NAZIR AHMED Versus State

ABDUL HAMEED DOGAR, C.J .--- This appeal with leave of this Court is directed against judgment dated 23-2-2006 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 8-8-2002 Abdul Razzaq, complainant lodged F.I. R. 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 further 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. P.W. Dr. Muhammad Iqbal, Medical Officer D.H.Q, Bahawalnagar conducted post-mortem of deceased Mushtaq Ahmed and found following injuries:--

(i) Lacerated wound 6 x 3 c.m. over the forehead and underlying bone was fractured.

(ii) Lacerated wound 3 x 1 c.m. over right eyebrow and underlying bone was exposed.

(iii) Lacerated wound 10 x 5 c.m. 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 cardio respiratory arrest by head injuries due to injuries Nos.1 to 4 collectively.

6. P.W.4 Dr. Muhammad Ali Shah, Medical Officer, D.H.Q., Bahawalnagar examined injured Imran Masood and found following injury:

(i) There was a lacerated wound 5 c.m. x 1 c.m. 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), P.P.C. to death;

(ii) Under section 544-A, Cr.P.C. he was directed to pay Rs.2,00,000 as compensation to the legal heirs of deceased; and

(iii) Under section 337-A(II), P.P.C. 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 eyewitnesses were not present at the place of incident and P.W.6 Imran Masood reached at the spot after the occurrence and it was not possible that he received injuries in presence of eyewitnesses. He also referred to the statement of P.W. 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 eyewitness 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 D.P.-G. Punjab controverted the above contentions and supported the impugned judgment.

12. We have considered the contentions raised at the bear 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 F.I.R. 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 P.Ws. 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 and 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 eyewitnesses 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.

N.H.Q./N-4/SC Appeal dismissed.