer Ahmad and Younas Shah accused under section 302/34, P.P.C. And sentenced them to death and to pay Rs,50,000 each under section 544-A, Cr.P.C. To the legal heirs of Haji Muhammad Riaz, deceased or in default thereof they were to undergo rigorous imprisonment for six months. The accused were also directed to pay Rs,50,000 each to the complainant Raja Shamshad Hussain, the real brother of the deceased or in default whereof they were to undergo rigorous imprisonment for six months. Gulraiz Akhtar accused was convicted under section 109 read with section 302/34 P.P.C.
And sentenced to death as Ta'zir. He was directed to pay Rs,50,000 to the legal heirs of Haji Muhammad Riaz, deceased or in default whereof he was to undergo rigorous imprisonment for six months. He was also directed to pay Rs,50,000 to the complainant Raja Shamshad Hussain, the real brother of the deceased or in default whereof he was to suffer rigorous imprisonment for six months. Mst. Mehr-un-Nisa accused was convicted under section 109 read with section 302/34, P.P.C. And sentenced to imprisonment for life. She was directed to pay compensation of Rs,50,000 to the legal heir of Haji Muhammad Riaz, deceased, under section 544-A, Cr.P.C. Or in default whereof she was to undergo rigorous imprisonment for six months. She was also directed to pay Rs,50,000 to the complainant Raja Shamshad Hussain, the real brother of the deceased or in default whereof she was to suffer rigorous imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was also extended to the accused.
2. The case against the accused is based on F.I.R. No,84 of 2002 registered on 7-3-2002, for offences under sections 302/109/34, P.P.C. At Police Station Saddar Kharian at 8-00 a.m. On the basis of the statement of Raja Shamshad Hussain, complainant. In the F.I.R. Exh.P.F./1 the complainant had stated that he along with his real brother Haji Muhammad Riaz were at their tube-well and talking to each other meanwhile Younas Shah son of Maalik Shah armed with .7 mm rifle and Naseer Ahmad son of Muhammad Bashir armed with a .7 mm rifle came there and Younas Shah raised Lalkara that Haji Riaz be taught a lesson for litigation upon which Younas Shah made a direct fire of his rifle on his brother which did not hit him and the second fire was made by Naseer Ahmad from his .7 mm rifle which hit his brother on the left backside. The occurrence was also witnessed by Raja Manzoor Hussain son of Rehm Dad and Raja Ghazanfar Ali son of Walayat Khan who were present in their lands nearby. The accused fled away towards the Baila. The complainant took his brother in the injured condition to the hospital at Kharian but he expired on the way to the hospital. The motive for murder was that the aforesaid two accused had previous litigation with the deceased and due to this grudge they had committed his murder. The complainant on the same day submitted an other application stating therein that he had got registered F.I.R. No,84 of 2002 under section 302/34, P.P.C. At Police Station Kharian and had met Muhammad Ishaque son of Raqam who told him that on 20-1-2002 he had to go with Qamar Zaman son of Muhammad Taj in connection with some domestic affair to Thotha Rai Bahadur. Qamar Zaman came to his house at about 6-30 p.m. When they reached Thotha Rai Bahadur they passed through the street and from Mst. Mehr-un-Nisa's Baithak they heard voices and the name of Haji Riaz was mentioned in their conversation, whereupon they become curious and stopped near the window which was partly open. There was light inside the Baithak and they saw Naseer Ahmad son of Shabbir Ahmad, Gulraiz Akhtar, Shams Tabraiz alias Shebi sons of Abdur Rehman, Mst. Mehr-un-Nisa widow of Abdur Rehman and Younas Shah son of Maalik Shah who were hatching a conspiracy to murder Haji Riaz. The witnesses had planned to inform Muhammad Riaz and the complainant but they were at Islamabad. The complainant further stated that in the murder of his brother Muhammad Riaz besides Naseer Ahmed and Younas Shah, Mst. Mehrun-Nisa and her two sons Gulraiz Akhtar and Shams Tabraiz were also involved. After registration of the F.I.R. Section 109, P.P.C. Was added on the same day. The investigation was conducted by Raja Muhammad Younas, S.-I./S.H.O. P.W.19 who visited the spot and took into possession 4 empties and blood-stained earth. Postmortem of the deceased was conducted on 7-3-2002 by Dr. Muhammad Iqbal Alvi P.W.16. Four accused were arrested and weapons were recovered from the possession of Naseer and Younas Shah vide recovery memos. Exh.P.H. And Exh.P.J. Shams Tabraiz accused was declared a proclaimed offender.
3. As a result of investigation challan was submitted against the accused who were formally charged by the learned trial Court on 11-9-2002 to which they pleaded not guilty and claimed to be tried.
4. Nineteen prosecution witnesses were examined at the trial and on conclusion of the prosecution evidence, the statements of the accused were recorded under section 342, Cr.P.C. Who denied the allegations and stated that they had been falsely implicated in the case. Mst. Mehrun-Nisa accused/appellant when asked as to why the case against her and why the P.Ws. Had deposed against her, replied "case has been registered against me at a belated stage due to political reason as I was an elected Councillor and still I am elected Councillor of Village, complainant Shamshad Hussain had supported another candidate against me' who belongs to PML(Q) while I was contesting the election on the side of PML(N). Ch. Naseer Abbas a political leader of PML(Q) who is fast friend of Shamshad Hussain complainant had involved me falsely along with my sons in this case to avoid the opposition in the next MPA election. The P.Ws. Are related to the complainant Shamshad and the deceased, therefore, they are deposing against me at the instance of Shamshad and Naseer Abbas. I am innocent in this case". Gulraiz Akhtar accused/appellant when asked as to why the case against him and why the P.Ws. Had deposed against him, replied "On the death of my father who was a teacher when all the members of my family were minor, so my mother Mehr-un-Nisa had to work as the head of the family. My family was the Lumberdar of the village. My mother took part in politics and became worker of PML(N). She contested last local election held in 2001 on behalf of PML(N) and was elected as a member of Union Council Thotha Rai Bahadur. She is still village elected member. Shamshad complainant and his fast friend Naseer Abbas belong to PML(Q) and supported the candidate of PML(Q) in the last local election who faced defeat by my mother. Naseer Abbas, who is political leader of PML(Q) also contested the above said local election and was defeated. He also contested the last MPA election on the ticket of PML(Q) and was defeated. As Naseer Abbas and complainant Shamshad belong to PML(Q) which is a ruling party in the Punjab Province in these days and such have an influence on the police so they falsely involved my mother Mehr-un-Nisa, myself and my minor brother Shams Tabraiz in this case at a belated stage with the connivance of Muhammad Younas S.-I./P.W. For their political ends. During the investigation and the trial of this case Muhammad Younas S.-I. Who was posted as Incharge Police Post Guliana at the time of occurrence is posted as S.H.O. Police Station Saddar Kharian at the recommendation of Shamshad Ahmad complainant and Naseer Abbas political leader to get the conviction in this false case after its Parvi. S.-I. Muhammad Younas P.W. With the connivance of Shamshad P.W. And Naseer Abbas coerced and pressurized the family members and other relative of all the accused to force the accused to plead guilty". Naseer Ahmad accused/appellant when asked as to why the case against him and why the P. Ws. Had deposed against him, stated that the prosecution witnesses were closely related to the complainant party who had falsely implicated him on account of enmity. When asked as to why the case against him and why the P. Ws. Had deposed against him, Younas Shah accused/appellant had also made a similar statement. However, neither any of the accused opted to make a statement on oath in terms of section 340(2), Cr.P.C. Nor anyone of them produced any evidence in defence.
5. At the conclusion of the trial, the learned trial Court convicted and sentenced the appellants as stated in para.1 (supra). Feeling aggrieved Gulraiz Akhtar and Mst. Mehr-un-Nisa, appellants, have filed Criminal Appeal No,316 of 2003, Naseer Ahmad and Muhammad Younas Shah have filed Criminal Appeal No,184-J of 2003 through jail whereas Raja Shamshad Hussain has filed two criminal revisions i.e. Criminal Revision No,238 of 2003 for enhancement of sentences awarded to Mst. Mehr-un-Nisa accused and Criminal Revision No,239 of 2003 for enhancement of compensation awarded to Raja Shamshad Hussain and legal heirs of the deceased against Naseer Ahmad, Gulraiz Akhtar and Muhammad Younas Shah. The State has approached this Court through Murder Reference No,142 of 2003 seeking confirmation of the sentence of death awarded to Naseer Ahmad, Muhammad Younas Shah and Gulraiz Akhtar appellant. All these matters are being disposed of together through this single judgment.
6. We have heard the learned counsel at length and have gone through the record with their able assistance. The learned counsel for the appellants have contended that the witnesses were closely related to the deceased, therefore, their testimony should not have been accepted without corroboration from some independent and unimpeachable source which was not forthcoming; that the eye-witnesses of the occurrence had not been able to provide plausible explanation for their presence at the place of occurrence; that medical evidence was in conflict with the eyewitness account inasmuch as in the F.I.R. And in the testimony of the eye-witnesses only one shot is attributed to Naseer appellant but the deceased had suffered three independent fire-arm injuries; that the recovery of weapons from Younas and Naseer appellants was of no consequence as the empties had not been sent to the Forensic Science Laboratory immediately on recovery of the same from the place of occurrence; that the motive as alleged by the prosecution for the murder of Raja Riaz Hussain deceased was not proved at the trial; that the evidence of conspiracy was unnatural and the witnesses thereof had failed to provide any plausible explanation for their presence at the place and time it was allegedly hatched and that the witnesses of conspiracy had not furnished satisfactory explanation as to why the information regarding the conspiracy was not communicated to the complainant or the deceased for almost one and a half months.
7. On the other hand, the learned Additional Prosecutor-General as well as the learned counsel for the complainant have contended that the evidence furnished by the eye-witnesses was unimpeachable; that the evidence of conspiracy was credible and confidence inspiring; that motive as asserted by the prosecution was proved at the trial; that the recovery of weapons as well as the medical evidence lent corroboration to the eye-witness account and thus, the prosecution had proved its case to the hilt against the appellants and their absconding co-accused.
8. After hearing the learned counsel for the parties at length and going through the record, we have observed that the occurrence in this case had taken place in broad-daylight and the F.I.R. Exh.P.F./1 was lodged with promptitude in which Muhammad Younas and Naseer appellants have been nominated as perpetrators of the murder of Raja Riaz deceased. A promptly lodged F.I.R. Proves that the same is a genuine document and it excludes the possibility of fabrication or false implication.
9. The eye-witness account was furnished by Manzoor Hussain P.W.17 as well as Raja Shamshad Hussain P.W.18 who is the complainant of the F.I.R. As well as the brother of the deceased Raja Riaz.
He deposed before the learned trial Court that at about 8-00 a.m. While he and the deceased were present in their land, Younas Shah and Naseer Ahmad appellants armed with .7 mm rifles arrived there. Younas Shah appellant raised a Lalkara to teach a lesson to Haji Muhammad Riaz deceased and fired straight from his rifle which incidentally did not hit the deceased. Thereafter Naseer Ahmad tired a shot from his weapon which landed on the backside of the chest of the deceased.
Apart from the said witnesses, Manzoor Hussain and Ghazanfar Ali, P.Ws. Also witnessed the occurrence. The appellants after firing a few shots in the air managed to escape towards the Baila.
The presence of this witness at the time and place of occurrence with the deceased cannot be doubted. Manzoor Hussain P.W.17 whose land is adjacent to the land of the deceased and the complainant had deposed on the same lines as Raja Shamshad P.W.18. The presence of this witness at the place of occurrence at the relevant time is well-explained. Both these witnesses have corroborated each other in all material aspects and have unanimously furnished an accurate account of the occurrence. The witnesses are in consensus as to the time and place of occurrence, the identity of the accused, the weapon used by them and the locale of injury caused by the appellant Naseer to the deceased. Although some minor discrepancies have been pointed out by the learned counsel for the appellants in the testimony of these witnesses but the same are not of much significance being natural due to influx of time between the date of incident and recording of their testimony by the trial Court. The evidence furnished by these witnesses is credible and confidence inspiring and despite being subjected to lengthy cross-examination, the defence has not been able to create any significant dent in their testimony. Mere relationship of the eye-witnesses with the deceased is not by itself sufficient to discredit their evidence.
10. Muhammad Ishaq P.W.7 took the witness stand and deposed that while he and Qamar Zaman P.W.8 were passing in the street on 20-1-2002 at about 6-30 p.m. And they heard voices emanating from the Baithak of Mehr-un-Nisa appellant and became conscious when the name of Haji Riaz deceased was uttered. They managed to peep through the window as one plank was open and witnessed all the appellants including Shams Tabraiz alias Shabi since P.O. Sitting there. Mst. Mehr- un-Nisa appellant voiced her concern that the deceased had irritated them to such an extent that unless he was murdered they would not be able take a sigh of relief whereupon Naseer Ahmad appellant volunteered that he would murder Riaz deceased, Younas Shah appellant promised to provide him with a rifle and Gulraiz appellant as well as Shams Tabraiz P.O. Offered to extend all financial help as well as legal assistance. The statement of this witness is corroborated by Qamar Zaman P.W.B. The said witnesses have fully brought home the charge of abetment and conspiracy against the appellant Mst. Mehr-un-Nisa, Gulraiz and Shams Tabraiz since P.O. The suggestion put to P.W.7 that he was a stock-witness of the police was denied and it was stated by him that in fact it was the first case in which he was appearing as a witness. Minor discrepancies have been pointed out in the statements of P.W.7 and P.W.8 by the learned counsel representing Mst. Mehr- un-Nisa and Gulraiz appellants. However, the said discrepancies are not such as would discredit the witnesses or create a doubt about the veracity of their testimony. Further the said P. Ws. Have provided a plausible explanation as to why the information regarding hatching of conspiracy had not been communicated to the complainant or the deceased which was that the deceased as well as the complainant were not permanent residents of the village and during the intervening period i.e. From the date of the conspiracy to the date of occurrence, the deceased as well as the complainant had not visited the village. It has also come out in their evidence that in the days prior to and following the occurrence the village was not equipped with telephone facility..
11. Insofar as the medical evidence is concerned, the postmortem of the deceased was carried out by Dr. Muhammad Iqbal Alvi P.W.16. The doctor found following injuries on the dead body of the deceased:--
(1) Fire-arm wound of entry 4 x 1 c.m. On left lower chest with inverted edges (posteriorly).
(2) Fire-arm wound of exit 2 x 2 c.m. 4 c.m. Below left nipple.
(3) Fire-arm wound of entry 2 x 1 c.m.6on left upper fore-arm interior aspect.
' The injuries were found to have been caused with a fire-arm weapon and injury No,1 was declared as sufficient to cause death in the ordinary course of nature. The post-mortem report was exhibited as Exh.P.K. And the pictorial diagram was exhibited as Exh.P.K./1. Dr. Muhammad Iqbal P.W.16 in his testimony has specifically stated that he had recovered from the posterior aspect of left fore-arm a bullet lying subcutaneously. Although the learned counsel for the appellants have vehemently argued that the deceased had received three independent fire-arm injuries, however, after going through the testimony of P.W.16 and perusing the pictorial diagram and while keeping in view the locale as well as the dimensions of the injuries suffered by the deceased we are of the opinion that the injuries suffered by the deceased were the result of a single fire shot. Injury No,1 was the entry wound caused by the shot fired by Naseer appellant whereas injury No,2 was the exit wound of the said injury. Injury No,3 was caused by a fragment of the bullet which on hitting the ribs of the deceased had shattered into pieces. The fact that the bullet on exiting had broken into pieces is corroborated by Exh.P.A. Through which the last-worn clothes of the deceased as well as a phial were taken into possession by the police. The phial contained a piece of lead recovered from the injury sustained by the deceased on his left upper forearm. Further, it is a settled proposition that once a bullet enters the human body its path cannot be determined as it may proceed in any direction after hitting a hard object like a bone. Interestingly not a single question was put by the defence to the said witness regarding the injuries being caused by a single shot or multiple shots.
In the above background, we have no hesitation in holding that the eye-witness account is in conformity with the medical evidence.
12. During the course of investigation Naseer Ahmad appellant got recovered a .7 mm rifle P.9 along with a licence which was in the name of his co-accused Younas Shah in the presence of Syed Adil Hussain Shah P.W.14, Abdul Ghafoor P.W.15 as well as Muhammad Younas S.-I./Investigating Officer P.W.19. The recovery was effected on the pointation of the appellant and was secured through recovery memo. Exh.P.J. Younas Shah appellant also got recovered a .7 mm rifle in the presence of the said witnesses which was taken into possession vide Exh.P.H. The learned defence counsel have vehemently argued that the recoveries were bogus and in fact had been planted by the police and that four empties recovered from the spot and taken into possession by the police vide Exh.P,E.
Were not sent to the Forensic Science Laboratory prior to the recovery of the alleged weapons of offence. We are afraid the argument is totally devoid of any force as the weapons of offence i.e. .7 mm rifles recovered from the appellants Naseer and Younas were sent to the Forensic Science Laboratory after the empties recovered from the spot had been dispatched to the Laboratory which fact is fully supported by the testimony furnished by Safeer Afzal P.W.2, Muhammad Afzal P.W.4, Khalid Parvaiz P.W.10 and Raja Muhammad Younas P.W.19. The report of the Forensic Science Laboratory Exh.P.Z. Has been returned in the positive meaning thereby that the empties recovered from the spot were wedded with the weapons recovered at the pointation of Naseer Ahmad as well as Muhammad Younas Shah appellants. The recovery of weapons of offence and the empties stands proved from the testimony of the aforesaid witnesses which further provides corroboration to the eye-witness account.
13. Insofar as the motive is concerned, it has been vehemently argued by the learned counsel for the appellants that the motive for occurrence as stated in the F.I.R. Could not be proved at the trial.
We are afraid the contention of the learned counsel is without any basis. The accused in their statements recorded under section 342, Cr.P.C. Have not denied or refuted the existence of civil and criminal litigation between the parties. There is no cavil with the proposition that even if there is no motive, murder can be committed in the absence of one as the motive relates to the state of mind of a criminal. Further, the proof of motive is not a legal requirement where penalty of death for murder is to be awarded. The Honourable Supreme Court in the case of Talib Hussain and others v.
The State 1995 SCM R 1776 has held that weakness or absence of motive or failure to prove the same would hardly make a difference where the eye-witness account was worthy of credence, unimpeachable or confidence inspiring. In the instant case we do not carry any doubt in our minds that the eye-witnesses have furnished an accurate account of occurrence which is beyond reproach and credible in all respects. Furthermore, non-proof of a motive or absence thereof would not deter a Court from awarding death sentence to an accused as it does not constitute or provide any mitigating circumstance. Reliance is placed on Waris Khan v. The State 2001 SCM R 387. It is not denied by the defence that the appellants including Mehr-un-Nisa are involved in about twenty
(20) criminal cases of serious nature which goes a long way to prove the motive aspect of the case.
14. From the above discussion, it is manifest that the prosecution has proved its case beyond a reasonable doubt against the appellants by producing at the trial the most credible eye-witness account supported by the evidence of conspiracy/abetment and corroborated by the evidence of recovery of weapons of offence from Naseer Ahmad and Younas Shah appellants as well as the medical evidence. The judgment of the learned trial Court to the extent of conviction of all the appellants and sentences awarded to Naseer Ahmad, Muhammad Younas Shah and Mehr-un- Nisa is unexceptionable and calls for no interference. However, it has been noticed by us that Gulraiz Akhtar appellant who is alleged to have abetted the offence with his co-conspirator Mehr- un-Nisa appellant has been awarded sentence of death by the learned trial Court which we feel is on the harsher side, particularly as he had not directly participated in the murder of the deceased but had only abetted the offence. Consequently, while maintaining the conviction of Mehr-un-Nisa and Gulraiz Akhtar appellants we reduce the sentence awarded to Gulraiz Akhtar appellant to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to him. Since sentences awarded to Mehr-un-Nisa and Gulraiz were suspended by this Court during the pendency of their appeal, they are ordered to be taken into custody to serve out their sentences. The sentence regarding award of Rs,50,000 by each of the appellants to the complainant, the real brother of the deceased for mental anguish and psychological damage is set aside.
15. With the above modification in the sentence Criminal Appeal No,316 of 2003 filed by Mehr-un- Nisa and Gulraiz Akhtar appellants is dismissed. Criminal Appeal bearing No,184/J of 2003 filed by Naseer Ahmad and Muhammad Younas Shah appellants as well as Criminal Revisions bearing Nos.238 of 2003 and 239 of 2003 for enhancement of sentence and compensation are also dismissed. Murder Reference No,142 of 2003 is answered in the affirmative to the extent of Naseer Ahmad and Muhammad Younas Shah appellants whereas it is answered in the negative to the extent of Gulraiz Akhtar appellant.