' MANSOOR ALAMGIR QAZI, J.---Naseer Hussain Shah, 25 years, appellant was challaned and sent up for trial in the instant case. The learned Additional Sessions Judge, Multan convicted that appellant under section 302, P.P.C. And sentenced him to imprisonment for life and also ordered that he shall pay a fine of Rs,10,000 or in default of payment of fine to undergo further R.I. For three months. It was also directed that the appellant shall pay Rs,25,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to undergo further S.I. For six months. He was also convicted under section 452, P.P.C. And sentenced to three years R.I. And a fine of Rs,500 or in default thereof to further undergo R.I. For one month. Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to the appellant vide judgment dated 28-2-1993.
2. Feeling aggrieved the appellant has challenged his conviction and sentence through this appeal while the complainant has filed Criminal Revision No,91 of 1993 seeking enhancement of sentence awarded to the appellant. The criminal revision was admitted to regular hearing with notice to the respondent-appellant vide order dated 21-6-1993.
3. The unfortunate occurrence took place on 8-5-1990 at 8-30 a.m. In the house of the complainant Ghulam Mustafa (P.W.2) situated in Mauza Almadi Sura at a distance of about 4 k.m. From Police Station Saddar Multan. The complainant lodged report (Exh.PA) at 3-50 p.m. On the same day which was reduced into writing at the police station by Muhammad Ashraf H.C.(P.W.8).
4. The motive, as stated by the complainant in Exh.PA is that appellant entered his house in the presence of Syed Mohsin Ali Shah (uncle) a Syed Mazhar Ali Shah(deceased, father) and said to the complainant that sin he had turned out of his house Mst. Alia his relative after giving her beating, would teach him a lesson and would not allow him to go alive today.
5. Briefly, the facts of the case are that after extending threat to the complainant the appellant fired a short at Syed Mazhar Ali Shah with the cannot which hit him at his right thigh and bladder, who fell down and received injury on his arm as well. The entire occurrence was witnessed by Syed Moha Ali Shah, Mst. Saeeda Bibi, wife of the deceased and the complainant. T appellant departed from the place of occurrence alongwith the weapon offence. Syed Mazhar Ali Shah was removed to the hospital where he medically examined at 9-00 a.m. By Dr Altaf Hussain (P.W.5) and medico-lei certificate (Exh.PE) was issued. F.I.R. (Exh.PA) was lodged unc section 307/452, P.P.C. On 13-5-1990 Syed Mazhar Ali Shah died in the Nishtar Hospital Multan and vide report (Exh.PN), the offence was thereaf amended to section 302/452, P.P.C.
6. The medico-legal examination was conducted by Dr. Muhammad Al (P.W.5) on 8-5-1990 at 9-00 a.m. And he found the following injuries on I person:-- ' Multiple uncountable lacerated wounds of fire-arm entry 1/3 c.i diameter in the whole of front and medial aspect of right thigh, whi were more dense - in middle 1/3 area and on the testies a penis.
' A contusion 3 c.m. x 2 c.m. On the outer front of right upr arm.
' On 14-5-1990 autopsy on the dead body of Syed Mazhar Ali Shah conducted by the same doctor and he found the following injuries:- ' Multiple uncountable lacerated wounds of fire-arm entry 1/3 c.i diameter on the whole of front and medial aspect of right thigh, me dense in middle 1/3 area, and testies and penis. There was open wound 18 cm long bearing 8 stitches on the front of right side abdom with an incision 1 c.m. On the right side of abdomen for drainage tut He was operated on 8-5-1990 at 8-00 p.m. Exploratory leprOtmy done with the finding heamo paritonism and multiple small purforati starting from the Deodenial - jungum junction to iles caecal juncti and three purforation on the mesentary.
' Death in the opinion of the doctor occurred due to septiccaemia and sho caused by injury No,1 which was sufficient to cause death in the ordinary cow of nature. The injury was antemortem and caused by fire-arm. Time between injury and death was 5 to 6 days and between death and post- mortem 12 to 18 hours.
7. In the course of investigation, on 8-5-1990 blood-stained earth was taken from the spot. It was made into a sealed parcel and secured vide memo Exh.PB. Crime empty Exh.P1 was taken in to possession vide memo. Exh.PC. Recovery memos were attested by Ghulam Mustafa (P.W.2) and Saeed Alam Baig S.I. (P.W.12) while Mohsin Ali Shah was not produced by the prosecution.
8. The appellant was arrested on 19-5-1990 and on 25-5-1990 while in police custody he led to the recovery of .12 bore carbine (P4) from the graveyard in area of Suraj Miani. The recovery was witnessed and attested by Syed Tufail Hussain Shah (P.W.4) and Saeed Alam Baig (P.W.12) while Haji Shah was not produced. On 2-6-1990 the crime empty (P.1) and .12 bore carbine (P.4) were sent to the forensic science laboratory for comparison and in the report (P.Q.) it was opined that the crime empty was fired from.12 bore carbine (P4).
9. After completion of the investigation, challan was prepared and the accused was sent up for trial. The prosecution produced 13 witnesses to prove the charge. Report of the Chemical Examiner (P.O.), report of the Serologist (P.P.) and that of the technical expert (P.Q.) were tendered in evidence by the prosecution and the case was closed.
10. The appellant was examined under section 342, Cr.P.C. And in answer to question No,2 he admitted that Mst. Alia was his close relative and that she was the wife of Ghulam Mustafa (P.W.2) and daughter-in-law of late Syed Mazhar Hussain Shah deceased. In answer to question No,12 the accused has deposed as under:- ' "All the P.Ws. Are related inter se and inimical against me. In fact, there was a dispute between complainant and his wife Mst. Alia on a house as dower which was already pledged by the deceased fraudulently. Mohsin Shah, Zawar Shah, Amir Shah and deceased were present at the time of occurrence who sided with the wife of the complainant as she protested for falsely entering the house as dower in the Nikahnama which was already pleged. This fact was disclosed by me.
Mst. Alia and her parents were told these facts by me before few days of the occurrence. The complainant party bore grudge against me and was dagger drawn against me, taking as the real cause of dispute between the spouses. Mst. Alia at the time of occurrence got up and started to leave the house of the complainant. The matter flared up. The complainant mishandled Mst. Alia his wife and tried to drag her away so that she may not leave the house and accompany the aforementioned persons including her father Zawar Shah. The complainant brought a carbine and fired at his wife saying that it is better that she should died than to leave the house. Deceased intervened and came in front of his daughter in law Mst. Alia. The fire hit him. The deceased was the chronic patient of Harnia and also developed jaundice. He was operated upon and due to complications died on latter stage. It was later on that the complainant in connivance with the local police to save himself and to further camouflage his own crime, falsely involved me. Mst.
Saeeda Bibi P.W. Was not present at the spot at the time of occurrence."
' He did not produce any defence evidence nor did he appear as his own witness as required under section 340(2), Cr.P.C.
11. With the assistance of the learned counsel for the appellant we have traversed the entire length and breadth of the paper book. While cruising through and perusing the record the learned counsel for the parties have very vigilantly highlighted facts and circumstances to each others favour and thus all nooks and corners were probed to the satisfaction of the learned counsel for the parties present and all of them have been heard at length.
12. The opening argument of the learned counsel for the appellant was that it is a case in which intention and knowledge of the appellant was not established on record and, thus, the question of sentence meted out to him does not commensurate with the offence and that the appellant is in no way responsible for the murder of the deceased and thus to establish and explain his contention he has referred us to the statement of Dr. Muhammad Altaf Hussain P.W.5, wherein the doctor has stated the death occurred due to septicaemia and shock caused by injury No,1(injury to Gut) which was sufficient to cause death. The doctor has also stated that the gut in the right scrotem was perforated because of the pellet injury as the patient was suffering from hernia. Had the deceased been not the patient of hernia the gut would not have been in the scrotem and as such there was no possibility of same being injured by fire-arm. Furthermore, the doctor has stated that had the deceased been not a patient of hernia the possibility of survival was there. To further elucidate his case the learned counsel has stated that the type of cartridge used 'in the weapon of offence was one which carried small pellets in a large number. The most important aspect of all which the learned counsel has emphatically argued is that the appellant did not have any prior knowledge that the deceased was a patient of hernia. He has also urged that the injury being on the non-vital part was never repeated. To substantiate his contentions and fortify them the learned counsel has referred before us case law Mst. Farooq Jan v. Ilyas and two others (1980 SCM R 214), Muhammad Hanif v. The State (1975 PCr.LJ 918) Muhammad Anwar and two others v. The State (1985 PCr.LJ 2655), The State v. Aman Ullah (PLD 1959 (W.P.) Peshawar 128) and Dhani Bux v. The State (PLD 1964 Karachi 265). Developing his arguments in light of the case law referred the learned counsel for the appellant emphatically stressed that it is a case which on all fours is supported by the case-law referred and requires to be decided in light of the precedents referred. Controverting this argument, learned counsel for the State and the complainant have unanimously stated that the case law referred does not on all fours fits in with the circumstances of this case. Each case has its own merits and demerits and has to be assessed in light of the evidence adduced in course of trial. It is submitted that the appellant admits his presence at the spot. He has also admitted in his statement that the injury to the deceased was caused by the carbine. The most important fact is that he has unequivocally admitted that he had knowledge of the fact that the deceased was chronic patient of hernia and, thus, he cannot at this stage say that he did not have the intention and knowledge that if an injury was caused on the pubic area or on the right thigh it would not cause the death of the person, and thus, the portion of statement of the Doctor P.W.5 on which the accused/appellant has tried to build and rest his case falls flat by his own admission when examined under section 342, Cr.P.C. Learned counsel for the complainant has urged that the death was the direct Result of injury caused at the hands of the appellant and, thus, the precedents referred by the learned counsel for the appellant are of no avail or benefit to him and not worth consideration even.
13. To dispel the evidentiary value of the eye-witnesses, the learned counsel could not add much except to say that both the witnesses were closely related to he deceased and no independent witness has been produced to prove the case against the appellant. The learned counsel from the other side have controverted and stated that both these P.Ws. Are natural witnesses of the place of occurrence. The accused/appellant admits the occurrence to have taken place in the house of he deceased in his presence and there is not an iota of enmity alleged against these witnesses by the accused/appellant who happens to be, admittedly, closely elated to the wife of Ghulam Mustafa Shah P.W.2. Furthermore, there is no reason to disbelieve or discredit the ocular account nor has the accused put cross any cogent reason as to why he has been implicated in this case. {{PAGE CUT IN BOOK}}
14. Learned counsel for the appellant has also urged before us that the crime empty P1 was though taken into possession on 8-5-1990 while the carbine was recovered from the appellant on 25-5- 1990 and both articles were sent together for examination on 2-6-1990, thus, the positive report of the expert of e Forensic Science Laboratory cannot be relied upon. Controverting this argument, the learned counsel from the other side have stated that no doubt the pty and carbine were taken into possession on different dates and were sent ;ether for examination. Yet according to the categorical statement made by the appellant indicates that the weapon of offence used on the deceased was a tribine in his presence. Thus, the accused/appellant cannot avail any benefit this lapse, if, at all. No negative inference can be drawn even if the crime empty and weapon were sent together.
15. While putting across his arguments in favour of the criminal revision king enhancement of sentence the learned counsel for the complainant has stated that there are cases where motive is shrouded in mystery or motive not being proved beyond doubt but then it cannot be a basis to discredit the ocular account of witnesses or other evidence nor can it be a ground for acquittal for the appellant neither for lesser sentence. To a certain extent the argument advanced by the learned counsel carries weight and we are of the view that no doubt the other evidence does not lose its credence. It is also a well-settled principle of law now that in absence of motive being proved capital sentence cannot be awarded. In the present case in the absence of the motive the learned counsel has failed miserably to show us how the motive stands proved against the deceased. Thus, there is no force in the criminal revision petition filed by the complainant which is dismissed being devoid of weight.
16. Learned counsel for the State has, however, vehemently argued and supported the judgment.
He has also argued and prayed that the conviction and sentence awarded to the applicant be maintained.
17. After carefully giving our anxious thought to all that has been said and discussed above and also after reading the entire case law referred before us, we are inclined to hold that the arguments and reasons advanced by the learned counsel for the state and the complainant carry reason and weight and are, on all fours, supported by evidence adduced on record. The appellant has been unable to establish his case to reap any benefit.
18. We are, therefore, of the view that the conviction of the appellant is justified from record and the sentence awarded to him adequately meets and commensurate with the offence committed.
Thus, we feel no hesitation to order that the appeal of the appellant is dismissed as being devoid of force on law and facts.