' MUHAMMAD FARRUKH MAHMUD, J.-- This judgment will dispose of Criminal Appeal No,1185 of 2001 filed by Habib Sultan, who, along with Muhammad Hussain and Asghar, faced trial in case F.I.R.
No,62, registered at Police Station Qadirpur, District Jhang, on 2:3-1999, for offences under sections 302/109, P.P.C., before learned Additional Sessions Judge, Jhang, who after conclusion of trial, vide his judgment, dated 21-7-2001, while acquitting rest of the accused, convicted the appellant under section 302(b), P.P.C. On three counts for causing murders of Zulfiqar, Khan Muhammad and Haider, and sentenced him to' death on three counts with compensation of Rs,1,00,000 on three counts or in default six months' S.I. On each count.
2. Murder Reference No,477 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.G./1 are that the complainant Bahadar/P.W.12 was resident of Mouza Pindi Lal Murid. On the fateful day at about 6-00 p.m. The complainant along with his brothers Zulfiqar and Nawaz, his cousin Zafar was present at Kot Essa Shah Road within the vicinity of Lal Murid. Zulfiqar entered into the fields for urination, he was about to sit when Habib Sultan (brother-in-law of Zulfiqar) armed with .8 mm rifle reached there and raised Lalkara that he would teach a lesson to Zulfiqar for not exchanging his land with that of his. Habib Sultan fired three successive shots, which hit Zulfiqar on the backside of left flank, on right buttock and on left arm. All the fires exited through the body of Zulfiqar and he succumbed to the injuries at the spot.
Thereafter Habib Sultan rushed to the Abadi and continued firing. The complainant party followed the accused, who entered into the house of Khan Muhammad, brother of the complainant, where Khan Muhammad, his wife Mst. Zarina, son Haider and Safdar were sitting. Habib Sultan fired at Haider, which hit him on his left buttock and exited through his belly. The accused fired two successive shots at Khan Muhammad, which landed on the lower side of his left shoulder near his armpit and on his left arm. Both the shots exited through his body. Haider and Khan Muhammad fell on the ground. Both the injured were taken to Shah Jewana Hospital immediately but due to their serious condition the doctor dispatched them to D.H.Q. Hospital, Jhang. The injured lost their lives when they were on the way to hospital.
4. The motive behind the occurrence was that Habib Sultan wanted to exchange his land with the land of Zulfiqar and he also wanted to get the land of his maternal-grandfather but both of them did not agree. Thus, due to said grievance Habib Sultan committed the offence on the instigation of Muhammad Hussain and his son Asghar.
5. After registration of formal F.I.R., the investigation of the case was taken over by Asghar Ali, S.- I./P.W.16. He proceeded to the place of occurrence took over the dead body of Zulfiqar, prepared injury statement Exh.P.H./3 and inquest report Exh.P.H./2. He collected blood-stained earth from the spot vide memo. Exh.P.L. Thereafter, he inspected the places of murder of Khan Muhammad and Haider and secured blood-stained earth separately, vide memos. Exh.P.M. And Exh.P.N. Respectively.
Thereafter, he proceeded to the hospital and prepared injury statement of Khan Muhammad Exh.P.K./2 and inquest report Exh.P.K./3. He also prepared injury statement of Haider Exh.P.J./2 and inquest report Exh.P.J./3. On 15-10-1999 Ghazanfar Ali, S.-I./S.H.O./P.W.12 arrested Habib Sultan and on the same day .8 mm rifle P.10 along with a bag P.11 containing 24 bullets P.12/1-24 were also recovered from his possession. The rifle, its licence and bag were taken into possession vide memo.
Exh.P.E. After completion of investigation, while placing Muhammad Hussain and Asghar in column No,2 of challan, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 16 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner and that of Serologist closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. D.Ws.1, 2 and 3 stated regarding the innocence of Muhammad Hussain and Asghar. However, the accused did not appear as witness under section 340(2), Cr.P.C.
Habib Sultan after tendering certain documents in his defence closed his case. After conclusion of trial, the learned trial Court while acquitting Muhammad Hussain and Asghar convicted and sentenced Habib Sultan appellant as stated above.
7. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that the F.I.R. Was recorded after due deliberation and consultation; that time of occurrence mentioned in the F.I.R. Did not coincide with the ,statements of the P.Ws.; that statements of all the P.Ws. Were contradictory relating to taking of Khan Muhammad and Haider to RHC, Shah Jewana and from there to D.H.Q. Hospital Jhang; that statement of Bahadar makes it manifest that .F.I.R. Could not be registered at 7-30 p.m. And it was dishonesty on the part of the Investigating Officer to show its having been promptly lodged; that motive in this case was far fetched in fact no dispute existed between Zulfiqar deceased and the appellant; that Safdar P.W. Conceded that appellant had no motive against Khan Muhammad and Haider deceased; that during cross-examination the complainant admitted that the deceased had sold his land, therefore, there was no question of exchange of land; that medical evidence did not support the ocular account; that according to-P.Ws. The appellant caused three fires on the person of Zulfiqar while Zulfiqar had received four injuries; that the injuries were oblique in nature indicating that the assailant was standing higher than the victims; that according to P.Ws., Haider received injuries on his buttock while that was exit wound of injury which was caused on the abdomen; that the medical evidence shows that the P.Ws. Had not seen the occurrence; that there was no occasion for Bahadar to be present along with Zulfiqar deceased and he failed to plausibly explain his presence; that P.Ws. Mst. Zarina Bibi and Safdar claimed to have been seen the occurrence while sitting in the room which was not possible as the fires were caused at the outer gate; that in fact the P.Ws. Wanted to deprive the appellant of his land hence he was roped in this case; that the occurrence took place during night and the assailants could not be identified by the P.Ws.; that Mst. Zarina Bibi was abducted by one Matah Khan and one abducted woman Mst. Razia along with her lover Nazir was staying in the house of Mst. Zarina, so Mst. Zarina had many enemies and some of the enemies committed the occurrence; and that the prosecution case was not free from doubt.
8. The learned counsel appearing on behalf of the State has argued that it was a case of almost single accused as rest of the two acquitted accused were not present at the spot and the allegation against them was that of abetment only; that the appellant has taken life of three innocent persons and deserves no leniency; that F.I.R. Was lodged promptly, which rules out the element of fabrication; that all the witnesses have given consistent account and their statements are supported by the medical evidence; that after the occurrence the appellant absconded and it provides corroborations to the ocular account; and that the appellant acted in a cruel manner and no mitigating circumstances exists in his favour. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. In order to prove its case the prosecution has produced three eye-witnesses namely 13ahadar/P.W.12, who is brother of Zulfiqar deceased, Mst. Zarina Bibi/P.W.8, widow of Khan Muhammad deceased and mother of Haider deceased and Safdar/P.W.9, who is brother of Mst.
Zarina. Zulfiqar deceased was married with sister of Habib Sultan. Mst. Amna mother of the appellant and Mst. Kanizan mother of Mst. Zarina were daughters of Muhammad Bakhsh, so the witnesses are not only related to the deceased but they are related to the appellant as well. The occurrence took place when the light was available. Hence there was no question of non- identification or misidentification. None of the P.Ws. Had any serious enmity or dispute with the appellant (who was virtually single accused in the case), so as to involve him in a false case and depose against him on oath. Bahadar has plausibly explained his presence at the time of murder of his brother Zulfiqar, while presence of Mst. Zarina Bibi/P.W.8 in the house where Khan Muhammad and Haider were murdered was natural. It was also not unusual circumstance for a brother to be present in the house of his sister. All the witnesses have given very consistent account of the occurrence and have corroborated each other on all the material points as far as the appellant is concerned. They were subjected to very lengthy cross-examination but the intrinsic value of their evidence could not be shaken. The contradictions pointed out by the learned counsel for the appellant were not only minor in nature but were immaterial as well. Such-like contradictions naturally crop up when the evidence is recorded after lapse of considerable time. In the instant case the statements were recorded after two years of the occurrence. Most of the contradictions pointed out by the learned counsel for the appellant are not contradictions at all rather those relate to the details of the occurrence and were not mentioned in their earlier statements. Needless to say that the F.I.R. And the statements recorded under section 161, Cr.P.C.
Are not exhaustive in nature. The ocular version is fully supported by the medical evidence, as all the deceased lost their lives due to fire-arm injuries. The learned counsel for the appellant has laid much stress that according to F.I.R. The appellant fired thrice at Zulfiqar deceased, while according to post-mortem report the deceased had received four injuries on his person. Real brother of the complainant was being fired upon by the assailant, so it was net expected of him to keep the details of the injuries. According to F.I.R., Zulfiqar received injuries on the backside of left flank, right buttock and left bicep. All these injuries have been mentioned in the post-mortem report. It may be mentioned here that in case the complainant would not have been present at the spot and had got the case registered after receipt of post-mortem report then he would have given a very accurate and detailed account of the injuries. The statement of Mst. Zarina/P.W.8, who was inmate of the house and her presence could not be denied, is in accordance with medical evidence. She and deceased Khan Muhammad and Haider her husband and son respectively were present in the house. The place of occurrence has not been challenged, hence, the witnesses and the occurrence was natural. Moreover, as noted above, Mst. Zarina was related to the appellant she had no previous enmity with him, so there was no reason for her to substitute the assailant.
10. The medical evidence in this case is convincing, natural, coherent and worthy of credence. It was observed by the Honourable Supreme Court in the case of Sarfraz alias Sappi and 2 others v.
The State 2000 SCMR 1758 that "where there is any variation between ocular and medical evidence, the latter does not overweigh the former type of evidence if otherwise the ocular evidence is coherent and trustworthy"..
11. The learned counsel has severely criticized the conduct of the Investigating Officer and has argued that time of reporting the matter to the police was not correct. It is settled law that the complainant would not suffer due to the lapses on the part of the Investigating Agency in the presence of convincing and direct evidence. Reliance is placed on the case of Weram v. The State 1985 PCr.LJ 372.
12. P.Ws.8, 9 and 12 have stated about the motive before the learned trial Court. No other motive is available on record. The statements of these P. Ws. About the motive are consistent. However, the motive in the instant case would be immaterial, as the prosecution has proved it beyond doubt that it was the appellant who took the life of three innocent persons. The intention of the killer is to be gathered by his action and the inadequacy or weakness of motive would not adversely affect the prosecution case. Nor it can be considered a mitigating circumstance. Reliance is placed on the cases of Muhammad Akbar and another v. The State PLD 2004 'SC 44 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427.
13. The appellant absconded after the occurrence and was declared proclaimed offender but we have ignored this evidence as question relating to abscondence of appellant was not put by the learned trial Court to him.
14. As far as the defence plea is concerned, according to which, it was an unwitnessed occurrence.
He also levelled wild allegation against Mst. Naziran that she was a woman of easy virtue; that she was thrice abducted by one Matah Khan Baluch; that one Mst. Razia, who had been eloped by Nazir had stayed in the house of Mst. Naziran; that during night Khan Muhammad, Haider and Zulfiqar were killed by known persons, are not supported by any evidence. These wild allegations were levelled in sheer frustration as the appellant remained unable to bring on record as to why the P.Ws., who were related to him deposed against him. The appellant, who was deserter, was desperate criminal who took the lives of three innocent persons.
15. The nutshell of the whole discussion is that no mitigating circumstance exists in his favour. The prosecution has successfully proved its case against the appellant through direct evidence, which is supported by the medical evidence and fully corroborated by the circumstances of the case.
Thus, this appeal is dismissed. The sentence of death is confirmed. Murder Reference is answered in the affirmative.