' Asif Ali son of Noor Ahmad appellant was tried by the learned Additional Sessions Judge, Hafizabad in case F.I.R. No,224 of 1993, dated 27-11-1993 under sections 302/324/452/34, P.P.C.
Registered at Police Station Sukheki, District Hafizabad, who vide judgment, dated 9-3-2000 convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life and to pay Rs,30,000 as compensation to the legal heirs of the deceased Muhammad Khan as required under section 544-A, Cr.P.C. Recoverable as land revenue or in default of payment whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant.
' Being aggrieved by the conviction and sentence, appellant filed instant criminal appeal bearing Criminal Appeal No,452 of 2000.
2. Brief facts of the prosecution case as narrated in the F.I.R., Exh.P.F./1, registered at Police Station Sukheki upon the statement of Riaz Hussain (given up P.W.) are to the effect that on the night between 26/27-11-1993 he alongwith his brother Altaf Hussain and Inayat Hussain son of Ahmad went to see Muhammad Khan (their relative) and stayed at his Dera at night. The complainant alongwith said Altaf Hussain was sleeping in the Southern room whereas Mst. Mehran Bibi and Mst.
Noor Fatima (wife and daughter of Muhammad Khan deceased respectively) were sleeping in the Northern room and Muhammad Khan was sleeping in the Verandah of the house. At about mid- night, they woke up upon barking of the dogs and in the light of electric bulb saw Noor son of Boota, Asif Ali (appellant) and Mansab sons of Noor Ahmad all armed with .12 bore guns standing in the courtyard of the house: On seeing them, Muhammad Khan deceased tried to run towards the stairs when Asif Ali appellant fired from his gun hitting Muhammad Khan deceased on his chest as a result of which he fell down on the ground. On hearing noise of firing, Mst. Mehran Bibi and Mst. Noor Fatima also came out of the room and started screening on seeing Muhammad Khan in an injured condition. Upon this, Mansab accused fired from his gun hitting Mst. Mehran Bibi on her chin, chest and upper arm. Mst. Noor Fatima tried to ran inside the room in order to safe herself when Noor fired from his gun hitting her on the right flank. After this all the accused persons decamped from the spot while climbing over the boundary wall. Muhammad Khan and Mst. Noor Fatima succumbed to the injuries at the spot, whereas Mst. Mehran Bibi was removed to the hospital for medical treatment.
' Motive for this occurrence as narrated in the F.I.R., Exh.P.F./1, is that Muhammad Khan deceased was step-brother of Noor Ahmad accused. Muhammad Khan deceased had one daughter namely Mst. Noor Fatima. Noor Ahmad accused was asking her hand for his son but the same was refused by the deceased party. Statedly, Mst. Noor Fatima was betrothed with the younger brother of the complainant and to avenge this insult, accused persons committed this offence.
3. After the occurrence, matter was reported to police at Police Post Kaleki Mandi where Rasheed Ahmad, S.-I./P.W.10 recorded statement, Exh.P.F., of Riaz Hussain complainant upon the basis of which formal F.I.R., Exh.P.F./1 was registered. Formal investigation of this case was conducted by Rasheed Ahmad, S.-I./P.W.10 who after examining the dead bodies prepared injury statements, Exh.P.M./2 and Exh.P.O. Alongwith inquest reports Exh.P.N. And Exh.P.P. Of Muhammad Khan and Mst. Noor Fatima deceased respectively and despatched the same to the mortuary for post-mortem examination. During spot inspection, this witness collected blood-stained earth, Exh.P.Q. And Exh.P.R. From the places where dead bodies of both the deceased persons were lying as well as prepared rough site plan, Exh.P.T., of the place of occurrence. During investigation, this Police Officer also arrested all the accused persons on 12-12-1993. On 22-12-1993 Mansab (since P.O.) led to the recovery of .12 bore gun (P.7) from his residential room which was taken into possession by the Investigating Officer vide recovery memo. Exh.P.M. File of this case further reveals that on 25-12-1993 Noor Ahmad accused (since P.O.) under custody led to the recovery of .12 bore gun from his residential room which was taken into custody vide recovery memo. Exh.P.K. On the same day, Asif Ali appellant led to the recovery of .12 bore gun from his residential room which was also taken into custody vide recovery memo. Exh. P. L.
' Record of this case further reveals that some attempts were also made to record the statement of Mst. Mehran Bibi (injured witness) and ultimately on 16-1-1994 after obtaining permission from the doctor her statement was recorded. This case was also investigated by Muhammad Saleem, D.S.P./C.W.1, during his investigation Asif Ali appellant was found innocent. This witness filed challan against Noor Ahmad and Mansab Ali (since P.Os.) while placing their names in Column No,3 and that of Asif Ali in Column No,2 of the report under section 173, Cr.P.C.
' It is also evident from the record that during the trial, Noor Ahmad and Mansab Ali absented themselves and they were proceeded under section 512, Cr.P.C. Vide order, dated 2-1-1999 and after observing necessary formalities, they were declared P.Os. And their case was separated from the present appellant.
4. During the trial, prosecution produced ten witnesses in order to prove the charge against the appellant.
' Dr. Capt. Khalid Farooq, P.W.1, medically examined Mst. Mehran Bibi and observed following injuries on her person:-- "(1) Fire-arm wound 14 x 5 c.m. On the left side of front and upper most part of the neck, below the chin, almost whole of the meniduclar area is threshed. Edges inverted and margins scrotched, blackened and irregular, with exit wound 2 x 1 c.m. On the right angle of mendible on the right side of face. Edges were everted.
(2) Multiple fire-arm wound of entry each about 1-1/4 x 1 c.m., five in number on the front of right shoulder and front and outer part of right upper arm in its upper and middle part. Edges inverted and margins blackened and tattooed. There was fracture of right numerus.
(3) Fire-arm wound 5 x 4 c.m. On the front of left chest, clavicular area, edges inverted and margins scortched and irregular, with exit wound 8 x 2 c.m. On the left side of back chest, edges everted."
' Dr. Nusrat Abbas Sherazi, P.W.2, conducted post-mortem examination on the dead body of Mst.
Noor Fatima and observed following injuries on her person:-- "(1) A fire-arm wound of entry 5 x 3 c.m. D.N.P. On front and outer part of right side of abdomen, just above the right iliac crest. Small and large intestines.Coming out of the wound. Edges were inverted, margins blackened scortched and tattooed."
' In the opinion of the doctor, death in this case had occurred due to excessive haemorrhage and shock as a result of injury No,1 which was fatal and sufficient to cause death in the ordinary course of nature.
' On the same day, Dr. Nusrat Abbas Sherazi, P.W.2, also conducted the post-mortem examination on the dead body of Muhammad Khan deceased and observed following injuries on his person:- "(1) A fire-arm wound of entry 7-1/2 x 6-1/2 c.m. x D.N.P. On front and outer part of right side of chest, 7 c.m. From midline 1 c.m. Right of right nipple embracing enterior exellary line. Edges inverted, margins blackened, scortched and tattooed with exit wounds seven in number in an area 16-1/2 x 7 c:m. Each measuring about 1/2 c.m. x 1/2 c.m. Edges everted, on back and outer side of left chest, middle part."
' In the opinion of the doctor, death in this case was caused due to haemorrhage and shock as a result of abovesaid injury which was fatal and sufficient to cause death in the ordinary course of nature.
' Muhammad Waris, A.S.-I./P.W.3, entered formal F.I.R. Upon the statement of Riaz Hussain, Masood Ahmad Bhatti, Draftsman/ P.W.4, prepared scaled site plan Exh.P.H. And Exh.P.H./1, of the place of occurrence. Noor Ahmad, Constable/P.W.5 took the dead bodies of Muhammad Khan and Mst.
Noor Fatima to mortuary for post-mortem examination and after the same produced the last- worn clothes of the deceased persons before the Investigating Officer which were taken into possession vide recovery memos. Exh.P.I. And Exh.P.J. Respectively. Mst. Mehran Bibi, P.W.6, was the eye-witness of this occurrence who had supported the prosecution case and had narrated the circumstances under which she, Muhammad Khan and Mst. Noor Fatima received injuries at the hands of the appellant and his co-accused. Munir Ahmad, H.C./P.W.7, kept the parcels of this case in Malkhana for their safe custody and later on handed over the same to the constables for their onward transmission to the respective offices. This witness also witnessed the recovery of crime weapon at the instance of Noor Ahmad (since P.O.) and Asif Ali appellant during the investigation, Muhammad Younas, P.W.8/H.C. Took the parcels of blood-stained earth to the office of Chemical Examiner and delivered the same intact. Abbas Ali, Constable/P.W.9 witnessed the recovery of weapon of crime at the instance of Mansab accused (since P.O.) Rasheed Ahmad, S.-I./P.W.10 conducted the investigation of this case as narrated earlier.
' Learned trial Court also examined Muhammad Saleem, D.S.P., as C.W.1 who also partially conducted the investigation of this case as narrated in the earlier part of this judgment.
Learned A.P.P. Tendered in evidence report of Chemical Examiner as Exh.P.W. And that of Serologist Exh.P.X. And closed the case for the prosecution.
5. After recording entire prosecution evidence, learned trial Court examined appellant under section 342, Cr.P.C. Wherein the appellant while answering the question as to why this case against you and why P.Ws. Have deposed against you, replied as under:-- "I have been falsely implicated in this case on account of suspicion. In fact during the night of occurrence, I had gone to attend a festival at Kot Mian, which fact was proved during investigation and on account of evidence produced by me before the Investigating Officer, I was found innocent during investigation. The P.Ws. Who deposed against me are interested witnesses."
' The appellant neither made any statement under section 340(2), Cr.P.C. Nor produced any evidence nis defence.
6. Learned trial Court after appropriate appraisal of evidence available on record, vide judgment, dated 9-3-2000 convicted and sentenced the appellant as narrated in the earlier part of this judgment.
7. Learned counsel for the appellant submitted that it was a night occurrence and the identification of the appellant was impossible in the circumstances of this case; that the F.I.R. Was registered after deliberation and consultation; that the motive for this occurrence was far-fetched, the same was disbelieved by the trial Court and this fact was sufficient to create doubt about the authenticity of the prosecution case; that the recovery evidence relied upon by the prosecution was prepared later on. It was lastly argued that in the circumstances of this case appellant was entitled to get the benefit of doubt. Conversely, learned State Counsel while supporting the impugned judgment had vehemently opposed the contentions raised by learned counsel for the appellant.
8. Arguments heard. Record perused.
9. During the trial, two eye-witnesses namely Riaz Hussain and Altaf Hussain were given up and the entire case of the prosecution rests upon the statement of Mst. Mehran Bibi, P.W.6. This occurrence took place during the night between 26/27-11-1993. Mst. Mehran Bibi (P.W.6) was the wife of Muhammad Khan and mother of Mst. Noor Fatima deceased persons, during this occurrence, she also received firearm injuries on the vital parts of her body. In the circumstances, the presence of this witness at the spot cannot be doubted. In her statement before the trial Court, she had specifically stated that at the time of occurrence there was ample light of bulb in which she identified appellant and other co-accused. She also narrated the circumstances under which she alongwith her deceased husband and daughter received injuries at the hands of appellant and his co-accused. The site plan, Exh.P.H., prepared by Masood Ahmad, P.W.4, also shows the presence of bulb at the place of occurrence. The ocular account narrated by Mst. Mehran Bibi P.W.6 stands corroborated by the medical evidence which has proved the nature and location of injuries on her as well as on the persons of deceased and the weapon used during this occurrence. No doubt, two eye-witnesses of this occurrence were given up by the prosecution but there is nothing on record to doubt the credibility of Mst. Mehran Bibi. This witness successfully stood the test of cross- examination. She had no direct enmity with the appellant to falsely implicate him in this case.
Learned counsel has not been able to point out any infirmity in the statement of this lady. So, the evidence given by Mst. Mehran Bibi cannot be discarded on the ground of her relationship with the deceased. Statement of Mst. Mehran Bibi inspires confidence, rings true and in the circumstances same can be relied upon safely even in the absence of any corroborative piece of evidence.
10. Motive for this occurrence is that Noor Ahmad accused (since P.O.) asked for the hand of Mst.
Noor Fatima deceased for his son but Muhammad Khan deceased did not agree to it and to avenge the insult accused committed this offence. It has been observed that except the statement of Mst. Mehran Bibi, P.W.6, there is no evidence on record in support of this piece of evidence, so much so, during investigation no material was collected by the police official in this regard. In this view of the matter, learned trial Court has rightly taken out of consideration this piece of evidence.
The arguments of the learned counsel that in the absence of motive the case of the prosecution has fallen on the ground and the conviction of the appellant is not sustainable, have no force. As discussed above, the ocular account narrated by Mst. Mehran Bibi is strong enough to uphold the conviction of the appellant. It is well-settled proposition of law that when pre-meditated and cold- blooded murder is committed, like the present one, and the same is established by irrefutable evidence the motive does not play any effective role. What is important, is the nature of evidence and not the motive which may or may not be proved. Even if the motive is not proved, it could not be a ground to discard the unimpeachable evidence. This view is in line with the observation of their 'Lordships in case titled Muhammad Ilyas v. The State PLD 2001 SC 333.
11. The crux of the above discussion is that prosecution has proved its case to the hilt against the appellant and this appeal has no force, same stands dismissed.