2020 Y L R 2210
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ
ASADULLAH alias SADO ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 199 and Murder Reference No. 10 of 2019, decided on 26th December,
2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324 & 337- F(iii) ---Qatl -i-amd, attempt to commit qatl -i-amd, causing
mutalahima ---Appreciation of evidence ---Ocular account corroborated by medical evidence--
-Sentence, modification of ---Accused was charged for committing murder of father, uncle
and two cousins of complainant and injuring a labourer by firing ---Motive behind the
occurrence was previous enmity ---Ocular account of the incident had been furnished by four
witnesses including complainant ---Record showed that complainant narrated the facts by
assigning vital role of making fires to the accused as principal accused and background of the incident with clarity of watching each other closely ---Eye-witness was attracted by gun shots
and witnessed the incident himself ---Said witness also attributed main role of making fires to
the appellant and his identification on the spot and contributed the words of complainant with respect to previous enmity---Other eye -witness also supported the version of
compl ainant and eye- witness ---Another eye -witness also supported the witnesses in respect
of incident with its details, venue of occurrence murders of the deceased persons and injuries to the injured person and more importantly role of making fires by the appel lant as principal
accused ---Admittedly, injured was not produced by the prosecution with the statement that
he had expired, in support thereof no death certificate had been produced---No adverse inference could be drawn that the evidence of the injured eye -witness was withheld by the
prosecution because of the fact that in a set -up where deceased persons were living there was
no concept of obtaining death certificate---Evidence of injured witness was not withheld by the prosecution deliberately---Official w itnesses including Investigating Officer also
supported the case of prosecution in letter and spirit ---Eye -witness account furnished by the
witnesses was creditworthy, confidence inspiring and unimpeachable ---Confidence inspiring
ocular testimony furnished by unbiased and independent witnesses was corroborated by
medical evidence--- Circumstances established that the prosecution had been able to establish
its case against the accused beyond any doubt ---Injured witness having not come forward to
make statemen t regarding his injuries, thus, accused could not be convicted for causing
injures to the said injured person, therefore, conviction under Ss. 324 & 337- F(iii), P.P.C.
and sentence thereunder recorded against the accused was set -aside; with the said
modification and rectification, appeal against conviction was dismissed, in circumstances.
(b) Criminal trial ---
----Appreciation of evidence ---Principle ---Prosecution must stand on its own legs and prove
the case against the accused beyond reasonable doubt, that the judicial mind must be satisfied
that accused had committed the offence---Quality and not the quantity of evidence determined the culpability of the accused---Accused could not be held guilty on the strength of weak piece of evidence---Conjectures, p robabilities or presumptions could not form basis
for holding the accused guilty---Accused would be entitled to the benefit of every reasonable doubt.
(c) Criminal trial ---
----Motive ---Scope ---Motive was not always material and its weakness would not dam age the
credibility of the prosecution case, if direct ocular evidence was sufficiently available to
prove the guilt of the accused person.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 337- F(iii) ---Qatl -i-amd, attempt to commit qatl -i-amd, causing
mutalahima ---Appreciation of evidence ---Statement of close relative of deceased ---
Reliance--- Scope --- Accused was charged for committing murder of father, uncle and two
cousins of complainant and injuring a labourer by firing---Admittedly, eye -witnesse s were
close relative of the deceased but their presence on the spot was natural ---Evidence of such
eye-witnesses could not be brushed aside only on the basis of their being relatives of the
deceased.
2017 SCMR 662 rel.
Muhammad Shabbir Rajput for Appel lant.
Yahya Baloch, Additional Prosecutor General for the State.
Rehmatullah Barech for the Complainant.
Date of hearing: 2nd December, 2019.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---This appeal is directed against the judgment
dated 30th May 2019 (hereinaf ter the "impugned judgment"), passed by the learned Sessions
Judge (Adhoc)/Model Criminal Trial Court (MCTC), Quetta (hereinafter the "trial court") in
Murder case No.11/2019, whereby the appellant Asadullah alias Sado son of Allah Nazar, was convicted and sentenced to the following effect:
(i) Under section 302(b), P.P.C. to suffer death penalty and to pay Rs.20,00,000/ -, i.e.
Rs.500,000/ - to each of the legal heirs of deceased namely Abdul Hashim, Noor
Hashim, Muhammad Anwar and Haji Muhammad;
(ii) Under section 324, Qisas and Diyat Ordinance to suffer rigorous imprisonment for
five years with fine of Rs.20,000/ -, in default thereof to further undergo simple
imprisonment for six months;
(iii) Under section 337- F(iii) Qisas and Diyat Ordinance to suff er rigorous imprisonment
for three years and to pay Daman of Rs. 100,000/ - to the injured Aminullah, in default
thereof to remain in custody till realization of amount of Daman;
All the sentences were ordered to run concurrently with benefit of section 382- B, Cr.P.C.
Learned Sessions Judge (Ad hoc)/ MCTC, Quetta has sent Murder Reference
No.10/2019 for confirmation of sentence of death recorded against the appellant (convict).
2. Facts of the case are that pursuant to Fard -e-Bayan (Ex: P/6- A) of PW -1 Jumma Gul
son of Hashim (complainant), criminal case, vide FIR No.114/2009 (Ex: P/10- A), dated 15th
August 2009, under sections 302 and 324, Qisas and Diyat Ordinance, read with section 34, P.P.C. was registered at Police Station Gawalmandi, Quetta, wherein it was alleged that on fateful day of incident i.e. 15th August 2009, at about 6:25 a.m., complainant's father namely Abdul Hashim, paternal uncle Haji Muhammad Anwar, paternal cousins Haji Muhammad son of Muhammad Anwar, Noor Hashim son of Muhammad Hashim an d labourer Aminullah
were present in their bread shop (Tandoor); accused Asadullah alias Sado (appellant) along with two unknown co -accused, equipped with arms arrived there in Alto car; Asadullah
(appellant) made fires at Abdul Hashim, Noor Hashim, Haji M uhammad Anwar, Haji
Muhammad and Aminullah, due to which, his father, uncle and cousins succumbed to their injuries on the spot, while Aminullah received serious injuries, but survived. Hence, this case.
3. On completion of investigation, challan (Ex: P/11- A) of the case was submitted and
trial commenced.
After framing charge and denial on the part of accused (appellant); the prosecution
produced and examined PW -1 Jumma Gul son of Abdul Hashim (complainant), vide, Fard -e-
Bayan (Ex: P/1 -A) (reappeared as PW- 12); PW -2 Muhammad Noor (reappeared as PW- 13)
son of Abdul Hashim (eye -witness); PW -3 Jumma Khan son of Ahmed Khan (neighbour of
complainant). PW -4 Dr. Ghulam Haider, Medico Legal Officer, produced MLC (Ex: P/4- A);
death certificates (Ex: P/4 -B) of deceas ed Noor Hashim, (Ex: P/4- C) of deceased Haji Abdul
Hashim, (Ex: P/4- D) of deceased Haji Muhammad, and (Ex: P/4- E) of deceased Muhammad
Anwar, vide record (Ex: P/4- AA to P/4 -EE). PW -5 Muhammad Umar son of Bado Gul (eye -
witness); PW -6 Zafar Iqbal/SI, vide re covery memo (Ex: P/6- A) of FIR No.142/2001
(Article -P/1) and index (Article -P/2). PW -7 Muhammad Aazam son of Muhammad Afzal
Khan/SI, is witness of recovery memo (Ex: P/7) of parcel (Article -P/3) containing sample of
seal (Article -P/4) and blood stained shi rt (Article -P/5) of deceased Abdul Hashim; parcel
(Article -P/6) containing sample of seal (Article -P/7) and blood stained shirt (Article -P/8) of
deceased Noor Hashim; parcel (Article- P/9) containing sample of seal (Article -P/10) and
blood stained shirt (Ar ticle-P/11) of deceased Haji Muhammad; and, parcel (Article -P/12)
containing sample of seal (Article -P/13) and blood stained banyan (Article -P/14) of deceased
Haji Muhammad Anwar; parcel (Article- P/15), containing sample of seal (Article -P/16) and
blood st ained shirt (Article -P/17) of injured Aminullah; recovery memo (Ex: P/7- A) of parcel
(Article -P/18) containing sample of seal (Article -P/19) and seventeen empties (Article -P/20
to P/36); parcel (Article- P/37) containing sample of seal (Article -P/38) and tw o empties
(Article -P/39 and P/40); parcel (Article -P/41) containing sample of seal (Article -P/42), five
slugs (Article -P/43 to P/47); parcel (Article -P/48) containing sample of seal (Article -P/49)
and blood- stained earth (Article -P/50) of deceased Muhammad Anwar; parcel (Article -P/51)
containing sample of seal (Article -P/52) and blood- stained earth (Article- P/53) of deceased
Noor Hashim; parcel (Article- P/54) containing sample of seal (Article -P/55) and blood-
stained earth (Article- P/56) of deceased Abdul H ashim; parcel (Article- P/57) containing
sample of seal (Article -P/58) and blood- stained earth (Ex: P/59) of deceased Haji
Muhammad. PW -8 Ghulam Ali/SI is witness of disclosure memo (Ex: P/8) of accused
(appellant). PW- 9 Hakeem Khan/SI (First Investigation Officer), vide interim challan (Ex:
P/9-A) of accused Naimatullah son of Allah Nazar (since acquitted). PW- 10 Ghulam
Fareed/IP (Second Investigation Officer), produced FIR (Ex: P/10- A), inquest reports (Ex:
P/10 -B to P/10 -E) of deceased persons, site sketch (Ex: P/10- F), FSL report (Ex: P/10 -G),
supplementary application (Ex: P/10- H) of complainant and supplementary challan (Ex: P/10-
J). PW -11 Ghulam Abbas, vide supplementary challan (Ex: P/11- A).
The accused (appellant) was examined under section 342, Cr. P.C., wherein he
disputed the case of prosecution and pleaded his innocence; however, did not opt to record
his statement on Oath provided under section 340(2), Cr.P.C, nor produced any witness in defence.
4. The learned trial court, after hearing the arguments and evaluating the evidence,
found the appellant guilty, as such, convicted and sentenced him for the period mentioned
above. Besides, sent Murder Reference for confirmation of death penalty recorded aga inst him.
Hence, this appeal with the prayer to set aside the impugned judgment passed by the trial court
and to acquit the appellant of the charge.
5. Heard the learned counsel for the parties and gone through the record with their
assistance, which shows that on 15th August 2009, a fateful incident of multiple murder of
four persons namely Noor Hashim, Abdul Hashim, Haji Muhammad and Muhammad Anwar, and injuries to Aminullah occurred early in the morning, when the deceased and injured were present in thei r bread shop (Tandoor), the appellant along with his unknown accomplices
alleged to arrive in Alto car, step down and made fires at deceased persons and done them to death and injuries to Aminuallah.
6. Perusal of the record shows that PW -1 Jumma Gul (comp lainant) (reappeared as PW-
12) narrated the facts by assigning vital role of making fires to the appellant as principal accused, and background of the incident with clarity of watching each other closely, such a petty matter and act of the appellant was bo ne of contention and background of a painful
incident, wherein four persons lost their lives; PW -2 Muhammad Noor (PW -13) was
attracted by gun shots, he came out of his house (at a distance of one minute run from the place of occurrence) and witnessed the i ncident himself; he also attributed main role of
making fires to the appellant and his identification on the spot; he corroborated the words of PW-1 with respect to previous annoyance.
On hearing gun shots, arrival of PW -2 (complainant) on the spot was na tural by
keeping in mind the fact of previous threats extended by the appellant, (perhaps he was
conscious). PW -3 Jumma Khan son of Ahmad Jan also supported the version of PWs -1 and
2. No sooner, he was informed of the incident by PW -Jumma Gul (complainant), he along
with former rushed the place of incident and found dead- bodies of deceased persons
Muhammad Hashim, Muhammad Anwar, Noor Hashim, and; Haji Muhammad (at that time
he was alive) and injured Muhammad Amin; he returned home and asked his brother for
vehicle to shift dead -bodies and injured to hospital; when came back, Haji Muhammad was
also found expired. PW -4 Dr. Ghulam Haider Samejo is MLO, who examined the dead-
bodies and injured; vide, MLC/Death Certificates (Ex: P/4- A to P/4 -E); crux of his opi nion
was that the deceased persons and injured received firearm injuries on their highly sensitive parts and probable cause of death was hemorrhage of vital organs, detail whereof is as under:
M.L.C. (Ex: P/4 -A) of injured Aminullah son of Anwar
1. Gutter wound right buttock 8 x 8 c.m.
2. Gutter wound left thigh 10 x 10 c.m.
3. Gutter wound left foot 6 c.m. x 3 c.m.
4. Gutter wound on right foot toe 8 x 2 c.m.
5. Gutter wound lower leg complete.
Nature of injury: Grievous
Duration of injury. Fresh
Kind of weapon: Firearm.
Death Certificate (Ex: P/4 -8) of deceased Noor Hashim son of Muhammad Hashim
1. Gutter wound left side skull brain out.
Cause of death: Haemorrhage of vital organ, due to firearm.
Death Certificate (Ex: P/4 -C) of deceased Abdu l Hashim son of Haji Asad
1. Entrance wound right ear 2 x 2 c.m.
2. Exit gutter wound occipital region brain out
3. Entrance wound abdomen 1 x 1 c.m.
4. Exit wound abdomen back side 2 x 2 c.m.
5. Entrance wound left side chest 1 x 1 can.
6. Exit wound right side chest 2 x 2 c.m.
7. Incised wound on neck left side 6 c.m.
Cause of death: Haemorrhage of vital organs, due to firearm.
Death Certificate (Ex: P/4 -D) of deceased Haji Muhammad son of Haji Anwar
1. Entrance wound right side chest 2 x 2 c. m.
2. Exit wound left side abdomen 6 x 6 c. m.
3. Entrance wound left hand 1 x 1 c. m.
4. Exit wound left hand near thumb 2 x 2 c.m.
5. Entrance wound left arm 1 x 1 c.m.
6. Incised wound on left side shoulder 6 x 6 c.m.
7. Entrance wound chest 1 x 1 c . m.
8. Entrance wound chest 1 x 1 c.m.
9. Exit wound chest right side 2 x 2 c.m.
Cause of death: Haemorrhage of vital organs, due to firearm.
Death Certificate (Ex: 11/4 -E) of deceased Muhammad Anwar son of Haji Asad
1. Crash skull left side brain out
2. Incised wound on left side wrist joint 6 c.m.
3. Incised wound on chest back side.
Cause of death: Haemorrhage of vital organs, due to firearm.
PW-5 Muhammad Umar son of Bado Gul is also an important eye -witness, appeared
and testified that on fateful day of incident i.e. 15th August 2009, at 6:30 a.m., he was
attracted by gunshots; (residing in the house of complainant as guest), he also witnessed the occurrence by attributing role of firing to Asadullah alias Sado (appellant) holding
Kalashnik ov with him;, an Alto car wherein a person boarded was also parked near him; after
committing crime they fled away from the scene of occurrence. He also supported PWs -1, 2
and 3 in respect of incident with its details, venue of occurrence, committing murde r of
deceased persons and injuries to Aminullah, and more importantly, role of making fires by
the appellant as principal accused.
Admittedly, an important witness namely Aminullah (injured) was not produced by
the prosecution with the statement that he had been expired; in support thereof, no death certificate has been produced however, no adverse inference can be drawn that the evidence of above named injured eye -witness was with -held by the prosecution, because of the fact
that in a set -up where deceased persons were living, there is no concept of obtaining death
certificate, in such circumstances, if he was alive could have been produced by the defence or even ought to have pointed out his whereabouts; thus it cannot be presumed that evidence of importa nt eye -witness (injured) was with -held by the prosecution deliberately.
PW-8 Ghulam Ali, SI is an important witness of disclosure (Ex: P/8) made by
Asadullah (appellant), wherein he narrated the details of incident with its background. It has also come on record that during trial of the case, Asadullah (appellant) had extended serious
threats to said PW for recording statement against him. In such view of facts, how it can be expected from a common citizen to come forward and give evidence against a crimin al.
The Investigating Officers SI Hakeem Khan SI, Ghulam Fareed IP and Ghulam Abbas
(PWs -9, 10 and 11) also supported the case of prosecution in letter and spirit, prepared site
sketches (Ex: P/10- F), sent blood stained articles to FSL for examination, and received report
(Ex: P/10- G) collected previous criminal history of the appellant, inquest reports (Ex: P/10- B
to P/10- E) of deceased persons and submitted challans, which are available on record.
7. Eye-witness account furnished by the above named witne sses is creditworthy,
confidence inspiring and unimpeachable; confidence inspiring ocular testimony furnished by
unbiased and independent witnesses was corroborated by medical evidence.
8. The appellant, established to have caused death of four innocent persons and injuries
to one, in a reckless manner while making fires at vital parts of their bodies, leaving no chance for their survival.
9. We are cognizant of the fact that principles for appreciation of evidence are that the
prosecution must stand on it s own legs and prove the case against the accused beyond
reasonable doubt, that the judicial mind must be satisfied that the accused had committed the offence; that quality and not the quantity of evidence determines the culpability of the accused; that th e accused cannot be held guilty on the strength of weak piece of evidence;
that conjectures, probabilities or presumptions cannot form basis for holding the accused guilty, and above all the accused alone is entitled to the benefit of every reasonable doubt.
10. Keeping in view the above well -recognized principles of criminal administration of
justice and reappraisal of the evidence we are fully convinced that the prosecution has been able to establish its case against the appellant beyond reasonable doubt. As discussed in
supra paras that the complainant and eye -witnesses (PW- 1, PW -2 (PW -12) and PW -5), were
cross -examined at length but they stood firm on every material point, established their
presence on the spot, witnessed the incident themselves and comm itting murder of deceased
namely Noor Hashim, Abdul Hashim, Haji Muhammad and Muhammad Anwar and causing injuries to Aminullah (since died) by the appellant, principal accused of this incident.
11. Coming to the quantum of sentence, we would like to define the word "sentence" (as
per the penal law by Gour). The word sentence is defined in Law Lexicon as the term is used in criminal law, is, the appropriate word to denote the action, the action of the Court before which the trial declaring the consequence to the convict of the fact thus ascertained,
therefore, any consequence which flows after conviction can be looked upon as sentence. Consequently disqualification would come within the expression sentence.
The object of punishment is four folded:
(i) To ser ve as a deterrent to other persons who may be similarly inclined;
(ii) To be prevented;
(iii) To be reformative;
(iv) To be retributive.
Now, the vital elements to be considered for assessing Quantum of sentence are:
(a) Nature of the offence;
(b) Circu mstances in which the offence was committed;
(c) Degree of deliberation shown by the offender;
(d) Provocation which the offender had received;
(e) Antecedents of the person to be sentenced;
(f) Age and character of the offender.
12. Normal sentence in a murder case is death and the Court while awarding the same is
not under obligation to record any reason, but while awarding a lesser sentence, it has to
record reasons, equally to prove an offence entailing extreme penalty of death every poss ible
care and caution has to be adopted, in this behalf; however, when an offence is proved, it has to be met with maximum sentence provided thereof, as such, when an offence is proved against an accused, the Court should never hesitate to award punishment for that offence,
even if it is a capital punishment. In this regard, it may be observed that in the instant case requirement of 'Tazir' is fully available, therefore, to our perception, for awarding a death penalty to the appellant, the Court was not bound to record any reasons because in such a case the Court is under legal obligation only if it awards lesser punishment. In forming this view, we are fortified by the judgment titled as Hamid Mahmood and another v. The State (2013 SCMR 1314). Relevant obse rvations therefrom are reproduced herein below:
"Deterrence is a factor to be taken into consideration, while awarding the sentence specially, the sentence of death and in this behalf, reference can be made to the judgment of this court, reported as Khurr am Malik and others v. The State and others
(PLD 2006 SC 354) wherein it was held that:
"It is also to be noted that justice is not for one but is for all and while examining the case of convict, the Court owe a duty to the legal heirs/relatives of the convict and also to the society that justice should also be done with them as well, thus the sentence should be such which should serve as deterrent for the like -minded person as
observed in The case of Muhammad Saleem v. The State PLD 2002 SC 558 and State v. Farhan Ali PLD 1995 SC I."
Likewise in the judgment titled as Dadullah and another v. The State (2015 SCMR
856) (relevant at 862), it held as under:
"Conceptually punishment to an accused is awarded on the concept of retribution, deterrence or reforma tion. The purpose behind infliction of sentence is twofold.
Firstly, it would create such atmosphere, which could become a deterrence for the people who have inclination towards crime and secondly to work as a medium in reforming the offence. Deterrent pun ishment is not only to maintain balance with
gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society. Concept of minor punishment in law is to make an attempt reform an individual wron gdoer. However, in such like
cases, where the appellants have committed a pre planned dacoity and killed two persons, no leniency should be shown to the culprits. Sentence of death would create deterrence in the society due to which no other person would dare to commit the offence of murder. If in any proved case lenient view is taken, then peace, tranquility and harmony of society would be jeopardized and vandalism would prevail in the society. The courts should not hesitate in awarding the maximum punishm ent in such
like cases where it has been proved beyond any shadow of doubt that the accused was involved in the offence. Deterrence is a factor to be taken into consideration while awarding sentence, specially the sentence of death. Very wide discretion in the matter
of sentence has been given to the courts, which must be exercised judiciously. Death
sentence in a murder case is a normal penalty and the Courts while diverting towards
lesser sentence should have to give detailed reasons. The appellants have committed the murder of two innocent citizens and also looted the bank in a wanton, cruel and callous manner. Nowadays the crime in the society has reached on alarming situation and the mental propensity towards the commission of the crime with impunity is
increasing. Sense of fear in the mind of a criminal before barking upon its
commission could only be inculcated when he is certain of its punishment provided
by law and it is only then that the purpose and object of punishment could be assiduously achieve d. If a Court of law at any stage relaxes its grip, the hardened
criminals would take the society on the same page, allowing the habitual recidivist to run away scot -free or with punishment not commensurate with the proposition of
crime, bringing the admin istration of criminal justice to ridicule and contempt. Courts
could not sacrifice such deterrence and retribution in the name of mercy expediency. Sparing the accused with death sentence is causing grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits
where the case has been proved".
13. We are of the considered view that while dealing with the question of sentence,
approach of the Court should be dynamic and the Court has to find ways and m eans to
guarantee, complete dispensation of justice to all stake holders of a criminal case, as most of them being unaware of the legal technicalities, flaws/lacunas left in the investigation and defects in conduct of their trials, only see the result announced by the Court and form an opinion about prevailing system of administration of justice. In this respect, reliance is placed on a case titled Muhammad Ilyas v. Muhammad Sufian (PLD 2001 SC 465). Relevant observation therefrom is as under:
"It may be o bserved that the normal sentence for an offence of murder is death
sentence. This is to be awarded as a matter of course except where the Court finds some mitigating circumstances which may warrant imposition of lesser sentence namely imprisonment for life ."
It was further observed that:
"The people are losing faith in the dispensation of criminal justice by the ordinary Criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It is high time that the Courts should realize that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such which should act as a deterrent to the commission of offences."
14. It may not be ir relevant to note here that mitigating means, making something less
harmful, pleasant or bad, that there may be mitigating circumstances, which might help explain appalling behavior or criminal activity of the offender. While in the instant case, no such fa ctor has been brought on record, which may offer even a slightest explanation for a
terrible behavior of the accused, while making fires at the deceased, Noor Hashim, Abdul Hashim, Haji Muhammad and Muhammad Anwar and causing injuries to Aminullah (since died) for no fault on their part. It has been established that the appellant is the main culprit
(with role of making fires) of this brutal murder of four empty handed and helpless persons
and injuries to Aminullah; apparently with the background of a petty matter of previous
dispute on watching each other closely; as such, we see no extenuating circumstances in his favour, which could, justify our interference with the sentence awarded to him by the trial Court.
15. Learned defence counsel urged that it was a motiveless murder for which, the
appellant cannot be held responsible, nor capital punishment awarded to the appellant is justified, but, we disagree with him for the reasons that motive is the state which can be formed even at the spur of the moment, l ack of proof, no proof or even absence of motive are
of no consequence, as those are only supporting pieces of evidence. As defined in the Black's Law Dictionary, motive is the moving course, the impulse, the desire that induces criminal action on part of the accused; it is distinguished from intent which is the purpose or design
with which the act is done. Motive in criminal case is not always material and its weakness would not damage the credibility of the prosecution case, if direct ocular evidence is sufficiently available to prove the guilt of the accused person. Apart from that usually
emotions are in the thought and mind of an accused, which remain secret and conceal till their exposure through spoken words or actions and can be adjudged from event occurred or
to have been taken place or going to happen at the relevant time. Motive is the cause, manner
and method of thoughts in the mind of a person for performing action which is hidden in the mind of accused, which in the instant case has been shown b y Qatl -i-amd of four innocent
persons and injuries to Aminullah (since died).
16. Admittedly the important eye -witnesses are close relatives of the deceased, but their
presence on the spot was natural, as such, their evidence cannot not be brushed aside only on
the basis of their being relatives of the deceased. In this respect reliance can be placed on 2017 SCMR 662. Relevant observation therefrom is as under:
"The occurrence in this case had taken place early in the morning in the month of May at a time when the day had already broken. The appellant was not only an immediate neighbour of Fateh Bibi complainant (PW -10) but he was also related to
the complainant party as the complainant was the appellant's aunt. Mst. Fateh Bibi complainant was the mother of Manazir Ali deceased and she resided in the very house in which the occurrence had taken place and the time of occurrence was such that availability of the com plainant in her house at that time was nothing but natural
and expected. We have entertained some doubts about availability of the other eye -
witnesses namely Atta Muhammad (PW -11) at the scene of the crime at the relevant
time but the statement made by Fateh Bibi complainant (PW -10) was so
straightforward and inspiring confidence that both the Courts below had found it impossible to dislodge her testimony. The said testimony of the complainant had received ample support from the medical evidence. On account of her neighbourhood
and relationship with the appellant the complainant had no reason to falsely implicate the appellant in a case of this nature, particular when the appellant was not directly connected with the motive set up by the prosecution. Both the Courts below had undertaken and exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the appellant having been established to the hilt and upon our own independent evaluation of the evi dence we
have not been able to take a view of the matter different from that concurrently taken
by the Courts below. The appellant has already been treated leniently in the matter of his sentence on the charge of murder"
17. As a matter of fact, substituti on of a perpetrator of crime is very rare phenomenon
particularly in the instant case is out of question, not acceptable to a man of prudent mind nor appeal to logic and reason.
18. The learned trial Court passed a well -reasoned and speaking judgment which does not
suffer from any illegality or irregularity or misreading and non- reading of the evidence,
therefore, is not liable to be reversed even on reappraisal of the evidence we could not form a contrary view with that of the trial Court, as such, the judgment impugned passed by the trial Court (to the extent of main offence i.e. 302, P.P.C.) is not open to any exception.
It is a settled principle of law that if any injured witness does not come forward to
make statement regarding his injuries, then accus ed cannot be convicted for causing injuries
to such injured witness, therefore, conviction under sections 324, 337- F(iii) Qisas and Diyat
Ordinance and sentence thereunder recorded against the appellant is set aside with further rectification of sentence u nder section 302 P.P.C. to the following effect:
Under section 302, P.P.C. to suffer death penalty in four counts for committing Qatl -
i-amd of deceased persons namely Noor Hashim son of Muhammad Hashim, Abdul
Hashim son of Haji Asad, Haji Muhammad son of Haji Anwar and Muhammad
Anwar son of Haji Asad and to pay Rs.20,00,000/ -, i.e. Rs.500,000/ - to each of the
legal heirs of deceased named above; in default thereof to further undergo simple imprisonment for six months.
With the above modification and recti fication, the appeal filed by the appellant is
otherwise dismissed and reference sent by the trial Court is answered in "Affirmative".
JK/24/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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