' MUHAMMAD FARRUKH MAHMUD, J.--- Sher Khan son of Shah Jahan, the appellant, was tried by the Sessions Judge, Multan, for causing murder of Mian Rasool Bakhsh son of Mian Haji Muhammad and having found guilty, he vide his judgment, dated 21-12-1996 convicted Sher Khan under section 302(b), P.P.C. And sentenced him to death. The appellant was also directed to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased which would be recovered as arrears of land revenue and in default of payment recovery thereof to undergo imprisonment for a period of six months.
2. Through Murder Reference No,485 of 1998 the confirmation of the above referred conviction and sentence has been sought. While Sher Khan has challenged his conviction and Sentence through Criminal Appeal No,10/J of 1997. We propose to dispose of both these matters through this single judgment.
3. Brief facts of the case as narrated in the F.I.R. Are that Sher Khan, appellant, trespassed into the sitting room (Bethak) of the deceased, situate in the revenue estate of Village Zahoorabad District Khanewal, where he fired at Khalid Nadeem son of Mian Rasool Bukhsh (deceased).. Mian Rasool Bukhsh pushed his son Khalid Nadeem and the fire hit him, which proved fatal.
4, Mian Rasool Bakhsh, deceased, was taken to the Civil Hospital, Khanewal, in injured condition.
Where his nephew Muhammad Siddique son of Mian Allah Bakhsh (P.W.10) made his statement Exh.P.A.1 before P.W.11 Ch. Nazeer Ahmad Bhatti, S.-I. Police Station City Khanewal, who duly recorded it on the same day at about 2-30 p.m. Muhammad Yar, A.S.-I./P.W.3 recorded the formal F.I.R. On the same day. The F.I.R. Was initially registered under section 324, P.P.C. And after the death of Mian Rasool Bakhsh, the said section was converted into section 302, P.P.C. According to the F.I.R., the complainantP.W.10 lived in the same Ahata belonging to his uncle Mian Rasool Bukhsh (deceased).
On 7-7-1991 at about 12-00 noon, the complainant, his uncle Mian Rasool Bukhsh, Khalid Nadeem, Shahid Iqbal and Kashif Nadeem sons of Mian Rasool Bukhsh (deceased) were having food in the living room when there was a knock at the door of sitting room. Kashif Nadeem left to answer the knock and soon after a while there was a noise coming out of the sitting room. On hearing noise, the complainant alongwith Shahid Iqbal rushed to the sitting room and saw that Sher Khan, appellant, who had .12 bore gun in his hands and had tied a revolver on his waist was present there and was threatening to kill Kashif Nadeem. He was also exhorting that he wanted to settle the matter with Khalid Nadeem P.W.S. Meanwhile Mian Rasool Bukhsh, deceased, Shahid lqbal and Khalid Nadeem came inside the sitting room. Sher Khan appellant seeing them became very angry and aimed his gun at Khalid Nadeem. Mian Rasool Bukhsh deceased pushed Khalid Nadeem aside.
However, due to the fire of the accused, Rasool Bukhsh was injured and fell on the ground. Sher Khan was overpowered by the P.Ws. And gun and revolver were snatched from him. During this scuffle Sher Khan appellant received minor injuries.
5. The motive given in the F.I.R. Was that Sher Khan appellant had borrowed Rs,500 from Khalid Nadeem for the treatment of his mother about six months prior to the occurrence. Khalid Nadeem had demanded his money back but the same was not returned and one week prior to the occurrence Khalid Nadeem gave beating to Sher Khan for not returning the money. On that day the matter was patched up but Sher Khan nursed the grudge and felt insulted, therefore, he trespassed into the house of the deceased in order to murder Khalid Nadeem and fired, which hit Mian Rasool Bukhsh, deceased.
6. Sher Khan, appellant, was produced before Ch. Nazeer Ahmad, S.-I./P.W.11, when he was in the hospital, by Kashif Nadeem, Shahid Iqbal and Muhammad Shafi, P.Ws. Sher Khan was formally arrested by P.W.11. At that time .12 bore gun Exh.P.3 and .32 bore revolver Exh.P.4 alongwith empty cartridge Exh.P.5 and six live cartridges Exh.P.11/1-6 which were snatched from the appellant, were taken into possession vide memo. Exh.P.D. By the P.W.11.
7. Ch. Nazir Ahmad, Investigating Officer/P.W.11, then proceeded to the place of occurrence and lifted blood-stained earth from the inside of the sitting room of the deceased. He also took into possession five pellets Exh.P.7/1-5, one wade Exh.P.8 and card board Exh.P.9 from the spot and prepared memo. Exh.P.E., which was attested by him and the P.Ws. Nos.5 and 10.
8. During the trial, the prosecution produced 12 witnesses. P.Ws. Nos.5 and 10 appeared as eye- witnesses while P.W.2 appeared in support of the motive. P.Ws.8 and 9 Dr. Khalid Mohy-ud-Din Qadri and Dr. Syed Zia-ud-Din supplied the medical evidence. The deceased received the following injuries on his person.
(1) A lacerated fire-arm wound 7 c.m. x 2 c.m. x going deep into the left side of abdomen, 15 c.m.
Below the left nipple. Blackening was present around the wound which was bleeding.
(2) A fire-arm wound of entry 1.5 c.m. x 1 c.m. x going deep into the abdomen, oval in shape, 0.5 c.m.
From injury No,l. Its edges were inverted and there was blackening around the wound which was bleeding.
(3) A fire-arm wound of entry 1 c.m. x 0.5 c.m. x going deep into the abdomen, 1 c.m. From injury No,2. It was oval in shape, had blackening around and was bleeding.
(4) A fire-arm wound of entry 1 c.m. x 0.5 c.m. Going deep into the abdomen, 2.5 c.m. From injury No,3. It was oval shaped with inverted margins and had blackening around and was bleeding.
(5) A fire-arm wound of entry 1 c.m. x 0.5 c.m., going deep into the abdomen 0.5 c.m. From injury No,4. Its shape was oval, margins were inverted with blackening around and was bleeding.
(6) A fire-arm wound of entry 1 c.m. x 0.5 c.m. Ong deep into the abdomen, 1 c.m. From injury No,5. It was oval shape, had inverted margins and blackening around and was also bleeding.
(7) A fire-arm wound of exit 1.5 c.m. x 0.7 c.m. With inverted edges on the left side of abdomen 12.5 c.m. Below the left nipple. It was bleeding.
(8) A fire-arm wound of exit 1.5 c.m. x 0.8 c.m. With everted edges on the left and outer side of the abdomen, 0.5 c.m. From injury No,7. It was bleeding.
(9) A fire-arm wound of exit 1.3 c.m. x 0.8 c.m. With everted edges on the left and outer side of abdomen, 4 c.m. From injury No,8. It was bleeding.
(10) A fire-arm wound of exit 1.5 c.m. x 0.8 c.m. With everted edges on the left and outer side of abdomen, 2.05 c.m. From injury No,9. It was bleeding.
(11) A fire-arm wound of exit 1.5 c.m. x 0.8 c.m. With everted edges on the left outer side of abdomen, 4 c.m. From injury No,10. It was bleeding.
(12) A crushed wound 12 c.m. x 8 c.m., going deep to the medial side of right forearm, 5.5 c.m. Below the right elbow. It was bleeding and had blackening around.
(13) A fire-arm wound of entry 2 c.m. x 0.5 c.m., on the front of right forearm with inverted edges and blackening around. It was bleeding.
(14) An abrasion 1.5 c.m. x 2 c.m. x skin deep, on the back of right forearm 5 c.m. Below the wrist joint.
9. Ch. Nazir Ahmad Bhatti, S.-I. And Shafique-ur-Rehman, S.H.O., appeared as P.Ws. Nos.11 and 12 respectively in support of the investigation conducted by them.
10. The appellant was duly examined under section 342, Cr.P.C. He took a stance that he was innocent and he was forcibly taken into the sitting room of the deceased on the day of occurrence by Khalid Nadeem and Shahid Iqbal sons of the deceased. He further stated that he was given beating by the above said persons and it was Khalid Nadeem P.W.5, who was armed with a gun and he pointed that gun at him but in the meanwhile Mian Rasool Bakhsh deceased suddenly came inside the sitting room and tried to intervene and snatch the gun from his son, at that time, the gun accidentally went off and fire hit Mian Rasool Bukhsh deceased. According to the appellant, he was not armed with any weapon. He also stated that in fact he wanted to marry with Ishrat Pervin daughter of Mst. Sakeena Bibi widow of Mian Muhammad Nawaz real brother of Mian Rasool Bukhsh. Mian Rasool Bukhsh wanted to marry Ishrat Pervin with his son Khalid Nadeem, as the appellant was interested to marry with Ishrat Pervin, the deceased and his sons had become inimical with him as well as Mst. Sakeena Bibi. However, the appellant did not appear as witness in his defence under section 340(2), Cr.P.C. And did not produce any witness in his defence. However, the Court summoned Dr. Muhammad Rafi/C.W.1 as a Court-witness, who had examined Sher Khan appellant as he had received injuries during the scuffle. According to the C.W.1 Sher Khan received the following injuries on his person:--
(1) A lacerated wound 3.5 c.m. x 0.5 c.m. On the top of head, slightly to the head, about 8 c.m. From left ear.
(2) A contusion with swelling 5 c.m. x 4 c.m. On the left of forehead.
(3) A swelling 3 c.m. x 2 c,m. On the left cheek.
(4) A lacerated wound I c.Tn. x 0.5 c.m. On the left elbow.
(5) Complain of pain on the incisor tooth. The lower right incisor was missing with no signs of injury on the gum or lips. It appeared to be an old missing tooth.
11. We have examined the entire record, considered all the aspects of the case and gone through the impugned judgment.
12. The learned counsel for the appellant at the very outset has conceded that he would not challenge the conviction but has requested for reduction in \sentence on the following grounds:--
(1) That the motive was trivial and relied upon Muzaffar Saeed v. Aulad Hussain Shah alias Phul Peer and others and
(2) That the matter relates to the year 1991 and behind the bars since his arrest i,e, 7-7-1991.
1990 SCM R 40; the appellant is
13. The learned counsel appearing on behalf of the State has vehemently opposed the reduction in sentence and contended that no mitigating circumstance is available in the circumstances of the case.
14. After considering the every aspect of the case we have noticed that the prosecution has proved its case beyond any shadow of doubt. The ocular testimony produced by the P.W.5 and P.W.10 was trustworthy, who had faced the lengthy cross-examination. Although both the witnesses are related to the deceased yet their evidence cannot be brushed aside on this score alone. They had no motive to falsely involve the appellant in the case. We are fortified in our view by the judgments of the apex Court passed in the cases Iqbal alias Bhala v. The State 1994 SCM R 1 and Abdul Ghafoor v. The State 2000 SCM R 919. Even otherwise the ocular account stands fully corroborated, as the F.I.R. Was lodged without any delay, the accused was apprehended at the spot on the same day alongwith his weapons, the deceased was also medically examined on the same day, it was a daylight occurrence and there was no question of mistaken identification. The appellant has also not challenged the time or place of occurrence. The presence of the injuries on the person of the appellant further strengthen the case of the prosecution. In the light of the statement of Dr. Muhammad Rafi, the said injuries could be the result of scuffle.
15. Now this brings us to the question of sentence. It has been proved through reliable evidence that the occurrence had taken place inside the sitting room of the deceased. The appellant cannot take any benefit of the fact that he wanted to murder Khalid Nadeem and not the deceased, as section 301, P.P.C. Is very clear about it. The appellant was armed with fire-arms and has caused murder of an innocent person. The normal penalty for Qatl-e-Amd is death and triviality of motive cannot be made basis for reduction in sentence. It was held by the Honourable Supreme Court of Pakistan in a case of Nawaz Ali and another v. The State 2001 SCM R 726 that "lack of motive altogether or inability of prosecution to prove motive for the murder did not affect the imposition of normal penalty of death where the prosecution had otherwise proved its case against the accused beyond reasonable doubt".
16. A similar view was expressed by the Supreme Court of Pakistan in a case of Talib Hussain and others v. The State 1995 SCM R 1776.
17. In these circumstances, we do not find any force in this appeal neither we find any mitigating circumstance for reduction in sentence. Resultantly, the appeal is dismissed and the death sentence awarded to the appellant (Sher Khan) is confirmed.
18. Murder Reference No,485 of 1998 is answered in affirm ative .