Altaf Ibrahim Qureshi, J.--Abdul Razzaq appellant had been tried in case F.I.R. No 383, dated 04.12.2007, registered at Police Station Ahmadpurlamma, Tehsil Sadiqabad, District Rahim Yar Khan, and on conclusion of the trial vide judgment dated 03.10.2009 rendered by the learned Additional Sessions Judge, Sadiqabad he was convicted under Section 302(b), P.P.C. for committing qatl-i- amd of Muhammad Ishaq deceased and sentenced to death with a compensation of Rs,1,00,000/- payable to the heirs of the deceased, as required u/S. 544-A, Cr.P.C. or in default of payment thereof to undergo SI for six months. Abdul Razzaq appellant has filed Criminal Appeal No, 303 of 2009/BWP against the aforesaid conviction and sentence which has been heard by us along with Murder Reference No, 46 of 2009 sent by the learned trial Court u/S. 374 Cr.P.C. seeking confirmation of the sentence of death passed by it against the convict-appellant. We propose to decide these matters jointly through the present consolidated judgment.
2. Briefly the facts of the prosecution case set-up in the F.I.R. (Ex:PH), got lodged by Muhammad Nawaz complainant (PW-3), are that he was resident of Garrhi Baila and agriculturalist by profession. Although the house of the complainant had four-walls, but it was without bolt. In the night following to 4.12.2007 the complainant along with his family slept in the house. Muhammad Ishaq deceased and Atta Hussain (given up PW), both sons of the complainant, were sleeping under the Neem tree in the Courtyard on separate cots. A bulb was lit in the Courtyard. At about 4.00 a.m. the complainant woke-up on barking of the dog and witnessed that three persons armed with fire-arms were standing in the Courtyard. The complainant raised hue and cry whereupon Atta Hussain woke-up and Shah Nawaz (PW-4) also arrived at the spot. In the light of the bulb, out of the three culprits, they (P.Ws.) identified Abdul Razzaq appellant, who was armed with pistol .12 bore. Within their view, Abdul Razzaq appellant made a fire shot hitting on the forehead above the left eye of Muhammad Ishaq, who was sleeping on the cot and became seriously injured. The complainant along with the witnesses attempted to apprehend the culprits, who after being threatened by the culprits to be dealt with dire consequences if stepped forward towards them; halted d to fear and they succeeded in fleeing. Then the complainant and the P.Ws. took care of Muhammad Ishaq injured, who in the way to RHC, Ahmadpurlamma on the Daala-vehicle for treatment died.
The motive behind the occurrence was alleged to be that Nikah of Muhammad Ishaq deceased was performed with Mst. Khanzadi, but Rukhsati did not take place and Abdul Razzaq appellant developed illicit relations with said Khanzadi, who wanted to contract marriage with her. Due to this reason, Abdul Razzaq appellant accompanied by two unknown culprits killed Muhammad Ishaq and his dead body was lying in RHC, Ahmadpurlamma.
3. After receiving the information about the occurrence, Muhammad Asghar ASI/IO (PW-7) arrived in RHC, Ahmadpurlamma, where he recorded the statement of Muhammad Nawaz complainant (EX:PD) u/S. 154 Cr.P.C. at 5.55' a.m. on 4.12.2007, which was sent to the Police Station Ahmadpurlamma for registration of the FIR. Then the investigation of this case was conducted by him (Muhammad Asghar PW-7); the dead body of Muhammad Ishaq deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under Sections 161, Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were secured, formal site-plan of the place of occurrence was got prepared, on 16.12.2007 Abdul Razzaq appellant was arrested, who led to the recovery of pistol .12 bore along with one empty on 27.12.2007 and on completion of the investigation challan was submitted in the Court.
4. After delivery of the requisite documents under Section 265C, Cr.P.C., the learned trial Court had framed the charge against the appellant to which he pleaded not guilty and claimed trial.
5. During the trial, the prosecution produced as many as ten witnesses in support of its case. The ocular account was furnished by Muhammad Nawaz complainant (PW-3) and Shah Nawaz (PW-4.
The medical evidence was furnished by Dr. Niaz Ahmad Kamboh IPW-2), who conducted the post- mortem examination on the dead body of Muhammad Ishaq deceased on 4.12.2007 at 10.30 a.m.
However, the investigation was conducted by Muhammad Asghar ASI (PW7), who deposed about the various steps taken by him during the investigation. The remaining evidence led by the prosecution was more or less formal in nature.
6. After close of the prosecution evidence, the appellant made statement under Section 344 Cr.P.C. in which he denied the allegations and professed his innocence. In reply to a question that "Why the P.Ws have deposed against you and why this case against you?" the appellant stated as under-- "Mst. Khan Zadi being real sister of my then existing wife Mst. Sharifan Bibi fell in prohibited degree for me and I take and took her as my real sister. The complainant and P.W. Atta Muhammad had lot of greed to marry Mst. Sharifan Bibi after getting divorce from me but I did not surrender to their demand. They were after my life or to falsely booked me in a heinous case and consequently to get rid of me for making available to them my wife Mst. Sharifan Bibi. This is a blind murder. I have falsely been booked in this case due to the above reasons and after my arrest the complainant party acting upon their plan have married with Mst. Sharifan Bibi with Atta Muhammad P.W. after getting the decree of dissolution of marriage by putting me in jail. Had the P.Ws. been present at the time and place of murder and had their version narrated in FIR being true that I along with two unknown persons committed this murder; the names of said alleged unknown persons would have been come on light after my arrest at-least through me during investigation. The P.Ws are inter- related and inter-interested against me."
However, he did not opt to make statement under Section 340(2), Cr.P.C., but he tendered various documents i,e, certified copy of suit for dissolution of marriage titled, "Sharifan Bibi vs. Abdul Razzaque" (Ex:D/1), certified copy of statement of parties in the said suit along with order of the Court and decree sheet as (Ex:D/2, D-3 and D-4 respectively), certified copy of Nikah Nama between Abdul Sattar and Khanzadi (Ex:D-5) and Nikah nama solemnized between Abdul Razzaq and Mst. Sharifan dated 14.4.200 (Ex:D-6) and photo copy of Nikah Nama solemnized between Atta Muhammad and Sharifan Mai dated 25.8.2008 (Mark-A) and closed the defence evidence.
7. Upon conclusion of the trial the learned trial Court through the impugned judgment, after finding the prosecution case to have been proved beyond reasonable doubt, recorded conviction and sentence as detailed in para 1 ante. Hence, the present matters have been brought before this Court.
8. The learned counsel for the appellant contends that eye-witnesses were interested one being related inter se and with the deceased closely, who falsely deposed against the appellant; that it was a case of blind murder, which was committed during the odd hours of night by some dacoits, but the appellant was falsely involved in this case to get rid of him for marrying his wife Mst.
Sharifan Bibi with Atta Muhammad, son of the complainant; that the motive was not proved and the recovery of the weapon was also falsely planted upon the appellant to strengthen the prosecution case; that the FIR was got lodged with delay after the preliminary investigation and the prosecution story was imaginary that in the cold night of December, the deceased and the P.Ws. had been sleeping in the Courtyard under the Neem tree, and that the prosecution failed to prove the case against the appellant beyond reasonable doubt; who may be acquitted while allowing this appeal.
9. The learned Deputy Prosecutor General appearing on behalf of the State assisted by learned counsel for the complainant has opposed this appeal on the ground that the prosecution has been able to prove the case beyond any shadow of doubt; that the impugned judgment is supported by the evidence on the record; that the medical evidence supports the ocular account inasmuch as the injuries with fire-arm weapon were found on the dead body of the deceased, which resulted into his death; that the P.Ws. had no previous enmity to falsely depose against the appellant, and that the appellant acted in a brutal manner, who is not entitled for any leniency in the quantum of sentence.
10.We have heard the learned counsel for the parties at length and also gone through the record of this case with their assistance.
11.As per prosecution story the appellant while armed with .12 bore pistol and accompanied by two unknown accused, early in the morning, on 4.12.2007 at about 4.00 a.m., had arrived at the spot and made a fire upon Muhammad Ishaq son of the complainant, who was sleeping in the Courtyard under the Neem tree. Atta Muhammad, real brother of Muhammad Ishaq (deceased) was also sleeping there on a separate cot. Muhammad Nawaz complainant (PW3) was sleeping in the room, who woke-up on barking of the dog and Shah Nawaz (PW4) also attracted to the scene of occurrence on hearing hue and cry raised by the complainant. The prosecution case rests on ocular account furnished by Muhammad Nawaz (PW3), father of the deceased and Shah Nawaz (PW4), a paternal cousin of the complainant, the medical evidence, the recovery of weapon of offence and the motive. The occurrence had taken place in the Courtyard of the house of Muhammad Nawaz complainant (PW3) during night time, whose presence in his house at the relevant time was quite natural. Similarly Shah Nawaz (PW4) was residing in the adjacent house, whose arrival there after hearing the hue and cry raised by the complainant was quite possible as during night time there would be pin-drop silence. The testimony of both the aforesaid eye- witnesses cannot be doubted because they had no previous enmity with the appellant and being close relatives of the deceased they would not like to let go the real offender or substitute him with the appellant just to take revenge. Their presence at the place of occurrence was beyond doubt.
The medical evidence had provided ample support to the ocular account furnished against the appellant in all material particulars inasmuch as the date and time of occurrence, the weapons used and the locale of the injuries stated by the eye-witnesses had all been confirmed by the medical evidence. Moreover, FIR in the present case was got lodged promptly at 6.10 a.m. on 4.12.2007 wherein not only the names of the appellant and the PWs were given but the manner in which the occurrence had taken place was also duly described. The post-mortem examination of the dead body of Muhammad Ishaq deceased had also been conducted on the same day of the occurrence at 10.30 a.m. without any noticeable delay which meant that the police papers necessary for conducting the post-mortem examination were prepared and were placed without unnecessary delay and the prosecution was not left with any time to concoct the story for false implication of the appellant by letting off the real culprit. The appellant was also previously known to both the said eye-witnesses being a close relative and the possibility of his false implication or mistaken identity is ruled-out. It was specifically stated in the FIR that the appellant was identified in the light of bulb and during the lengthy cross-examination on the eye-witnesses, the defence failed to establish that there was no source of light or the bulb fixed in the Courtyard at the time of the occurrence. The ocular account cannot be discarded merely for the reason that the two unknown assailants, who were allegedly accompanying the appellant at the time of the occurrence could not be booked later on even during the investigation as they were not attributed any specific role except for their presence at the spot only and it cannot absolve Abdul Razzaq appellant from the liability of committing Qatl-i-Amd of Muhammad Ishaq deceased by making single fire shot on his forehead, which proved fatal. The ocular account furnished by the above mentioned eye-witnesses, whose presence at the spot was quite natural, has been found by us to be quite consistent and reliable, which can be relied upon even without seeking corroboration from the independent piece of evidence.
12.So far as recovery of pistol .12 bore along with the empty on the pointing out of the appellant from a box lying inside the room of his house on 27.12.2007 through recovery memo. (Ex:PG) is concerned, it is straight away noticed that the Investing Officer (PW7) had failed to associate the independent persons of the locality to witness the said recovery and Shah Nawaz (PW-4). who was the alleged witness of the said recovery during the cross-examination specifically stated that the I/O. had restrained general public to accompany recovery proceedings. Moreover, the said place of the recovery was not in the exclusive possession or ownership of the appellant and during the cross-examination on PW-4 it was admitted that the parents and brother of the appellant were residing in that house from where the weapon of offence was allegedly recovered. PW-4 also showed ignorance as to whether that Paiti (box) was locked or not from where the appellant led to recovery of pistol. Even otherwise it is also not believable that the appellant would have gone to his residential house just after the occurrence for placing the weapon of offence in safe custody for its production before the I/O subsequently, to use the same as a corroborative piece of evidence against him. Besides the above, we have noticed that no empty had been recovered from the spot inspection during the investigation and there is no material on the record to ascertain that the same weapon had been used by the appellant to commit the instant occurrence, The report of the Forensic Science Laboratory (Ex:PL) to the effect that the crime empty of .12 bore marked as "C" was found to have been fired from the shot pistol of .12 bore allegedly recovered from the appellant, is also of no avail to the prosecution, as it cannot be established from any angle that the said empty was the result of the shot, which was fired during the occurrence for committing Qatl-i-Amd of Muhammad Isliaq deceased. In these circumstances the alleged recovery was legally inconsequential in this case.
13.According to the motive set up by the prosecution Nikah of Muhammad Ishaq deceased had been performed with Mst. Khanzadi, but Rukhsati did not take place and Abdul Razzaq appellant developed illicit relations with said Khanzadi, who wanted to contract marriage with her. Due to this reason, Abdul Razzaq appellant accompanied by two unknown culprits killed Muhammad Ishaq.
No date, time, place, reason or circumstances of the said incident of motive had ever been divulged by any prosecution witness before the learned trial Court. During the cross-examination PW-4 stated as under:-- " Accused did not show his annoyance at the time of recitation of nikah between deceased and Khanzadi, however, he showed his annoyance when date of Rukhsati was to be scheduled.
Accused showed his annoyance before his age-fellows when Rukhasti of Khanzadi was likely to be scheduled. Accused even apprised his annoyance to me as well. I do not know as to whether Sharifan Bibi obtained decree of dissolution of marriage against accused and her nikah has been recited with Atta Hussain son of Muhammad Nawaz."
No date, time or place when the appellant had shown his intention of marrying with Khanzadi and his age-fellows before whom the appellant expressed the said intention, were brought on the record. PW-4 also did not utter that when and where the appellant had made the said disclosure before him and what measures were adopted by him to prevent the same. Mst. Sharifan Bibi, wife of the appellant, got a decree for dissolution of marriage after the occurrence when the appellant was already in jail in connection with the instant case and no allegation was levelled by her in the plaint or the statements (Ex:D/1, I)-2 and D-3 respectively) made before the Court that the appellant had developed illicit relations with Mst. Khanzadi, who was married to Muhammad Ishaq deceased, but Rukhsati was yet to take place. Thus, we have no other option but to hold that the motive set up by the prosecution had remained far from being established.
14. For what has been discussed above a conclusion is irresistible and unavoidable that the prosecution had succeeded in proving its case for committing Qatl-i-Amd of Muhammad Ishaq deceased against Abdul Razaq appellant beyond reasonable doubt. However, some suggestions had been made by the defence to the eyewitnesses produced by the prosecution to the effect that the occurrence was committed by some dacoits. It was also claimed by the appellant that the complainant and P.W. Atta Muhammad had lot of greed to marry Mst. Sharifan Bibi after getting divorce from the appellant, who having not surrendered to their demand was consequently involved falsely in the instant case to get rid of him for making available to them his wife Mst.
Sharifan Bibi. Although the appellant had taken a similar plea through his statement recorded under Section 342, Cr.P.C. yet he had failed to make any statement on oath under Section 340(2), Cr.P.C. and had also failed to produce any oral evidence by the persons of the locality/family in order, to establish or substantiate the above mentioned suggestions or the plea regarding his innocence. Mere performance of Nikah of Atta Muhammad with Mst. Sharifan Bibi on 25.8.2008 is not sufficient to presume that for the said reason the appellant was falsely involved in the instant case, as in the statement made before the Court on 25.3.2008 during the proceedings of the suit instituted by Mst Sharifan Bibi before the learned Judge Family Court (Ex:D-3), the appellant did not claim his false implication in the instant case for the said reason. The said stand taken by the appellant subsequently in his statement recorded under Section 342 Cr.P.C. on 18.8.2009 seems to be after thought and has, thus, been found by us to be liable to be out-rightly rejected for want of any supporting evidence or material whatsoever.
15. In view of the foregoing discussion we have no hesitation in holding that the prosecution has succeeded in establishing OM of the appellant for committing Qatl-i-Amd of Muhammad Ishaq deceased beyond reasonable doubt and the conviction recorded by the learned trial Court against Abdul Razzaq appellant u/S. 302(b) PPC is maintained. So far as quantum of sentence is concerned, we have noticed that the defence has failed to urge any mitigating circumstances, which may warrant withholding the normal penalty of death except that the prosecution failed to prove the motive and the fire was not repeated. It is now well settled law that motive, proved or otherwise, is immaterial in presence of the ocular account and murder may be committed even for no motive or on a minor pretext. What to speak of proving motive in certain cases where the motive remained shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken as a mitigating circumstance even. The reference may be reedit to Mst.
Nazakat vs. Hazrat Jamal and another (PIM 2007 SC 458) wherein it has been held that lack of motive or weakness thereof is immaterial to withhold the normal penalty of death in murder cases when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt. In the present case, the appellant had acted in a brutal manner, who armed with fire-arm weapon had arrived at the spot and made a fire hitting on the vital part of Muhammad Ishaq deceased, which proved fatal. Mere non-repetition of the fire is not a ground for reduction of the sentence, as from the nature of the weapon used by the appellant and the act committed by him during the occurrence, it can be inferred that the only intention of the appellant was to commit Qatl-eD Amd of the deceased and he is not entitled to any leniency in the quantum of sentence.
In arriving at this conclusion we are fortified by the judgment of the August Supreme Court of Pakistan reported as Zulfiqar Ali v. The State (2008 SCM R 796) wherein it -has been held as under:- - "The plea of non-repeating of second fire shot is also not a ground for lesser punishment. The appellant was armed with a pistol at the spot meaning thereby that he was fully prepared that if he is halted at the spot, he will use the fire-arm.***"
As such the death sentence awarded by the learned trial Court to the appellant along with the compensation payable to the heirs of the deceased is maintained. Resultantly, the impugned judgment of conviction and sentence is upheld and Crl. Appeal No, 303-2009 (BWP) filed by Abdul Razzaq appellant is dismissed.
16. Murder Reference No, 46 of 2009 is answered in the affirmative and the sentence of death passed by the learned trial Court against Abdul Razzaq convict-appellant is confirmed.