1. ' AJMAL MIAN, J.-- By this common judgment, we intend to dispose of the above appeal, criminal revision and the Suo Motu Revision. The above appeal has been filed by the appellant/accused Weram against the judgment, dated 25-6-1983, whereby the learned VIIIth Additional Sessions Judge, Karachi, convicted the appellant under section 302, P.P.C. For the murders of Gulab and Mst.
2. Miran Bai and sentenced him to undergo life imprisonment on each count and also directed him to pay Rs,5,000 as the amount of compensation to the heirs of deceased Gulab and Miran Bai under section 544-A, Cr.P.C. And in default of payment of the compensation to go further R.I. Of six months. Whereas Criminal Revision No,105 of 1983 has been filed by the complainant party for the enhancement of sentence. The above Suo Motu Revision No,152 of 1983 has been registered upon issuing of a Suo Motu Notice by this Court for enhancement of sentence.
2. The prosecution case in short is that P.W.1 complainant Jetha Ram son of Munaram resident of Rangiwara, Marwari Mohalla, Jamia Masjid, House No,7 Chakiwara, Karachi, was putting up in the aforesaid house alongwith his married son Mangi Lal, his above son's wife Miran Bai, their five children, an unmarried son Gulab aged 18-20 years and a grand daughter i,e, daughter's daughter.
3. On 17-6-1980 Mangi Lai was not in Karachi as he had gone to Faisalabad. P.W.1 complainant Jetha Ram alongwith other members of the family were sleeping on the upper portion of the house, which had only one room and wherein Mst. Miran Bai, her son Devanand then aged about 10 years and Hari Lal then aged about 25 days (both sons) were sleeping, whereas the other inmates including the complainant, his unmarried son Gulab and granddaughter Sarsati aged about 10-11 years were sleeping in the courtyard. It was alleged that at about 1-30 a.m. Weram managed to enter into the room on the upper floor (as his house roof was joint with the complainant's roof and there was a small ladder), where Miran Bai was sleeping and attacked her, who in bleeding condition came out of the room and fell at P.W.1 Jetha Ram and requested him to save her from the appellant. It was further alleged that the appellant in spite of begging for mercy gave more injuries to Miran Bal. It was also alleged that Gulab woke up and tried to catch the appellant but he was also attacked by the appellant and was given successive Chhuri injuries. The appellant managed to escape from the scene of offence. The complaint was lodged by above P.W.1 Jetha Ram at 3-40 hours on 17-6-1980 i.e on the same day at the police station Chakiwara, Karachi, against the appellant under section 302, P.P.C. For the murders of Miran Bai and Gulab. The appellant was arrested under Mashirnama Exh.7-A on the same day at 5-00 a.m. As indicated in the original record and not in the paper book in presence of P.W.6 Khenji and Fida Hussain by P.W.10 S.H.O.
4. Khawaja Nisar. It was also alleged that the recovery of the appellant's blood-stained clothes were also made under the same Mashirnama and the recovery of the blood-stained Chhuri was made at the pointation of the appellant from a "gutter" under Exh.8-A by the above S.H.O. P.W.10, Khawaja Nisar in presence of P.W.7 Kalidas.
5. 3.(a) The prosecution in support of the case has examined three eye-witnesses, who were the inmates of the place of incident namely, P.W.1 Jetha Ram, complainant, P.W.2 Devanand a son of Miran Bai, aged about 11 years at the time of recording of his, evidence and P.W.4 Sarsati aged about 14 years at the time of recording of evidence, P.W.1's grand-daughter i,e, daughter's daughter. The above three eyewitnesses have supported the prosecution on all material facts and the version given by them before the trial Court more or less tallies with the version given in the F.I.R., to corroborate their testimony, the prosecution has also examined two neighbours living in an adjacent house, namely, P.W.3 Teeja Ram and P.W.5 Naraindas, who have supported the testimony of the above eye-witnesses and have stated that they had witnessed the incident from the upper storey of their house after putting on the outside light.
(b) The following witnesses were also examined by the prosecution:
(i) P.W.6 Khenji, one of the Mashirs to the Memo of arrest of the accused and to the recovery of blood-stained clothes Exh.7-A.
(ii) P.W.7 Kalidas, one of the Mashirs to the Memo regarding the inspection of the scene of Wardat and to the recovery of the blood-stained Chhuri Exhs.8-A and 8-B.
(iii) P.W.8 Muhammad Ayoob, a Sub-Inspector posted at the Police Station Chakiwara, who received station diary No,42 Exh.10-A and also entry of Roznamcha No,43 Exh.10-B, recorded 154, Cr.P.C. Statement of P.W.1 Jetha Ram and transmitted the same in the register as Exh. 10-C, prepared memos. Of dead bodies of Gulab and Miran Bai Exhs.4-1 and 4-C respectively and also inquest reports Exhs.4-B and 4-D respectively.
(iv) P.W.9 Dr.Muhammad Rafiq who carried out the post-mortem of the above two dead bodies Exhs. 11-A and 11-B pertaining to deceased Gulab and deceased Miran Bai respectively.
(v) P.W.10 Khawaja Nisar S.H.O. At the Police Station Chakiwara, who carried out the investigation, prepared the Mashirnama of Wardat Exh.8-A, arrested the accused and recovered blood-stained clothes under Exh.7-A. He also recovered blood-stained knife under Mashirnama Exh.8-B. He also produced the Chemical Examiner's report Exh.12-A.
(vi) P.W.11 Nanji, a sweeper who took out the blood-stained knife from the gutter at the alleged pointation of the appellant.
6. ' The prosecution has also relied upon the above documents in support of the ocular evidence.
7. ' The appellant in his 342, Cr.P.C. Statement has denied the factum of having committed the offence and has stated that he was arrested from his house, which was adjacent to the house of the complainant on the back side, while he was wearing Pyjama and Banyan and the police has involved him in a false case.
8. 4.(a) In support of the above appeal, Mr.Sardar Muhammad Ishaque, learned counsel for the appellant has urged as follows:
(i) The incident was not witnessed and that the witnesses are set up witnesses.
(ii) That there are contradictions in the testimony of the alleged eye-witnesses on the material facts.
(iii) There is contradiction between the ocular evidence and the medical evidence.
(iv) That the recovery was and is liable to be discarded inter alia on the ground that the articles were despatched to the Chemical Analyser, after the delay of 2 months and 3 days.
(v) That since the learned trial Court had not put any question to the appellant about the alleged motive while questioning under section 342, Cr.P.C., the same is liable to be ignored.
(b) On the other hand Messrs Muhammad Ibrahim Memon, appearing for the State and Naraindas Advocate for the complainant have contended as follows:
(i) That the incident was witnessed by the natural eye-witnesses and the prosecution has proved the case beyond reasonable doubt.
(ii) That no question was put to the S.H.O. P.W.10 Khawaja Nisar as to the delay in despatching of the blood-stained articles and, therefore, the delay simpliciter cannot justify the exclusion of the above recoveries against the appellant.
(iii) That there is no contradiction between the ocular evidence and the medical evidence.
(iv) That the appellant has committed double murder, and, therefore, the learned trial Court was not justified in awarding se tence of life imprisonment and that it is a fit case in which this Court should substitute the capital punishment of death.
9. 5.(a) Mr. Sardar Muhammad Ishaque in support of his above first contention that the incident was unwitnessed has invited our attention to the following documents/facts.
(1) Exh.10/A. This document has been produced by P.W.8 Muhammad Ayoob Sub-Inspector at the Police Station Chakiwara at the relevant time in his deposition. According to him while he was in his house, he received station diary No,42, which reads as follow: "At this time Dr. Muhammad Taqi, M.L.O., got reported from the Civil Hospital, on telephone, that one Veeram son of Achalji resident of Rangi Wara, Tannery Road, adjacent to Jama Masjid, has come to the Hospital with knife injuries some officer may be sent for taking action. Message was recorded. Copy of the report sent to S.I. Mr. Muhammad Ayoob, through constable Anwar All No,7940 Head Constable Mushtaq Ahmad No,7770, Report No,42 at 03-25 hours. Attested by me."
10. ' P.W.Muhammad Ayoob has also produced another station diary bearing No,43 Exh.10/B, pertaining to the two deceased, which reads as follows: "At this time Dr.Muhammad Taqi, M.L.O. Got reported from the Civil Hospital, on telephone, that one Gulab s/o Jetha has been brought in an injured state having injuries caused by knife and one lady Mst. Miran Bai w/o Mangi Lal has been brought to Civil Hospital with injuries and in dead condition with Sej Ram, Naraindas and Fida Hussain. Some officer may be sent for taking action. Message was recorded and copy of the report sent through incoming Constable Rab Nawaz, No,7127 to Mr.Muhammad Ayoob who is now in the Civil Hospital in connection with Report No,42. The S.H.O.
11. Was informed at his residence who said that he was proceeding to the Civil Hospital."
(b) It has been vehemently urged by the learned counsel for the appellant that factually the appellant had reached the civil hospital at 3.25 hours, whereas Gulab injured in an injured condition and Miran Bai in dead condition were brought to the hospital at 3.40 hours and, therefore, the appellant should have been arrested in the hospital if his identity as murderer was known because the relations of the deceased so also P.W.8 Muhammad Ayoob a Sub-Inspector were present at the Civil Hospital. It has been further pointed out by him that the prosecution has not offered any explanation to the injuries pertaining to the injured mentioned in above Exh.10/A. It is true that the prosecution though got Exh.10/A produced through P.W.8 Muhammad Ayoob, but has not brought on record, what were the injuries on the person named therein and what treatment was given to him or was he discharged without any treatment. It may also be pointed out that the appellant himself also in his 342 statement suppressed the fact that he had received any injury at the hand of deceased Gulab inasmu ch as he had stated that he was arrested from his house early in the morning while he was in his Pyjama and Banyan.
(c) There is ample evidence on record to indicate that factually deceased Gulab made efforts to arrest the appellant at the scene of offence and in that process he received injuries resulting into his death. It has also come on record that Gulab had picked up a Paya of a cot and tried to hit the appellant. P.W.3 Teeja Ram and P.W.5 Naraindas in their statements have referred to the above fact. According to above P.W.3 Paya did not strike the appellant. P.W.10 S.H.O. Khawaja Nisar in the memo of the inspection of the Wardat Exh.8/A has mentioned that one blood-stained leg of Charpai was taken in the police possession. This has also been referred to in the Chemical Examiner's report Exh.12/A at serial No,14, which according to the above report contained human blood. It is, therefore, evident that factually Gulab might have hit the appellant with the Paya of the cot and in that process the appellant might have probably received some injuries, or the Paya might have been stained with blood of Gulab. However, it has not been established by any evidence that factually the appellant was the person referred to in above Exh.10/A, as neither P.W.8 Muhammad Ayoob, Sub-Inspector Police nor any other witness has identified the appellant in context with above Exh.10/A. Even Dr.Muhammad Taqi has not been examined.
(d) It is regretted to note that this important aspect has not been looked into either by the prosecution upon which the burden squarely lies or even by the defence if it was beneficial to the appellant. Since the factum of receiving injuries by the appellant would have proved his presence at the scene of offence, it is most likely that in order to plead non-involvement the defence thought it proper to keep it shrouded with mystery. The police in the memo of arrest also indicated that the appellant was arrested from his house. There is no doubt that this is a lapse on the part of the investigation agency and also on the part of the prosecution agency as well. The question, which requires consideration, is as to whether this fact alone is sufficient to nullify the other evidence on record. We are clear in our mind that the three eye-witnesses who were inmates of the house where incident had taken place have not falsely implicated the appellant. They are natural witnesses. The defence has not even suggested any motive on their part for falsely implicating the appellant and leaving out the real culprit. The defence has suggested to some of the eye- witnesses that factually the two murders were committed by Mangi Lal as he had seen his wife in the compromising position with Gulab, his younger brother. This is a suggestion which has no foundation and is not supported by an iota of evidence on record. It has been brought on record that factually the appellant was after Miran Bai for some time and wanted to develop illicit connections with her, which attempt was resisted by her inasmuch as she complained about it to P.W.1 Jetha Ram. The appellant was insulted by the latter as well as by her a few times and was reprimanded. P.W.4 Sarsati in her deposition inter alia has. Stated that she was sleeping adjoining to door of the room and at about 1-30 a.m. Some foot touched her hand and because of that she woke up. She saw appellant inside the room, who was saying to Miran Bai that in case she would shout, he would kill her. This statement has not been challenged by the defence in the cross- examination. P.W. Sarsati was aged about 13 years at the time of the incident. Her name was mentioned in the F.I.R. There is no plausible reason to disbelieve the above statement. This statement of the above witness belies the above suggestion of the defence. It is evident, that the appellant could have easily reached the upper portion of the complainant's house which was on the back side having joint roof through a ladder which' was there. The appellant wanted to take the advantage of the fact that Miran Bai's husband had gone to Faisalabad and that she was sleeping alone with two children in the room and, therefore, it is evident that he had come with the intention to develop illicit intimacy with deceased Miran Bai. The factum that appellant might have received injury might be a relevant factor for considering the quantum of sentence but the omission on the part of the prosecution to explain about Exh.10/A itself in our view shall not undo the other evidence on record if the same is otherwise convincing and suffers from no infirmity.
12. 6.(a) To re-enforce his above submission Mr.Sardar Muhammad Ishaq has vehemently urged that even the seats of injuries have not been identified by the eye-witnesses. According to him this fact also reflects adversely on the veracity of the eye-witnesses of their being present. It cannot be overlooked that the incident had taken place at night at 1.30 a.m. When the inmates of the house were sleeping. In our view, the fact that the eye-witnesses have not identified the location of the injuries inflicted by the appellant will not render their testimony liable to be ignored on the presumption that they were not present at the scene of offence. The three eye-witnesses as observed hereinabove were the inmates of the house, they were natural witnesses and as observed hereinabove the defence has not been able to bring anything on record to indicate that these witnesses had any plausible motive to falsely implicate the appellant in substitution of the real culprit.
(b) It was then contended by Mr.Sardar Muhammad Ishaq, learned counsel, for the appellant that on 17-6-1980 it was a dark night and, therefore, the witnesses could not have witnessed the incident. It may be observed that not a single question has been put to the prosecution witnesses to suggest that either it was a dark night or there were no light arrangements. The incident had taken place in a locality of Karachi and not in a village. It is true that the burden lies on the prosecution but at the same time the accused is supposed to put up his case in defence if he wishes to take the benefit of the point which may go in his favour.
7. (a) Adverting to the learned counsel for the appellant's contention that there are contradictions on material facts, it may be observed that he has referred to the statement of P.W.1 Jetha Ram at page 29, where he has inter alia deposed that "I raised cries but none came" and also to the statement of P.W.2 Devanand at page 35, where he has stated that "after departure of accused 6-7 people came and took away my mother Miran Bai and uncle Gulab towards hospital". According to the learned counsel for the appellant, this amounts to contradiction inasmuch as P.W.1 has stated that he raised cries but none came. If the testimony of P.W.1 is to be read as a whole, it is evident that there is no contradiction between the testimony of the above two witnesses on the above point as P.W.1 has also deposed after few lines at page 29 of the paper book that "after accused ran away 4-5 people had come". It is not the case of the prosecution that at the time of the incident any outsider had entered into the house. P.Ws. 3 and 5 Teeja Ram and Naraindas, the two neighbours had witnessed the incident according to their testimony from their roof from where the upper portion of the complainant's house was visible after putting on outside light of their upper portion of the house. The factum that there was light arrangement at the upper portion of the - above two witnesses' house has not been challenged by the defence. What they have said is that after witnessing the incident when the appellant started running down for escaping, they also came down from their houses outside the house of the complainant and saw the appellant escaping after inflicting more injuries to deceased Gulab.
(b) It was next contended that according to Exh.7/A Mashirnama of arrest and recovery of blood- stained cloths, the appellant was arrested at 5-00 a.m., whereas P.W.10 Khawaja Nisar S.H.O. And the I.O. Has stated in his deposition that he reached the place of Wardat at 6.00 a.m. And, therefore, there is a contradiction even as to the time of arrest. It may be observed that P.W.6 Khena Ji, one of the Mashirs to the Mashirnama of the arrest and to the recovery of the blood-stained clothes Exh.7/ A has also given 5.00 a.m. As the time of arrest. The minor discrepancy between the above pieces of evidence on the one hand of P.W.10 Khawaja Nisar, in our view if not of a consequence justifying the rejection of the above evidence as a whole.
13. 8.(a) It was then contended by the learned counsel for the appellant that in any case the witnesses being interested witnesses their testimony is liable to be discarded in the absence of any independent reliable piece of corroboration. It may be stated that simpliciter inter se relationship between the witnesses and the deceased does not make them interested witnesses unless some other material is brought on record to show that they had motive to implicate an accused falsely.
14. The learned counsel in furtherance of his above submission has referred to the case of Sahib Masih and others v. The State 1982 SCM R 178, the case of Bagh All v. Muhammad Anwar and another 1983 SCMR 1292, and the case of Nazir Muhammad alias Nazir Ahmed v. The State, PLD 1974 Kar.
274. In the first case the honourable Supreme Court of Pakistan was pleased to allow the appeal in a murder case on the ground that the witnesses were interested and their testimony remained uncorroborated. There cannot be any cavil to the above proposition of law.
15. ' In the second case the honourable Supreme Court while dismissing the petition for leave against an acquittal order of the High Court in a murder case observed that the version given by the alleged eye-witnesses being inconsistent with the material facts, cannot be accepted only on the ground that the witness was not inimically disposed to the accused. In the present case there is no inconsistency between the version given by the eye-witnesses and the material facts on record.
16. Hence the above case is not applicable.
17. In the above-cited third Karachi case while allowing an appeal against the conviction of the accused under section 302 recorded by the learned Sessions Judge, the High Court observed that mere fact that witnesses had no apparent reason to falsely implicate the accused person does not render his testimony unassailable. There cannot be two opinions about the above observation. The only difference is that in case of a witness, who had apparent reason to falsely implicate an accused, the Court looks for an independent piece of corroborative evidence as a rule of prudence even if it is satisfied that the version given by such interested witness is not false but in case of a person who had no apparent reason to falsely implicate the accused the Court accepts his testimony if otherwise convincing and suffers from no inherent infirmity or improbability without having any corroborative piece of evidence.
(b) Mr. M.I. Memon learned Additional Advocate-General appearing for the State has invited our attention to the case of Ali Khan v. The State PLD 1980 SC 109, in which the honourable Supreme Court while dismissing the petition for leave against the judgment of the Lahore High Court observed as follows on the question of interested witnesses: "Though theoretically even the statement of interested witnesses is capable of being accepted without further corroboration but such would be an 'exceptional witness' or witnesses and there is nothing on the record which may justify the classification of these witnesses as such. The Courts were, therefore, justified in looking for corroboration."
18. The above case indicates that even the testimony of an interested witness in exceptional circumstances may be accepted, but in the present case, in our view, the witnesses are not interested merely because they are related inter-se, or with the deceased. Reference may be made to the case of Usman v. The State 1984 P Cr.L J 1797 in which a Division Bench of this Court held that mere fact that eye-witnesses either related inter se or related to deceased would not make them interested witnesses unless it was shown that they had a motive to falsely implicate the accused.
19. 9.(a) Reverting to the learned counsel for the appellant's next contention namely, that there is contradiction between ocular evidence and the medical evidence, it may be observed that no contradiction as such has been pointed out. What was urged by the learned counsel for the appellant was that eye-witnesses have not given seats of the injuries and the actual number of injuries. In our view, there is vast difference between lack of particulars and a contradiction e.g. When a witness states that the accused had inflicted head injury in his presence to the deceased whereas medical evidence indicates that there was no head injury but there was only a leg injury, this diversity constitutes contradiction between the ocular and the medical evidence. We may observe that the effect of the lack of seats of injuries or the number H of injuries will depend on the facts of each case. In certain cases, it may be of no consequence, but in some cases, it may adversely reflect on the veracity of the witnesses. In the present case though the seats of injuries have not been given by the eye-witnesses but some of the witnesses have given the number of injuries. For example P.W.1 complainant Jetha Ram have deposed that deceased Miran Bai came out from her room in injured condition and fell on him and asked him to save her from thR appellant. He has further deposed that the appellant gave 3-4 Chhuri injuries more to Miran Bai.
20. The appellant had attacked the woman in the room probably when she resisted his attempt to have illicit connections with her and thereafter she came running outside of the room. There were altogether five external injuries on the person of Miran Bai as reflected in the deposition of P.W.9 Dr.Muhammad Rafiq and the post-mortem report Exh.11/B. It may also be stated that P.W.4 Sarsati has corroborated P.W A on the above point. Furthermore, it cannot be overlooked that the other two inmates of the house, who have been examined, namely P.W.2 Devanand (who was aged about 10 years at the time of the incident), P.W.4 Sarsati was aged about 12 years, whereas P.W.1 was aged about 69 years old in whose house two murders had taken place. In our view want of seats of injuries or number of injuries in eye-witnesses' testimony in the instant case is of no consequence.
(b) Learned counsel for the appellant has referred to the case of Muhammad Hussain v.
21. Muhammad Anwar etc. PLD 1979 SC 943 and the case of Siddique v. The State 1977 P Cr.L J 30. In the former case the honourable Supreme Court of Pakistan while dismissing the appeal against an acquittal order of the High Court in a murder case observed that eye-witnesses' version that they had witnessed the incident, if placed in juxtaposition with the medical evidence on record makes their presence doubtful, whereas in the latter case the conviction was set aside on the ground that the ocular testimony was directly in conflict with the medical evidence inasmuch as the eye- witnesses have stated that the incident had taken place before them and that the accused had inflicted two hatchet injuries whereas medical evidence indicated three hatchet injuries. In our view, the above two cases'_ have no application to the present case and the same are distinguishable on the facts as there is no inconsistency between the ocular and thel medical evidence.
22. 10.(a)As regards the learned counsel for the appellant's contention that recoveries are liable to be discarded on the ground of delay in the despatch of the blood-stained articles to the Chemical Analyser, it may be observed that he has pointed out that in the present case there was delay of two months and three days. He has referred to the case of Gulzar and 4 others v. The State 1976 P Cr.L J 419, in which the recovery of the blood-stained crime weapon was rejected by a Division Bench of the Lahore High Court on the gorund that there was delay in despatch of the same by one month after recovery.
(b) On the other hand Messrs M.I. Memon, learned Additional Advocate-General and Naraindas referred to the case of Mubarak v. State 1982 SCMR 531 and the case of All Gohar and 2 others v.
23. The State 1984 P Cr.L J 1111.
24. ' In the first case the honourable Supreme Court while dismissing the appeal against the confirmation of sentence of death under section 302 observed on the question of delay of about three months in sending the crime empty and the weapon for comparison to the Ballistic Expert as follow: "Mere delay in sending the crime empty and the weapon for comparison to the Ballistic Expert cannot by itself imply that the recovery is doubtful. This inference can follow only after examining all the attendant circumstances, such as whether any doubt existed about the recovery of crime empty from the spot; whether any suspicion arises that it had been substituted, etc. As no such suspicious circumstance has been pointed out in this case and, therefore, the recovery of the gun from the appellant could rightly be used as a corroborative circumstance."
25. The above case has been followed by this Court in a number of cases and recently this has been followed in the case of All Gohar and 2 others v. The State 1984 P Cr.L J 1111, and it has been held that the delay in sending the article to Chemical Analyser by itself is no ground for rejecting the delay in despatching the crime weapon to the Chemica Analyser. The delay in despatching the crime weapon to Chemical Analyser becomes relevant when something has been brought on record to indicate that either the above recovery was factually tampered with or that there was possibility of it being tampered with before its despatch. No question has been put to P.W.10 S.H.O. Khawaja Nisar on the above delay by the defence, nor any thing has been brought on record which may create suspicion as to the genuineness of the recovery. The above Supreme Court case on all fours is applicable to the above case.
26. We are, therefore, of the view that the recovery of the blood stained knife and the other items from the appellant can be relief upon.
11. Reverting to the learned counsel for the appellant's contention that the learned Sessions Judge in 342, Cr.P.C. Statement has not put any question as to the motive disclosed in the F.I.R. And by the witnesses and, therefore, the motive is liable to be ignored, it may be observed that he has referred to the case of Din Muhammad v. The Crown 1969 SCMR 777, in which the honourable Supreme Court while accepting an appeal in a murder case held that circumstances from which inferences adverse to the accused are to be sought should be put to accused when he is questioned under section 342 and in the absence of questioning such circumstance cannot be relied upon.
27. There is no doubt that in the present case the learned Sessions Judge has not put any question on the motive to the appellant while questioning under section 342, .Cr.P.C. However, this omission will not render the other evidence on record liable to be ignored. The only effect will be that the motive as a circumstance lending corroborative support will be ignored. It is a well-settled principle of law that in order to prove a criminal offence it is not a pre-condition that the motive of the commission of the offence should also be proved by the prosecution. If the other evidence on record is sufficient to establish the guilt of an accused person beyond reasonable doubt the absence of motive will not result in acquittal of the accused.
28. We are satisfied that the prosecution has been able to prove the present case against the appellant beyond reasonable doubt even if the motive is to be ignored, it is of no consequence.
12. The only question remains to be considered is quantum of sentence. As observed hereinabove that the complainant party has filed a revision for enhancement of sentence, whereas this Court had also issued a suo motu notice for enhancement for the reason that the learned Sessions Judge has awarded life imprisonment instead of death sentence.
29. ' It was vehemently urged by Messrs Ibrahim Memon and Naraindas that the present case involves a double murder and, therefore, the applicant deserves no leniency and that there are no mitigating circumstances warranting imposition of lesser sentence than death which is the normal sentence in a murder case. Whereas the learned counsel for the appellant has urged that the instant case is not a fit case of or enhancement of the sentence. We have given our serious thought t this question. We are inclined to maintain the sentence awarded by the learned Sessions Judge for more than one reason namely:
(i) The testimony of P.W.4 Sarsati to the effect that the accused told Miran Bai that she should not shout otherwise he would kill her, indicates that the appellant had not come with the intention to commit murder. It was not a case of premeditated murder but the above murder was committed in the heat of the moment.
(ii) Similarly it is evident that the appellant did not intend to murder Gulab but he attacked him when he was caught by Gulab. It has come on record that Gulab even in the injured condition followed the appellant even the down stair for catching him and he was inflicted further injuries and in that process he died.
(iii) We have already discussed hereinabove in para. 5(c) the statements of P.Ws. 3 and 5 on the question of using a Paya of a cot by deceased Gulab, which was found from the place of incident with bloodstains. We have also referred to Exh.10/A indicating that a person by the name of the appellant resident of the same Mohallah was received in the Civil Hospital at 3.25 a.m. The possibility that the appellant was the person or that he might have received (though not have been proved), cannot be ruled out altogether.
(iv) That the motive was alleged but the same was not proved for the reason that it was not put to the appellant while questioning under section 342, Cr.P.C.
13. For the aforesaid reasons the appeal and the criminal revision and the suo motu revision are hereby dismissed and the judgment of the learned trial Court is maintained. However, we are not inclined to extend the benefit of section 382-B, Cr.P.C. To the appellant and no adjustment of the trial detention period will be given to the appellant, while computing the sentence.
30. Appeal and .