' NAZIR AHMAD BHATTI, J.-- Fayaz Ahmad appellant herein has been convicted under section 302, P.P.C. On two counts and sentenced to undergo life imprisonment by the Sessions Judge, Mardan by judgment, dated 6-7-1986. He has also been fined Rs,5,0(0 on each count or in default to undergo further R.I. For two years and Rs,4,000 each have been awarded as compensation to the heirs of both the deceased from the amount of fine if recovered. The appellant has challenged his conviction and sentence by the appeal in hand. Since the appellant was convicted for the offence of committing two murders, a suo motu notice of enhancement of sentence was issued by this Court against the appellant on 26-7-1987 and the same has been registered under No, 52 of 1987.
Judgment in the appeal in hand will also dispose of the aforesaid suo motu revision.
2. Complainant Mir Ahmad took dead bodies of his two brothers Shamsher Khan and Gul Sher Khan in Police Station Saddar, Mardan on 17-7-1981 at 12-00 hours and recorded F.I.R. No,
151. On the day of occurrence at 11-30 hours the complainant and his two brothers Shamsher Khan and GuI Sher Khan and two other persons, Muntazir and Dilbar, were sitting in their Baithak when the appellant entered the sitting room armed with a pistol. The appellant first abused Shamsher Khan and then fired a pistol shot at him and injured him. Thereafter the appellant ran out of the sitting room and the complainant party raised alarm and followed him. Gul Sher Khan another brother of the complainant was coming in the street outside the sitting room. The appellant Fayaz fired one pistol shot at him also and injured him. The complainant party could not chase the appellant as they were unarmed. Both the injured brothers of the complainant succumbed to their injuries at the spot. The motive for the offence was that a few days before the occurrence an altercation had taken place between the appellant and both the deceased with regard to some monetary transaction. The appellant absconded after the occurrence and he was arrested on 5-8-1984. After investigation the appellant was sent up for trial before the learned Sessions Judge, Mardan for the aforesaid two murders. The learned trial Judge charged the appellant under section 302, P.P.C. For committing both the murders to which he pleaded not guilty and claim trial. The State produced fifteen witnesses in support of the prosecution case out of whom two witnesses, P.W.12 Mir Ahmad complainant and P.W.13 Muntazir, are eye-witnesses of the occurrence.
3. P.W.1 Dr. Saifullah conducted autopsy on the dead body of Shamsher Ali on 17-7-1981 at 14-40 hours and found a fire-arm entrance wound 1/8" x 1/8" on the front of the neck and fire-arm exit wound on the right side back of the chest just at the level of inferior angle of the scapula. The doctor found walls, ribs, cartilages, larynx and trachea injured and blood vessels injured at the site of the wound. Right pleura and right lung were also injured. According to the opinion of the doctor death was caused due to haemorrhage, shock and injury to the vital organs immediately as a result of firing. The same doctor also conducted autopsy on the dead body of GuI Sher on the same day at 15-25 hours and found one fire-arm entry wound just at the upper part of the sternum 1/8" x 1/8" and a fire-arm exit wound on the left side back of the chest 1" above the left scapula measuring 1/8" x 1/8". The doctor found thoracic walls, ribs, cartilages and trachea injured at the site of wound.
Left pleura, left lung and back vessels were also found injured. Death occurred due to hemorrhage, shock and injury to the vital organs immediately as a result of fire-arm. The doctor further stated that the position of injuries on the person of deceased Gul Sher showed that the missile had slightly travelled obliquely. Mir Ahmad complainant appearing as P.W.12 generally corroborated the contents of the F.I.R. Made by him. He confirmed that before the occurrence an altercation had taken place between Shamsher deceased and the appellant over an amount of Rs,10 or Rs,15. In cross-examination he stated that the appellant had fired two shots at Gul Sher deceased but only one had hit him. He denied the suggestion that he was indebted to the appellant in the sum of Rs,60,000 on account of gambling. He also denied the suggestion that he was not present at the spot at the time of occurrence. P.W.13 Muntazir has stated that he and complainant Mir Ahmad and one Dilbar and deceased Shamshcr were sitting in the Baithak of the complainant. It was about 1115 or 1120 hours when the appellant came there and demanded his money from Shamsher and also abused him and took out his Tamacha and fired at Shamsher who was injured and fell down. The complainant party were chasing the appellant when Gul Sher coming from his house came in front of the appellant and the later also fired two shots at him and injured him. Both the injured succumbed to their injuries at the spot. This witness had neither any enmity with the appellant nor any relationship with the deceased. The Investigating Officer came to the spot at 12-00 noon and recorded his statement. P.W.14 Tamash stated at the trial that three days before the occurrence he was sitting in the Hujra of Saddi Khel where the appellant and both the deceased were also present. The appellant demanded his Rs,30 from Shamsher but the latter said that he would return the amount when he got some money. Thereupon an altercation took place between the appellant and the deceased and they were about to grapple with each other when this witness intervened.
P.W,15 Zarif Khan Sub-Inspector recorded the F.I.R. At the instance of P.W.12 Mir Ahmad who had brought dead bodies of his two brothers Shamsher and Gul Sher Khan in the police station. He investigated the case. The appellant was absconding. He, therefore, carried out proceedings to declare him a proclaimed offender. He prepared the site plan. He inspected the spot. He did not find any blood at the place where Gul Shcr was done to death. He did not find any empty from the spot. The shirt and jacket of deceased Gul Sher brought from the hospital had no cut marks. He had no information that both the deceased were gamblers or were involved in large number of cases of gambling.
4. The appellant in his statement under section 342, Cr.P.C. Denied that he, had any altercation with deceased Shamsher over some money. He also denied the commission of offence of murder of both Shamsher and Gul Sher. He did not admit that he had absconded but stated that he was living in Rawalpindi where he was employed. He further stated that Mir Ahmad complainant was brother of both the deceased while P.W. Muntazir was son of their paternal-aunt and P.W.14 Tamash was maternal-uncle of the deceased. He, however, stated he was innocent and falsely charged. He also prodcued Exh.D.X., copy of F.I.R. No, 168 recorded in Police Station Saddar Mardan on 21-11-1971 according to which both the deceased were charged under sections 394/353/332/392, P.PC read with section 13 of the Arms Ordinance and section 6 of the Gambling Ordinance. In respect of this F.I.R. Statement of Purdil A.S.I. Police Station Saddar, Mardan was also recorded in this Court as C.W.1 on 1-2-1988. The appellant refused to make any statement on oath.
The appellant also produced one defence witness to show that the mother of the deceased and the mother of PW.13 Muntazir were sisters, although P.W.13 Muntazir had categorically denied that his mother was in any way related to the mother of the complainant.
5. The learned counsel for the appellant contended that'the motive for the offence had not been proved but we cannot accept this contention for the reason that P.W.14 Tamash had clearly stated at the trial that in his presence an altercation had taken place between the appellant and the deceased Shamsher over an amount of money which the appellant was demanding from the deceased. It was further contended by the learned counsel that at least there was no motive, against the appellant for the murder of Gul Sher. We cannot accept this contention as well because Gul Sher was real brother of deceased Shamsher and the same motive could be advanced for his murder as has been established in the evidence in connection with the murder of Shamsher. Even otherwise it is not necessary that there must be a motive for every offence. Many an offence is committed without any motive or the motive may be known to the offender alone or it may be shrouded in mystery. There is a wealth of case-law where the superior Courts have not given due importance to the absence of a motive when the offence was otherwise proved against an offender. From the evidence recorded in the case we have found that cogent and independent evidence was produced in the trial to establish an altercation between the appellant and deceased Shamsher regarding a matter of money and this could be a sufficient ground for the appellant to commit the offence.
6. It is also a fact that a motive for the commission of offence may develop at the time when the crime is being committed. So it cannot be said that the absence of or a weak motive for the commission of any offence is fatal to the prosecution.
7. It was then contended by the learned counsel for the appellant that in so far as the murder of Gul Sher is concerned, neither any blood was found at the place where he was allegedly fired at and done to death nor the clothes, which were worn by him at the time of post-mortem examination, bore any corresponding cuts of the missile of the shot. In this connection it is to be kept in mind that the absence of any cut marks on the clothes of a deceased would not in any way prove that the deceased was not done to death by a fire-arm. It is also a fact that since the dead body of Gul Sher was immediately picked up from the spot and put on a cot the blood may not have fallen on the ground. In the same connection it was contended by the learned counsel for the appellant that the direction of injury sustained by deceased Gul Sher was from upwards to below and that there was a conflict between the investigation and medical evidence. We have considered this aspect very anxiously but we do not find that this circumstance should assume so much importance as to cast a shadow of doubt on the offence committed by the appellant. It is possible that the missile after entering the body may have been deflected by striking with a bone. Such circumstance has come to the notice of Courts in numerous cases. Anyhow this circumstance is of such a trivial nature that it is not worthy of any serious consideration. It is also a fact that evidence was recorded four years after the occurrence and minor discrepancies were bound to arise. No person can be expected to repeat any occurrence in exactly the same manner as he had seen it when he is required to repeat the same after the lapse of considerable time. The main point in such an eventuality would be that the main and important factors of an occurrence do not suffer from any material deficiency or conflict.
8. The most important factors which prove the offence committed by the appellant beyond any doubt are that the report of the occurrence was lodged within half an hour. The occurrence took place at 11-30 hours and the F.I.R. Was lodged at 12-00 hours. There was neither any unnecessary delay in reporting the occurrence nor there was any possibility of fabricating a story. It is also a case of a single accused where the question of substitution would hardly arise. On top of all it is daylight occurrence and there would be no room for any doubt with regard to the identity of the assailant. The occurrence took place in the sitting room of the house of the complainant party and the inmates of the house would be the natural witnesses of the occurrence. Not only that the complainant and P.W. Muntazir were natural witnesses of the occurrence but there was nothing on the record to prove that the complainant being a brother of the deceased had any enmity with the appellant. Mere relationship with the deceased is no ground for discarding the evidence of such a witness when it cannot be proved that he had also some animosity with the assailant. As such we cannot doubt the presence of complainant Mir Ahmad at the spot at the time of occurrence. It was the month of Ramazan and people generally gather in Hujras or sitting rooms to pass time. As such the presence of the other P.W. Muntazir can also not he excluded. It was a cold-blooded murder of two persons. The appellant committed the murder of Shamsher over a very trivial matter of few rupees and the murder of other brother was a dastardly act on his part and was committed without any provocation and without any reason at all.
9. The appellant absconded immediately after the occurrence and he remained out of the reach of the hands of law for more than four years. He failed to show any convincing reason for his abscondence for such a long time. This circumstance would also go against him. Although abscondence per se is not a pointer towards the guilt of a person but coupled with other circumstances it would also be an important factor going against him. From the circumstances adverted to above we are convinced that he absconded after the commission of the offence to avoid his arrest and this circumstance is also one of the proofs of his guilt.
10. For the aforesaid circumstances we are unable to accept the appeal of the appellant. Not only that but the sentence awarded to him also seems to us to be very lenient and for that reason we had under our suo mote jurisdiction issued a notice to the appellant for showing cause as to why the sentence should not be enhanced. The appellant committed two murders, one for a very insignificant motive and the other seemingly without any motive. He committed the murder of two real brothers without any provocation at all. Both the murders were committed in cold blood. In spite of that the learned trial Judge thought it fit to impose the lesser penalty of imprisonment for life. When it is proved that a person is guilty of murder, then the normal punishment for that offence should be death and there should he very strong extenuating circumstances to justify the imposition of lesser penalty of imprisonment for life. The learned trial Judge has imposed the punishment of imprisonment for life on the plea of medical evidence but we do not find anything in the medical evidence in order to justify the imposition of lesser punishment. The mere fact that the appellant fired only one shot each at both the deceased would not operate as an extenuating circumstance to justify the imposition of a lesser penalty. The appellant had fired at both the deceased with the clear knowledge of an intention to cause their death and the shots were fired at such a vital organ of the body that they caused instantaneous death of both the real brothers. We, therefore, do not find any extenuating circumstance in this case to give the benefit of imposition of lesser penalty of imprisonment for life to the appellant. The learned counsell for the appellant contended that since there did not appear to be any motive for the commission of the offence, the death penalty may not he imposed upon the appellant. However, we cannot accept this contention taking benefit from the case of Sarfraz v. The State 1970 SCMR 113 wherein it has been held that a murder which may apparently appear to be motiveless may not he without a motive as it is not easy to discover the same which may be lying hidden in the mind of the murderer. But, even if a murder is committed without a motive, it does not get invested with any virtue to merit a leniency in the sentence.
11. We are, therefore, of the considered opinion that the punishment awarded to the appellant was not adequate. We will, therefore, in pursuance to our suo motu notice of enhancement of sentence, while holding the appellant guilty of two murders of Shamsher and Gul Sher, alter and enhance the sentence to death on two counts. He shall he hanged by the neck till he be dead. We will, however, maintain the sentence of fine as imposed by the learned trial Judge. However, in so far as the question of compensation under section 544-A, Cr.P.C. Is concerned we will also modify the judgment of the learned trial Judge to the extent that the amount of compensation awarded by him shall be in addition to the fine and in default of payment of compensation the appellant shall undergo simple imprisonment for three months on each count. The appeal is accordingly dismissed. The appellant is to be informed of this judgment in jail. .