PLJ 2017 SC 307
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Sentence--Qatl-e-amd--Question regarding quantum of sentence--Appreciation of evidence--Validity--Any injury with a sharp-edged weapon had been caused by appellant or his co-accused--A co-accused attributed a firearm injury to deceased, had been acquitted by trial Court which had surely caused some dent to veracity of eye-witnesses produced by prosecution--Supreme Court has decided to exercise caution in matter of appellant's sentence of death--Appeal was dismissed to extent of appellant's conviction for offence under Section 302(b), PPC.
[P. 309] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Sentence--Qatl-e-amd--Motive--Quantum of sentence--Where prosecution asserts a motive and fails to prove the same then such failure on part of prosecution may react against sentence of death passed against accused person. [P. 309] A
Mr. Niaz Ahmad Rathore, ASC for Appellant.
Ch. Muhammad Waheed, Addl..P.G., Punjab for State.
Mr. Pervaiz Inayat Malik, ASC for Complainant.
Date of hearing: 6.3.2017.
PLJ 2017 SC 307
[Appellate Jurisdiction]
Present: Asif Saeed Khan Khosa, Dost Muhammad Khan & Sardar Tariq Masood, JJ.
versus
STATE--Respondent
Crl. Appeal No. 209 of 2012, decided on 6.3.2017.
(Against the judgment dated 21.9.2011 passed by the
Lahore High Court, Bahawalpur Bench, Bahawalpur in
Criminal Appeal No. 193 of 2008 and Murder Reference
No. 17 of 2008).
Judgment
Asif Saeed Khan Khosa, J.--Habib Ahmad alias Habibi appellant had allegedly murdered one Muhammad Aslam with the use of a firearm at about 09.30 A.M. on 15.08.2007 in village Mohar Wali in the area of Police Station Doonga Boonga, District Bahawalnagar in the backdrop of an altercation taking place between the parties a couple of hours prior to the present incident. With the said allegations the appellant was booked in case FIR No. 301 registered at the above mentioned Police Station on the same day and after a regular trial he was convicted by the trial Court for an offence under Section 302(b), PPC and was sentenced to death and to pay compensation which conviction, and sentence had subsequently been upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 21.03.2012.
2. Leave to appeal had been granted in this case in order to reappraise the evidence and also to consider the question regarding quantum of the appellant's sentence. At the outset the learned counsel for the appellant has submitted that he does not press this appeal as far as the merits of the appellant's case are concerned and he prays only for reduction of the appellant's sentence of death to imprisonment for life in view of some mitigating circumstances floating at the surface of the case. As against that the learned counsel for the complainant and the learned Additional Prosecutor-General, Punjab appearing for the State have submitted that the appellant had shown extreme highhandedness and he was a known criminal of the area involved in many criminal cases and, thus, he does not deserve any sympathy in the matter of his sentence.
3. It is apparent from the record that before the trial Court the appellant had admitted firing at and killing Muhammad Aslam deceased, two crime-empties secured from the place of occurrence had matched with the firearm recovered from his custody during the investigation and he had advanced a plea of grave and sudden provocation but no independent proof in support of the said plea had been adduced by him before the trial Court. Be that as it may the fact remains that in the FIR itself it had been mentioned by the complainant that Muhammad Aslam deceased had insulted the appellant only a couple of hours prior to the present occurrence and, thus, it was some conduct on the part of the deceased himself which had contributed towards his murder. The motive set up by the prosecution had remained far from being established and no independent evidence in support of the asserted motive had been produced before the trial Court. It has been held by this Court in a number of judgments that where the prosecution asserts a motive and fails to prove the same then such failure on the part of the prosecution may react against the sentence of death passed against the accused person. A reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and, others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran @ Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naueed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad. Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148). The record of the case also shows that initially the doctor conducting the post-mortem examination of the deadbody had found many injuries on the deadbody which were opined to be stab wounds but subsequently the doctor had tried to explain the said aspect of the case. It was nobody's case that any injury with a sharp-edged weapon had been caused by the appellant or his co-accused to Muhammad Aslam deceased. A co-accused of the appellant namely Farooq, attributed a firearm injury to Muhammad Aslam deceased, had been acquitted by the trial Court which had surely caused some dent to the veracity of the eye-witnesses produced by the prosecution. For all these reasons we have decided to exercise caution in the matter of the appellant's sentence of death. This appeal is, therefore, dismissed to the extent of the appellant's conviction for the offence under Section 302(b), PPC recorded and upheld by the Courts below but the same is partly allowed to the extent of the appellant's sentence of death which is reduced to imprisonment for life. The benefit under Section 382-B, Cr.P.C. shall be extended to the appellant. The order passed by the trial Court regarding payment of compensation by the appellant to the heirs of the deceased as well as the order in respect of imprisonment in default of payment of compensation are, however, maintained. This appeal is disposed of in these terms.
(R.A.) Appeal disposed
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