1. ' BASHIR A. MUJAHID, J.--- Ameer Khan son of Lala has challenged judgment, dated 31-3-1997 passed by learned Additional Sessions Judge, Sargodha, whereby he was convicted under section 302(a), P.P.C. For commission of murder of Mst. Nooran and sentenced to death. He was further ordered to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default thereof he had.To undergo six months' S.I.
2. ' The occurrence which resulted into murder of Mst. Nooran took place at 5-45 a.m. On 18-8-1995 in the field of Chak No,59/SB Janoobi at a distance of 15-1/2 k.m. From Police Station Pull No,111, Sargodha and F.I.R. No,151 (Exh.P.F.) was registered same day at 8-15 a.m. By Zulfiqar, S.-I. P.W.9 on the statement of Nazir Ahmad P.W.7, wherein it was alleged that "he cultivates the land of one Sikandar Hayat as a tenant in Chak No,59/SB and is residing in a Dera constructed in Square No,23.
3. His two other brothers namely Ameer and Sharif also cultivate land with him and reside at the same Dera. Towards the south of his Dera at a distance of 2-1/2 acres there is Dera of Ameer son of Lala resident of Chak No,60/SB whose land is situated in Chak No,59/SB. About 10/11 days earlier Mst.
4. Nooran daughter of Ameer, niece of the complainant, was going to Chak, when Ameer accused stopped her and asked her to develop illicit relations with him. Mst. Nooran admonished and abused him. On hearing her noise, the complainant reached there, on which, the accused ran away towards his Dera by extending threats that he would take revenge for his insult. On the day of occurrence, Mst. Nooran was again going to fetch milk from the Dera of Noor Ahmad, P.W.8, resident Chak No,60/SB and when at about 5-45 a.m., she reached near Dera of Amir accused, he came out from his Dera armed with gun raising Lalkara and stopped Mst. Nooran and started teasing her, on which she raised hue and cry, which attracted the complainant alongwith Muhammad Hayat son of Muhammad Khan, who were present near mound of chaff. Noor Ahmad, P.W.8 who was present near was also attracted and saw the occurrence. The accused within their view caused fire-arm shot with his .12 bore gun, hitting Mst. Nooran at her chest, who fell on the ground after receipt of the injury. The accused ran away with the gun towards Dera of his brother Muhammad Ali. Mst. Nooran succumbed to the injury at the spot".
5. ' Zulfiqar Ahmad, S.-I./S.H.O. P.W.9 after registration of the case arrived at the place of occurrence and took the dead body of Mst. Nooran into possession and prepared the injury statement vide memo. Exh.P.C. And inquest report Exh.P.D. And entrusted the same to Iftikhar Ahmad, F.C. For post- mortem examination. He also took into possession blood-stained earth sealed into parcel vide memo. Exh.P.G. On the same day, Iftikhar Ahmad, Constable P.W.3 produced last-worn clothes of the deceased before the Investigating Officer which were taken into possession vide memo.
6. Exh.P.W.9/A. On 23-8-1995, he arrested the accused, who while in police custody led to the recovery of gun P.1 from his residential Kotha which was taken into possession vide memo. Exh.P.H. He completed the investigation and submitted the challan.
7. ' The charge was framed and accused denied the charge, and claimed trial.
8. ' During the trial, the prosecution examined as many as 9 witnesses to prove the guilt of the accused.
9. ' The medical evidence was furnished by Dr. Hussain Ahmad Madni, P.W.5, who on 18-8-1995 at 11 a.m. Conducted post-mortem examination on the dead body of Mst. Nooran and found the following injuries:--
(1) A fire-arm wound of entrance 5 c.m. Into 2 c.m. With inverted margin on the medial 2/3 of right clavical 12 c.m. Above the right nipple. Blackening and burning was present around the wound.
(2) Wound of exit each of radius 1 x 1 c.m. In an area 5 x 5 c.m. On back and upper 1/3 of right chest near the mid line corresponding hole were present on the Qamiz.
10. ' Three vaginal swa bs were taken and sent to Chemical Examiner for detection of semen. In the opinion of the doctor, the cause of death was shock and haemorrhage under Injury No,1 which was sufficient to cause death in ordinary course of nature and the said injury was ante-mortem. The time between injury and death was immediate and of between death and post-mortem was about 5 hours.
11. ' The ocular account was furnished by Nazir Ahmad, P.W.7, who was complainant of the case. He supported the version narrated by him in the F.I.R. As an eye-witness of the occurrence. Noor Ahmad was examined as P.W.8. Lie also supported the prosecution story as an eyewitness. His, statement as in line with statement of Nazir Ahmad, P.W.7 complainant of the case. Nazir Ahmad, P.W.7 had also narrated the motive 'alleging that 10/11 days prior to the occurrence, the accused had teased Mst. Nooran to develop illicit relations with him. Noor Ahmad P.W.8 had also attested the recovery memo. Exh.P.G. Whereby the blood-stained earth was taken into possession from the spot and memo. Exh.P.G. Whereby the accused got recovered .12 bore gun alongwith licence.
12. Muhammad Aslam, Patwari was examined as P.W.2, mho had prepared the site plan Exh.P.A. Of the place of occurrence ' The prosecution evidence was closed, by tendering in evidence report of Chemical Examiner Exh.P.E. And Exh.P.T. And that of Serologist Exh.P.J.
13. ' The statement of the accused/appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement and to the question as to why the case against him and P.W. Deposed against him, he replied as under:-- "As the P.Ws. Are inimical toward me, therefore, they have brought this false case against me."
14. ' The trial culminated into conviction of the appellant as mentioned above. He has challenged his conviction through Criminal Appeal No,133 of 1997 while the trial Court has sent up Murder Reference No,104 of 1997 for confirmation of the death sentence under section 374, Cr.P.C. Both the matters are being decided through this judgment.
15. ' Learned counsel for the appellant has argued that it was a night unwitnessed occurrence; that what happened at the spot is not known; ' that the semen taken into possession by the doctor shows that the deceased had illicit relations with the appellant and she got pregnant and was pressurizing the appellant for marriage and the complainant party murdered her and implicated the appellant falsely. It has been further argued that the alleged motive was false and not proved; that it was a case of two versions and the penalty of death is not proper and legal in the circumstances of the case. Reliance has been placed on PLD 1972 Lah. 153 and PLD 1969 SC 127. It has also been argued that both the eye-witnesses are closely related inter se as Noor Ahmad is cousin of Nazir Ahmad complainant and their evidence has not been corroborated from any other independent source. It has been submitted that the occurrence was witnessed by many other person but no independent witness has cotne forward to support the prosecution story, therefore, the case against the appellant is doubtful and he is entitled for acquittal.
16. ' Conversely, the appeal has been opposed by the learned-counsel for the State who has supported the impugned judgment. Heard. Record perused.
17. As per F.I.R. And statement of the prosecution witnesses the occurrence took place at 5-45 a.m.
18. And the case was registered at 8-15 a.m. On the same day at a distance of 15 k.m. At the police station. The accused was nominated in the F.I.R. Which was promptly recorded. The occurrence took place admittedly on 18 of August and sun rises at 5-30 a.m., therefore, it was daylight occurrence. The accused was known to the prosecution witnesses, therefore, there is no question for mistaken identity or substitution. The accused stated in his statement under section 342, Cr.P.C.
19. That the witnesses have implicated him due to previous enmity but nothing has been brought on record that Nazir Ahmad P.W.7 and Noor Ahmad, P.W.8 had any previous enmity against him for his false implication or substitution by letting off the real culprit. The occurrence took place at 5-45 a.m. The post-mortem examination was conducted at 11-15 a.m. On the same day and according to the doctor, the time between the death and post-mortem examination was about 5 hours which coincides with the time of occurrence as alleged by the eye-witnesses, therefore, the medical evidence is in line with the ocular account. The place of occurrence has also not been disputed, therefore, the argument of learned counsel that the complainant party murdered Mst. Nooran on their own and the appellant has been falsely implicated has no force as if the complainant party had to murder Mst. Nooran, then why they should have selected the place near the Dera and hours of the accused on a path. Mere relationship of the prosecution witnesses inter se is no ground to discard their testimony as they have no previous enmity against the appellant. The presence of the prosecution witnesses in their fields near the place of occurrence was natural. Noor Ahmad, P.W.8 has explained his presence in the village and near the place of occurrence. Regarding motive it is settled law that absence or weakness of the motive is no ground for awarding lesser penalty. The learned counsel for the appellant has also referred to statement of the Investigating Officer whereby he admitted that during the investigation it has come to his notice that Mst. Nooran had illicit relations with the accused but it is also of no help to the appellant as the opinion of the Investigating Officer is. Not binding on the Court and same was not substantiated by the accused.
20. The instant case has been fully proved by ocular account corroborated by medical evidence. The statements of both the eye-witnesses are confidence-inspiring. They stood to the test of cross- examination but no material discrepancy has been brought on record.
21. ' After deep reappraisal of the evidence, we are convinced that the prosecution has established its case against the appellant by ocular account corroborated by medical evidence and the motive and find no force in the appeal and the same is dismissed. The death sentence of Amir Khan, appellant/accused is confirmed.