MUSHTAQ MUHAMMAD, J. This single judgment shall dispose of the Criminal Appeal No.57/2023 filed by the convict/appellant named above under Section 410 Cr.P.C against the impugned judgment of conviction passed by the learned Sessions Judge District Ghizer (Trial Court) in Session Trial No.37/2020, whereby the learned trial court has convicted the above named convict/appellant for the murder of deceased Sher Nafas Khan son of Juma Khan resident of village Damalgan Tehsil Yaseen, by causing intentional death of the named deceased and passed death sentence as Tazir against him. Learned trial court has awarded Rs.500,000/- compensation under Section 544-A Cr.P.C to the LRs of deceased Sher Nafas Khan. Learned trial court has convicted the named convict/appellant under Section 13 Arms Ordinance, 1965 and passed a sentence of three months.
After passing a death sentence against the convict/appellate, learned trial court has filed the Murder Reference No.05/2023, whereby the learned trial court has sought confirmation or otherwise of the capital punishment recorded by it.
2. Stated facts the Crime No. 35/2020 registered at Police Station City Gahkuch, are that on the day of occurrence 06/08/2020 at about 10 AM at the place of occurrence the convict/appellant conducted two fire shorts at the deceased Sher Nafas Khan who died instantly on the spot of occurrence. First Information Report lodger ASIP Syed Afsar Ali Shah, PW-3 who was on his duty at the place of occurrence caught red handed the convict/appellant with the weapon of offence. In the meantime, constables Rizwan Ali PW-9 and Irfan PW-8 reached at the spot of occurrence, who removed the dead body to the hospital, whereas FIR lodger PW-3, brought the convict/appellate to the police station. At the Police Station City Gahkuch during initial questioning names of the convict/appellant and the deceased were disclosed. During the initial inquiry motive behind the occurrence illicit relations between the deceased Sher Nafas Khan and wife of the convict/appellate was also disclosed.
3. After registration of the case, police formally investigated the matter and collected ocular evidence of occurrence and also secured the corroboratory/confirmatory evidence related to the occurrence and filed incomplete report No.38/2020 Ex.PW-10/A against the convict/appellate. On 17/10/2020, learned trial court framed a formal charge against the convict/appellant to which he pleaded not guilty. Prosecution in order to prove the charge against the convict/appellant has examined eleven PWs and abandoned PWs Izzat Aman and Head Constable Muhammad Sardar.
At the end of trial convict/appellant was confronted with the prosecution evidence on 21/11/2023.
Convict/appellant denied almost all the evidence of the prosecution. He did not take any specific defence and also did not opt to rebut the prosecution evidence on oath.
4. At the end of trial, learned trial court recorded a judgment of conviction on 11/12/2023. Learned trial court has framed three points for determination as reflected in para No.24 of the judgment.
5. Arguments have been heard on 27/06/2024. Record of the case perused.
Mr. Burhan Wali advocate, learned counsel appearing on behalf of convict/appellant prescribed the case of convict/appellant that all the alleged eye-witnesses including the complainant Syed Afsar Ali Shah, FC Riwan Ali and FC Irfan are the police officials. He submitted that despite the fact that place of occurrence is a busy public place no independent eye-witness is named in the FIR and the alleged eye-witnesses Mirza Hassan PW-1 and Sharaf-ud-Din PW-2 were planted subsequently by the prosecution. Learned counsel argued further that motive as alleged in the FIR is not proved on record. Therefore, the case against the convict/appellant is highly doubtful. He submitted that medico legal report Ex.PW-5/A is tentative in its nature, therefore, same cannot be read as part of prosecution evidence. He submitted that prosecution has not filed the lab report. By concluding his arguments leaned counsel for the convict/appellant has prayed that impugned judgment of conviction dated 11/12/2023 may be set aside by accepting Cr. Appeal No.57/2023 and convict/ appellant may be acquitted of the charge as framed against him.
On the other hand learned Deputy Advocate General and counsel for the complainant, hotly contested the arguments of learned counsel of the convict/appellant and replied that all the material evidence on record is very much cogent and natural. They submitted that complainant PW-3 was a traffic incharge and his presence on the place of occurrence is admitted on record.
They submitted that both the eye-witnesses Mirza Hassan and Sharafuddin -in their statement before the court have categorically charged the convict/ appellant for the murderous assault and instant death of the deceased Sher Nafas Khan on the spot. They submitted that crime was promptly reported and the convict/appellant was arrested by the complainant on the spot along with the weapon of offence. They submitted that it was a broad day light occurrence and convict/appellant was arrested on the spot, therefore, question of false implication does not rise.
They replied that non-existence of motive is not fatal to the prosecution case. Learned counsel Raja Umar Hussain advocate has referred the judgments of Hon'ble Supreme Court of Pakistan cited, "Khan alias Khani and others v. The State" (2006 SCMR 1744), "Muhammad Latif v. The State"
(PLD 2008 SC 503), "Muhammad Akbar and another v. The State" (PLD 2004 SC 44) and "Khalid Mehmood's case" (2011 SCMR 664).
Concluding their arguments, they prayed that case in hand is one of unshattered ocular evidence, therefore, the judgment of conviction dated 11/12/2023 passed by the learned trial court is correct and there is no misreading or non-reading of the evidence. They prayed that Cr. Appeal No. 57/2023 may be dismissed and Murder Reference No.05/2023 may be answered in affirmative.
6. We have examined the FIR Ex PW-11/D, the important evidence rendered by the FIR lodger PW-3, Mirza Hassan PW-1 and Sharafuddin PW-2. PW-3, Syed Afsar Ali Shah has verified the document Ex.PW-3/A. Statement of PW-3 on record remained unquestioned unchallenged on material points.
PW-3 during cross-examination remained consistent with statement as narrated in the document Ex PW-3/A. PW-3 with specific reference of his presence at the place of occurrence has narrated the true picture of the occurrence. PW-3 has categorically claimed that he had seen the convict at the place of occurrence conducting fatal shot on the deceased Sher Nafas Khan and death of the deceased instantly there at the place of occurrence. PW-3 has categorically stated about his prompt action soon after the occurrence and defence has badly failed to shatter his statement even on a trivial point.
Learned trial court did not record a single finding on the particular testimony of Syed Afsar Ali Shah PW-3. The only thing done by the learned trial court on the credibility of PW-3 and evidentiary value of his statement is reproducing his statement in the judgment at page No.3 in para No.8. Mere reproducing statement of a witness without giving proper legal reasoning for acceptance or otherwise of the same is nothing but a perfunctory exercise of jurisdiction.
The other evidence on record is the ocular account rendered by the PW-1 Mirza Hassan. We have examined the statement of this witness. This prosecution witness about 47 years of age has with reasons behind his presence at the place occurrence, has categorically charged the convict/appellant for pulling the trigger of his handgun and in what manner the deceased Sher Nafas Khan reacted and that the shots proved fatal on the spot, resulting instant death of the deceased Sher Nafas Khan. PW-1 Mirza Hassan has verified the presence of PW-3 Syed Afsar Ali Shah at the place of occurrence and his reaction soon-after the occurrence. Defence has badly failed to discredit the truthfulness or occurrence his statement. During cross-examination the defence line of questioning itself speaks that they have nothing in their hands to confront the same with this witness. Defence has questioned the witness on insignificant and shallow points like distant between his native village and Gahkuch town, the number of people gathered on the spot, the distance between main entrance of Sessions Court and the DHQ Hospital etc. Learned trial court did not record a single finding on the particular testimony of Mirza Hassan PW-1, except reproducing his statement at page No.2 and para No.6 of the judgment. While recording a sentence in a case of capital punishment, trial court cannot absolve itself by mere reproducing the evidence in the judgment. A judgment of conviction in a case of capital punishment should be more categoric and exhaustive. In a case of capital punishment, trial court is legally bound to record every piece of evidence with utmost care and diligence. After recording the same, it is mandatory legal requirement that accused facing the charge must be confronted with each independent piece of evidence and record his answer in his exact words. After the completion of trial, when a trial court will record its findings on the evidence, it will deliberate each piece of evidence and will record its reasons on merits of each part of evidence. In the impugned judgment of conviction which consists of twelves page, half of the judgment is occupied with repetition of already recorded evidence. Learned trial court has failed to discuss the ocular evidence of the occurrence as rendered by the PW-1, 2 and 3. Learned trial court has not discussed the merit of the ocular evidence in this court. The reasons recorded by the learned trial court on page Nos. 10 and 11 are glaring example of perfunctory exercise of jurisdiction. The other material witness of the occurrence is Sharafuddin PW-2. This witness is about 40 years old and he has stated the reason of his presence at the place of occurrence. This witness claimed that he saw the occurrence when the convict/appellant opened fire from his backside and the deceased fell down on the ground. During cross-examination, the defence badly failed to discredit the testimony of this witness. During cross-examination, the defence put a suggestion regarding his attention to the occurrence after hearing the gunshot but he answered the same in negative and stated further that he is direct witness of the occurrence. After examining the ocular evidence of the prosecution witness discussed above, we are of the considered view that all the three eye-witnesses have narrated the true facts and there is not a slightest contradiction in their statements. PW-3 Syed Afsar Ali Shah who had arrested the witness on the spot with the crime weapon has no reasons to depose falsely against the convict/appellant. His presence on the spot of occurrence was never disputed by the defence. PW-1 Mirza Hassan has explained the reason of his, being there on the spot of occurrence.
This witness has verified the presence of PW-3 at the place of occurrence.
7. There is sufficient corroboratory/confirmatory evidence on record which consists of autopsy report Ex.PW-5/A. PW-5 Doctor Tahir Zaman has verified the contents of document Ex.PW-5/A.
Examination of entry wounds and exist wounds described in the document Ex.PW-5/A are in consonance with the ocular testimony of eye-witness Mirza Hassan PW- 1.
8. Document site plan Ex. PW-11/B shows the location of the convict/appellant at point No.1, of the deceased Sher Nafas Khan at point No.2, PW-1 Mirza Hassan at point No.3, PW-8 and 9 at point No.4, PW-3 at point No.6. The location of PW-2 Sharafuddin is not explained in the document Ex.PW-11/B and the document site inspection not Ex-PW-11/C. However, non-mentioning the location of this PW does not affect his testimony.
9. Crime empties vie seizure memo. Ex.PW-9/B are duly verified by the PW-9 Rizwan Ali. Crime weapon vide seizure memo. Ex PW-9/A was duly verified by the PW-9 Rizwan Ali. FSL report Ex.PW/7/C corroborates prosecution version the report of Forensic medicine and toxicology. Ex.PW- 7/B ruled out that all the organs livers, lungs, brain, stomach, spleen, kidneys and large intestine are free from any contamination of poison and drugs. This evidence corroborates the opinion of death as recorded by the PW-5 in the document Ex.PW-5/A.
10. The arguments of learned counsel for the convict/appellant regarding the proof of the motive behind the occurrence is extremely flimsy. On this point, we are, of the opinion that weakness or absence of motive is not fatal to the prosecution case.
In the case cited, "Khalid Mehmood and others v. The State" (2011 SCMR 664) a full bench of hon'ble Supreme Court of Pakistan has held that: "Sentence---Absence of motive---Award of death sentence in a murder case does not legally require on allegation and proof of motive by the prosecution."
In other case cited, "Saeed and 2 others v. The State" (2003 SCMR 747) a full bench of hon'ble Supreme Court of Pakistan has held that weakness and insufficiency of motive or absence of the same cannot be considered a mitigating circumstance in a case of capital punishment.
11. Concluding the matter, it is recorded that in a very prompt report regarding the crime, the convict/ appellant is directly charged and was caught red handed by the prosecution witness along with the crime weapon. The violent episode on the spot is a broad day light occurrence and independent and impartial eye-witness have verified the whole episode without giving an inch of space to the doubt to lay its feet there. Corroboratory/confirmatory evidence on record supports the ocular testimony of Pws Mirza Hassan, Sharafuddin and ASIP Syed Afsar Ali Shah. Non mentioning the location of PW-2 Sharafuddin in the site plan is not fatal because his testimony otherwise is confidence inspiring. Weakness, in sufficiency or even absence of motive is not fatal to the prosecution case, and same cannot be considered a mitigating circumstance in a case of capital punishment.
12. Keeping the above, in view, Criminal Appeal No.57/2023 being meritless is hereby dismissed.
Impugned judgment of conviction dated 11/12/2023 passed in Sessions Trial No.37/2020 passed by learned Sessions Judge, Ghizer is maintained. Murder Reference No.05/2023 is answered in affirmative.