PLJ 2009 SC 281
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
NAZIR AHMED--Appellant
versus
STATE--Respondent
Crl. A. No. 239 of 2007, decided on 28.3.2008.
(On appeal from the judgment dated 23.2.2006 of the Lahore High Court, Bahawalpur Bench passed in Cr. A. 367/02)
----Ss. 302(b) & 337-A(ii)--Criminal Procedure Code, (V of 1898), Ss. 382-B & 544-A--Constitution of Pakistan, 1973--Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Assailed--Leave to appeal--Appreciation of evidence--Ocular account--Cause of death was due to cardiorespiratory arrest by head injureis--Ocular account furnished by complainant and eyewitnesses was fully corroborated by medical evidence, though prosecution witnesses were subjected to lengthy cross examination yet their evidence remained unshattered--Appeal was dismissed. [P. 284] A
----Ss. 302(b) & 337-A(ii)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Leave to appeal--Lack of motive--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 has been able to prove its case against accused beyond reasonable doubt--No error in impugned judgment warranting interference by Supreme Court--Appeal dismissed. [P. 284] B & C
Mr. Javed Aziz Sindhu, ASC for Appellant.
Ch. Munir Sadiq, DPG
Date of hearing: 28.3.2008.
Judgment
Abdul Hameed Dogar, HCJ.--This appeal with leave of this Court is directed against judgment dated 23.02.2006 passed by learned Division Bench of Lahore High Court, whereby Criminal Appeal No. 367 of 2002 filed by appellant was dismissed whereas Murder Reference
No. 88 of 2002 was answered in affirmative.
2. Briefly stated the facts of the case are that on 08.08.2002 Abdul Razzaq, complainant lodged FIR No. 116 of 2002 at Police Station Takht Mehal alleging that at about 1:00 a.m. while he and Ghulam Haider were sleeping in the Dera of Khawaja Noor Ahmad whereas his brother Mushtaq was sleeping in the Astabal of Pir Hassan Mehmood. On the sound of alarms, he accompanied by Ghulam Haider, Pir Muhammad Yar and Masood Imran reached at the spot and saw in the light of bulb that appellant Nazir Ahmed was beating his brother Mushtaq Ahmed with danda on the pretext to teach him a lesson for insulting him. It was furthered alleged by complainant that when they tried to rescue the deceased, the appellant inflicted a danda blow on the back side of head of Masood Imran who was injured and fled away from the place of occurrence. The deceased Mushtaq Ahmed succumbed to the injuries at the spot whereas injured Masood Imran was taken to the hospital.
3. Appellant was arrested on 18.8.2002 and after usual investigation, he was sent up to face trial before learned Additional Sessions Judge, Bahawalnagar.
4. At trial prosecution examined 12 witnesses in all.
5. PW-1 Dr. Muhammad Iqbal, Medical Officer, DHQ, Bahawalnagar conducted post-mortem of deceased Mushtaq Ahmed and found following injuries:--
(i) Lacerated wound 6 x 3 cm over the forehead and underlying bone was fractured.
(ii) Lacerated wound 3 x 1 cm over right eyebrow and underlying bone was exposed.
(iii) Lacerated wound 10 x 5 cm across the middle of right ear. Ear was cut and underlying bone was fractured.
(iv) Top of scalp was contused.
He opined that cause of death was due to cardiorespiratory arrest by head injuries due to Injuries No. 1 to 4 collectively.
6. PW-4 Dr. Muhammad Ali Shah, Medical Officer, DHQ, Bahawalnagar examined injured Imran Masood and found following injury:--
(i) There was a lacerated wound 5 cm x 1 cm x bone exposed situated on the posterior region of scalp.
7. In his statement recorded under Section 342 Cr.P.C. appellant denied the case of prosecution and pleaded false implication. He, however, neither examined himself on Oath nor produced any thing in his defence.
8. On the conclusion of trial appellant was convicted and sentenced as under:--
(i) Under Section 302 (b) PPC to death;
(ii) Under Section 544-A Cr.P.C. he was directed to pay
Rs. 200,000/- as compensation to the legal heirs of deceased; and
(iii) Under Section 337-A(II) PPC for causing injuries to Masood Imran to 2 years R.I. with direction to pay Arsh amount equal to 4% of the diyat amount.
However, benefit of Section 382-B Cr.P.C. was extended to him.
9. Feeling aggrieved appellant filed Criminal Appeal No. 367 of 2002 whereas learned trial Court sent Murder Reference No. 88 of 2002 for confirmation or otherwise of the death sentence of the appellant to the learned Lahore High Court, Bahawalpur Bench, Bahawalpur. The appeal filed by appellant was dismissed whereas Murder Reference was answered in affirmative vide impugned judgment.
10. It is vehemently contended by learned counsel for the appellant that entire evidence had not been examined vigilantly and in its true perspective which resulted in miscarriage of justice. According to him prosecution has failed to prove motive against appellant and if he had any motive then he should have murdered Hassan Mehmood and not the deceased. He contended that eye-witnesses were not present at the place of incident and PW-6 Imran Masood reached at the spot after the occurrence and it was not possible that he received injuries in presence of eye-witnesses. He also referred to the statement of PW Hassan Mehmood whereby it was stated by the said witness that he had reached after one hour of the incident though he was residing in the same haveli. He further contended that whole occurrence has been camouflaged by the prosecution and there is no eye-witness of the incident. He lastly contended that in the facts and circumstances of the case it being not a premeditated murder, the sentence of death could not have been awarded.
11. On the other hand, Ch. Munir Sadiq, learned DPG Punjab controverted the above contentions and supported the impugned judgment.
12. We have considered the contentions raised at the bar and have also appraised the entire evidence with their assistance. The occurrence had taken place on 8.8.2002 at 1.00 a.m. and the FIR was lodged promptly wherein appellant has been named as accused. The ocular account furnished by complainant and eye-witnesses is fully corroborated by the medical evidence; though the PWs were subjected to lengthy cross-examination yet their evidence remained unshattered. So far as the motive is concerned, it was held by this Court in the case of Nawaz Ali & another v. The State (2001 SCMR 726) 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 accused beyond reasonable doubt. It was also held by this Court in the case of Ahmad Nisar v. The State (1977 SCMR 175) that 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 are otherwise reliable. Learned counsel could not point out any illegality or infirmity in the impugned judgment.
13. In view of above discussion, we also see no error in the impugned judgment warranting interference by this Court which is maintained. Accordingly, the appeal being devoid of any force is dismissed.
(R.A.) Appeal dismissed.