' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,381 of 1997 directed against the judgment, dated 3-12-1997 passed by the learned Additional Sessions Judge, Multan whereby he convicted the appellant Shabbir Hussain under section 302(b), P.P.C. And awarded him death sentence.
2. The occurrence in this case took place at 8-1/2 a.m. On 6-10-1994 at General Bus Stand 1/2 k.m.
Towards south-west from Police Station Seetal Maari, District Multan. Information was conveyed to the Police the same day at 9-15 a.m.
3. The facts in brief as narrated in the F.I.R. By the complainant, are that he along with his deceased son Abdul Aziz, Munir Ahmad his other son and his brother's son Mushtaq Ahmad came to General Bus Stand Multan from their village and while they were going to Wagon Adda stopped for taking water, Abdul Aziz deceased was going, ahead of them having 222 rifle in his hand, suddenly Shabbir Hussain accused/appellant came from behind side and snatched the licenced rifle from him and raised lalkara that he would teach him a lesson for causing injuries to his cousin "Mamunzad" Akhtar. Shabbir Hussain appellant fired with 222 rifle on Abdul Aziz hitting him on the left side of the head and on the left side of abdomen. He and other P.Ws. Rushed towards Abdul Aziz who succumbed to the injuries at the spot. The appellant Shabbir Hussain succeeded in running away with the rifle. It is further contended in the F.I.R. That this occurrence had taken place at the instance of Muhammad Akram, Mushtaq Ahmad, Muhammad Khan and his father Zulifqar. The motive behind the occurrence was that on 4-10-1994 Abdul Aziz deceased had caused injuries to Muhammad Akhtar son of Muhammad Ali, Mamunzad of Shabbir Hussain appellant because of previous enmity with. Him and the case in this regard was registered under sections 324/337, P.P.C.
Vide F.I.R. No,321 of 1994.
4. After recording statement of the complainant and lodging the F.I.R., the local police headed by Aftab Ahmad Inspector/S.H.O. Proceeded to the place of occurrence. The Inspector/S.H.O. Prepared the injury statement and inquest report Exh.P.D. And Exh.P.C. He also took into possession blood- stained earth from the place of occurrence vide memo. Exh.P.F. Last worn clothes i,e, Qameez P.1, Bunyan P.2, Shalwar P.3, all stained with blood were also taken into possession by him vide memo.
Exh.P.A. On 8-10-1994 he arrested the appellant and recovered 222 bore ritle alongwith magzine and 12 live cartridges from his possession, vide memo. Exh.P.*G. After completing the investigation he submitted the challan before the trial Court against the appellant to face the trial.
5. Prosecution in order to prove its case has produced as many as 8 witnesses including Doctor, Investigating Officer and other relevant witnesses. After tendering in evidence report of Chemical Examiner Exh.P.T. And that of Serologist Exh.P.K. Learned D.D.A. Closed the prosecution evidence.
Thereafter, statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded not guilty.
6. Learned counsel for the appellant in support of this appeal submits that both the eye-witnesses namely Abdul Hameed, P.W.4 Munir Ahmad, P.W.5 are father and brother of the deceased. No independent witness has been produced by the prosecution, that the occurrence had taken place at the Bus Stand which is thickly populated area and no witness from the said vicinity has been produced, that there was no motive on the part of the appellant to commit the murder of the deceased, that no crime empty was recovered from the spot, that the blood-stained earth was not taken into possession from the place where the occurrence had taken place but in fact it was taken into possession form under-neath the cot on which the deceased was lying after the occurrence, that in fact it was an unwitnessed occurrence, that the appellant had also filed a writ petition in which a direction was given to the Investigating Agency to record his version and then to investigate the Matter but that order was not complied with, that the story of the prosecution is unnatural, that in fact there are two entry wound and injury No,3 is an exit wound. Leaned counsel for the appellant while elaborating his arguments submits that there is conflict between the ocular account and the medical evidence, that the blood stained clothes of the P.Ws., were never produced before the Investigating Officer that there are material contradictions in the statements of the two P.Ws., that the complainant is a well-known liar. He further submits that the version of the appellant which he has stated before the learned trial Court in his statement recorded under section 342, Cr.P.C. Is more plausible. He also submits that appellant was co-accused in three cases registered a day earlier to the present occurrence, that it was not possible and natural to have fired at the deceased, that the prosecution story is full of doubts.
7. On the other hand learned State counsel submits that the appellant is named in the F.I.R., specific role is attributed to him, that there is no mitigating circumstances, that the prosecution has fully proved its case against the appellant beyond any shadow of doubt. He supports the judgment of the learned trial Court and submits that death awarded to the appellant be maintained.
8. We have heard the learned counsel for the parties at a great length and also have gone through the record. In the instant case occurrence took place at 8-30 a.m. On 6-10-1994, matter was reported to the police at 9-15 a.m. On the same day. F.I.R. Was lodged in the Police Station promptly Without any deliberation and consultation. There is no question of false implication. A Appellant is the single accused in this case. Occurrence had taken place in broad daylight and parties were known to each other. It was not a case of mistaken identity. If one goes through the post-mortem examination conducted by Dr. Shahid Hussain Magasi, P.W.3, Injury No,1 had damaged and fractured the temporal bone of head, even brain matter was not present in the head wound. Injury No,2 was in the abdomen while Injury No,3 was exit wound, though, the Doctor while recording his statement has mentioned the same having the inverted margins, that was a mistake on the part of the Doctor because in fact it was an exit wound and not the entry wound in the original postmortem report. Moreover, in the F.I.R. The complainant had categorically stated that Shabbir Hussain appellant after snatching the rifle from the deceased fired two shots one hitting on the left side of his head and the other on the left side of his abdomen. Both these injuries are present in his post-mortem report. Moreover, both the eye-witnesses namely Abdul Hameed complainant and his son Munir Ahmad have mentioned only two injuries even before the learned trial Court, so there is not an iota of doubt in our minds that the ocular account is contradicted by medical evidence.
There was no previous background of enmity between the parties. In fact both, the appellant and the deceased were friends and it has also been argued before us himself by the learned counsel for the appellant that both the deceased and the appellant were involved in three different cases prior to the present occurrence, so Why the complainant party would falsely implicate the appellant in this case. Appellant is the single accused. This is not a case of substitution.
'Substitution is a rare phenomena. As far as production of any other witness before the learned trial Court from the place of occurrence is concerned, it may be mentioned here that in such-like offences no independent and unrelated person would come forward because doing so they have to get the enmity of the adverse party. People hesitate to become witnesses in such-like cases.
Moreover, from the conduct of the deceased and the appellant it seems that both were the persons who were involved in criminal cases, no unrelated or independent person would dare to appear against the appellant in this case. We may also mention the version of the appellant which he has stated in his reply to Question No,8 and the same is reproduced below:--- "I am innocent. On 6-10-1994 at about 7 a.m. Nasir Dogar and Mukhtar Dogar opened firing at the General Bus Stand against Rana Brothers Groups and damaged Wagon No,6844/MNC Police reached there and instead registering a case against aforesaid persons nephew of Ilyas Dogar head of Dogar Group side tracked. I being from the Rana Group to save from the firing boarded Wagon No,6844-MNO and near Parchiwala Mor I left. There was allegation of firing against Ilyas Dogar in which Abdul Aziz was injured and who died. I have been falsely involved because of the influence of Ilyas Dogar Group. I also filed a writ petition in the Hon'ble High Court challenging his false . The police was directed to record the plea and to investigate and then to finalise the investigation. The Writ Petition bearing No,1049 of 1995 was allowed but yet the police did not bring on record my plea under the influence of the Dogar Group. The complainant's versions have also been found incorrect, as far as Muhammad Akram, Mushtaq alias Tufail, Muhammad Khan son of Ghulam Rasul and Zulfiquar Khan my father, as they have been found innocent during the investigation."
If one goes through the version of the appellant it seems to be more unnatural, improbable and unconvincing. There is no reason to disbelieve both the eye-witnesses though, they are closely related to the deceased but cannot be termed as interested or inimical witnesses . As far as non- recovery of crime empty is concerned, it may be noted here that Inspector Aftab Ahmad, examined as P.W.8 being cross-examined by the prosecution side had stated at page 47 of the paper book that he searched the empty cartridges of the bullet but he could not get the same because there was rush of people being General Bus Stand. He also stated at the same page that: "It is correct that the deceased was fired upon at this place where from I collected the blood- stained earth."
' It means that from where he collected the blood-stained earth that in fact was the place of occurrence. The appellant was arrested on 8-2-1994 and the recovery of 222 bore rifle along with magzine and 12 live cartridges was made from him vide recovery memo. Exh . P . H . And Ex.h . P . G.
Respectively. This was the same rifle which was snatched by the appellant from deceased. Ocular account is fully corroborated by the medical evidence. We have no hesitation in our minds that it was the appellant who had committed the murder of the deceased. We are not going to accept the plea for lesser sentence for the reason that recently in a case reported as 2001 SCM R 387 titled as Waris Khan v. The State, it was held by their lordships that proof of motive or previous is not necessary to sustain the conviction for, the murder in a case where a person is cooly and barbarously put to death. Where the fact of murder has been clearly established, it is by no means incumbent on the prosecution to show what particular motive actuated the criminal's mind and induced him to commit the particular crime. It was also held in the same judgment that: "It is not part of the prosecutors duty to suggest a motive for a crime; nor is it any duty of the Court to determine why an offence was committed. ' It is noticeable that' where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty; but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this effect only, viz. That the other evidence bearing on the guilt of the accused has to be very closely examined."
' It was also held by their Lordships 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 rendition of sentence on the basis of mitigating circumstances."
' After citing the above said judgment we see no mitigating circumstances in this case coupled with the fact that the appellant not only fired one shot but fired two shots and one of the fire hit on his head and fractured temporal bone and there was even no brain matter at the time of post- mortem examination.
The nutshell of the above discussion is that even there is no mitigating circumstance in this case, this appeal is dismissed. Murder Reference is replied in the affirmative and death sentence is confirmed. While maintaining sentence under section 302(b), P.P.C., we also award Rs,50,000 as compensation as required, under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default six months S.I. Notice in this regard was given to the learned counsel for the appellant which was accepted by him before starting arguments in this case .
' Death Sentence awarded to the appellant by the learned Trial Court is confirmed.