1. ' AMANULLAH KHAN YASINZAI, J.--- This appeal is directed against the judgment, dated 28-6-2000, passed by learned Special Judge, S.T.A./ Sessions Judge (Ad hoc), Quetta, whereby appellant has been convicted under section 302, P.P.C. And sentenced to death, for causing triple murders of Mst.
2. Mah Bano, Paind Khan and Mst. Sahira Bibi.
3. ' Facts of the case are that on the basis of Fard-e-Biyan Exh P.1/A recorded by complainant Gul Sher, report was lodged with Shalkot Police Station on 4-10-1997 against appellant Allah Dina. It was alleged that, appellant Allah Dina and the complainant live in Killi Muhammad Zaman Bungalzai, near Sariab Custom and their houses are adjacent to each other, there is a common door between both the houses. At about 1-45 p.m. The complainant was sitting in his Baithak with his friend Abdul Nabi when he heard gun-shot reports, coming from his house. He rushed to the house and saw the dead body of Mst. Mah Bano, wife of appellant Allah Dina in the pool of blood and at some distance he saw the dead body of Paind Khan alias Paindi in the house of appellant, who was his (complainant's) domestic son-in-law. Both the deceased had received bullet injuries on different parts of their body. He heard hue and cry of womenfolk, coming from his house. He went inside his house, through the adjoining door and saw the dead body of his wife Mst. Sahira Bibi inside the room of his house, who had received a bullet injury on her nose and pierced through the backside of the scalp. The inmates of the house informed him, that appellant Allah Dina came to the house of the complainant and fired at Mst. Sahira, Paind. Khan asked him, as to why he had murdered his mother-in-law,' and followed him to his (appellant's) house, where Allah Dina started fiAng at Paind Khan and murdered him and thereafter he fired at his wife who was sitting in the courtyard. It was further stated that deceased persons succumbed to the injuries and appellant fled away from the place of incident, and while going, he stated that, he murdered his wife and Paind Khan, on account of Siahkari. It was further stated that appellant had murdered the deceased persons, without any rhyme and reason.
4. ' The Fard-e-Biyan was noted down by the S.H.O. Police Station Shalkot and was sent for registration of case, on the basis of which F.I.R. (Exh.P.10/A) was lodged.
5. ' It would be pertinent to observe that, this case has peculiar facts and circumstances. The incident took place at about 1-45 p.m. And police came to the place of incident at about 4-30 p.m. And before arrival of the police at the place of incident, the dead bodies of Paind Khan and Mst. Mah Bano were removed by their relatives and taken to Kumbela, Dasht, for burial, without medical examination. Since the parties were inter related, therefore, the elders of both the parties did not want to register a case with the police station.
6. ' After registration of the case, investigation was initiated by S.H.O. Saadullah Khan. He prepared site inspection report Exh.P.7/A, took into possession empty bullet vide memo. Exh.P.7/B. He also took into possession blood-stained mat lying underneath the dead body of deceased Mst. Sahira, and secured blood-stained earth from the courtyard, where the dead body of deceased Mst. Mah Bano and Paind Khan were stated to be lying, vide memos. Exh.P.7/C, 7/D and 7/E. He also took into possession the blood-stained Dopta of deceased Mst. Sahira vide memo. Exh.P.7/F. He prepared inquest report of deceased Mst. Sahira Bano. Thereafter he handed over the dead body of Mst.
7. Sahira, to her legal heirs, at their request without post-mortem vide Exh.P.10/B.
8. ' After completion of aforesaid formalities, he went to Dasht for examining the dead bodies of deceased Mst. Mah Bano and Paind Khan, before his arrival both the deceased had already been buried. No notables of the area did not allow him to exhume the dead bodies. Accordingly, a request vide letter Exh.P.1/E to S.D.M. Dasht, for non-exhumation of dead body of deceased Mst. Mah Bano, was made by her elders on the basis of which, S.D.M. Issued certificate that her dead body may not be exhumed. Similarly on an application submitted by the legal heirs of deceased Paind Khan, the A.C. Has passed orders that his dead body may not be exhumed. Hence, the Investigating Officer returned back, without exhumation and examination of the dead bodies of deceased.
9. ' Appellant remained absconder for a considerable long period i,e, till 17-4-1998. He was arrested by Police Station Dhadar in another case, his custody was given to Crimes Branch Police, as the case had been sent to Crimes Branch for investigation: Subsequent investigation was held by P.W.11 Obedullah of Crimes Branch. He recorded statements of witnesses Mst. Shakar Bibi and Mst.
10. Shehzadi. He held the identification parade of the appellant on 26-3-1998 under the supervision of Magistrate P.W.3 Abdul Hadi. Thereafter he submitted complete challan Exh.P.11/A before the Special Judge, S.T.A., Quetta.
11. ' Charge was framed against the appellant under section 302, P.P.C. Which was refuted by him. To prove its case, prosecution produced as many as 11 witnesses. A brief account of their statement is given below:--
(1) P.W.1 Gul Sher is the complainant of the case. He reiterated the contents of the Fard-e-Biyan Exh.P.1/A and deposed that on the day of incident at about 1-45 p.m. He was sitting with his friend Abdul Nabi, he heard gun-shot reports. He rushed to the house of appellant, saw the dead body of his son-in-law Paind Khan and dead body of Mst. Mah Bano, wife of appellant and while he entered in his own house, he saw the dead body of his wife Me. Sahira. He further deposed that, he was informed by the inmates of the house that Allah Dina had committed the said murders.
(2) Statement of P.W.2 Muhammad Amin has no relevancy with the facts of the case. He only narrated about the Nikab which was performed by him between deceased Mah Bano and appellant.
(3) P.W.3 Abdul Hadi supervised the identification parade of appellant Allah Dina.
12. (4), Statements of P.W.4 Mst. Shakar Bibi and P.W.6 Mst. Shehzadi are identical as they have given similar ocular account of the incident. They deposed that they were present on the day of incident.
13. Deceased Bibi Sahira was not feeling well. Shakar Bibi, alongwith her husband deceased Paind Khan and her brother Abdul Rasool took her for medical check-up to Civil Hospital and while coming back, her brother got down on the way, Sahira alongwith Shakar Bibi came home and were preparing to have their lunch: In the meanwhile, appellant Allah Dina entered the house of the complainant from the common door with a pistol in his hand and pointed it at Paind Khan, who stated as to what was wrong and Sahira asked him as to why he was pointing the pistol, the appellant fired at Sahira and bullet hit on her nose and pierced through and through the brain.
14. Thereafter appellant started going to his own house. Paind Khan, followed him and asked him, as to why he has murdered Mst. Sahira. While Paind Khan followed the appellant to his house through the common door, appellant fired three shots at Paind Khan and Mst. Mah Bano (wife of appellant) asked him, as to what was wrong, he fired 4/5 shots at her also. In the meanwhile complainant Gul Sher came and asked about the firing, the witness informed him of the incident.
(5) P.W.5 Syed Abdul Jabbar, carried out the chemical analysis of the blood-stained articles and gave positive report Exh.P.5/A.
(6) P.W.7 Farooq Jamil, A.S.-I. Is the Mashir to Exh.P.7/A to 7/F whereby in his presence, blood- stained articles including empty bullets and site inspection report was prepared.
(7) P.W.8 Haji Adil deposed that on the day of incident, the dead body of deceased Mst. Mah Bano was brought to Dasht, who was murdered by her husband. She had received three bullet injuries and she was buried, before the police had reached the place of incident. He produced the blood- stained shirt of deceased vide memo. Exh.P.8/A.
(8) P.W.9 Bahadur Sher deposed that on 18-3-1998, appellant Allah Dina was taken into custody, who was arrested by Dandar Police in another case and the Investigating Officer took into possession four different F.I.Rs, registered against the appellant by Dhadar Police vide memo.
15. Exh.P.9/A.
(9) P.W.10 Saadullah Khan, Inspector of Police investigated the case at the initial stages.
(10) P.W.11 Obedullah, S.-I. Started investigation of the case, after it was transferred to Crimes Branch Police. He recorded statements of witnesses and arrested the appellant and submitted challan Exh . P . 11/A .
16. ' Appellant was examined under section 342, Cr.P.C. Wherein he denied the prosecution case. He also recorded his statement on oath under section 340(2), Cr.P.C. And in defence produced P.W.1 Mehrab.
17. ' On the conclusion of trial, learned Special Judge, S.T.A./ Sessions Judge (Ad hoc), Quetta, convicted and sentenced the appellant to death, under section 302, P.P.C. Hence this appeal.
18. ' Mr. Muhammad Aslam Chishti, learned counsel for appellant contended; that statements of P.W.4 and P.W.6, are liable to be excluded out of consideration, as their statements were recorded after six months, besides they are interested witnesses and further their testimony do not inspire confidence, thus, conviction could not be based on their statements, without having any independent corroboration. The learned counsel contended that no explanation has come on record, for recording their statements after such an inordinate delay. Learned counsel further argued that learned Special Judge has not given any reasons for awarding death sentence and it is not known; whether the sentence has been awarded as Qisas or Tazir, therefore, until it has not been specifically mentioned, regarding sentence, the judgment is liable to be set aside. Learned counsel also argued in alternative that, as no motive has come on record, therefore, extreme sentence of death was not justifiable.
19. ' Mr. Mushtaq Ahmad Lodhi, learned State Counsel, vehemently opposed the appeal.
20. ' We have heard the learned counsel for parties and with their assistance, minutely perused the record of case.
21. ' Before going into the merits of the case, it would be appropriate to dilate upon the objection of Mr. Muhammad Aslam Chishti, who strenuously argued that, since the trial Court has not clarified; whether the sentence has been awarded under section 302(a) as Qisas or 302(b) as Tazir, therefore, the judgment is liable to be set aside.
22. ' We are not persuaded to agree with the learned counsel, it would not nullify the judgment, if it does not specify; whether the conviction has been awarded as Qisas or Tazir. At the most it can be an irregularity, which can be rectified in appeal. In our considered opinion, appellant's case falls under section 302(b), P.P.C. As Tazir, for which, he has been awarded death sentence.
23. ' On merits, the main thrust of the arguments of learned counsel was, that since the statements of P.Ws. 4 and 6 were recorded after lapse of six months, therefore, on this score alone, the same are liable to be excluded out of consideration and further both the statements do not inspire confidence and being interested witnesses, conviction could not be based on their testimony, without independent corroboration.
24. ' The statements of aforesaid witnesses shall be scrutinized keeping in view the peculiar circumstances and facts of the case.
25. ' It may be observed that, appellant and deceased were closely related to each other, no evidence regarding previous enmity has come on record. As there was a common door between the house of appellant and complainant, it can be inferred safely that both the parties had cordial relations with each other. Soon after the incident, appellant absconded from the place of incident and no sooner the relatives of deceased Mst. Mah Bano wife of appellant and Paind Khan alias Paindi, came to know about their murders, they removed their dead bodies to their village, Kumbila, Dasht, for burial, without any medical examination. The Investigating Officer proceeded to their village, where request was made for exhumation of the dead bodies, but the same was resisted by the notables of the area Exh.P.10/D and Exh.P.10/E whereby Assistant Commissioner had ordered that dead bodies be not exhumed lend support to the statement of Investigating Officer that the legal heirs of deceased did not want exhumation of the dead bodies. Besides, it has come on record that, legal heirs of the deceased have not cooperated with the Investigating Officer during investigation. The Investigating Officer in his statement stated that, he was not allowed to examine the eyewitnesses, and no cooperation was extended to him, which can be inferred from the fact that, dead bodies of the deceased persons were buried, much prior to the arrival of police. The matter was reported to the police, after a delay of three hours. In the intervening time, the dead bodies were removed. The Investigating Officer further stated in his statement that due to intervention of the elders of Tribe, he was not in a position to record the statement of witness. It has further come on record that appellant was gunman of Mr. Asim Kurd, who was an influential person. Further in his statement, he has categorically stated that, he was not allowed to examine the ladies, who were the eye-witness of the case and inasmuch as that, the complainant even did not want to inform the police about the incident. Since the appellant was at large and being an influential person, the witnesses apprehended danger to their lives, did not come forward for recording their statements. P.W.10 Saadullah further stated that when elders stopped interference in the case, thereafter the eye-witnesses came forward to record their statements.
26. ' Though P.W.1 Gul Sher stated-himself that he saw the appellant firing at the deceased persons. But we are not inclined to accept him as an eye-witness, because in the Fard-e-Biyan, he himself stated that, after hearing the gun-shot reports, he reached at the place of incident and saw that the deceased persons had succumbed to the injuries. Therefore, the entire prosecution case depends upon the testimony of P.W.4 Mst. Shakar Bibi and P.W.6 Mst. Shehzadi, who have given ocular account of the incident.
27. ' Adverting to the arguments of Mr. Muhammad Aslam Chishti, learned counsel regarding delay of recording the statements of the appellants.
28. ' It is a well-settled principle of law that, a statement of witness recorded after delay, is ruled out of consideration, if no plausible explanation is given. It may be observed here that the statement of a witness cannot be discarded merely it was recorded after some delay by the police under section 161, Cr.P.C. However, if plausible explanation is given explaining the delay, the statement of such witness cannot be discarded.
29. ' It may be observed that, presence of both the witnesses has been established at the place of occurrence. It has not been disputed that, P.W. Shakar Bibi who was the wife of deceased Paind Khan was living in the house of complainant, alongwith Paind Khan who was the domestic-sonin- law of complainant. As far as presence of witness is concerned, same has been established at the place of incident, beyond any doubt. Similarly presence of P.W.6 Shehzadi being the daughter of deceased Sahira, has also not been disputed and further their presence could not be disproved by the defence. It has also come on record that, complainant and appellant had close relationship and further had no enmity and particularly both the eye-witnesses had no animosity with appellant to have implicated him falsely in the case. Both the witnesses have given a natural account of the incident and have corroborated each other on material points. Both the witnesses stated that first Mst. Sahira Bano was done to death and she received bullet injury on her nose which pierced through and through her brain, and such fact has also been corroborated by medical evidence and further when deceased Paind Khan followed the appellant, to enquire, as to why he murdered deceased Sahira, the appellant fired three shots at him and thereafter he fired shots at his wife Mst. Mah Bano. It has come on record that, appellant murdered his wife and Paind Khan, by declaring them Siahkar but the plea of Siahkari is not spelt out from the facts of the case and the same has not been proved.
30. ' Now reverting to the contention that, statements of witnesses since were recorded with delay of six months, therefore, same may be excluded from consideration. Mr. Aslam Chishti, learned counsel contended that explanation given by the Investigating Officer regarding delay in recording statements is not plausible. We are not persuaded to agree with the learned counsel. Soon after the incident appellant absconded and it appears that relatives of the deceased persons came to the place of incident and before arrival of police, the dead bodies were removed as they did not want to lodge report, as the parties were closely related. Removal of the bodies further supports this fact, which further strengthens the statement of Investigating Officer. The Elders did not allow for exhumation of dead bodies and further it has come on record that, the Elders and Notables of the deceased and appellant did not allow the said witnesses to be examined and further when the Notables stopped interference, both the ladies appeared and got recorded their statements. The explanation given by the Investigating Officer regarding delay in recording statements of both the witnesses appears to be satisfactory and appeals to a prudent mind. Thus, the contention of learned counsel regarding delay in recording statements of the witnesses is repelled.
31. ' As discussed hereinabove, the presence of both the witnesses was very much established and both of them have given natural account of the incident and stood firm to the lengthy test of cross-examination and further the intrinsic worth of their statements, could not be shaken, therefore, in our considered opinion, the testimony of both the witnesses can be safely relied upon.
32. The facts narrated by the Investigating Officer are sufficient to explain the delay. The statements of both the witnesses being confidence inspiring and worthy of credence are taken into consideration as reliable evidence against the appellant.
33. ' It may be pointed out that appellant remained absconder for a very long period and no explanation has come on record, regarding his abscondence. It may be noted that, since the wife of appellant was murdered, but throughout till his arrest, he never appeared and enquired about her death. The factum of abscondence of the appellant further lends corroboration to his guilt. As no explanation has been offered by appellant for remaining absconder till his arrest, therefore, it supports guilt of appellant. We are fortified with the dictum laid down in the case of Riaz Hussain v.
34. State 2001 SCM R 177.
35. ' Reverting to the last contention of Mr. Muhammad Aslam Chishti learned counsel that since no motive has been set up, therefore, lenient view may be taken. We are not persuaded to agree with the said contention. It may be pointed out that existence of motive or its complete absence would be immaterial, if the prosecution proves its case by ocular evidence of unimpeachable character.
36. When a murder is committed in cold-blood like the present triple murders and, if same is established, then nature of evidence is important and if motive is not proved it would not be a ground to discard the evidence, which is otherwise confidence inspiring, worthy of credence and unimpeachable. Thus, absence of motive would hardly make any difference in awarding death sentence and would not be a mitigating circumstance for awarding lesser punishment. Reliance is placed on the case-law Nawaz Ali and another v. The State 2001 SCM R 726, wherein it was held as follows:-- "It has been held time and again by this Court that in case of lack of motive altogether or if the prosecution is unable to prove motive for murder, it does not affect the imposition of normal penalty of death in murder case, if the prosecution otherwise has been able to prove its case against the. Accused beyond reasonable doubt. Reference may be made to Ahmad Nisar v. The State 1977 SCM R 175, wherein this Court observed as follows:-- ' Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others.
37. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable'."
38. ' In the case in hand, the appellant committed the murder of three innocent persons mercilessly in cold-blood, therefore, he does not deserve any leniency.
39. ' For the foregoing reasons, we see no merit in the appeal, which is accordingly dismissed and death sentence awarded to the appellant is upheld.