' This is a criminal appeal filed by Ghaffar son of Jabbar resident of Prang, Tehsil and District Charsadda against his conviction and sentence by Judge, Special Court, Charsadda, dated 23-2- 1999, vide which the appellant has been convicted and sentenced to death under section 302, P.P.C. The appellant is also sentenced to a fine of Rs,1,00,000 or in default of payment of fine to suffer three years' R.I. The amount of fine, if realized, shall be paid to the L.Rs, of deceased Ikramullah as compensation under section 544-A, Cr.P.C.
2. Brief facts of the case are that on 23-4-1996 at 19-10 hours Shahidullah son of Ikramullah reported to the Police Officer on the spot that today at the relevant time he alongwith his brother Ijaz Akhtar and father Ikramullah aged about 55 years were present in their shop situated on Tangi Road, Tehsil Charsadda. After Azan of evening prayer his father got up and started offering prayer in the shop when in the meanwhile accused-appellant Ghaffar son of Jabbar resident of Prang Miangano Killi, armed with kalashnikov appeared on the scene and started firing at his father, with which he was hit and died on the spot. The accused-appellant made good his escape after the occurrence. Motive for the offence is that some time ago accused-appellant was appointed as an employee in a hostel of Peshawar University by the uncle of complainant Professor Mumtaz but after some time Ghaffar resigned and he was suspecting his father for his removal from service.
The occurrence has been witnessed apart from complainant by his brother Ijaz Akhtar. On the report of this Murasila recorded by Muhammad Razzaq Khan, S.-I. F.I.R. No,623, dated 23-4-1996 was registered at Police Station Charsadda under section 302, P.P.C. Against Ghaffar accused.
3. The accused remained in abscondence for about ten months and 24 days and was arrested on 17-3-1997 by the local police. After completion of the investigation, challan was submitted in Court.
The accused was summoned and charged for the murder of Ikramullah, to which he pleaded not guilty and claimed trial. Trial commenced. The prosecution examined almost 11 P.Ws. And closed its evidence on 23-6-1998. Statement of accused under section 342, Cr.P.C. Was recorded. He pleaded innocence but produced no defence nor wished to be examined on oath.
4. Before coming at a correct conclusion, gist of the prosecution evidence is very much necessary.
P.W.1 is the statement of Hassan Khan, who was S.H.O. Police Station Charsadda during the crucial days. After completion of investigation he submitted complete challan against the accused under section 512, Cr.P.C. When it came to his knowledge that the accused has been arrested by Political Authorities of Khyber Agency, he applied for his arrest in this case vide application Exh.P.W.1/1, on which a letter Exh.P.W.1/2 was issued to the Political Authorities on 17-3-1997. He arrested the accused from the Political Authorities concerned, interrogated the accused, who (according to this P.W.) confessed his guilt and thereafter pointed out the spot of occurrence on 19-3-1997. He then submitted supplementary challan against the accused. Pointation memo. Is Exh.P.W.1/3 prepared by him, which correctly bears his signature.
5. P.W.2 Rizwanullah, M.H.C., Police Station Prang was posted as M.H.C. In Police Station Charsadda in those days. He is marginal witness to recovery memo. Exh.P.W.2/1, vide which the Investigating Officer took into possession the garments of the deceased, blood-stained consisting of one Shirt P.1, one Shalwar P.2, Banyan P.3, Chader P.4, Cap P.5 and another Chader P.6, brought by Roohul Amin F.C. From the mortuary and handed over to the Investigating Officer. The memo. Correctly bears his signature. P.W.3 is Dawood Jan son of Gul Wahid, who is the marginal witness to recovery memo. Exh.P.W.3/1, vide which the Investigating Officer took into possession some blood through a cotton from the place of occurrence and also picked up one empty on 7.62 bore freshly discharged from the spot and were sealed into separate parcels in his presence. The memo. Correctly bears his signature. P.W.4 is Umar Hayat son of Mohammada Gul, who correctly identified the dead body of the deceased in the mortuary at the time of post-mortem examination.
6. P.W.5 is Pervez D.F.C. No, 448 of Police Station Prang, who was entrusted warrant of arrest under section 204, Cr.P.C. Against the accused Ghaffar Ali. He searched for the accused in his village and in the surrounding area, but of no avail, so warrant was returned unserved and as the accused was avoiding his arrest, he was entrusted with proclamation notices and after doing the needful, he returned the same which are Exh.P.W.5/2. One Javed son of Noor Jamal and Durani son of Salim are witnesses of the warrant and Noor Ahmad and Ahmad are the witnesses of notice under section 87, Cr.P.C.
7. P.W.6 is Dr. Yunas Khan Khattak, Medical Officer, D.H.Q. Hospital, Charsadda on 24-4-1997 at 6-15 a.m. Examined the dead body of Ikramullah son of Gul Majid aged about 55 years resident Rajjar, Tehsil and District Charsadda, brought by S.H.O. Hassan Khan and found the following on external examination:-- ' The dead body was fresh and healthy.
(1) Fire-arm entry wound just below the right left clavicle closed to the left shoulder joint 1/4' x 1/4' in size.
(2) Fire-arm exit wound on the right shoulder blade in the middle 1' x 1' in size round in shape badly damaged right shoulder blade.
(3) Fire-arm entry wound 7th intercostals space right side just above the right hopychordium 1/4' x 1/4' in size.
(4) Fire-arm exit wound on the right renal region on the back 2' x 2' in size rounded in shape.
Internal examination ' 7th rib damaged on the right side whereas 2nd rib was damaged on the left side. Pleurae damaged. Both lungs were damaged badly. Blood vessels were damaged at the site of corresponding entrance and exit wound. Stomach was empty. Liver was badly shattered. Right kidney was also damaged. Bladder was empty. Right scapula fractured in the middle.
' Remarks. In my opinion death occurred due to severe internal and external haemorrhage due to damage caused to vital organs like lungs, liver, kidney resulting into haemorrhage and neurogenic shock and ultimate death with fire-arm. The blood-stained clothes of the deceased bearing corresponding cuts and two Chaders also having corresponding cut marks were handed over to Ruhul Amin Constable.
' Probable time between injury and death instantaneous and between death and post-mortem .11- 1/2 hours to 12 hours. The dead body was identified by Muhammad Saleem and Umar Hayat. I see the post-mortem report Exh.P.V. Alongwith its pictorial Exh.P.V./1 which are in my hand and bear my ,signatures. The injury sheet and the inquest report also bear my endorsement regarding post-mortem examination and signature to this effect.
8. P.W.7 is Shahidullah son of Ikramullah deceased, who stated that Ikramullah was his father. P.W.
Ijaz Akhtar is his younger brother and accused Ghaffar is his relative. He is serving in WAPDA at Peshawar. During the days of occurrence, his father was running a cloth shop in Tehsil Bazar Tangi Road, Charsadda. It was about 7-10 p.m. When he, his father and his brother Ijaz Akhtar were sitting in their shop. In the meanwhile Maghrib Azan (prayer call) was made and his father stood in the said shop for offering Maghrib prayer. In the meanwhile accused Ghaffar, duly armed with kalashnikov rifle, came to their shop and started firing at his father, with which his father was hit, fell down and died on the spot. As they were empty handed, therefore, could not apprehend accused, who made good his escape from the spot. One Mumtaz, who is Professor in Peshawar University and is his uncle had employed Ghaffar accused in hostel of the University.. The accused has left the service and came to his village. The accused was suspecting his father that at his behest his uncle Mumtaz had removed the accused from service. They were present on the spot when in the meanwhile police arrived there and he made report to the Police Officer. After recording of the report, the contents were read over to him, which he admitted correct and bears his signature. F.I.R.
Is Exh.P.A./1. The dead body of his father was lifted by the Investigating Officer and sent to the mortuary for post-mortem examination. He joined investigation with the Investigating Officer and pointed out the various places at the time of preparation of site plan.
9. P.W.8 is Ejaz Akhtar son of Ikramullah deceased and according to him, his father used to run a cloth shop on Tangi Road at Tehsil Bazar, Charsadda during the days of occurrence. On the eventful day he, his brother Shahidullah and father Ikramullah were present in the said shop. In the meanwhile Maghrib prayer call was made and his father stood in the shop for offering prayer and in the meantime accused Ghaffar duly armed with kalashnikov rifle came to their shop and started firing at his father, as a result of which his father was hit and died on the spot. The accused ran away from the spot and they could not apprehend him being empty handed.
10. P.W.9 is Waheed Gul Khan, A.S.-I., who was posted in Police Station Charsadda in those days. In his presence accused Ghaffar facing trial in hand cuffs led the police party to the spot and pointed out the place wherefrom he had fired at the deceased. Khiali Gul is the marginal witness and S.H.O.
Of the police station was also there at the time of pointation. The pointation memo. Exh.P.W.1/3 correctly bears his signature.
11. P.W.10 is Muhammad Razziq, S.-I. Police Station Charsadda who was posted in those days in Police Station Charsadda. On 23-4-1996 he alongwith the police party was patrolling the Illaqa and on receipt of information about the occurrence he rushed to the spot, where complainant Shahidullah at 7-45 p.m. Made report to him about the murder of his father against Ghaffar. He recorded his report under section 302, P.P.C. And after going through the contents of the report, the maker put his signature on the foot of his report. Murasila Exh.P.A./1, was sent to police station for registration of case against the accused. Thereafter, he prepared the injury sheet Exh.P.X. And inquest report Exh.P.X./1 and dispatched the dead body to the mortuary under the escort of Israrullah Constable for post-mortem examination. He prepared the site plan Exh.P.B. Correct with all its foot notes and drawing at the pointation of the complainant as well as the other eyewitnesses. During the spot inspection he secured some blood through a cotton and sealed it in a parcel vide recovery memo. Exh.P.W.3/1. Vide the same recovery memo. He recovered an empty shell Exh.P.10 of 7.62 bore which was giving the smell of fresh discharge. He sealed the same in separate parcel by affixing his monogram thereon. He recorded the statements of the P. Ws. On the following day Roohul Amin Constable No,649 produced to him Shirt Exh.P.1, Shalwar Exh.P.2, Banyan Exh.P.3 blood-stained, a Cap Exh.P.5, a Chadar Exh.P.R. And another white Chadar Exh.P.6, sent by the doctor, which were taken into possession by him, vide recovery memo. Exh.P.2/1 in presence of the marginal witnesses and sealed the same. He informed the Police Station Prang for the arrest of the accused in the instant case, but the accused was not traceable. Vide his application Exh.P.L.
The blood-stained clothes of the deceased and the blood were sent to the Laboratory for Chemical Analysis and on the receipt of report Exh.P.L.1, the same was placed on the record. On 25-4-1996 he made an application Exh.P.T. To the Court of Magistrate for obtaining warrant under section 204, Cr.P.C. Against the accused, which was marked to the D.F.C. After obtaining the same from the Court. The said D.F.C. Returned the warrant unserved. Again vide application Exh.P.T./1 dated 13-5- 1996 made to the Court concerned, he obtained proclamation against the accused, which was marked to the same D.F.C. For execution. He completed the investigation in the case and put up the case file before the S.H.O. For submission of challan against the accused. All the documents are prepared by him and . Correctly bear his signatures. Wahid Gul A.S.-I. Had registered the instant case vide F.I.R. Exh.P.A. At Serial No,623 on the same day at 8-15 p.m. Which bears his signature.
12. P.W.11 Israrullah F.C. No,424 during the days of occurrence was attached to Police Station Charsadda. He escorted the dead body of the deceased Ikramullah from the spot to the mortuary at Civil Hospital, Charsadda for post-mortem examination. During the escort the dead body remained intact till post-mortem examination conducted by the doctor. After post-mortem examination the doctor entrusted him the post-mortem documents as well as the clothes of the deceased, which he produced before the Investigating Officer. This is the gist of the prosecution evidence. The accused in his statement under section 342, Cr.P.C. Denied all the charges. He has not produced any defence nor recorded his statement on oath.
13. We have heard the learned counsel for the appellant, complainant as well as counsel for the State and have thoroughly gone through the record. At the very outset of the arguments, learned counsel for the appellant stated that he wants to argue the quantum of sentence and not the sentence itself. He mainly took the plea that in the instant case no motive is proved and that the motive which the prosecution had advanced has got no legs to stand. He strenuously argued that it seems unnatural as to why the present accused-appellant, who is related to the complainant party committed the murder of the deceased as he has no grievances against the deceased and nothing is available on the record in this behalf. He produced so many authorities, such as 1998 SCM R 1764/1765 (headnote "C"), 1999 SCM R 637 and 1995 SCM R 1776 and argued that the prosecution case which is mainly based on the alleged motive has got no legs to stand and is a concocted one. Counsel for the complainant and counsel for the State rebutted all these arguments.
14. The argument of the learned counsel for the appellant has got no weight as the recent trend of superior judiciary has changed. In so many judgments the Honourable Supreme Court has upheld that motive makes no difference in a criminal case if it is otherwise proved by cogent evidence.
Reference can be had to 2001 SCM R 726 (headnote "G"), which also supports the recent trend of the superior judiciary. The Honourable Supreme Court of Pakistan in the case 2001 SCM R 387 titled Waris Khan v. The State has upheld that weakness or absence of motive or failure to prove the same when the eye-witness account is worthy of credence, unimpeachable and confidence inspiring and accusation was established beyond shadow of doubt, then weakness of motive or its absence or where alleged but not proved, would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances. The Honourable Judges has distinguished 1999 SCMR 387 produced by the learned counsel for the appellant and so many other authorities of the august Court. Similarly in 2001 SCM R 726 the august Court has upheld that lack of motive by itself is not a mitigating circumstance. Lack of motive altogether or inability of prosecution to prove motive for murder does not affect the imposition of normal penalty of death in a murder case, if the prosecution otherwise has been able to prove its case against the accused beyond reasonable doubt. So, whatever the position of motive whether week or not fully established make no difference, if the case is otherwise proved by sufficient cogent evidence and in this background of the case we are heSitant to interfere with the quantum and sentence passed by the trial Court against the accused-appellant. Resultantly, the appeal in hand being devoid of merits is hereby dismissed and murder reference is answered in affirmative.