1. SALEEM AKHTAR, J.-The appellant has been convicted under section 302, P. P. C. To sentence of death and fine and also for life imprison--ment under section 307, P. P. C. Briefly the facts are that the appellant was a domestic servant of Ch. Bashir Ahmed who was residing in quarter No. 58-F, Jehangir Road, Karachi with his wife, son Aftab Iqbal-- and two, other sons. On 10 December, 1977 i.e. The day of incident when Aftab left the house for office at 9-30 a. m. His elder brother and father Ch. Bashir Ahmed deceased had already gone to office and the younger brother was posted at Hub Chowki as Preventive Officer Customs. Only Hameeda Begum, the mother of Aftab and Manzoor Ahmed the appellant were in the house. Manzoor was a resident of the same village to which Aftab and deceased belonged. In the F. I. R. It has been stated that on the day of incident Aftab returned to his house at about 5-15 p. m., stopped the car near the door of the house which was locked. He blew horn but as there was no response, .He went and knocked at the door. The appellant opened the door and he went inside. No sooner he entered the house, the appellant attacked him with an iron pipe and hit him on the left side of his neck. The appellant then ran away.
2. Aftab followed him and when he reached the courtyard he saw the dead bodies of his father Ch. Bashir Ahmed and mother Hameeda lying in the courtyard. The appellant opened the back door and ran away. Aftab chased him raising alarm and cries. The appellant was caught hold of by Baquar anal other persons of the locality. The Investigating Officer P.W. 14 reached the place of wardat immediately. He arrested appellant in the presence of Fazal Hussain and Muhammad Akhtar and prepared a Mashirnama which was signed by these Mashirs. He also recorded the statement of complainant Aftab lqbal under section 164, Cr. P. C. He also prepared the Inspectionth Memo, of the dead bodies as well as the Inquest Report in the presence of Javed Iqbal and Mehar Elahi who were present there, and sent the dead bodies to the hospital for post-mortem examination. An iron pipe was also produced by Aftab Iqbal with which the appellant had struck him. He also produced the basket containing currency notes, bullets, and ornaments. A search memo. Was prepared in the presence of Fazal Hussain and Muhammad Akhtar. He also prepared Mashirnama of wardat witnessed by Fazal Hussain and Muhammad Akhtar. The appellant in the presence of Mashirs pointed out to the blood-stained shalwar and shirt and knife which was lying in the courtyard of the quarter. These articles were duly secured in the presence of same Mashirs.
3. The appellant also produced one big knife (Chhura) and a blood-stained Khurpa, blood-stained knife (Churri) and '22 bore rifle which was lying in the flower bed. All these articles were secured and Mashirnama was prepared. The I. O. Recorded the statements of Fazal Hussain, Akhtar Tahir Mahmood Mairaj, Feroz Mehar Elahi, Aftab Iqbal, Fida Abbas, Baqar and Alam Hussain.
4. The prosecution has examined 14 witnesses. The appellant did not lead any evidence in defence.
5. He denied the charges and stated that three years back when he was 14 years old he came to work as a domestic servant with the deceased.
6. The deceased persons were killed on 10th December, 1977. These facts are proved by the medical report of Dr. Muhammad Abbas P. W. 10 who carried out the post-mortem examination of the dead bodies. It revealed that Ch. Bashir had 6 incised wounds and one lacerated wound. All the incised wounds except injury No. 4 were on the neck or its neighbouring region. Except injury No. 1 all were skin deep or muscle deep. According to the medical report injury No. 1 was on front and left side of neck 2" above suprasternal notch and 3" below the right angle of mandible and 2--" below the left angle of mandible measuring 3" x 1" traches deep horizontal in direction. On exploration of this injury it was found that internally thyroid cartilage was cut in two pieces, left external cartoid artery and left internal juglar vein were cut.
7. This injury in the opinion of the doctor was individually and all other injuries collectively were sufficient to cause death. From the post-mortem report it appears that there were internal injuries which were as a result of external injury No. 3. Post-mortem examination of Hameeda's body revealed that there was- one lacerated wound on the right partial region measuring 3" x 1" bone deep. It is similar to injury No. 3 of Bashir. Another lacerated wound was on the forehead 1" x 1" bone deep. There were 7 incised wounds. Injury No. 7 was an incised wound at centre of Sternum --" above exphistemummeasur--ing 1" x --" cavity deep oblique in direction. This injury had caused wound to right lobe of liver. Injury No. 8 was incised wound in left lumber region --" x --" cavity deep in the mid auxiliary line in verticle direction. This injury had caused wound to spleen cutting its antero lateral surface. In the opinion of P. W. 10 this injury individually and other injuries collectively were sufficient to cause death.
8. The appellant counsel has contended that the prosecution has failed to establish the case beyond reasonable doubt as there is no eye-witness and secondly that the motive has not been established. It is true that there was no eye-witness of the murder, but the circumstances that have been proved by the prosecution taken together establish that the comp--lainant his father and brother had left the house by 9-30 a. m. And only Hameeda and Manzoor were in the house.
9. According to the prosecution the entire incident took place between 11-30 a. m. And 3-00 p. m. The presence of Manzoor in the morning has been established. It is not to be seen whether during the day time he was present in the house or not. P. W. 3 who is a milk seller has stated that he used to supply milk to the house of the deceased. He knew the accused appellant who was servant of the deceased for the last 3 years. He has stated that on 10th December, 1977 as usual at about 3-30 p. m. He went to supply the milk and knocked at the door. Manzoor came out and after taking milk he went inside the house and closed the door. He has stated that in that locality he was supplying milk to the house of the deceased only. On the next day of the incident his statement was recorded by the police. In the cross-examination, the appellant has not been able to bring out any discrepancy which may discredit the testimony of this witness. The presence of the appellant in the house up to 3-30 p. m. Is, therefore, established. The complainant Aftab P. W. 1 came to his house at about 5-15 p. m. He has stated that he was accompanied with Fazal Hussain P. W. 2 who is his colleague. When he knocked at the door the appellant came and opened the lock of the grill, but did not open the latch and ran inside. P. W. 1 and 2 went inside when the appellant attacked. Aftab with an iron pipe hitting him on the left side of his neck. Alarm was raised and the appellant ran away through the back door. Both the witnesses saw the dead bodies, and therefore, they cried and chased the appellant. On their alarm and cry persons from the neighbourhood were attracted who chased and within a distance of 80 paces the appellant was caught hold by them. Amongst the persons who had chased and arrested the appellant P. Ws. 4 and 5 have been examined. All these persons brought the appellant in the house of the deceased and on getting the information from P. W. 7 the Investigating Officer also reached there. He prepared Mashirnama of arrest which has been signed by two Mashirs who were present there. From the medical report it seems that murder ,was committed during 11-DO a. m. To 5-00 p. m. The circumstances also establish that during this period, the appellant was in the house and at 5-15 p. m. When P. Ws. 1 and 2 arrived, after making futile attack he ran away from the back door of the house, Even for argument sake if it may be accepted that the appellant was away from the house from morning till about 5-00 p. m. And that the murder was committed in his absence then it seems most unreasonable and unbelievable that when he came before, 5-15 p. m. After seeing the dead bodies of his master and his wife he would not raise any alarm and call the neighbours. In these circumstances, when P. W. 1 arrived he could have reported it immediately to him instead of rushing back to the house, hitting him with an iron rod and running away. The conduct of the appellant does not seem to be in consonance with his innocence. The evidence of the P. Ws. Regarding arrest has remained unshaken. Mr. N. D. Khan, the learned counsel for the appellant has contended that in the F. I. R. The complainant had mentioned the name of Baqar Ali who is the brother of Muhammad Akhtar Ali P. W. 5, but be has not been examined by the Prosecution and, therefore, the prosecution has failed to establish the arrest. In the F. I. R. It has been stated that when the appellant was running away he was caught with the help of Baqar and other Mohalla people. He was, therefore, not the only person who caught the appellant. There were many other persons, though not named, who had caught hold of the accused. All these persons were present in the quarter of the deceased when I.O. Reached there, and statement of most of the witnesses was recorded on the same day. The prosecution did not examine Baqar on the ground that he was an unnecessary witness as he would depose only those facts which had already been stated by the witnesses. Non-production of witness cited in the F. I. R.
10. Depending on the facts and circumstances may not invariably lead to the conclusion that the prosecution has failed to establish the case. It is the duty of the prosecution to produce all the material witnesses mentioned in the first information report, unless they are unnecessary or there are strong reasons to believe that they will not speak the truth. Subject to such exceptions or other valid and weighty grounds, A the eye-witnesses mentioned in F. I. R. Should be examined. The learned counsel for the appellant has referred to Ghulam Rasool v. The State (PLD 1960 Lah. 48) but the observations made therein do not support the contention of the appellant. In this case reliance was placed on the following observation of the Privy Council in Stephan Seneviratne v. The King (AIR 1936 P C 289) :- "Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost condour and fairness on the part of those conducting prosecutions; but at the same time they cannot speaking Generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the function both of prosecution and defence. If it does so, confusion is very apt to result and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross---examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution."
11. Baqar would have testified how the appellant was caught. There is overwhelming evidence of unimpeachable character to prove it.
12. In the facts and circumstances of this case Baqar was an unnecessary witness and his non- production cannot be termed to have caused miscarriage of justice.
13. As discussed above, at the pointation of the appellant blood-stained weapons of offence and his blood-stained clothes were recovered from the courtyard of the quarter within hours of the appellant's arrest. The witnesses who had caught the appellant and acted as Mashir of recovery and arrest were natural and unimpeachable. There is hardly any contradiction of importance which may discredit their testimony. Although in the F. I. R. P. W. 1 has not mentioned the name of Fazal Hussain, from the evidence of all other witnesses and the fact that his statement was recorded by the police immediately and he acted as Mashir for Memo. Of seizure, arrest, site inspection between 19-00 to 20-00 hours the same day proves his presence from the very beginning. Looking to .The facts set out to the evidence discussed above, the question arises whether the circumstantial evidence is sufficient to prove the guilt of the appellant. Such acceptable, cogent and consistent circumstantial evidence which leads to irresistible conclusion that the accused has committed the offence and is inconsistent with the innocence of the accused can be relied upon. Laying down the test for relying on circumstantial evidence in Muhammad Nazir Hussain v. The State (1969 SCMR 388) Monir, C. J, observed that "where evidence is entirely circum--stantial it is a fundamental rule in such cases that an accused person cannot be found guilty unless all reasonable hypothesis which are consistent with his innocence have been excluded." Again in Mst. Sairan v. The State (PLD 1970 SC 56) it was held that "as regards conviction based on circumstantial evidence alone, the rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explana--tion upon any other reasonable hypothesis than that of his guilt". In Advocate-General, Government of East Pakistan v.
14. Majid alias Abdul Majid (1970 SCMR 12) it was observed that "the evidence did in our opinion establish strong chain of circumstances which could not be explained away on any hypothesis other than the guilt of the accused. In circumstances in spite of reluctance to interfere with the acquittal order ordered by the High Court we convict the respondent under section 302 of the Pakistan Penal Code". Similar observation was also made in State v. Manzoor Ali (PLD 1966 SC 664). In cases where prosecution relies totally on circumstantial evidence, the conclusion can be drawn only by a process of inference and deduction which is a delicate one. Suspicion cannot be a substitute for proof. Therefore, if conviction of-an accused is to be based on circumstantial evidence, then all the facts and circumstances should be taken into consideration by examining and shifting the entire evidence and excluding all "reasonable hypothesis which are consistent with his innocence". The circumstances established should be inconsistent with innocence of the accused and by no legal process of reasoning be explained otter than the guilt of the accused. In such cases the chain of circumstances should be established by authentic evidence and should be so logical and consistent that they may lead to no other conclusion, but the guilt of the accused. In Azim v. State (PLD 1965 SC 44) rule for the care and caution to be taken in the process of inference, reasoning and deduction has been laid down as follows :- "The case provides an occasion for this Court to repeat once again what was said as far back as the year 1953, in the case of Fazal Elahi alias Sajawal v. Crown by the Federal Court, regarding the degree of care to be exercised in examining evidence of circum--stances on the basis of which, in the absence of direct proof, a Court might draw an inference of the commission of Crime by the accused. It was said there that although "a concurrence of well authenticated circumstances composes a stronger ground of assurance than a positive testimony, unconfirmed by circumstances, usually affords" (Paley), nevertheless, it is necessary to remember that 'process of inference and deduction are essentially involved, frequently of a delicate and perplexing character, liable to numerous cases of fallacy'. 'Wills on Circumstantial Evidence, and therefore, caution must be exercised in accepting proof regarding any one of the minor facts adduced before it is held to be established for the purposes of drawing an inference therefrom. It was said that a mere concurrence of circumstances may create a suspicious appearance, and thus cause fallacious inference where some or all of such circumstances are supported by defective or inadequate evidence. Therefore, it is essential in such cases to accept as the material upon which to base any inference only such circumstances as are, 'well-authenticated''.
15. Putting the evidence of toe present case to the test it is clear that the facts and circumstances established by the prosecution seem to be clearly incompatible with the innocence of the appellant.
16. The prosecution has also relied upon the extra-judicial confession of the appellant. P. Ws. 4, 5 and 8 were examined to prove it. For reasons stated in the subsequent paragraph we are not' inclined to accept the testimony of P. W.
8. However, so far P. Ws. 4 and 5 are concerned, nothing has been pointed out to discredit their testimony. The appellant's counsel has taken us through the entire evidence of all tile witnesses. We find that P. Ws. 4 and 5 have not been cross-examined on their statement regarding extra-judicial confession. We have no reason to disbelieve them.
17. The learned counsel for the appellant has contended that as the prosecution has failed to establish motive the conviction of the appellant cannot be upheld. The learned trial Court seems to have accepted the evidence of Feroz Din P. W. 8 who was produced to establish motive. P. W. 8 who has a shop on back side of the quarter of the deceased. He knew the appellant as he used to regularly come to his shop for purchases. He has stated that 1~ days before the incident the appellant came to his shop and went away after purchasing six eggs. After about half an hour he again came and asked to give hatchet as he wanted to kill Ch. Bashir and his family, because Ch..
18. Bashir had beaten him. The appellant in lieu offered to give a gun of Ch. Bashir P. W. 8 tried to pacify him and advised that he had been serving there for three or four years and as Ch. Bashir Ahmed has brought him up as his child be should desist from such acts. He stated that he did not give hatchet to the appellant who went away. The accused used to visit his shop regularly, thereafter, but never talked about this again. Statement of P. W. 8 was also recorded under section
164. Cr. P. C. In which he has stated that one day the appellant had come to his shop and told him that he was maltreated and beaten by Aftab, his father and brother. Upon this he advised the appellant to remain calm and quiet. After 2 or 3 days the appellant came for purchases and asked to give him an axe, but he replied that he had no axe or weapon like this. After few days the appellant came to him and asked if he wished to purchase a gun from him to which he replied in the negative. The incident happened after 20 or 25 days thereafter. There are clear discrepancies and contradictions in both these statements. In statement under section 164 the witness has spoken of three visits by appellant, the second, after three or four days when he wanted to purchase an axe and the third time when he came and offered to sell the gun. In the statement before the Court he has tried to improve his version by stating that 25 days before the incident after purchasing axe he came back and asked for a hatchet as he wanted to kill Ch. Bashir and his family. In the statement under section 164 he has not stated these facts. This contradiction in the statement clearly shows that the witness has tried to improve upon his statement by introducing certain facts to prove the motive. It is pertinent to note that if the appellant had expressed his intention to kill the deceased then was it not a normal reaction that P. W. 8 should have warned Ch. Bashir or Aftab about it. His complete silence belies his statement. We are, therefore, not inclined to accept this statement which cannot be relied upon nor does it prove the motive of the appellant.
19. No other evidence has been referred to prove the motive.
20. The question then arises whether absence of motive will adversely affect the prosecution. In State v. Rab Nawaz (PLD 1974 SC 87) it was observed as follows :- "In criminal cases motive more often than not remains shrouded in uncertainty. To the complainant it is generally a matter of speculation, for it is a fact within the special knowledge of the accused.
21. Even motiveless crime is not unknown. Therefore, the mere fact that the prosecution case as to motive has been disbelieved by the Courts below is no reason for disbelieving direct evidence on the main incident which has to be dealt on its own merits, and if such evidence is creditworthy, it can form a valid basis for convic--tion, obscurity of motive notwithstanding,"
22. In Ahmed Nisar v. The State (1977 SCMR 175) it was observed that :- "General y speaking motive, more or less is a guess on the part of the prosecution witnesses as what truly motivates an accused person to commit a crime is best known to him and not to others.
23. Absence of motive are failure on the part of the prosecution to prove, does not, therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable."
24. To the same effect observation has been made in Mushraq Ahmed v. Siddiqulluh and others (PLD 19 75 SC 160) and Ghuncha Gul v. State (1971 SCMR 368) it was observed that "it is irrelevant to discover the real motive of an accused person, when, as in this case, his guilt for the offence is prayed by direct and acceptable evidence". However, in Habibullah v. State (PLD 1969 SC 127) in facts and circum. Stances of the case it was held that failure to prove motive reacts on the remaining testimony of the witness. Reference can also be made to PLD 1978 SC 114. There seems to divergence of opinion regarding the consequence of failure of the motive on the creditibility of evidence". In a recent case Manzoor Ahmed v. The State (PLD 1983 SC 197) after taking note of sederal reported and unreported judgments it was observed as follows :-- "Apart from these cases there are many reported and unreported judgments wherein on the failure of the motive asserted by the prosecution, benefit was given to the accused on a capital charge in the matter of death sentence.
25. Apart from the cases relating to the reduction of sentence on failure of the prosecution to substantiate the alleged motive it seems as if there is no uniformity of approach, regarding the consequence of failure of the motive on the credibility of the evidence. It appears to be so because the question depends upon the facts of each case. Besides what was observed in the case of Habibullah aforenoted there is a line of cases showing that motive is a matter of speculation and does not constitute necessary ingredients of offence, therefore, the failure of motive would not effect the authenticity of the prosecution case. Another line of cases assumes that motive is not only relevant, but also often helpful to the investigating agency as well as the Court. Yet in another set of cases it is observed that absence or failure of prosecution to prove motive could not adversely effect the testimony of eye-witnesses if they are otherwise reliable ; and that, it gives support to the ocular evidence amongst others by removal of lurking suspicion which is necessary for the satisfaction of judicial conscience. In the light of the aforementioned different lines of thought in the facts and circumstances of each case, sometimes failure of motive was also found to have reacted on manner of appreciation of deposition, containing the, same. But in other cases, this circum--stance was not considered, enough to make any dent in the prosecution case in so far as the question of guilt or otherwise, of the accused is concerned.
26. In matter of sentence also although there seems to be fairly established practice that failure of motive asserted by the prosecution reacts on the question of sentence, so as to reduce the same (on the assumption that crime might have been committed on account of such a motive which was relevant qua the accused to earn reduction of sentence) yet, in some exceptional cases the failure of motive simpliciter was not considered as mitigating circumstance; because of other circumstances indicating that, notwithstanding the failure of the prosecution to establish the motive asserted by it, the crime was not committed on account of a laudable or any such motive due to which sentence could be reduced .
27. In other words the mere failure of motive asserted by this witness if she is otherwise truthful would not react on either her testimony on the prosecution case as a whole, except that as pointed out earlier it would have effect on the question of sentence, if the appellant is found guilty.
28. It, therefore, seems that it is not necessary for the prosecution to establish motive and accused can be convicted provided his guilt is proved by direct and acceptable evidence. The failure of motive asserted by the prosecution would not react of the testimony of the witnesses as a whole provided it is truthful and unimpeachable.
29. In the present case, the circumstantial evidence finds support from the medical evidence and is fully corroborated by the recovery of articles, the arrest of the appellant as proved by the statement of independent and dis--interested persons. This leads to the conclusion beyond reasonable doubt that the appellant had committed murder of the deceased persons. The unimpeachable and acceptable evidence produced by the prosecution can not be discarded merely because the respondents have not been ableestablish motive.
30. Perhaps due to certain evidence on record, the learned counsel for the appellant did not press that the appellant was 16 years old at the time of incident: However, this aspect of the case had engaged our attention as in cross-examination suggestions were made to this effect. P. W. 6 who had examined the appellant has certified that at the time of incident he was between 17 and 18 years. The witness has referred to X-ray report, but had not produced it, he had only produced a medical certificate Exh.
17. We had asked Mr. Mustafa the learned counsel for the State to produce the X-ray report which he did. The report is also to the same effect as deposed by P. W.
6. Besides this the appellant in his statement stated that he was 14 years old when he came to serve with the deceased and he remained with him for three or four years. There is, therefore, sufficient evidence to establish that at the time of incident he was about 18 years old.
31. The appellant has been convicted under section 307, P. P. C. For attempt to murder for causing injuries to Aftab when he attacked him on his neck with iron rod. The injuries are simple and, therefore, the convic--tion for imprisonment for life is neither proper nor just.
32. Considering the nature of the case that the prosecution has based it mainly on circumstantial evidence where there are no eye-witnesses, there was no previous enmity between the parties, motive though asserted has not been proved, that the appellant is of young age, we have considered what should be the proper sentence. In the case State v. Dost Muhammad (PLD 1962 Lah. 793) where no previous enmity between the parties was established and the accused fired upon the deceased on account of the quarrel between the deceased and brother of the accused, the sentence was reduced to transportation for life. Again in an unreported judgment of our Court in Cr. Case No. 298/77 (Confirmation Case No. 13/78), the learned Bench taking into consideration the fact that the appellant was hardly 19 years old at the time of incident and as there was no eye- witness of the incident and the capital sentence was passed on confessional evidence and recovery the same was reduced to life imprisonment. Further, as held in PLD 1983 SC 197 failure of motive asserted by the prosecution would have effect on question of sentence. Similar circumstances exist in the present case also. There was no enmity between the parties. The motive asserted has not been proved; no eye-witness is available, conviction is based on extra judicial confession and circumstantial evidence corroborated by arrest, recovery and medical report and the accused is of a young age of about 18 years. Therefore, applying the principles of the aforecited judgments on the facts of the present case and taking into consideration the provisions of section 382-B. PLD 1962 Lah. 793 Cr. P. C. We reduce the sentence under section 302, P. P. C to life imprison- -ment. We set aside sentence under section 307, P. P. C. And instead sentence the appellant for 6 months' R. I. Under section 323, P. P. C. Both the sentences shall run concurrently. With these modifications the appeal is dismissed. We refuse to confirm the death sentence.