1998 SC M R 1 764 (PLP)

RAJA AFRASIAB KHAN, J.

On 4th of December, 1994, leave to appeal was granted to Muhammad Ashraf, the appellant only to consider the quantum of his sentence. The order is as follows:-- This is a petition for leave to appeal against the judgment dated 25-5-1993 passed by a Division Bench of the Lahore High Court in Criminal Appeal No.284 of 1989 filed by the petitioner and Murder Reference No.29 of 1990 sent by the trial Court under section 374, Cr.P.C. to the High Court for confirmation of death sentence for murdering one, Sh. Baqir Hussain, awarded by the learned Additional Sessions Judge, Muzaffargarh, through his judgment dated 11-12-1989 and a fine of Rs.5,000 in default to undergo R.I. for two years, under section 302, P.P.C., dismissing the aforesaid appeal and accepting the above murder reference. The petitioner has, therefore, filed the present petition for leave to appeal. The petitioner in his statement under section 342, Cr.P.C. had made the following averments:-- "On the day of the occurrence, I was going towards the house of Patwari Halqa. I had passed in front of the shop of the complainant party and the deceased. When I was going deceased Baqir Hussain alongwith his four brothers Mumtaz Hussain, Khadim Hussain and Iqbal Hussain started following me. They were having daggers with them. The deceased and his brothers started throwing bricks towards me. One of the brick hit me at my back whereas the other had hit me at my ribs. On seeing the daggers in their hands, I apprehended danger to my own life. The licence pistol was with me. Apprehending that the deceased and his brothers will kill me, I opened fire through the pistol which hit the deceased. I then ran away from the spot. In fact the complainant and the deceased wanted to get the house in my possession. The complainant party was claiming the ownership of the house but it had been gifted away by their grand-father to my grand-father. We wanted to sell the house. The deceased and the complainant party got annoyed for that and in order to stop me from making sale of the house the deceased and his brothers had attacked me. I had no intention to kill the deceased and the fire was opened by me only to save my own life. We were not prepared to sell the house to the deceased and the complainant party and we wanted to make sale t6 another person. " However, both the Courts below found that the above version of the petitioner did not fit in with the evidence and the circumstances of the case. We have gone through the impugned iudement and we find that the conviction recorded against the petitioner is based on reliable evidence and, therefore, we are not inclined to grant leave on merits. However, it was urged that the motive, which was alleged by the prosecution namely, that the petitioner used to bring women of bad character in his house and that factually he had brought one on the night preceding to the date of occurrence, has not been proved and that the reason given by the petitioner about the dispute in respect of the house is more plausible. We are inclined to grant leave to consider the question, whether death sentence in the present case warranted by the evidence on record. Leave is, accordingly, granted." (Emphasis supplied)

2. Learned counsel submitted that the prosecution was unable to prove motive which was set up by it in the F.I.R., He has drawn our attention to the testimony of Mamtaz Hussain P,W.5, Khuda Baksh P.W.6 and Khadim Hussain P.W.12. Mumtaz Hussain P.W,5 did not say in so many words about the motive which was alleged by him in the F.I.R. The F.I.R. disclosed that Muhammad Ashraf, the appellant had been bringing women of questionable character in his home. An objection was raised by Sh. Baqir Hussain (the deceased) about this act of the appellant, a day before the occurrence namely, 19th of July, 1997. An altercation took place between Sh. Baqir Hussain and the appellant, Muhammad Ashraf. They exchanged abuses. He closed his house by locking it and went away alongwith the woman with whom he came there. He issued threats to Sh. Baqir Hussain that he would teach him a lesson for the insult. Sh. Mumtaz Hussain, P.W., did not say anything about motive in his evidence. On the contrary, he stated in cross-examination that he had never seen the appellant entering his house with some woman. It could, therefore, safely be said that the witness did not own the motive part of the prosecution story. Similarly, Khadim Hussain P.W.12 and Khuda Baksh P.W.6 did not prove the motive beyond reasonable doubt. The trial Judge and the High Court did not consider this aspect of the case in its proper perspective in awarding the sentence to the appellant. The motive as it is mentioned in the F.I.R. is, certainly, shrouded in mystery. This being so, there was no justification to award death sentence to the appellant. It is well-established principle of law that if a motive is mentioned in the F.I.R. and it is not proved by cogent evidence, then the capital punishment is not, at all, warranted. The rule laid down in Muhammad Ishaque Khan and others v. The State and others (PLD 1994 SC 259) shall apply to the facts and circumstances of this case. In the referred case, it was held as follows:

"We have already observed that in the present case the prosecution had alleged specific motive against the accused persons which could not be established at the trial. What actually happened just before the incident remained shrouded in mystery and the parties have not taken the Court into confidence to reveal the full facts. In these circumstances, the trial Court rightly awarded the lesser punishment of life imprisonment to appellant Muhammad Ishaque Khan. There was no justification for enhancement of the sentence of life imprisonment awarded by the trial Court to appellant Muhammad Ishaque Khan to death, by the High Court in the circumstances of the case. We, accordingly, partly allow Criminal Appeal No. 168 of 1992 filed by Muhammad Ishaque Khan and alter the death penalty awarded to him by the High Court and restore the sentence of life imprisonment awarded by the trial Court. Sentences under section 324/34, P.P.C., And fine and compensation awarded by the High Court are maintained. This being so, the sentence of death of the appellant is converted into imprisonment for life. Benefit of section 382-B, Cr.P.C. shall also be extended to him. With the above observation, we partly allow this appeal. N.H.Q./M-176/S Sentence reduced.