' GHULAM SARWAR SHEIKH, J.--- Hazaray Shah son of Muhammad Ramzan Shah, Caste Syed, resident of Qabil Lar Tehsil Khanpur District Rahimyar Khan, indicted for QatI-e-Amd of Muhammad Ramzan and Allah Diwaya and launching murderous assault upon Muhammad Yar P.W. Was tried and convicted by Akbar Ali, learned Additional Sessions Judge, Khanpur, under section 302, P.P.C.
On two counts and sentenced to death as "Tazeer" on each count. He was also convicted and sentenced for causing injuries on the person of Muhammad Yar, details whereof need not be recapitulated as Muhammad Yar, the victim, has forgiven the convict and necessary permission to compound stands accorded.
2. Prosecution case as unfolded in gleaned out and reflected by F.I.R. Exh.P.A. Is to the effect that on 23-5-1992 at 11-00 a.m. Muhammad Khalid P.W.1, his father Muhammad Ramzan since deceased, his grand-father Allah Diwaya also deceased, alongwith Muhammad Yar Panwar P.W. Were sitting under a Sheesham tree outside their house in village Qabil Lar. Hazaray Shah, the convict, came there brandishing a Toka. He inflicted an injury with it on the neck of Muhammad Ramzan and shouted that he was being taught a lesson for impounding his goat. In a bid to apprehend the convict, Allah Diwaya, grandfather of complainant, was also inflicted injuries on his head, neck and leg. Muhammad Yar Panwar P.W. Raised hue and cry and sustained injuries on his hands and head.
Alarm rose by complainant and said P.W., attracted Karim Bakhsh and Haji Rashid Ahmad, who, also witnessed the occurrence.
3. Muhammad Ramzan breathed his last at the spot, whereas Allah Diwaya and Muhammad Yar were taken to Civil Hospital, Khanpur, wherefrom they were referred to B.V. Hospital, Bahawalpur.
Allah Diwaya, however, succumbed to his injuries on his way to B.V. Hospital, Bahawalpur and Muhammad Yar was admitted there and medically examined. Muhammad Khalid P.W.1 reported the matter to Muhammad Nawaz Khan, Inspector/S.H.O., Police Station, Khanpur, on the same day within one hour of the occurrence.
4. After registration of the case, and directing Muhammad Hafeez, A.S.-I. To go to hospital, to attend to the injured, P.W.13 Muhammad Nawaz Khan, Inspector/S.H.O. Proceeded to the place of occurrence. He visited the spot, prepared inquest report Exh.P.M. Of Muhammad Ramzan, collected bloodstained earth from the place of murder of Muhammad Ramzan and after making it into a sealed parcel took it into possession vide memo. Exh.P.B. He also secured blood-stained earth from the place where Allah Diwaya and Muhammad Yar P.W. Had received injuries and after making it into sealed parcels took it into possession by means of Exh.P.C. And Exh.P.D., respectively.
5. While present at the place of occurrence he received information about demise of Allah Diwaya in the hospital. He reached there, prepared inquest report Exh.P.R. In respect of Allah Diwaya and returned to the place of occurrence, where Zahoor Ahmad, Constable produced before him last- worn blood-stained clothes of deceased Muhammad Ramzan and blood-stained clothes of Allah Diwaya delivered to him by P.W.5 and P.W.6 after post-mortem examination. Same were taken into possession through memo. Exh.P.V. And Exh.P,W., respectively.
6. On 25-5-1992, he arrested Hazaray Shah accused/appellant, who, led to the recovery of Toka P.1 which, was taken into possession by means of memo. Exh.P.E. He (accused) also led to the recovery of his blood-stained Kurta P.2 and Romal P.3 from his residential Kotha. Same were taken into possession vide memo. Exh.P.F. And made into a sealed parcel. On 1-6-1992, he got prepared site plan Exh.P.S. And Exh.P.S./1 from Halqa Patwari. He recorded the statements under section 161, Cr.P.C.
Of P.Ws., completed the investigation and submitted challan against the accused.
7. Autopsy on the dead body of Muhammad Ramzan was conducted on 23-5-1992 by Dr. Hatiz Muhammad Qasim P.W.5, who observed following injuries:--
(1) An incised wound horizontally placed 18 c.m. Long 2 c.m. Wide and 7 c.m. Deep on the posterior side of neck cutting whole vertiberal column, muscle and blood vessels.
(2) An incised wound 12 c.m. x 4 c.m., 5 c.m. Deep on posterior side of right leg on back of right knee cutting both bones.
(3) An incised wound 12 c.m. x 4 c.m., 5 c.m. Deep 16 c.m. Below right knee on posterior side of right leg.
(4) An incised horizontally wound 9 c.m. x 4 c.m., 5 c.m. Deep on posterior side of right leg, 25 c.m.
From right knee. Both bones were cut.
(5) An incised wound 10 c.m. x 5 c.m., 4 c.m. Deep on posterior side of left leg, 15 c.m. From left knee joint. Both bones were cut.
(6) An incised horizontal wound 12 c.m. x 4 c.m., 4 c.m. Deep on posterior side of left leg, 26 c.m.
From left knee joint. Both'bones tibia and fibula were cut.
8. In the opinion of the doctor, death occurred due to injury No,1 which cut the spinal cord, blood vessels and muscle of neck and was sufficient to cause death in ordinary course of nature. All the injuries were anti-mortem and caused by sharp-edged weapon.
9. Dr. Mazhar-uz-Zaman Somro P.W.9 examined Muhammad Yar P.W. On 23-5-1992 and found following injuries on his person:--
(1) Amputation of right hand at mid palmer side right thumb is preserved.
(2) An incised wound 1.5 x 1 inch bone deep on the left temporal region of skull 2 inches above the left ear.
(3) An incised wound 2.5 x 1-1/2 inch on the middle of scalp 6 inches from left ear bone was cut and mineges were exposed.
(4) An incised wound 1 x 1-1/2 inch bone deep on the right parietal region of skull 2 inch from injury No,3.
(5) An incised wound 2 x 2 inches bone deep on the back of scalp 4 inches from the right ear.
(6) An incised wound 3 x 1-1/2 inches on the right side of neck muscle deep 3 inches from right ear lobule.
(7) An incised wound 1 x 1-1/2 inch bone deep 3 inches from left elbow joint. Bone is protruding from the wound. It is on ulnar side of left fore-arm.
(8) An incised wound 0.5 x 0.5 inches skin deep on ulnar side of left forearm 3 inches from ulnar tubercle.
(9) An incised wound 2 x 0.5 inch skin deep on the lateral aspect of thigh 11 inches from the left knee joint.
' Opinion ' Injury No,1 was declared as Itlaf-i-Salahyat-i-Udw. Injury No,2 was declared as Shajja Madiha.
Injury No,3 was declared as Shajjah Ammah. Injury No,4 was declared as Sajjah Mediha. Injury No,5 was declared as Shajjah Mediha. Injury No,6 was declared as Shajjah Khafifah. Injury No,7 was declared as Ghair Jaifa Munaqilah. Injury No,8 was declared as Ghair Jaifa Damiyah. Injury No,9 was declared as Ghair Jaifa Damiyah.
10. Post-mortem examination of dead body of Allah Diwaya was conducted by Dr. Jameel Akhtar Shaheen P.W.6, who, observed following injuries on his person:--
(1) An incised wound sized 3 x 1-1/2 inch on lateral aspect of left foot. The lower end of Tibia was fractured.
(2) An incised wound size 13. c.m. x 2.5 c.m. On the lateral aspect of left thigh. The lower end of femur was fractured.
(3) An incised wound size 10 c.m. x 2.5 c.m. On the midial aspect of midial malleolus. The Tibia was fractured and the midial tibial artery was cut.
(4) An incised wound size 10 c.m. x 8 c.m. On the postro-medial aspect of left elbow. The joint was opened and humerus was cut.
(5) An incised wound size 2.5 c.m. x 1.5 c.m. x skin deep on the midial aspect of left fore-arm.
(6) An incised wound size 8 c.m. x 1.5 c.m. On the left antro-paretal region of skull. The underlying bones were fractured.
(7) An incised wound size 8 c.m. x 1.5 c.m. On the left side of skull on the occipital region bone was fractured.
(8) An incised wound 6 c.m. x 1.5 c.m. Skin deep on the left side of back of neck.
(9) An incised wound 3 c.m. x 1-1/2 c.m. Skin deep on the back of neck.
(10) An incised wound size 2.5 c.m. x 1.5 c.m. On the dorsal aspect of index finger of right hand.
Middle phalynx was fractured.
(11) The middle ring and little fingers were amputated on right hand.
(12) An incised wound size 5 c.m. x 1.5 c.m. Skin deep below the angle of left mendable.
11. He was of the opinion that death occurred due to excessive blood loss from all the injuries especially from right leg injury No,2. These injuries led to shock, coma and death. All these injuries were ante-mortem, caused by sharp-edged weapon and sufficient in the ordinary course of nature to cause death.
12. Prosecution examined as many as 14 witnesses in support of its case. Muhammad Khalid P.W.1, first informant, Muhammad Yar P.W.2/injured witness and Haji Rashid Ahmad P.W.3 furnished ocular account and they supported the prosecution case as set up in the F.I.R. Exh.P.A. And duly reiterated by P.W.1.
13. Recovery of blood-stained Toka P.1, weapon of offence and that of blood-stained Romal P.3 and blood-stained shirt P.2 worn by the convict at the time of occurrence were supported by Haji Rashid Ahmad P.W. And Muhammad Nawaz Khan, Inspector Police P.W.13.
14. Muhammad Ramzan, Constable P.W.8 as Naib-Moharrir of Police Station Sadar Khanpur handed over two sealed parcels to Muhammad Sarwar, Constable for onward transmission to the office of the Chemical Examiner. These parcels were originally received from Investigating Officer Muhammad Nawaz Khan P.W.13 by Abdul Qayyum, Head Constable P.W.12 and were said to contain blood-stained earth.
15. According to the report of Chemical Examiner Exh.P.V. And that of the Serologist Exh.P.W. These articles were found stained with human blood.
16. In his statement under section 342, Cr.P.C. Hazaray Shah denied his involvement in the occurrence and claimed innocence. He did not opt to make statement under section 340(2), Cr.P.C.
And led no evidence in his defence.
17. Learned trial Court convicted and sentenced Hazaray Shah accused as detailed in opening part of this judgment. Reference as envisaged by section 374, Cr.P.C. Was sent by learned trial Court, whereas the convict has challenged the same through this appeal. This judgment will dispose of both (Murder Reference No,10 of 1994 and Criminal Appeal No,13 of 1994) together. .18. Learned counsel for the appellant has canvassed that so-called eyewitnesses, namely, Muhammad Khalid P.W.1, Muhammad Yar P.W.2, and Haji Rashid Ahmad, P.W.3 did not witness the occurrence as the details given by them and also their conduct at relevant time is improbable and unnatural. It has been remarked that Muhammad Khalid P.W.1, son and grandson respectively of Muhammad Ramzan and Allah Diwaya/two deceased cannot be believed because of his role as "silent spectator" when his near and dear were being butchered. Much emphasis has been laid upon motive set up by the prosecution to contend that the convict committed Qatl-e-Amd of two persons and made murderous assault on third merely because his goat was impounded is too weak, for commission of this offence. In wake thereof, learned counsel representing the appellant has almost not disputed the conviction and simply impressed that the accused could not be awarded capital punishment particularly when the motive ascribed is too flimsy to lead to such an incident and real motive will have to be taken as wrapped in mystery or left unveiled intentionally. It has been maintained that in such circumstances, intensity of punishment was not to touch the peak. Reliance has been placed upon Taj Din and another v. The State PLD 1986 Lah. 142, Ata Muhammad and another v. The State, 1995 SCMR 599, Rasool Bux and another v. The State 1980 SCMR 225, Ahmad Khan v. The State 1985 SCMR 975, Chand Khan v. Akbar and others 1986 SCMR 1878, Sher Daraz Khan v. The State 1982 SCMR 266, Ghulam Muhammad v. The State NLR 1988 Crl.
490 in support of the contentions.
19. Conversely, learned counsel representing the State has vehemently opposed appeal by arguing that the eye-witnesses account is natural one especially when occurrence took place in broad daylight and outside the house of Muhammad Khalid P.W.1 in which Muhammad Yar P.W.2 sustained injuries, that the consideration of motive is not necessary for commission of heinous offence because many a time murders are committed on even trivial motive. Plea of mitigating circumstances has been resisted with the assertion that the incident claimed lives of two innocent persons, who were "Masoomuddam".
20. Place of occurrence is outside the house of Muhammad Khalid P.W.1. Thus, Muhammad Khalid is a natural witness of the occurrence, which, undoubtedly, took place at 11-00 a.m. In broad daylight.
This P.W. Has no enmity or rancour with the appellant. Though Muhammad Yar P.W. Has now forgiven the appellant, yet, he supported the prosecution case at the trial. So, his presence on the place of occurrence is also proved beyond any shadow of doubt. Similarly, Haji Rashid Ahmad P.W.3 has successfully stood to the test of cross-examination. Even his presence on the place of occurrence could not be shattered. All the P.Ws. Fulfilled the test as laid down by August Supreme Court in case of Roshan Din and 4 others v. The State PLD 1976 SC 557. Therefore, in our view, learned Trial Judge rightly appraised the eye-witness account.
21. Argument that motive was trivial to commit this heinous offence has not impressed us because many a time offenders commit heinous offenLes like murder with very trivial motive and sometime even without any motive. Even otherwise, motive is not a substantial piece of evidence and is used for corroboration of eye-witnesses account, if the same is required under the circumstances of the case, particularly, where the eye-witnesses have enmity against the accused. In this case, the eye- witnesses are natural and impartial, and thus, their testimony does not require any corroboration.
22. We are well-aware that triviality of motive does assuage quantum of punishment especially when it is in shape of capital punishment; but this privilege, can be extended to the convict/accused when he is found/adjudged to have committed the offence without pre- meditation, deliberation and preparation and in other word when the occurrence appears to have taken place at the spur of moment. We are also not oblivious that an extreme penalty is not called for when immediate cause of attack is not known and prosecution is not in a position to explain origin of fight.
23. However, human reaction over a particular pungent situation always varies and fluctuates from man to man. Pain due to kick on shin may soon pass away, but, such exercise on self-respect may have incredible imprints. Wounded pride and ruffled dignity do not necessarily require big event or strong motive; ripples do appear with the throw of the slightest pebble. It is very difficult to put lid firmly on the simmering cauldron of vanity. Seemingly the convict took impounding of his goat as a direct onslaught on his prestige. He was unable to reconcile or compromise with the situation and came well prepared with a Toka to teach a befitting lesson to those who injured his pride by detaining his cattle. Neither incident took place all of a sudden nor is origin of fight hidden behind the mist of suspicion.
24. There can be no cavil with the proposition that no allowance is permissible to a desperado with gory and blood thirsty nature. Gruesome and callous acts ascribed to him have no justification for showing any leniency as prayed. Motive in the case in hand is not denied, however, it is claimed that it was a mole-hill instead of mountain and does not call for putting rope around the neck of convict. But if this logic is allowed to take roots in the soil of criminal administration of justice, then murders over trifles would be taken as a casual activity, innocent victims would find no escape and rather criminal instead claim immunity. We are, therefore, unable to find any mitigating circumstance. As indicated above, convict is not only responsible for gruesome murder of two persons; but also inflicted injuries upon Muhammad Yar P.W. As a necessary corollary, he does not deserve any premium.
25. Following illuminating observations made in Talib Hussain and others v. The State 1995 SCMR 1776 are applicable on all fours to the facts of instant case as well.
"We may observe that there is a marked distinction between a case in which prosecution alleges a motive but fails to prove it and a case in which no motive is alleged or the alleged motive is too weak. In the former case, the superior Courts after taking into consideration the facts of the cases concerned, have reduced the sentence of death into imprisonment for life, whereas in the latter category of cases, the above rule has not been followed. We may point out that there is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If above normal sentence is not to be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances. In the present case, the appellants, though related to the deceased, trespassed into their Dera at Sehri time in the holy month of Ramazan and killed three male members of the family. If the incident would have taken place during day time in a Bazar or in the field, one could assume that something might have happened immediately before the occurrence of the incident, which prompted the killing of the deceased, but in a case where the accused launched a premeditated attack by trespassing into the Dera of the deceased and that too at Sehri time, one cannot presume that something might have happened immediately preceding to the incident. We are, therefore, of the view that it is not a fit case where this Court should interfere with the (sic)"
26. We, therefore, find no illegality in the impugned judgment and maintain the conviction as recorded by learned Trial Court against the appellant on two counts of Qatl-e-Amd. There is no mitigating circumstance in his favour for alteration of his sentence from normal penalty of murder, i,e, hanging by neck. He committed Qatl-e-Amd of two innocent persons. Mere trivial nature of.
Motive is not sufficient to reduce the sentence, rather it works otherwise.
27. Muhammad Yar injured P.W. Has forgiven the appellant and through an application has sought permission of Court to compound the offence with him. Necessary permission to compound the offence with the appellant has been accorded through separate order and, therefore, conviction and sentence of appellant for the injuries on the person of Muhammad Yar P.W. Are hereby set aside and his appeal is accepted to say extent only.
28. Death sentence on each count imposed upon the appellant is confirmed and Reference is answered accordingly. Appeal, to the extent indicated above, consequently, fails and is hereby dismissed.