' MUHAMMAD HASHIM KHAN KAKAR, J.---Appellant Muhammad Asif son of Muhammad Siddique was convicted and sentenced to death by the Special Judge, Anti-Terrorism Court, Khuzdar, in ATA Case No,42 of 2007, arising out of Crime No,28 of 2002, under section 302 of the P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 (the Act of 1997), registered at Police Station Saddar, Khuzdar, and has sent Murder Reference No,11 of 2008 for confirmation of the sentence of death or otherwise, whereas the appellant preferred Criminal (ATA) Appeal No,303 of 2008 for his acquittal.
Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Complainant Attaullah son of Rehmatullah (P.W.1) in his Farde-Bayan Exh.P/A. On the basis whereof the aforesaid F.I.R. Was lodged, alleged that, on the above date, he, along with Asif Khethran, Munawar Shahwani and Asif Mengal, was sitting in the lawn of Hostel No,5, Engineering University, Khuzdar, where they had breakfast. Thereafter he and Asif Khethran started proceeding to their room, when Asif Mengal asked Munawar Shahwani to sit there, as he has some work with him. In the meanwhile, Asif Mengal took out a pistol from his right side pocket and made a fire on the forehead of Munawar Shahwani, due to which, he fell down and the blood started oozing from his head, whereas Asif Mengal escaped from the scene of crime in his red colour Corolla car Model 1986. The complainant further alleged that they shifted the injured to Civil Hospital, Khuzdar in an ambulance, however, he succumbed to the injuries on the way. Consequently, the aforesaid case was registered.
3. The record reveals that the appellant, along with red colour vehicle, was taken into custody by Mastung police authorities and, subsequently, his custody was handed over to the concerned Police Station of Khuzdar. After conducting investigation, the accused was challaned and sent to the Anti-terrorism Court, Khuzdar, to face his trial. After conclusion of the trial, the appellant was convicted and sentenced under section 302 of the P.P.C. To suffer death by means of judgment dated 30th October, 2002. Besides the murder reference, the appellant assailed the said judgment before this Court. Both the matters came up for hearing before this Court and vide order dated 18th September, 2007, the case was remanded to the trial Court with direction to permit the counsel engaged by the appellant to cross-examine the eye-witnesses, who were earlier cross-examined by the pauper counsel, whose services were provided to the appellant on State expenses. On remand, the case was re-registered as ATA Case No,42 of 2007 and the witnesses were re- summoned for the purpose of cross-examination. P.W.1 Attaullah, P.W.2 Asif Masood Kethran and Dr. Muhammad Rahim were reexamined; whereas P.W.3, viz, .Balakh Sher could not be examined due to his murder in Karachi and in this regard, the death certificate Ex.C/1-A of witness Balakh Sher issued by the Union Council No,8, Saddar Town, Karachi and report Exh.C/1-B were placed on record. After re-examination of P.Ws.1, 2 and 4, the trial Court, once again, convicted and sentenced the appellant to death as mentioned hereinabove, which is the subject-matter of the instant appeal and murder reference.
4. After registration of F.I.R. Exh.P/12-A, the Investigating Officer Nisar Ahmed, SI, took the custody of the appellant, who was arrested by the police authorities of Mastung along with the vehicle in question. During his personal search, one live bullet of TT pistol was recovered, which was taken into possession through recovery memo Exh.P/6-A. He visited and inspected the site and took into possession blood available on the floor through memo Exh.P/10-B and also secured an empty of TT pistol through recovery memo Exh.P/10-C. On 4th September, 2002, he recorded the statements of eye-witnesses under section 161 of the Cr.P.C, took into possession the blood-stained clothes of the deceased and blood-stained cotton, produced by the brother of deceased through recovery memos Exh.P/9-A and Exh.P/9. After disclosure, he prepared the pointation memo Exh.P/11-A and after preparation of inquest report Exh.P/5-C, he handed over the dead body of the deceased to his relatives foi burial. After receiving the FSL reports Exh.P/11-D and Exh..P/12-E, he prepared complete challan Exh.P/12-F and the appellant was sent up to face the trial.
5. On the stated allegation, a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. To prove the accusation, the prosecution produced twelve witnesses. ?.W.1 Attaullah is complainant of the case, who placed on record his written application Exh.P/1-A. P.W.2 Asif Masood Khethran and P.W.3 .Balakh Sher are the eye-witnesses of the occurrence. P.W.4 Dr. Muhammad Rahim, Medical Officer, examined the dead body of the deceased and issued death certificate Exh.P/4-A. P.W.5 Haji Amir Bakhsh, HC, is witness to the seizure of dead body of the deceased Exh.P/5-A and inquest report Exh.P/5-B. P.W.6 Muhammad Gul, SI, is recovery witness of documents pertaining to vehicle and statements of witnesses vide memo Exh.P/6-A, disclosure memo Exh.P/6-B of accused and memo of pointation Exh.P/6-C. P.W.7 Muhammad Ayub, constable, is witness to the recovery memos Exh.P/7-A and Exh.P/7-B regarding one live cartridge and vehicle of the accused. P.W.8 Muhammad Ilyas, SI, arrested the accused along with the vehicle., P.W.9 Ghulam Mustafa, is witness to the recovery memos Exh.P/9-A and Exh.P/9-B regarding blood-stained articles. P.W.10 Muhammad Noor, constable, is witness to the site sketch Exh.P/10-A, recovery memo Exh.P/10-B regarding blood of the deceased and recovery memo Exh.P/10-C in respect of crime empty of TT pistol .30 bore. P.W.11 Abdul Ghafoor, ASI, is witness to the memo of pointation of the occurrence Exh.P/11-A and P. W.12 Nisar Ahmed, SI, is the Investigating Officer of the case. Then the prosecution closed its side.
6. In his examination under section 342 of the Cr.P.C, the appellant denied the prosecution accusation and claimed to be innocent. He, however, did not opt to record his statement on oath as envisaged under section '340(2) of the Cr.P.C, but produced D.W.1 Ahmed Jan Lehri, in his defence. The prosecution, after close of parties' evidence, found the case of prosecution to have been proved against the appellant and, thus, he was convicted and sentenced as mentioned and detailed above.
7. We have heard learned counsel for the appellant as well as learned counsel for the State and have gone through the available record with their valuable assistance. 'It has been argued by learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance, with a resultant acquittal of the appellant. On the contrary, the learned counsel for the State has maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the instant appeal deserves dismissal.
8. Dr. Muhammad Raheem, Medical Officer, DHQ Hospital, Khuzdar, who had conducted the external examination on the dead body of deceased Munawar Shahwani, came forward as P.W.4 and furnished the detail of injuries observed by him on the corpse- of deceased and according to his opinion, the cause of death of the deceased was due to head injury. Even otherwise, the homicidal death of deceased on account offirearm injury has not been disputed by the defence.
9. The machinery of law in the instant case set into motion by registration of F.I.R. Exh.P/12-A, lodged by P.W.1, Attaullah, wherein the appellant was nominated as a sole perpetrator, shows that the complainant has narrated a truthful account of the incident. The promptness of F.I.R. Proves that, prior to lodging of F.I.R., no deliberation was made, nor was there any time for him to concoct the story. The connection of the appellant with the crime in question is sought to be established by the evidence of P.W.1 Attaullah, P.W.2 Asif Masood Khethran and P.W.3 Balakh Sher, who furnished a high account of the incident. According to their version, after having breakfast in the lawn of Hostel No,5, Engineering University, Khuzdar, they sat there for sometime. Thereafter, when the complainant, along with Asif Khethran and deceased Munawar Shahwani, intended to go to their rooms and stood up, the appellant asked deceased Munawar Shahwani to stay there, as he had some work with him. The appellant then took out pistol from his right side pocket and made a fire at Munawar Shahwani, who after sustaining firearm injury, fell down and the appellant, after commission of the offence, fled away in his red colour car. The complainant Attaullah and P. Ws. Masood Khethran and Balakh Sher, who accompanied the deceased, while appearing in the Court, made statements, which are consistent with the story as narrated in the F.I.R. Exh.P/12-A. The statements of P.Ws.1, 2 and 3 gave graphic details as to how they saw the occurrence and it seems that their evidence inspires confidence. Nothing was suggested in cross-examination as to why they should falsely depose against the appellant. Although the complainant and P.Ws. Masood Khethran and Balakh Sher are, allegedly, friends of B the deceased, yet mere friendship would not discredit a witness, unless anything is brought on record to indicate that he had any motive to falsely implicate the appellant.
10. The occurrence took place in broad daylight and, under such circumstances, no question of mistaken identification arises at all. They are residents of Hostel No,5, Engineering University.
Khuzdar, as such, their presence at the time and place of occurrence cannot be doubted by any degree of seriousness. They are completely independent witnesses and their evidence is not suffering from any material contradiction, discrepancy or inherent infirmity and is consistent with the probabilities, materially fitting in with the other evidence, more particularly the medical evidence and supported by arrest of the appellant along with vehicle in question by the police authorities of Mastung.
11. The contention of learned counsel for the appellant regarding absence of motive has no force, because it is a settled law that absence or weakness of the motive is immaterial, if the case of prosecution has been proved against the accused by direct evidence. In case of "Imtiaz Ahmed v.
The State, 2001 SCM R 1334, it has been held by the Hon'ble Supreme Court as under:-- "---S. 302--- Appreciation of evidence--- Sentence--- Motive---Allegations and proof of motive are not legal requirements for awarding maximum penalty of death in a murder case when the prosecution has proved the guilt of the accused beyond reasonable doubt---Decision of the case must not be taken in relation to case of accused, but must rest on the examination of entire evidence."
' Similarly, in case of "Abdul Wahab alias Rehra v. The State", 1999 SCM R 1668, the following principles have been laid down for motive:-- "Motive shrouded in mystery" is not a legal principle which can be applied in all murder cases for reduction of capital sentence where there is no motive alleged/proved by the prosecution or where initially a motive is alleged but the sane is not proved or withdrawn or a different motive appears in the prosecution evidence, "Motive shrouded in mystery" by itself is not a mitigating circumstance for lesser sentence. Where there is no motive alleged but the guilty of the accused is otherwise established on the basis of evidence, it could be said that in such a case the motive is "shrouded in mystery" and that it cannot be said as to what was the precise and immediate reason for the murder. But in Talib Hussain v. State (1995 SCMR 1776) it was observed by this Court that there is no legal requirement that in order to award maximum penalty of death in murder case, the motive should be alleged and proved and that, if the prosecution proves that the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. It was further observed that if the normal sentence was awarded, the Court is required to make out a case for reduction of sentence on the basis of mitigating circumstances. Therefore, in murder cases where no motive is alleged, the same remains shrouded in mystery; yet, if the prosecution establishes its case against th3 accused beyond reasonable doubt, the normal sentence awarded in such case is death, unless there are mitigating circumstances justifying award of lesser sentence."
12. So far the contention of learned counsel for the appellant regarding non-examination of P.W.
Balkh Sher is concerned, the same.. Has no legs to stand, as Article 47 of the Qanun-e-Shahadat Order 1984 furnishes a complete answer. Admittedly, in the first round of litigation, P.W. Balkh Sher recorded his statement before the trial Court, who was subjected to cross-examination. There is no cavil to the proposition that any statement, written or verbal, of relevant facts made by a person, who is dead, is admissible in evidence under Article 47 of the Qanun-e- E Shahadat Order, 1984, which speaks as under:- "47. Relevant of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under he circumstances of the case, the Court considers unreasonable; ' Provided that; the proceeding was between the same parties or their representative-in-interest the adverse party in the first proceeding had the right and opportunity to cross-examine; the question in issue were substantially the same in Me first as in the second proceeding."
13. The non-recovery of crime weapon would not be fatal in the facts and circumstances of die instant case. The ocular account is corroborated by the medical evidence. Insofar as the time, locale and dimension of the injury received by the deceased Munawar Shahwani are concerned, the nature of injury received by the deceased, squarely reflects that it was the injury, which could have been caused by a pistol shot. The doctor also observed that the injury was caused with firearm. In this regard, the prosecution came with the allegations that on 12th September, 2002, during the course of interrogation, the appellant disclosed that, while fleeing towards Quetta, he 'throw the crime weapon i,e, TT pistol in an orchard at Kadkoocha. Since the appellant showed his willingness to point out and recover the crime weapon, he was taken to Kadkoocha to the said orchard, but in spite of search, the crime weapon 'could not be found. Even otherwise, it is a settled proposition of law that the recovery of crime weapon of offence or empties is not the mandatory requirement of law, but is a circumstantial piece of evidence, which tends to corroborate the other pieces of evidence, i,e, ocular account, motive, medical evidence and any other circumstance, which may deem relevant. In the presence of direct evidence, credibility of which has withstood the test of challenge through cross-examination, the absence of this corroborative evidence would not be fatal. This lapse may be on account of the fact that the weapon of crime, according to the disclosure made by the appellant during the course of interrogation, was thrown by the appellant in an orchard, situated at Kadkoocha, which night have been taken by someone being a valuable instrument.
The ocular account has been corroborated by the medical evidence as well as the arrest of the appellant along with the vehicle in question, therefore, after deep reappraisal of the evidence, we are convinced that the prosecution has established it case against the appellant beyond any shadow of doubt and find no reason whatsoever to interfere in the conclusion arrived at by the trial Court in conviction recorded against him or the sentence awarded. Resultantly, Criminal Appeal No,303 of 2008 filed by the appellant is dismissed, having no force. Death sentence is confirmed.
Murder Reference is answered in affirmative.