PLJ 2023 Cr.C. (Note) 111
[Lahore High Court, Multan Bench]
Present: Mehmood Maqbool Bajwa and Farrukh Gulzar Awan, JJ.
MUHAMMAD AFZAL--Appellant
versus
STATE--Respondent
Crl. A. Nos. 133 of 2010 & Crl. A. No. 290-J of 2011, W.P. No. 997 & M.R. No. 78 of 2010, heard on 1.12.2015.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-i-amd--Motive not proved--Mitigating circumstance--Reduction in sentence--Life imprisonment--Learned Counsel for the appellant did not question the conviction of appellant but submitted arguments regarding quantum of punishment--Role assigned to the acquitted accused is on different footing--When motive remained shrouded in mystery, sentence of death is not liable to be sustained--Motive alleged for murder is too feeble or could not be proved--With modification of sentence of death into life imprisonment--Appeal was dismissed.
[Para 9, 17, 21, 22 & 28] A, B, C, D, E
2009 SCMR 1188; 1980 SCMR 859; 2011 SCMR 379; 1997 SCMR 1527; 1998 SCMR 1764; 1999 SCMR 1138; 2002 SCMR 99;
2011 SCMR 1165 ref.
M/s. Prince Rehan Iftikhar Sheikh and Arsalan Masood Sheikh, Advocates, for Appellant
Syed Imran Abbas Kazmi, Advocate for Complainant.
Malik Riaz Ahmad Saghla, Deputy Prosecutor General for State.
Date of hearing 1.12.2015.
Judgment
Mehmood Maqbool Bajwa, J.--Through this single judgment, we intend to dispose of Criminal Appeal No. 133 of 2010 titled “Muhammad Afzal vs. The State etc”, Crl. Jail Appeal No. 290-J of 2011 having same title as well as Murder Reference No. 78 of 2010 sent by learned Sessions Judge, Sahiwal for confirmation or otherwise of sentence of death awarded to Muhammad Afzal after conclusion of trial in case FIR No. 643 of 2004 registered at Police Station, Farid Town Sahiwal and private complaint titled “Riaz Ul Haq v. Muhammad Akram Etc” (private Complaint No. 132-S-J of 2006) and W.P.No. 997 of 2010 titled Riaz Ul Haq V. The State etc filed by complainant of Crime Report referred to as all the three matters arises out of one and the same judgment dated 15th of January, 2010 handed down by learned Sessions Judge, Sahiwal.
2. Facts in brief for disposal of Crl.Appeals and murder reference and writ petition are that Crime Report (EX-PA) was lodged on the statement of Riaz-ul-Haq (PW-1) against Muhammad Afzal appellant with the stance that his sister Mst. Nasreen Bibi was married with Muhammad Ashraf (deceased) s/o Muhammad Tufail.
On the day of occurrence i.e. 30th of November, 2004, complainant along with his father s Muhammad Ali, brother Abdul Haq as well as Nazir Ahmad and Ghulam Rasool sons of Fazal Muhammad came to see Mst. Nasreen Bibi and Muhammad Ashraf at their residence situated in Chak No. 97-6R.
Muhammad Ashraf (deceased) brother-in-law of the complainant was in the field and as such at about 1.30 afternoon, he along with Abdul Haq (PW-2) and Ghulam Rasool went in the field in order to see him when suddenly Muhammad Afzal (present appellant) younger brother of Muhammad Ashraf (deceased) armed with .30-Bore pistol came there, who raised Lalkara to teach him (deceased) lesson due to award of less share from ancestral property and in pursuance of Lalkara, fired two shots aiming at Muhammad Ashraf (deceased) causing injuries on his left eye and right side of forehead who fell down.
Muhammad Akram and Muhammad Anwar brothers of the appellant were also implicated as accused with the allegation of abetment.
3. The complainant having reservations from the conduct and behavior of Muhammad Nasrullah inspector (CW-8) who recorded statement of Riaz-ul-Haq complainant (PW-1), filed private complaint copy of which is (EX-PB) not only against the appellant but also arraying Muhammad Anwar, Muhammad Akram as well as Mst. Naziran Bibi with the allegations that said inspector got his signature on the statement which was not read over to him.
4. As per allegations contained in private complaint, Muhammad Akram as well as Muhammad Anwar and present appellant committed murder of Muhammad Ashraf (deceased) at the instance and behest of their mother i.e. Mst. Naziran Bibi due to award of less share from the ancestral property.
5. Learned trial Court conducted trial in private complaint and after conclusion of trial recorded acquittal through judgment dated 15th of January 2010 in favour of Muhammad Anwar, Muhammad Afzal and Mst. Nazira Bibi while holding the appellant Muhammad Afzal guilty under Section 302(b) of the Code awarding him sentence of death beside payment of compensation to the tune of Rs. 50,000/-to be reimbursed amongst the legal heirs of Muhammad Ashraf and in case of default in payment of compensation to further undergo 6-months simple imprisonment.
6. The appellant preferred represented Appeal No. 133 of 2010 calling in question the legality and validity of the judgment recording conviction and awarding him sentence of death. Latter on appellant also preferred Jail Appeal No. 290-J of 2011 through Superintendent Central Jail Sahiwal assailing the legality and validity of same judgment claiming his acquittal.
7. Learned Sessions Judge, Sahiwal while recording acquittal in favour of Muhammad Akram, Muhammad Anwar and Mst. Naziran Bibi reached to the conclusion that accusation contained in private complaint against said respondents-accused were false and frivolous and as such awarded compensation to the tune of Rs. 25000/- against the complainant Riaz-ul-Haq (PW-1) under Section 250 of the Code of Criminal Procedure 1898 (Act V of 1898) (hereinafter called Act v. of 1898) to be paid to the acquitted respondents-accused.
8. Judgment to the extent of imposing compensation has been called in question by the complainant Riaz-ul-Haq (PW-1) through Writ Petition No. 997 of 2010.
9. At the very outset learned counsel for the appellant did not question the conviction of appellant but submitted arguments regarding quantum of punishment contending that mitigating circumstances are available in order to grant sentence of life imprisonment which were not taken into consideration by the learned trial Court.
Making reference to the contents of Crime Report (EX-PA) and private complaint (EX-PB) it was submitted that specific motive was set up in the FIR as well as private complaint, according to which occurrence took place due to award of share less than the entitlement of appellant from the ancestral property resulting in exchange of hot words, use of abusive language and giving slaps to Muhammad Ashraf (deceased) by the appellant as well as acquitted accused while calling him in their house who on the next day got announcement in loud speaker regarding sale of his landed property as well as house which fact was intimated to complainant Riaz-ul-Haq (PW-1) by Mst. Nasreen Bibi and after hearing the announcement on loud speaker, the appellant as well as acquitted accused have extended threats to Muhammad Ashraf (deceased) to face dire consequences.
Contended that since specific motive was set up in FIR as well as private complaint, therefore, prosecution was obliged to prove the same.
Making reference to Para 14 of the judgment of the learned trial Court, it was argued that learned Sessions Judge Sahiwal also reached to the conclusion that motive could not be established by the prosecution-complainant
Continuing the arguments, it was submitted that acquittal of co-accused i.e. Muhammad Akram, Muhammad Anwar (to whom role of arrival at the place of occurrence while armed with fire-arm was attributed) and Mst. Naziran Bibi (to whom accusation of abetment was levelled) is another ground to award lesser punishment being mitigating circumstances.
To substantiate the contention, help was sought from the dictum laid down in “Zulfiqar Hussain and another v The State” 2011 SCMR 379) and “Ghulam Mohy-ud-Din alias Haji Babu and others v. The State” (2014 SCMR 1034).
10. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant while controverting the arguments contended that motive stands established by the evidence of complainant i.e. Riaz-ul-Haq (PW-1) and Abdul Haq (PW-2). Submitted that acquittal of co accused by itself would not be sufficient to modify the sentence of death particularly when learned counsel for the appellant has not questioned the legality of the judgment of learned trial Court recording conviction against the appellant.
11. Conscious consideration has been given to the arguments advanced by the adversaries with reference to the case law cited at bar.
12. As referred earlier, since the appellant has not questioned his conviction, therefore, there is no need to give brief history of evidence adduced by the prosecution in order to prove culpability of the appellant.
13. Motive set up in the Crime Report as well as in the private complaint has been referred to which was disclosed by the complainant Riaz-ul-Haq (PW-1) and Abdul Haq (PW-2).
14. Learned trial Court in Para 14 of the judgment concluded that factum of motive for the murder of Muhammad Ashraf (deceased) could not be proved by the complainant. While concluding the question of motive, learned trial Court reached to the conclusion which is re- produced for read reference
“The fact of motive for the murder of Muhammad Ashraf could not be proved by the complainant in its letter and spirt as the statements of (PW-1 and PW-2) on this fact are not based upon direct evidence rather are based upon hear-say evidence”
15. In view of the conclusion drawn by the learned trial Court and after going through the evidence of complainant Riaz-ul-Haq
(PW-1) and Abdul Haq (PW-2) we are of the considered view that prosecution-complainant remained unable to prove motive set up in the Crime Report (EX-PA) as well as in the private complaint (EX-PB).
16. Perusal of the judgment of the learned trial Court also reveals that benefit of doubt was given to Muhammad Akram, Muhammad Anwar, Mst. Naziran Bibi in Para 15 of the judgment and it was held that prosecution has miserably failed to prove its case against above named accused.
17. Though role assigned to the acquitted accused is on different footing but nevertheless ocular account furnished by the prosecution-complainant was brushed aside to the extent of above named accused.
18. In the circumstances, question for consideration before us is to determine the quantum of sentence awarded to Muhammad Afzal appellant.
19. Moot point was dealt with by Apex Court in “Mir Muhammad Alias Miro v. The State” (2009 SCMR 1188) concluding at page 1190 that ocular account qua the co-accused was admittedly not believed by the Appellate Court by observing that “the evidence was exaggerated and required corroboration which was lacking”, further holding that motive as set up by the prosecution remained unproved”.
Making reference to case “Mst. Bevi v. Ghulam Shabbir and another” (1980 SCMR 859) it was held that Principle underlying the concept of benefit of doubt could, in addition to the consideration of question of guilt or otherwise, can be take into consideration also in the matter of sentence.
20. We have gone through the rule of law enunciated in Reports cited at bar by the learned counsel for the appellant.
21. In the case of “Zulfiqar Hussain and another v. The State” (2011 SCMR 379) it was held that when motive remained shrouded in mystery, sentence of death is not liable to be sustained.
22. Dealing with the same proposition, it was enunciated in the case of “Ghulam Mohy-Ud-Din alias Haji Babu and others v. The State” (2014 SCMR 1034) that mitigating circumstances would be sufficient to maintain life imprisonment instead of death penalty and each case has to be decided keeping in view its own facts and circumstances.
Adverting to the question of motive, it was held that if motive alleged for murder is too feeble or could not be proved, it would be sufficient to convert sentence of death into life imprisonment.
23. It is settled proposition of law that though prosecution is not required to allege motive but if agitated has to prove the same and in case of failure case of prosecution must suffer its consequence and not defence.
We are fortified in our view by law laid down in “Muhammad Yaseen and others v. Muhammad Shafique and others” (1997 SCMR 1527), “Muhammad Ashraf v. The State” (1998 SCMR 1764), “Muhammad Yaooob alias Qooba v. The State” (1999 SCMR 1138), “Ferozen Khan v. The State” (2002 SCMR 99) and “Iftikhar Mehmood and another v. Qaiser Iftikhar and others” (2011 SCMR 1165).
24. In view of above state of facts and law and keeping in view the facts and circumstances of the case referred to while maintaining the conviction of the appellant under Section 302(b) of the code, we are inclined to convert the sentence of death into life imprisonment under the same provision of law while endorsing the quantum of compensation and sentence in lieu of payment of compensation.
25. The appellant is extended benefit under Section 382-B of the Act V of 1898.
26. Consequent upon conclusion drawn by us converting the sentence of death into life imprisonment, Crl. Appeal. No. 133 of 2010 is dismissed but with modification of sentence referred to
27. As referred earlier appellant later on filed Crl. Appeal. No. 290-J of 2011 against the judgment assailed through superintendent Ceniral Jail Sahiwal.
28. In view of dismissal of Crl. Appeal. No. 133 of 2010 but with modification of sentence of death into life imprisonment, there is no need to give separate findings on this appeal and as such Crl. Appeal No. 290-J of 2011 stands disposed of accordingly.
29. Consequent upon conversion of sentence of death into life imprisonment, Murder Reference No. 78 of 2010 is answered in negative.
30. Death sentence awarded to the appellant is not confirmed.
31. As referred earlier, complainant Riaz-ul-Haq (PW-1) has filed Writ Petition No. 997 of 2010 against the judgment of learned trial Court awarding compensation to the acquitted accused to the tune of Rs. 25000/- under Section 250 of The Act V of 1898 requiring the complainant to pay said compensation.
32. After hearing the learned counsel for the petitioner as well as learned counsel for the Respondents No. 2 to 4 (acquitted accused) as well as Deputy Prosecutor general, we are of the considered view that judgment of learned trial Court to the extent of awarding compensation to the Respondents No. 2 to 4 to be paid by the petitioner cannot be sustained in view of omission on the part of learned trial Court to issue show-cause to the petitioner being complainant.
33. No doubt according to Section 250 of The Act V of 1898, in case of false, frivolous or vexatious accusation, compensation can be awarded but nevertheless prior to awarding of compensation, learned trial Court is required to call upon the complainant to show-cause why he should not be required to pay compensation.
34. Admittedly no such notice was ever issued to the complainant in order to explain his position and as such order assailed is against the mandate of principle of natural justice as the provisions of calling upon the complainant to show-cause is mandatory in nature.
35. Pursuant to above while accepting the writ petition, judgment dated 15.10.2010 handed down by learned Sessions Judge Sahiwal to the extent of award of compensation to Respondents No. 2 to 4 requiring the petitioner being complainant to pay the same is hereby set aside.
(K.Q.B.) Appeal dismissed
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