' MUHAMMAD NAWAZ ABBASI, J.---This judgment will dispose of Murder Reference No, 179 of 1991, Criminal Appeal No,90 of 1991 and Criminal Appeal No, 99 of 1991.
2. Ghulam Rasool alias Bawa son of Sardar Muhammad and Faiz Mustafa alias Ludoo son of Mahmood Ali, appellants were tried under section 302/34, P.P.C. For the charge of committing the murder of Muhammad Farooq, deceased by the learned Additional Sessions Judge, Multan who vide his judgment dated 2-4-1991 finding the appellants guilty, convicted and sentenced them as under:---
(1) Death sentence to Ghulam Rasool alias Bawa with a fine of Rs,10,000 and in default of the payment of fine to undergo S.I.Lor six months.
(2) Imprisonment for life to Faiz Mustafa alias Ludoo with a fine of Rs,5,000 and in default of the payment of fine to undergo. S.I. For four months with benefit of section 382-B, Cr.P.C.
' The fine, if recovered, was directed to be paid to the legal heirs of the deceased.
3. Precisely the prosecution case as contained in the FIR and narrated by Muhammad Ayub, complainant P.W.8 at the trial was that on 30-6-1988 at 8-00 a.m. The complainant, a Powerlooms Worker went to see Muhammad Farooq his deceased brother in Mohallah Shafiqpura where he was employed in the Carpet Factory of Muhammad Saleem Ansari After a shortwhile the deceased having desired for dinner proceeded to Street No, 15 and when reached near shop of Muhammad Munir, Ghulam Rasool alias Bawa and Faiz Mustafa alias Ludoo, appellants, armed with daggers confronted the deceased and raising Lalkara attacked on him. Faiz Mustafa alias Ludoo inflicted a dagger below on the right side of the abdomen of the deceased whereas Ghulam Rasul alias Bawa inflicted two dagger belows on the bailey of deceased. Thereafter, Faiz Mustafa caused dagger below on the left arm of the deceased and Ghulam Rasool alias Bawa gave three successive blows on the neck, chin and right hand of the deceased. The occurrence is stated to have also been witnessed by Muhammad Saddique. The deceased was immediately removed to the hospital by Muhammad Saddique P.W., whereas Muhammad Ayub complainant proceeded to the police station for lodging of the complaint. Abdul Aziz, Sub-Inspector recorded the statement Exh. PF of complainant at Jan Muhammad Chowk at about 8-00 p.m. On the basis of which a case under section 307/34, P.P.C. Was registered against the appellants vide formal F.I.R. Exh.PF/1. Immediately after registration of case Abdul Aziz, Si. Recorded the statement of Muhammad Siddique and Muhammad Aslam P.Ws., in the Nishtar Hospital. He on receiving information regarding death of Muhammad Farooq altered the offence under section 302, P.P.C. And after preparing inquest report Exh. PK and injury statement Exh. PL of the deceased handed over the dead body to Farzand Ali Constable for autopsy. He inspected the spot and took into possession the blood-stained earth from the place of occurrence vide Memo. Exh. PB. The last-worn clothes of the deceased produced before him were taken into possession by him through a Memo. Exh. PA. He arrested both the appellants on 8-7-1988 and recovered dagger P3 from Ghulam Rasool and dagger P4 from Faiz Mustafa and took the same into possession vide Memo. Exh. PC and Exh. PB respectively. He after completing the formal investigation .And recording the statements of the witnesses, challaned the appellants to face the trial.
4. Dr. Riazuddin since dead medically examined Muhammad Farooq deceased in injured condition at 8-30 p.m. On 30-6-1988 and found the following injuries on his person:-
(1) An incised wound on the back of the right hand (inner side) and back of wrist joint 7 c.m. x 2 c.m. x bone deep (bones of hand and wrist joint visible).
(2) An incised wound on the chin 4 c.m. x 1/2 c.m. Bone deep in verticle direction.
(3) An incised wound on the back of left upper arm 1 c.m. x 1/2 c.m. x muscle deep.
(4) A stab wound on the front of right abdomen in transverse direction near midline about 10 c.m.
Below right nipple not probed.
(5) A stab wound on the outer side of left abdomen 2 c.m. x 1/2 c.m. x not probed about 17 c.m.
From midline and 15 c.m. Below the left nipple.
(6) A stab wound on the front of left abdomen 1-1/2 c.m. x 1/2 c.m. x. None none probed about 10 c.m. From midline and 17 c.m. From nipple.
(7) An incised wound on the right side of neck 2 c.m. x 1/2 c.m. x muscle deep about 2-1/2 c.m. From midline and 3 c.m. Above clavicle.
' Injuries Nos.. 4, 5 and 6 were collectively declared dangerous to life and the rest of injuries were simple except injury No,1 which was kept under observation. The injuries were caused with sharp- edged weapon with the duration of six hours.
' Dr. Muhammad Saleem P.W. 5 conducted post-mortem examination of the deceased on 1-7-1988 and found the following injuries on his person:
(1) An incised wound 7 c.m. Bearing four stitches on the back of right hand and wrist.
(2) An incised wound 4 c.m. Long bears 3 stitches on the left chin in verticle direction.
(3) An incised wound 1 c.m. x 1/2 c.m. Into muscle deep on the back of left upper arm, 10 c.m. Above elbow joint.
(4) An incised wound 2 c.m. Long bears 2 stitches in front of right abdomen, 10 c.m. Below the right nipple.
(5) An incised wound 2 c.m. Long bears two stitches on the left abdomen at the level of the left lower ribs 8 c.m. From the midline.
(6) A stab wound 1-1/2 c.m. Long bearing 2 stitches on the outer aspect of the left lower chest at mid-axillary line, 17 c.m. From the mid-line.
(7) A stab wound 4 c.m. Long bearing 3 stitches on the outer side of left chest on mid axillary line 10 c.m. From the left nipple.
(8) An incised wound 2 c.m. Long bearing 1 stitch on the front of right neck, 3 c.m. From the clavicle, 2-1/2 c.m. From the mid-line.
(9) An operated wound 18 c.m. Long bearing 9 stitches 1 c.m. From the mid-line on the left abdomen.
' In the opinion of this doctor, the death occurred due to internal haemorrhage and shock as a result of injuries Nos.6 and 7 individually or collectively which was sufficient to cause death in the ordinary course of nature.
5. The prosecution to prove the case against the appellant produced Muhammad Ayub complainant PW.8, real brother of the deceased and Muhammad Saddique P.W.p brother of Muhammad Saleem employer of the deceased. Both these P.Ws. Claiming themselves to be the eye-witnesses of the occurrence narrated the prosecution story consistently with the contents of the FIR corroborating each other on all material points. The deceased was initially medically examined by Doctor Riazuddin who died before the commencement of the trial however, Dr. Muhammad Saleem P.W. 5 who conducted the postmortem of the deceased proved the medical report of the deceased in the hand of Dr. Riazuddin giving the detail of injuries found by him on the person of the deceased during the course of post-mortem. Abdul Aziz, S.I. P.W. 10, recorded the statement of the complainant Exh. PF on the basis of which the case was registered. He investigated the case and challaned the appellants to face the trial. The remaining witnesses being of formal nature need not to be discussed. The Chemical Examiner. Report Exh.PN and that of Serologist Exh. PM were made the part of the record. Muhammad Rafique, Muhammad Aslam and Muhammad Hussain witnesses being unnecessary were given up by the prosecution.
6. The appellants denied the prosecution allegations and pleaded false implication. Ghulam Rasool, appellant, in his statement under section 342, Cr.P.C, answered to question No, 7 as under:- -- "I have been falsely implicated at the instance of one Yasin brother of Muhammad Siddique P.W. He and his brother habitual deal in narcotic prior to the instant occurrence. He was arrested. Yasin suspected me that I had informed the police. I had an altercation he also sact me from his carpet manufacturing Factory as I used to work in his Factory. Two copies of F.I.R. Bearing Nos. 335 and other No, 332 dated 24-9-1990 Exh. D1 and Exh. D2 are being produced in support of the fact that even nowadays both Yasin and Rafique who are brothers inter se dealing in narcotic activities. At the time of occurrence, I was working in my house on the weaving machine. I was involved in this case due to enmity."
' Similarly, Faiz Mustafa, appellant stated as under:- "The P.Ws. Are partisan. I have been involved in this case due to enmity. I was also working at the Factory of Saleem. Saleem and his brothers were dealing in narcotic. The police raided them on various occasions and they had to save their skin by bfibing police. Saleem and his brother suspected that I was also informer. They at the patronage of local Councillor with whose help they succeeded in getting me involved in this case."
' The learned trial Court with the conclusion that both the appellants in furtherance of their common intention committed murder of Muhammad Farooq deceased convicted and sentenced them under section 302/34, P.P.C.
7. Sheikh Dilawar Hussain, learned counsel appearing on behalf of Ghulam Rasool alias Bawa, appellant contended that in view of the nature and size of the injuries and the evidence of doctor, the same could not be the result of dagger and that of injury No,7 on chest in the post-mortem examination having found not mentioned in the medical examination of deceased conducted by Dr. Riaz-ud-Din created a serious doubt in the correctness of prosecution story. The medical evidence being in conflict with the ocular account, the claim of the P.Ws. To witness the occurrence being not free from doubt, they were not truthful. He questioned the presence of Muhammad Ayyub complainant at the spot with the arguments that it was unnatural for the deceased to go for dinner without inviting him even a cup of tea with hini at the hotel and despite the fact that deceased received injuries within his sight, he was removed to hospital by Muhammad Siddique P.W.9 and not by the complainant. His next contention was that onus of proving the motive having been not satisfactorily discharged by the prosecution for want of placing on record the detail of earlier quarrel between the deceased and the appellants and that both the appellants whether in fact had a common grievance against the deceased to commit his murder being doubtful the case was not proved. He finally argued that while believing the prosecution story in toto, it can safely be ascertained in the circumstances of the case that it was not a pre-planned and premeditated occurrence. The attending circumstances suggest that something not earlier in the knowledge of P.Ws., suddenly bring the parties to a situation which prompted the appellants to this fateful incident constituting an offence punishable under section 304, P.P.C.
8. Sardar Muhammad Latif Khan Khosa, learned counsel appearing on behalf of Faiz Mustafa, appellant additionally argued that Faiz Mustafa, appellant being a boy of tender age having no enmity or grudge against the deceased could not be a party to the crime. He probably being a companion of his co-appellant at Powerlooms Factory was named as an accused. He contended that not an iota of evidence was brought on record to suggest any reason with him to become a party in the commission of offence joining the hands of his co-accused Ghulam Rasool.
Admittedly, the P.Ws. Witnessed the occurrence in the street from a reasonable distance in electric light being not in a position to be definite about the precise role played by each appellant, coupled with the fact that two simple injuries on the abdomen and left hand caused with dagger attributed to Faiz Mustafa in their nature and size being not different to that of remaining injuries, the possibility of causing all the injuries to the deceased by a' single accused cannot be ruled out in the circumstances of the case. He submitted that in any case, it being not a premeditated murder and there being no common intention, the appellants were to be burdened with individual liability.
9. Conversely, learned Assistant Advocate-General assisted by learned counsel for the complainant submitted that the P.Ws. Being the resident of locality were natural witnesses of the occurrence and they having no enmity with the appellants could not be expected to implicate them if not involved in the case. The testimony of Muhammad Ayyub, complainant P.W.8 real brother Of the deceased in absence of any circumstance suggesting him to be inimical to the appellant or to have a special reason with him to depose falsely, cannot be excluded from consideration merely on the basis of relationship. It has been argued that Muhammad Siddique P.W.9, brother of Muhammad Saleem, the employer of the deceased was entirely a disinterested and independent person, who with no improvement supported the prosecution case as disclosed in the promptly lodged F.I.R. It was submitted that although the ocular account in the present case is of unimpeachable character to be relied upon without looking for any other source of corroboration, the recovery of blood-stained daggers, the weapons of offence and medical evidence provided sufficient confirmatory material to prove the charge.
10. We have given anxious consideration to the arguments advanced by the learned counsel for the parties and have also perused the record carefully with their assistance.
11. The peculiar circumstances under which the occurrence took place with no ambiguity indicate that Muhammad Ayyub P.W. 8 brother of Muhammad Farooq deceased possibly was not accompanying the deceased at the relevant time. It does not appeal to mind that a real brother instead of taking the injured to the hospital for medical aid to save his life would prefer to rush to the police station. The complainant admittedly was employed in a Powerlooms Factory situated at a distance of one mile from the Factory in which the deceased used to work and the distance of his house was about one and a half miles from the place of occurrence. The witness after receiving information could within a short time reach at the spot and in the hospital, hence the prompt lodging of F.I.R. Cannot be a sound proof of his presence at the spot as he claimed. According to the complainant, he went to the deceased to consult with him, the matter of purchase of the house but it was strange that deceased his real brother even without formal invitation to accompany him for dinner or a cup of tea left the factory and the witness of his own followed the deceased. It was not the case of the prosecution that the witness went to see his deceased brother in the Carpet Factory and on coming to know about the deceased having gone for dinner followed him.
Admittedly, the deceased received injuries within his sight but he did not bother either to rescue the deceased or himself took him to the hospital and run to the police station for lodging the report. The unexplained circumstances under which occurrence took place and the conduct of the complainant suggest that the receiving information later about the occurrence rushed to the spot after the removal of deceased to the hospital from the spot, for medical aid and did not witness the occurrence as claimed by him. However, the witnessing of the occurrence by Muhammad Siddique P.W.9 and his removal of injured to the hospital immediately after the occurrence, a resident of same Mohallah having his residential house at a close distance from the spot is free from doubt. His categorical denial to have any enmity with the appellants remained unchallenged and defence has not been able to bring on record any evidence direct or circumstantial to doubt his truthfulness and presence at the spot. He with no difficultycould identify the appellants inflicting injuries to the deceased from a distance of 20 to 25 yards in the electric light. He is entirely an independent and impartial and being a witness of truth can safely be relied upon without any corroboration. However, in the present case, the recovery of blood-stained dagger P3, from Ghulam Rasool appellant having been proved by P.W.2, a disinterested person provides sufficient corroboration. The solitary witness if inspiring confidence and independent and his evidence if of unimpeachable character dispelling all doubts, the conviction can be based on his evidence with no hesitation. Muhammad Siddique P.W.9 is an honest witness to be relied upon. Anyhow, his testimony seeking corroboration from medical and recovery evidence is enough to award capital punishment.
12. Undoubtedly, motive is always helpful to prove the case but sometimes the murders are motiveless and are also committed for very petty and trivial reasons. The motive being not essential ingredient of murder, the prosecution is not always bound to prove the same, but some time, in case of failure to prove a motive set-up, the prosecution has to face consequences which is not in the nature of acquittal, and hardly can be relevant in the matter of sentence.
' The prosecution has not brought the detail of the earlier quarrel between the deceased and the appellant and also whether the occurrence was the result of an individual grievance or both of the appellants having some common cause committed the crime. However, the reasons behind the murder being best known to the appellants, the motive having been not proved did not adversely affect the merits of the case. The weakness of motive or absence of motive and immediate cause of occurrence if not known, is not always to be taken a mitigating circumstance. The entire occurrence having been witnessed, it cannot be said that something happened before the occurrence making it a case for lesser penalty.
13. Probably, the occurrence though not pleaded at the trial, appears to be the result of some rivalry between the deceased and Ghulam Rasool appellant over the friendship of Faiz Mustafa appellant, a boy of 13/14 years at the time of occurrence. The possibility of making an attempt by the deceased to create some misunderstanding between the two appellants, disturbing their relations inter se having been not ruled out, was taken serious by Ghulam Rasool, who being revengeful took this extreme step to kill the deceased. However, none of the parties had brought on record any material introducing it as background of the occurrence.
14. Admittedly, Faiz Mustafa is attributed two simple injuries to the deceased. The reason of his participating in the occurrence and the enmity with the deceased is not known. Muhammad Siddique P.W.9, the sole eye-witness also knew nothing about the motive and the background of the enmity between the parties except the actual occurrence at the spot. We, therefore, having not been able to find out any satisfactory evidence of participation of Faiz Mustafa a boy of tender age in the occurrence with the design to kill the deceased, are not clear in our mind to hold him guilty under section 302, P.P.C. By virtue of application of section 34, P.P.C. There being no evidence of premeditation and preplanning to commit murder, we taking it a case of individual liability alter the conviction of Faiz Mustafa from section 302, P.P.C. To under section 326, P.P.C. For causing simple injuries to the deceased not fatal to life and with no intention to kill. He has spent a period of more than 5-1/2 years in all in the jail which we consider sufficient punishment to be awarded to him under section 326, P.P.C. With the reduction of fine to Rs,2,000. The appeal to his extent is disposed of in the above terms.
15. Ghulam Rasool appellant with some malice against the deceased with no excuse and justification caused successive dagger blows to the deceased on highly sensitive and vital part of the body proving fatal to life in a cruel manner deserves no sympathy or leniency in the matter of sentence. We do not consider the failure of the prosecution to prove the motive, a ground for lesser punishment in the peculiar circumstances of the case. We accordingly confirming the death sentence of Ghulam Rasool appellant dismiss his appeal and answer the murder reference in affirmative.