NAZIM HUSSAIN SIDDIQUI J.---These Appeals Nos.319 and 320 of 1994 by leave of this Court are directed against judgment, dated 27-3-1994, of a learned Division Bench, Lahore High Court, Rawalpindi Bench.
2. Mohsan Shah aged 55 years (Criminal Appeal No,320/1994), on 26-2-1990 was convicted under section 302, P.P.C. And sentenced to death plus fine of Rs,10,000 or in default thereof to undergo R.I.
For two years by learned Sessions Judge, Attock. He was also ordered to pay Rs,30,000 as compensation to the legal heirs of Shabbir Hussain Shah deceased. The appeal preferred by him being Criminal Appeal No,20 of 1990 and Murder Reference No,85 of 1990 of learned Sessions Judge were dismissed by High Court, but death sentence was altered into imprisonment for life. He has now filed Appeal No, 320 of 1994 challenging aforesaid conviction and sentence.
3. Moazam Shah complainant through Appeal No,319 of 1994 has impugned the judgment of Appeal No,20 of 1994, order passed on Murder Reference No,85 of 1990 and on Criminal Revision No,60 of 1990, contending that reduction in sentence was illegal and was not in conformity with case-law laid down by this Court.
4. Moazam Shah and Mohsan Shah, hereinafter are referred to as "the appellant" and "the respondent" respectively.
5. The occurrence took place on 17-4-1989 at 5-30 p.m. In village Sultanpur, within the jurisdiction of Police Station Hasan Abdal, District Attock. F.I.R. No,119 of 1989 was registered on the same date at 6- 30 p.m. On the statement of Moazam Shah, father-in-law of the deceased. It was recorded by Muhammad Naseem, Inspector/SHO. The incident was witnessed by Moazam Shah, Shah Abdul Latif, Ibrar Shah and Maqsood Shah, P.Ws.
6. The motive, as set up in F.I.R., was that about 5 months prior to occurrence there was exchange of hot words on the issue of tampering an embankment/Banna' and on that occasion Shabbir Shah deceased and Mohsan Shah respondent had grappled with each other and the latter threatened to take revenge of his insult.
7. The case of the prosecution, in brief, is that on the day of occurrence on said date and time Syed Moazam Shah, appellant had come out from his house to make certain purchases. He saw his son- in-law, Shabbir Hussain Shah, deceased coming from a mosque. He also witnessed Mohsan Shah, respondent, coming out from a shop, having .12 bore double-barrel gun and raising Lalkara that he would take revenge of his insult. Thereafter, the respondent fired two shots upon the deceased, who was hit at head, face and other parts of the body and fell down.
8. Muhammad Naseem, SHO/Inspector investigated the case and on completion of investigation, submitted charge-sheet before the Court, having jurisdiction in the matter.
9. Post-mortem examination of deceased was conducted on 18-4-1989 at 7-00 a.m. And following injuries were found on his person:--
(1) 21 fire-arm inlet wounds, each .5 c.m. x .5 c.m. x .5 c.m. x going inwards, on front and both sides of forehead, including the front of head.
(2) 22 tire-arm inlet wounds, each .5 c.m. x .5 c.m. x going inward on left side of face, including left ear and left eye (two pellets perforating the eye, the vitreous matter was coming out, damaging the eye).
(3) 47 fire-arm wounds (inlet) each .5 c.m. x .5 c.m. x going inwards, on right side of face and nose, including one inlet wound in the medial size of right eye and right side of neck.
(4) 4 fire-arm inlet wounds, each .5 c.m. x .5 c.m. On front of chest in middle and on both the sides of chest, Holes present on Kamiz.
5. Two fire-arm wounds, each .5 c.m. x .5 c.m. On right shoulder and right upper arm. Hole present on Kamiz. Dr. Babar Ali opined that cause of death was shock and haemorrhage as a result of injuries Nos.1 to
5. According to him, injuries Nos.1 to 4 were sufficient to cause death in the ordinary course of nature and same were caused by fire-arm.
10. The respondent in his statement, recorded under section 342, Cr.P.C., has denied the prosecution's allegations and claimed to be innocent. He admitted that the appellant is his first cousin. He claimed that he had a dispute with him over a common "Banna". According to him, both Latif Shah P.W. And deceased had encroached upon his land over which scuffle took place. He alleged, that later on, dispute was patched up and this happened at the occasion of marriage of the deceased. He also examined himself on oath and did not examine any witness in defence.
11. Vide order, dated 1-8-1994 leave to appeal was granted by this Court in the following terms: "We grant leave to consider whether the judgment of High Court reducing sentence from death to life imprisonment is in conformity with the guidelines enunciated in the case-law on the subject including decisions mentioned above. We also grant leave in the Jail petition filed by respondent Mohsan Shah. We direct that both the appeals be heard together."
12. Learned High Court, while scrutinizing testimony of the eyewitnesses held that their testimony inspired confidence and they could be relied upon even without corroboration and that, even otherwise, the testimony of the eye-witnesses was fully corroborated by medical evidence. High Court took the view that on the fateful day something must have .Occurred, which led to the incident and that the prosecution failed to disclose "immediate motive for occurrence". On above line of reasoning, High Court held that it was not a case for capital punishment and converted death sentence of the respondent to imprisonment for life. However, the sentence ' of fine and compensation, was maintained. The respondent was also given benefit of section 382-B, Cr.P.C. For drawing above conclusions High Court observed as follows:-- "..We have heard the learned counsel at length and gone through the file. The prosecution in order to establish its case has mainly relied upon the ocular account and sought corroboration from medical evidence as well as recovery at the instance of the appellant. As far as the ocular account is concerned, it has been furnished by Moazam Shah, Maqsood Shah and Shah Abdul Lateef, P. Ws.
9, 10 and 11 respectively. They were put to the test of lengthy cross-examination, but the defence has not been able to bring on record anything which could discredit the statement of the eye- witnesses or created a doubt with regard to their presence at the spot. They have given plausible explanation with regard to their presence at the spot, and the narration of the occurrence by them inspires confidence. As far as the question of long-standing enmity of the witnesses is concerned, we have considered the same but are of the view that it was not of such a nature that could prompt the witnesses to falsely implicate the appellant. It is a case of single accused wherein substitution can safely be ruled out. Though there were some differences between the appellant and the witnesses, yet they were not of a nature that it could be said that there was enmity. The parties lived amicably in the village before the earlier incident which took place 5 months before the present occurrence."
13. It is contended on behalf of the respondent (Criminal Appeal No,320/1994), that case against him was not proved by convincing evidence and that both trial Court and High Court believed the prosecution evidence, which according to learned counsel was conjectural, besides bang highly doubtful. Learned counsel also argued that ocular account could how be relied upon, as all the eye-witnesses were interested and inimical. He submitted that under the circumstances, there should have been strong corroboration of their testimony and it was missing.
14. In this case, the ocular account was furnished by Moazam Shah, Masood Shah and Shah Abdul Latif P.Ws.9, 10 and 11 respectively). All these witnesses were subjected to lengthy cross- examination, but their testimony, as held by trial Court and High Court was not shattered. Mere relationship is no ground to discard the testimony of a witness. Intrinsic worth of the testimony is to be kept in view, while assessing its evidentiary value. Parties are interrelated. There was no special reason for the eyewitnesses to support one party at the cost of other. In fact, the eye-witnesses had no motive to falsely implicate the respondent. Also, it is not a case of mistaken identity. The respondent is only accused in this matter and there was no question of substitution. High Court has rightly believed the eyewitnesses and no exception can be taken to it. It is established beyond any shadow of doubt that it was the respondent and the respondent alone, who had committed said murder. The motive of the crime was earlier incident, which stood proved.
15. Learned counsel for appellant, Moazam Shah (Criminal Appeal No,319 of 1994), contends that High Court erred in reducing legal sentence of death to imprisonment for life on conjectural grounds and that its observation that "immediate motive for the occurrence" was not disclosed is contrary to the material available on record. He also argued that it being pre-mediated and cold- blooded murder, the motive, as such, whether visible or invisible, does not play an effective role.
16. In support of above contentions, he cited as:--
(1) Abdur Rashid v. Umit Ali and 2 others (PLD 1975 SC 227);
(2) Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452); and
(3) Muhammad Afzal v. Ghulam Asghar and others (PLD 2000 SC 12).
17. Dealing with the point of motive, it is noted that motive precedes action. It is basically a circumstantial evidence. By itself neither it proves nor disproves any assertion conclusively. It does help in determining the guilt of a person, particularly, at the stage of investigation, but in many cases it remains invisible to all, except offenders. When there is clear proof that a person has committed a crime, motive or previous becomes immaterial and is not necessary to sustain a conviction.
In the case of Abdur Rashid, it was held that weakness of motive or even, its conspicuous absence might not be helpful to accused when unimpeachable ocular evidence is available. In case of Muhammad Sharif, it was held that avoiding deterrent punishment is a factor, which indirectly contributes to incidents of heinous crimes. In case of Muhammad Afzal the following was held:-- "However, as pointed out earlier, the findings of the learned Judges in the High Court that motive for commission of the crime was shrouded in mystery are not warranted by the circumstances of the case. Even otherwise, it is erroneous to assume that in every case, if motive for commission of the crime is not established by the prosecution, benefit of lesser punishment of imprisonment for life should go to the accused. We would like to point out that this principle couldn't be applied in every case as a general rule. There may be cases where, though, motive is not established, but owing to heinous mature of the crime the accused may not be entitled to any leniency while awarding punishment to him. Thereafter, the question would depend upon the circumstances of each case.
However, circumstances of the present case clearly indicate that there are no mitigating factors, benefit of which may go to appellant Ghulam Ashgar. The circumstances of the case indicate that the act of accused was too brutal and merciless. The deceased was a young man of about 18 years and he was deprived of his life when he was in the prime of his youth. It is no gainsaying that if circumstances of the case do not justify awarding of lesser penalty of imprisonment for life, sentence of death is to be awarded by the Court. In Muhammad Sharif v. Muhammad Javed alias Jeda Tedi PLD 1976 SC 452 tendency of the Courts to find pretext to alter a sentence of death to imprisonment for life was disapproved by this Court in strong words. This judgment has been followed by this Court in other cases as well. In Bismillah v. Muhammad Jabbar 1998 SCMR 860, recently decided by this Court, benefit of lesser punishment allowed to the accused by the High Court by conversion of death penalty to sentence of imprisonment for life was declined in view of the heinous nature of the crime." In case reported as Abdul Wahab alias Rehra v. The State (1999 SCM R 1668), this Court having taken into consideration more than 20 cases referred to therein held that motive remained shrouded in mystery by itself was not a mitigating circumstance for lesser sentence. It was also held that motive would not play any effective role on the question of sentence, when it was established beyond reasonable doubt from the evidence that accused had committed premeditated and cold-blooded murder in a brutal manner. In this reported matter, an observation recorded in Appeal No,174 of 1995 (Noor Muhammad v. The State) was quoted, which is as under:-- "However, we may observe that the people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentences. It is high time that the Courts should realise that they owe duty to the legal heirs/relations of the victims and also to the society.
Sentences awarded should be such, which should act as a deterrent to the commission of offences. As a result, we find no mitigating circumstance to commute the death sentence, a legal and appropriate sentence awarded by the trial Court and confirmed by High Court."
Besides, such cases must be seen with reference to the interest of society and be condemned as such. To curb crime is the need of hour. One of the object of criminal justice is to award exemplary punishment to offenders in order to deter them from committing crimes and in this way also to serve a stern warning to those members of society, who have behavioural leaning towards criminality.
18. Adverting to the facts of this case it is noted that the respondent had killed the deceased under a preconceived strategy, which stunned the deceased and prevented him from taking any step to save his life. Ex facie, it was premeditated and cold-blooded murder. The deceased was only 24 years old.
19. In consequence, the judgment of High Court, to the extent of altering the sentence of death to imprisonment for life, is set aside and that of trial Court, awarding death penalty to respondent Mohsan Shah, is restored.
20. Accordingly, Appeal No,319 of 1994 is allowed and Appeal No,320 of 1994 is dismissed.