Abdul Hameed Dogar, J.--This appeal with leave of this Court is directed against judgment dated 5.5.1999 of the Peshawar High Court, Peshawar whereby Criminal Appeal No, 286 of 1997 filed by Respondent No, 1 Hazrat Jamal was partly accepted and while maintaining his conviction under Section 302 PPC the penalty of death was converted into imprisonment for life with direction to pay Rs,100,000/- as compensation under Section 544-A Cr.P.0 to the legal heirs of deceased Inamullah.
His conviction and sentence under Section 307 PPC on two counts to 5 years R.I. with fine of Rs,10,000/- each or in default four months R.I. each was maintained and Murder Reference No, 16/1997 sent by learned Sessions Judge/Zilla Qazi for confirmation of death sentence was answered in negative.
2. The prosecution story as narrated by complainant Khoshdil (PW-7) in FIR No, 59 dated 28.2.1995 of Police Station Totali District Buner are that on 28.2.1995 at 13.00 hours Respondent No, 1 Hazrat Jamal entered into Muslim Commercial Bank, Bazar Ghor Ghushti Branch and started chatting with Mushtaq Ahmed (PW-8 Manager of the Muslim Commercial Bank, Bazar Ghor Ghushti Branch. At that time deceased Inamullah who was Cashier in the Bank was preparing monthly statement.
After sometime respondent took out a 'Churri' from the fold of his shalwar and attacked firstly on the manager of the Bank and thereafter on deceased Inamullah and complainant Khoshdil. As a result of which they sustained injuries. Inamullah succumbed to the injuries at the spot whereas PW Mushtaq Ahmed and Khoshdil complainant were seriously injured. Respondent was apprehended with churri by the complainant with the help of local inhabitants. To rescue him respondent also fired in air from his pistol. He was beaten by people with bricks and stones which caused him various injuries. Consequently case was registered against respondent under Sections 302 and 307 PPC for causing murder of deceased Inamullah and injuries to complainant Khoshdil and PW Mushtaq Ahmed. The motive as stated by the prosecution is that prior to the occurrence an altercation took place in between respondent and deceased Inamullah with regard to deposit in the bank and respondent nourished a grudge in his mind against deceased. On 1.3.1995 one Alaf Gul produced 30 bore blood stained pistol before Mohabat Khan Inspector/Investigating Officer which was allegedly snatched from respondent during the incident Since respondent was injured as such he was referred for medical treatment under arrest. After his discharge from the hospital, he voluntarily confessed his guilt and thus his confessional statement was recorded on 14.3.1995 whereafter he was remanded to the judicial custody and was sent up to face trial before the learned Sessions Judge/Zilla Qazi, Buner at Daggar.
3. At trial, the prosecution examined ten witnesses.
4. Dr. Phag Chand, Medical Officer, Civil Hospital, Swabi examined injured Mushtaq Ahmed (PW-8), complainant Khoshdil (PW7) and deceased' Inamullah and found the following injuries on their persons:- Mushtaq Ahmed (PW-7)
"A large incised wound on the left side of face extending from the lower margin of left ear to the left margin of mouth, deep into oral cavity, injuring the skin, subcutaneous tissue, vessels, muscles and oral mucosa.".
Complainant Koshdll
1. An incised wound size 3 cm x 1/2 cm deep into bone of lower end of occipital region of scalp.
2. An incised wound size 2 cm x 1/2 cm deep into muscle on the back of neck.
3. An incised wound size 3 cm x 1 cm on the palm of left hand.
4. An incised wound size 3 cm x 1 cm on the middle of scalf, deep into bone.
Deceased Inamullah
1. An incised wound size 2 cm x 1 cm on the left cheek.
2. An incised wound size 4" x 2" on the left side of the neck deep into oral cavity.
3. An incised wound size 1" x 1/4" on the left side of shoulder.
4. Respondent in his statement recorded under Section 342 Cr.P.C, denied the case of the prosecution and claimed innocence.
5. He neither examined himself on Oath as required under Section 340(2) Cr.P.C, nor led any evidence in defence.
6. On the conclusion of trial, Respondent. No, 1 was convicted under Section 302 PPC and sentenced to death with fine of Rs,80,000/- or in default whereof two years R.I. It was also directed that half of the amount of fine, if recovered, would be given to the legal heirs of deceased as compensation.
For causing injuries to PWs Mushtaq Ahmed and Khoshdil he was convicted and sentenced under Section 307 PPC to five years R.I. with fine of Rs,10,000/- in each case or in default to undergo R.I. for four months each. Half of the fine will be paid to injured Mushtaq Ahmad and Khoshdil as compensation. However, he was given the benefit of Section 382-B Cr.P.C.
7. Feeling aggrieved, respondent filed Criminal Appeal No, 286 of 1996 before learned Peshawar High Court, Peshawar which was partly allowed as stated above.
8. Leave to appeal was granted by this Court to scrutinize in the detail the following points:--
(i) Whether when the prosecution has proved the guilt of the accused, and normal penalty u/S. 367 Cr.P.C. provided for murder is death then the accused was not legally obliged at least to have narrated the circumstances justifying the imprisonment of lesser penalty?
(ii)Whether in view of the evidence of PWs-7 & 8 the High Court was justified to hold that the motive has not been established?
(iii)Whether it is rule of universal application, to award lesser penalty whenever the prosecution fails to prove motive or the motive appears to be insufficient?
9. We have heard Syed Safdar Hussain learned ASC/AOR for the appellant, Mr. Muhammad Zaman Bhatti, learned ASC for respondent Hazrat Jamal and Mr. M. Bilal, Sr. ASC for State at length and have gone through the record and, proceeding of the case in minute particulars.
10.Learned counsel for the appellant vehemently contended that the learned High Court while reducing the sentence failed to take into consideration the reasons advanced by the trial Court in holding respondent guilty of offence under Section 302 PPC and awarding sentence of death.
According to him, the incident was not only premeditated but was pre-planned. It has been established by the prosecution' that respondent acted brutally and inflicted repeated churn blows on the person of deceased Inamullah P.Ws Mushtaq Ahmed and Khoshdil on vital parts of their bodies. He further contended that eyewitness account furnished by injured eye-witnesses, namely, Khoshdil (PW-7) and Mushtaq Ahmed (PW-8) is not only natural, straight forward but is consistent with the medical evidence and was thus rightly believed by the Courts below. As regard motive, learned counsel stated that the same was set up in the FIR and even if there was no motive, the same could not be a mitigating circumstance for awarding lesser punishment. According to him, the learned High Court has seriously erxed in reducing the sentence and ignoring the confessional statement of respondent and appreciating the evidence in its true prospective, thus the judgment of the trial Court be restored and the respondent be awarded death penalty.
11.On the other hand learned counsel appearing for respondent ,supported the impugned judgment and contended that the same being well reasoned does not warrant interference.
According to him, since the prosecution has failed to establish the motive, as such, the learned High Court was justified in treating the same as the mitigating circumstance. Even the conduct and behavior of respondent at the time of incident does not show his intention of either committing the murder of deceased or robbery. What transpired before that incident, was shrouded in mystery and it was not known as to what happened at the time of incident which prompted respondent to commit the offence hence the impugned judgment is well in accordance with law.
12.Admittedly, the incident being broad day light took place on 28.2.1995 at 13.00 hours and was reported promptly. The ocular eyewitness account furnished by complainant injured PW-7 Khoshdil and PW-8 Mushtaq Ahmad is fully corroborated by medical evidence furnished by PW Dr. Phag Chand, the Medical Officer.
13. At the very out set, it is pertinent to note that before the learned High Court, learned counsel appearing for respondent Hazrat Jamal did not dispute the conviction but confined his arguments to the quantum of sentence only. The main reason which weighed with the learned Division Bench of the High Court in reducing the sentence to imprisonment for life was that neither the motive was established by the prosecution nor it was known as to what happened just before the incident which remained shrouded in mystery. We are afraid this being the old plea is discarded by this Court as a mitigating circumstance to reduce the normal penalty of death to imprisonment for life particularly when the prosecution has proved its case beyond any shadow of doubt, Reference can be made to the case of Muhammad Akbar and another v. The State (PLD 2004 SC 44), wherein it was held by this Court that when prosecution proves its case through reliable and trustworthy evidence beyond any doubt, inadequacy or weakness of motive or where motive was alleged but not proved, would become immaterial and would not adversely affect prosecution case and normal penalty of death can be imposed on the assailants if there were no mitigating or extenuating circumstances for lesser penalty. It has also been held in this case that "motive shrouded in mystery" by itself is not a mitigating circumstance for awarding lesser sentence and this theory has been discarded. In the case of Muhammad Amin alias Irfan and another u. The State (2004 SCM R 1676) also this Court while discarding the motive held that lack of motive or weakness thereof is immaterial to withhold the normal C penalty of death in murder cases when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt.
14. In the instant case, respondent committed the murder of Inamullah Cashier inside the Bank in brutal and gruesome manner in broad day light and caused serious injuries to PWs, namely, Khoshdil complainant (PW-7) and Musthaq Ahmad (PW-8) while inflicting repeated churn, blows to them. It has also been proved on record that respondent caused injuries to the deceased only on his refusal to hand over the keys of cash box. Moreover, he was apprehended at the spot just outside the Bank by the people who gathered there and was handed over to the police. Irrespective of above, ocular account is not only corroborated by the medical evidence but is supported by the circumstantial evidence such as confessional statement, recovery of blood stained churn and blood stained pistol produced by PW Alaf Gul. This all shows that respondent had acted in a callous, ruthless and cruel manner while taking the life of deceased and injuring PWs intentionally.
15.At this juncture, it would be appropriate to refer the case of Abdullah v. Muhammad Ali (PLD 1971 SC 541) wherein this Court while allowing the appeal of complainant against the acquittal of all accused by the learned High Court in murder case awarded death penalty to the principal accused after restoring the judgment of trial Court. Following the principle, this Court in the case of Abdul Subhan u. Raheem Bakhsh and another (PLD 1994 SC 178) by majority view allowed the appeal and set aside the judgment of the High Court and restored the judgment of trial Court whereby respondent Raheem Bakhsh was sentenced to death.
16. Considering the case from all angles, we are of the considered opinion that normal penalty of death sentence imposed by the trial Court upon respondent namely, Hazrat Jamal was proportionate to the gravity of the offence. Consequently, we allow this appeal, set aside the impugned judgment of the learned High Court with the result -that the judgment of the trial Court dated 7.10.1997 is restored and respondent Hazrat Jamal is awarded death sentence.