' M. S. H. QURAISHI, J.-This appeal by leave of the Court is directed against the dismissal by the Lahore High Court of the appellants' appeal from their conviction and sentences recorded by the Court of Session, Jhang. That Court had convicted and sentenced them each under section 3021149, P. P. C. To imprisonment for life and to pay a fine of Rs, 500 or in default to suffer further R. I.
For six months for the murder of Manzoor deceased under section 364/34, P. P. C. To R. I. For ten years for the abduction of Mst. Maryam wife of the said deceased ; under section 148, F. P. C. To R. I.
For one year and under section 373/34, P. P. C. To R. I. For one year. The substantive sentences were ordered to run concurrently.
2. The prosecution case is that at about 1 or 2 a. m. In the night between the 4th and 5th September, 1974, the four appellants, namely, (1) Abbas Khan, (2) his brother Aslam Khan, (3) Bahadur and his brother Salim Khan co-accused (killed in an encounter with the police before the coramencement of the trial), all armed with guns, and appellant Ghulam Shabbir armed with a Dangori came to the house of Pehlwan P. W. In village Kakki Nau, five miles from P. S. Shorkot. They fired shots at which the inmates of the house woke up. Salim Khan co-accused and appellant Ghulam Shabbir who had a mare with them waited outside the house while the remaining three appellants entered it by scaling the wall. They caught hold of Mat. Saban and forced her to jump over the wall and sit on the mare and then proceeded towards the Dera of Manzoor deceased. Pehlwan and his son Nazar Hussain followed them. Mst. Saban, who had been resisting her abduction, fell down from the mare while the accused were on their way to the Dera of Manzoor deceased. She hid herself in the fields and returned to her house at about 3 or 4 a. m. The same morning.
3. At the Dera of Manzoor deceased, which was at a distance of about two Killas from the house of Pehlwan, the deceased, his wife Mst. Maryam and mother Mst. Bakhan, who were sleeping there, got alerted by the gun reports. The deceased apprehending danger, locked Mst. Maryam who was pregnant in a room of the house and himself went out. Appellants Abbas Khan, Aslam Khan and Bahadur, however, entered the house, broke open the door of the room and dragged Mst. Maryam out of the room. At this stage, the deceased re-entered the house but Salim Khan co-accused fired at him killing him at the spot. Mst. Bakhan, who tried to intervene, was given beating with the butt of the gun. Muhammad Ramzan, brother-in-law and a cousin of the deceased, who lived in the adjacent house, had also come. He and Nazar Hussain tried to intervene but they, too, were given injuries by the accused who thereupon succeeded in taking away Mst. Maryam. She was not recovered nor was heard of later. The occurrence was reported by Muhammad Ramzan at P. S. Shorkot at 4-30 a. m.
4. The motive for the crime according to the prosecution was that 8-9 months before the occurrence, Iqbal, a maternal cousin of the deceased, had abducted Mst. Naziran, wife of appellant Ghulam Shabbir, while about 1/1-2 months before the occurrence Nawaz, a brother of said Iqbal, had enticed away Mst. Khurshid, sister of appellant Bahadur and Salim Khan co-accused, and that the appellants' efforts to effect restoration of their females had remained unsuccessful.
5. The investigation officer, who visited the spot, recovered blood-stained earth from where the deceased had fallen, four .12 bore empty cartridges from the Haveli of Pehlwan and two .12 bore empties and the broken door from the Dera of deceased. The appellants could not be arrested until 25-10-1974 when Abbas Khan and Aslam Khan were arrested. Ghulam Shabbir who had been declared a proclaimed offender, was arrested in the course of a raid at Chah Makorianwala within P. S. Garb Maharaja.
6. The post-mortem examination of the body of the deceased disclosed the presence of three fire- arm wounds of entry and one wound of exit, of which the fatal one was the "wound of entry 1/1-4 x 1' x going deep into the chest on the front of left side alongwith four fire-arm wounds of entry 1/4" x 1/4' each going deep into the chest on the front of left side of chest, 1/1-4 above and outer to the left nipple and below and inner to the left axilla. Margins of the wound were scorched. Muhammad Ramzan (P. W. 4) was found to have suffered four simple injuries caused by blunt weapon and Nazar Hussain (P. W. 10) one lacerated wound, simple in nature and caused by a blunt weapon. Mst.
Bakhan (P. W. 8) and Mst. Saban (P. W. 11) had also sustained three blunt injuries each.
7. Apart from the medical evidence, the prosecution examined in support of its case four of the eye-witnesses, namely, Muhammad Ramzan (P. W. 4), Mst. Bakhan (P. W. 8), Pehlwan (P. W. 9) and Nazar Hussain (P. W. 10), all of whom, except Pehlwan, had received injuries. Mst. Saban (P. W. 11) was also examined in respect of her own abduction.
8. The appellants, who denied the allegations, took different stands. Abbas Khan and Aslam Khan explained that Muhammad Ramzan complainant nourished a grudge against them on account of the marriage of their sister with Iqbal Kathia who had divorced his previous wife, a sister of one Kamir who is a first cousin of the complainant's father. Bahadur's plea was that he had been falsely involved because his brother Salim Khan co-accused had relations with the enemies of the complainant party. Ghulam Shabbir denied that his wife Mst. Naziran was enticed away and explained that she had left him of her own accord and had filed a suit for dissolution of the marriage. He also denied that he had been an absconder.
9. The Courts below, however, believed the prosecution version and held all the appellants guilty.
10. As leave had been granted in this case to consider whether the identification of the accused by the prosecution witnesses only by "voice" or "stature" cannot be considered to be safe for convicting them, learned counsel for the appellants referred to the concessions made by Muhammad Ramzan and Mst. Bakhan P. Ws. In this regard and urged that in view of the same, the identification of the appellants as the real assailants could not be said to be free from every reasonable doubt. In this connection, he further urged that the holding of an identification parade in the circumstance was necessary but that the same had not been done even though an application in this regard had been made by the appellants themselves. For this he relied on Amar Singh v. Emperor (I) in which it had been held that whenever an accused-person disputes the ability of the prosecution witnesses to identify him, the Court should direct an identification parade to be held save in the most exceptional circumstances. He also relied on Siraj DM v. Kala (2) wherein it had been held that the witness not being acquainted with the accused and the light being dim, it was necessary that he should be put to an identification test. Muhammad Ramzan (P.
W. 4) in the course of his lengthy cross-examination had stated : "The assailants, who arrived at the Dhari of Manzoor deceased, had muffled their faces. . . . I cannot say which of the assailants had injured me because there were five-six persons, and they had muffled their faces". On account of this concession, the Public Prosecutor had with permission of the Court subjected him to cross- examination, in the course of which he had re-stated: "It was a moonlit-night and the accused, now present in Court, attacked at the Dhari of the deceased. I had identified them. They are the same. I am not sure whether the accused had muffled faces or not."
' Mst. Bakhan (P. W. 8) had also towards the end of her cross-examination stated : "It is correct that I had expressed my inability before the investigating officer to identify the accused during investigation on account of my week eyesight. Even now I cannot identify the accused in this Court."
' It is to be noted that earlier in her cross-examination she had stated : "I knew all the accused earlier". Now neither of the two witnesses had any time earlier expressed any doubt as to the identification of the assailants. Their names were clearly mentioned by Muhammad Ramzan in the F. I. R. Which had been promptly lodged. As regards the concession made by Mst. Bakhan, the police officer had testified that he had correctly recorded her statement under section 161, Cr. P. C.
It was not brought out that she {{FOOT NOTE}}
(1) AIR 1943 Lab. 303 (2) PLD 1964 SC 26 {{FOOT NOTE}} ' had in that statement expressed her inability to identify the accused. There had been, therefore, no occasion for holding an identification test of the accused. It should not be lost sight of that the evidence of the witness was being recorded more than three years after the occurrence. The concessions, therefore, have no material bearing.
11. Even otherwise the case is supported by the evidence of Pehlwan and Nazar Hussain. Learned counsel has, however, urged that in fact they had not seen the occurrence inasmuch as the abduction of Mst. Saban was a cock and bull story as there was no mention of the same in the F. I.
R. Although both Pehiwan and Nazar Hussain had according to the F. I. R. Already reached the scene and as the injury of Nazar Hussain was self-inflicted in order to establish his presence. We find no force in these contentions. The suggestion put to Pehiwan in this regard had been denied by him. The F. I. R. Itself says that the complainant had got up on hearing the report of gunfire coming from towards the house of Pehiwan P. W. The fact that the accused and first gone to the house of Pehlwan is also established by the evidence of at least three witnesses, namely, Pehiwan, his son Nazar Hussain and his wife Mst. Saban, as also from the recovery of four .12 bore empties from that place. Mst. Saban had herself received three injuries which in the opinion of the Lady Doctor could not have been self-suffered. Their house was only about two Killas away and as a female of their house had been abducted, their having followed the accused was not unnatural.
17. Learned counsel next urged that the fact that the deceased had locked his wife from outside the room shows that he apprehended that she would elope and not that she would be abducted.
There is no warrant for such inference. Obviously the deceased had heard the firing of guns near his house and by locking the room from outside he perhaps wanted to make it appear that there was none present in the house. However, when his object faired and his wife was taken out of the room, he came into rescue her.
13. Lastly, he assailed the motive as having not been established by evidence admissible under section 60 of the Evidence Act. But such strict proof is not necessarily to be insisted upon. For, motive in criminal cases, as held in State v. Rab Nawaz (1), "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". Similarly in Ahmad Nisar v. State (2) it had been observed : "Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others."
Even otherwise, nothing turns on the weakness, if any, of the prosecution story of the motive. It is the established rule, and as held in the aforecited cases, that absence of motive or failure of the prosecution to prove it does not ordinarily adversely affect the testimony of the eye-witnesses if they are otherwise reliable.
14. After carefully considering the circumstances of the case, we are satisfied that there is no merit in this appeal. The same is accordingly dismissed, {{FOOT NOTE}}
(1) P D 19;74 SC 87 (2) 1977 SCMR175 {{FOOT NOTE}}