1. Ghulam Mustafa Mughal, C.J.--The above captioned appeal and reference have been filed against the judgment and order dated 21.07.2006 passed by the learned Additional District Court of Criminal Jurisdiction, Hajira whereby Muhammad Imran Appellant No, 1 herein, was sentenced to death under Section 302 APC and one year rigorous Imprisonment under Section 13/20/65 A.A.
2. Murtaza Malik, Appellant No, 3 herein, was sentenced to 7 years with a fine of Rs, 5000/- under Section 324 APC and in default of payment to suffer one month simple imprisonment and under Section 337(3)-F two years and pay 'Daman" Rs, 10,000/- to which if received has to be paid to injured Farooq and in default of payment of "Daman" to be detained in judicial lockup alongwith one year rigorous imprisonment under Section 13/20/65 A.A. Shoaib S/o Ashraf, Appellant No, 2 herein, was sentenced to 7 years with a fine of Rs, 5,000/- under Section 324 APC or in default of payment thereto to suffer one month simple imprisonment and 2 years under Section 337(3)-F and to pay Rs, 10,000/- as "Daman" which was to be paid to injured Ayyaz and in default of payment of "Daman" to be detained in judicial lockup alongwith one year rigorous imprisonment under Section 13/20/65 A.A. Shoaib Abbasi S/o Bashir was acquitted of the charge.
3. Precise facts of the prosecution's case as stated in the FIR (Exh.PA) lodged by Muhammad Khurshid, complainant (PW-1) on 04.04.2006 at Police Station Hajira are that on 03.04.2006, a day before the occurrence his brother Abdul Ghafoor, who was a shopkeeper in village Ghmir, was proceeding to receive money from Muhammad Akram. At some distance from his shop at a desolated place, he found Muhammad Imran kissing a young girl. Abdul Ghafoor forbade him not to do so, whereupon an altercation took place between them. On hearing hue and cry, Muhammad Shakeel S/o Muhammad Sharif reached at the spot and hushed up the matter. It was further narrated by them that on 04.04.2006, his brother was present in his shop when Muhammad Imran armed with a .30- bore pistol and dagger arrived at his shop and threatened him to take revenge of his insult and went home. Thereafter, Muhammad Imran sent Murtaza Malik towards Abdul Ghafoor for holding a "Punchayat". On this information, at about 2:30 p.m. he alongwith his brother Abdul Ghafoor, Muhammad Ayyaz S/o Faqir Muhammad, Farooq S/o Ghulam Muhammad and Abdul Hameed S/o Said Muhammad proceeded towards Muhammad Imran. When they reached near Imran, they saw Imran accompanied by Muhammad Shoaib S/o Muhammad Ashraf, Murtaza, Mustafa, Shoaib Abbasi S/o Muhammad Bashir and Adnan S/o Muhammad Ayub. As soon as Abdul Ghafoor reached near Imran, he fired a shot with .30-bore pistol, which hit him upon the right side of his abdomen who fell down. Murtaza Malik fired a shot with 12-bore gun which hit Muhammad Farooq.
4. Shoaib injured Muhammad Ayyaz by firing a shot of pistol. Adnan also injured the complainant by firing shot of pistol. Abdul Ghafoor Succumbed to the injuries on the way to hospital. The Occurrence was witnessed by Abdul Hameed S/o Said Muhammad, Sarfraz S/o Ghulam Muhammad and Abdul Ghaffar S/o Abdul Ghafoor. He further stated that the other accused- persons have also been firing shots.
5. On this report a case under Sections 302, 324, 227, 147, 148 & 149, APC was registered by Naseer Ahmed Khan SI Police (PW-19). After registration of the case, Naseer Ahmed Khan SI Police went at the spot and prepared inquest report Exh.PV. He also sent the dead body for post-mortem. On the same day, he prepared injury sheets of Muhammad Farooq Exh.PH, Muhammad Ayyaz Exh.PG, Muhammad Khurshid Exh.PI and also got them medically examined. On the same day, he prepared site-plan Exh.PW and took into possession bloodstained earth and grass vide recovery memo Exh.PP in the presence of Bashir Ahmed Zia (PW-11) and Subedar Major (R) Muhammad Maqsood (PW-12). He also took into possession two empties from the spot vide recovery memo. Exh.PQ attested by the abovementioned PWs. Dr. Mumtaz Ahmed Civil Medical Officer, (PW-13) handed over the blood-stained shirt, trousers, string and sweater which were taken into possession by Muhammad Yaqoob Head Constable Police (PW-15) vide recovery memo. Exh.PD in presence of Babar Iqbal (PW-7) and Muhammad Pervaiz Iqbal (PW-8).
6. On 07.04.2006, Muhammad Imran accused led to the recovery of .30-bore pistol vide recovery memo. Exh.PM attested by Aurangzeb (PW-9) and Abdul Ghanni (PW-10). On the same day, Naseer Ahmed Khan SI Police also recovered a pistol at the instance of Muhammad Shoaib accused vide recovery memo. Exh.PN and a .12-bore gun at the instance of Murtaza accused vide recovery memo. Exh.PO attested by the abovementioned witnesses. He also got prepared site-plan by Sajjad Anjum patwari (P.W.14) on the same day.
7. On 08.04.2006, Naseer Ahmed Khan SI police (P.W.19) took into possession the blood-stained trousers, string and a shirt from injured Muhammad Khurshid vide recovery memo. Exh.PR in presence of Bashir Ahmed Zia (P.W.11) and Subedar Major (R) Muhammad Maqsood (P.W.12). On the same day, he further took into possession the blood-stained trousers alongwith string and a shirt of Muhammad Farooq injured P.W vide recovery memo. Exh.PS and a trousers of Muhammad Ayyaz injured P.W vide recovery memo. Exh.PT attested by the aforementioned witnesses. On 02.05.2006, said Naseer Ahmed Khan SI police obtained the report of Chemical Examiner Exh.PY. He also obtained the report of Forensic Science Laboratory Exh.PX on 06.05.2006 and the report of Serologist (not exhibited) dated 19.07.2006.
8. The autopsy of the dead body of Abdul Ghafoor was conducted by Dr. Mumtaz Ahmed (P.W.13), Civil Medical Officer Rural Health Centre Hajira, on 04.04.2006. He found the following injuries On the dead body:--
1. Wound of entry at the Rt. Lumber region just below the Rt. Costal margin and wound of
2. Exit on the Lt. side of the Lt. buttock just below about 3 inch on posterior aspect of Lt. hip joint.
9. The appellants alongwith other accused-persons were arrested and after usual investigation, the appellants were sent to face trial before Additional District Criminal Court Hajira whereas Muhammad Shoaib S/o Muhammad Bashir, Muhammad Adnan S/o Muhammad Ayub and Muhammad Murtaza were given the benefit of Section 169 Cr.P.C. and their names were placed in Column No, 2 of the challan. Later on, accused Muhammad Shoaib and Muhammad Adnan were also summoned to face the trial but Muhammad Adnan absconded and was proceeded under Section 512 Cr.P.C. vide order dated 27.06.2006. The charge against the accused-appellant was framed on 22.06.2006 whereas against shoaib Abbasi S/o Bashir was framed on 03.07.2006. All the accused-persons denied the guilt and claimed the trial.
10. To prove its case, the prosecution produced Muhammad Khurshid (P.W.1), Abdul Hameed (P.W.2), Abdul Ghaffar (P.W.3), Muhammad Ayyaz (P.W.4), Muhammad Farooq (P.W.5), Sarfraz Mahmood (P.W.6), Babar Iqbal (P.W.7), Muhammad Pervaiz Iqbal (P.W.8), Muhammad Aurangzeb (P.W.9), Abdul Ghanni (P.W.10), Bashir Ahmed Zia (P.W.11), Subedar Major (R) Muhammad Maqsood (P.W.12), Dr. Mumtaz Ahmed (P.W.13), Sajjad Anjum Patwari (P.W.14), Muhammad Yaqoob Head Constable Police (P.W.15), Aftab Ahmed Head Constable Police (P.W.16), Muhammad Pervaiz Constable Police No, 280 (P.W.17) Sardar Muhammad Musa Khan DSP (P.W.18) and Naseer Ahmed Khan SI Police (P.W.19).
11. The salient feature and important circumstances of the prosecution evidence were put to the accused-persons for their explanation, as required by Section 342, Cr.P.C. The accused-persons once again denied the prosecution evidence and claimed to be innocent.
12. Muhammad Sarfraz (D.W.1), Baqir Khan (D.W.2), Muhammad Farooq (D.W.3), Matloob Ahmed (D.W.4), Muhammad Shakeel S/o Muhammad Akbar (D.W.5), Muhammad Shakeel S/o Muhammad Shaffi (D.W.6), Muhammad Atique (D.W.7), Muhammad Raheem (D.W.8), and Muhammad Waqas (D.W.9), were produced in defence.
13. After conclusion of the trial, the Court below awarded above mentioned sentences to the appellants whereas Muhammad Shoaib S/o Muhammad Bashir was acquitted of the charge.
14. Feeling aggrieved and dissatisfied, convict-appellants Muhammad Imran, Muhammad Shoaib S/o Muhammad Ashraf and Muhammad Murtaza lodged the aforementioned appeal for setting aside the conviction and sentence whereas a reference has also been made by the trial Court for the confirmation of death sentence, as required by Section 338-D, The Azad Penal Code (Amendment)
15. Act, 1995.
16. Sardar Muhammad Shamshad Khan, the learned Advocate for the convict-appellants vehemently argued that the occurrence has not taken place as is reported by the prosecution because the immediate cause, which led to the occurrence in question, is shrouded in mystery. He argued that motive set up by the prosecution was not proved hence, death sentence was not justified. The learned Advocate while pointing out contradiction in ocular, medical evidence, and spot inspection, maintained that prosecution case is based on concoction and fabrication. The complainant and P.Ws have made a deliberate attempt to falsely implicate the accused. He argued that prosecution witnesses are inter-se related and have a motive to implicate the accused in a false and concocted case. The learned Advocate contended that it was easy to take the life of the deceased when Muhammad Imran, accused, as per prosecution story, met and threatened the deceased at his shop, who was all alone at that time. He submitted that it is not believable that Abdul Ghafoor was murdered before proceeding of the "Punchayyat". The learned.
17. Advocate contended that material facts have been suppressed by the prosecution. The learned Advocate submitted that if the occurrence for the sake of argument is admitted, it appears to have been taken place during Punchayyat proceedings as a result of some altercation between the parties. He argued that the statement of Doctor has belied the ocular evidence, therefore, all the accused-appellant deserve to be acquitted.
18. Conversely, Sardar Muhammad Suleman Khan, the learned counsel for the complainant argued that it was a day light occurrence and the accused have been nominated with their specific role in the promptly lodged FIR. The prosecution's case is supported by the evidence of the injured witnesses and there is no contradiction between the ocular and medical evidence and the doctor has clarified the same during the course of cross-examination. The learned Advocate contended that the evidence brought on record has properly been appreciated by the trial Court and its conclusion is unexceptional, which is liable to be maintained. He argued that plea of false implication is not supported by any evidence. The learned Advocate further argued that it is not necessary for prosecution to produce each and every witness. He maintained that it is also not necessary for the prosecution, to allege and prove the motive. He argued that motive has no importance in presence of the evidence of independent and direct witnesses which is further supported by recovery and medical evidence. He argued that it was the accused party who has arranged Punchayyat, called Abdul Ghafoor and then took his life with pre-medication and motive.
19. He argued that motive has been supported by the prosecution witnesses, as was told to them by the deceased. According to the learned Advocate accused does not deserve any leniency in sentence because the prosecution has successfully proved its case beyond any shadow of doubt.
20. Mr. Shaukat Hussain Abbasi, the learned Assistant Advocate General has adopted the arguments advanced by Sardar Muhammad Suleman Khan, learned Advocate for the complainant and submitted that the impugned judgment is well reasoned and no defect has been pointed.
21. We have heard the learned Advocates for the parties and perused the record of the case with our utmost care.
22. Sardar Muhammad Shamshad Khan, the learned Advocate for the convict-appellant has rightly argued that motive set up by the prosecution for the commission of the crime has not been proved. Though, it is not necessary for the prosecution to allege motive for commission of the crime but when it is alleged, then the same has to be proved and failure of the same had been considered a mitigating circumstances for awarding the capital punishment. A perusal of the record reveals that origin of the episode starts when Abdul Ghafoor deceased, left his shop for recovery of some amount from Muhammad Akram. At some distance from his shop he found that Muhammad Imran, accused was kissing a girl. Admittedly, some altercation took place between Abdul Ghafoor, deceased and Muhammad Imran, accused as Abdul Ghafoor forbade him not to do so. It is also the case of the prosecution that at this juncture Muhammad Shakeel S/o Muhammad Sharif reached at the spot and hushed up the matter. The prosecution has not cited Muhammad Shakeel S/o Muhammad Sharif as witness in challan. The investigation officer in his report under Section 173 Cr.P.C. has stated the name of 2 girls who were accompanying Muhammad Imran at the time of altercation between Abdul Ghafoor and the convict but even then, he has not bothered to cite Muhammad Shakeel as witness, thus, the motive/cause which led to the occurrence remained undetermined.
23. It is stated in the FIR that on the very next day Muhammad Imran while arming himself with pistol and dagger went to the shop of Abdul Ghafoor who was found alone by him. He threatened him for dire consequences but did not attack on him despite 'of the fact that no other was present there at that time The occurrence allegedly took place thereafter, when "Punchayat" was arranged. As soon as Abdul Ghafoor and P.Ws reached for participation in "Punchayat" they were attacked. It is also not believable that the occurrence took place as is narrated. The true facts have been suppressed both by defence as well as- by prosecution. However, this fact alone does not preclude this Court from coming to a just conclusion after examining facts and stand of both the parties.
24. The contention of the learned Advocate for the convict appellants that witnesses are interrelated and have motive to implicate the accused in the murder of the deceased, has no substance. The presence of the witnesses is established on the spot as they got injured in the same incident. The occurrence is also supported by the recovery of the pistols as well as.12-bore gun. The report of F.S.L (Exh.PX) supports the prosecution case. Mere relationship cannot be considered a ground for rejection of the testimony of the witnesses who are otherwise found truthful. In the present case it is not suggested by the defence that some other independent or impartial witnesses were available at the time of occurrence and have not been produced by the prosecution. The trend of cross- examination also shows that no one else was there. Both the parties are not satisfied with the statement of the Medical Officer but in our estimation he has clarified the ambiguity in his statement, even otherwise, the concession given by him does not destroy the case of the prosecution in presence of eye-witnesses and in presence of the other evidence.
25. After perusing the record we are convinced that accused have committed the offence but not as is alleged by the prosecution. The motive set up by the prosecution was not proved, therefore, we are of the view that the accused Muhammad Imran S/o Muhammad Ayub deserves lesser punishment in peculiar circumstances of the case. In Hakim Ali and 4 others v. The State and another [1971 SCM R 432], Justice Hamood-ur-Rehman, C.J (as his lordship then was) has considered the failure of the prosecution to establish the motive set up by it in a criminal case. At page 433 of the report his lordship observed as under: "It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence. If the prosecution failed to establish the motive set up by it, as also failed in establishing that the incident occurred in the manner alleged by it then it is difficult to see as to what remained of the prosecution case."
26. The same view was reiterated in Ali Hussain v. Mukhtan and another's case [1984 PSC 134]. At Page 139 of the report it was held that: "Motive, though not a sine qua non for bringing the offence of murder home to the accused, is relevant and important on the question of sentence. In the instant case the motive alleged by the prosecution remains obscure and it cannot be positively maintained that the deceased was stabbed just for refusing to stop seeing Ch. Barkatullah, MNA. It seems that there was something else which had actually arranged the accused to attack the deceased. Thus, for the safe dispensation of justice we consider that life imprisonment, in the case, in hand, would meet the ends of justice. Accordingly we convert the death sentence, awarded to Mumtaz accused/appellant to life imprisonment and a fine of rupees fifty thousand (Rs, 50,000) in all or 5 years R.I in default."
27. After giving deep thought, we are of the view that convict-appellants have correctly been convicted except death sentence to Muhammad Imran appellant. Therefore, we substantiate the death sentence of Muhammad Imran appellant to life imprisonment. The benefit of Section 382-B shall also be extended to them. The appeal to the extent of Appellants No, 2 and 3 stands dismissed for having no merits. The reference sent by the Additional District Court of Criminal Jurisdiction Hajira stands answered in the manner indicated above.