2017 PLP 1884 (SCMR)

MANZOOR AHMAD MALIK, J.

Mazhar Abbas alias Baddi (appellant) along with his co-convict namely Muhammad Saleem was indicted in case FIR No.64/2000 dated 06.04.2000 offence under section 302, P.P.C. read with section 34, P.P.C. registered at Police Station Qadirpur Ran, District Multan for Qatl-i-amd of Muhammad Waseem son of the complainant. Vide judgment dated 22.12.2001, he was convicted under section 302(b), P.P.C. and sentenced to death. He was also ordered to pay compensation amount of Rs.50,000/ - (rupees fifty thousand only) to the legal heirs of Muhammad Waseem (deceased) and in default whereof he was directed to undergo simple imprisonment for six months. Co-accused of the appellant namely Saleem was also convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. He was also directed to pay compensation amount of Rs.50,000/- (rupees fifty thousand only) to the legal heirs of the deceased and in default thereof he was to under go simple imprisonment for six months. Said co-convict of the appellant was extended the benefit of section 382-B, Code of Criminal Procedure.

2. Feeling aggrieved by the judgment passed by the learned trial court the appellant and his co-convict filed Criminal Appeal No.968 of 2001 against their conviction and sentence whereas the learned trial court sent Murder Reference No.112 of 2004 for confirmation or otherwise of the sentence of death awarded to Mazhar Abbas alias Baddi, convict. Both these matters were heard together by a learned Division Bench of Lahore High Court, Multan Bench and through the impugned judgment appeal to the extent of the appellant was dismissed. Murder Reference sent by the learned trial court was answered in the affirmative and his death sentence was confirmed. The appeal to the extent of co-convict of appellant was allowed and he was acquitted of the charge.

3. Feeling still dissatisfied Mazhar Abbas alias Baddi preferred Criminal Petition No.52-L of 2009 wherein leave to appeal was granted vide order dated 07.04.2009 to re-appraise the evidence for the safe administration of criminal justice. Hence this appeal.

4. We have gone through all the relevant record with the assistance of learned counsel for the appellant as well as learned Additional Prosecutor General Punjab for the State.

5. In the FIR, fatal dagger blow in the chest of Muhammad Waseem (deceased) was attributed to the appellant. Ocular account furnished by Muhammad Ishfaq complainant (PW.7) and Muhammad Aslam (PW.8) is fully supported the medical evidence furnished by Dr. Fayyaz Khan Durrani (P.W.6). During the course of investigation, the appellant led to the recovery of dagger which vas taken into possession vide recovery memo (Exh.PB). Reports of Chemical Examiner (Exh.PI) and Serologist (Exh.PK) vis-a-vis the said dagger are positive. Therefore, we hold that the prosecution successfully brought home guilt against the appellant to the hilt. But it is not a case of capital punishment because a single dagger blow was attributed to the appellant and there is no allegation of repetition of blows against the appellant. Both the learned courts below did not believe motive behind the occurrence. It is well settled by now that once the prosecution alleges a motive and fails to prove the same during the trial, the same can be taken as a mitigating circumstance while deciding the quantum of sentence of a convict. Therefore, this appeal is partly allowed and the sentence of death awarded to the appellant is altered to imprisonment for life. The amount of compensation and the sentence of six months simple imprisonment in default thereof as ordered by the learned trial court and maintained by the learned appellate court is upheld. The appellant is extended the benefit of section 382-B, Code of Criminal Procedure. MWA/M-34/SC Order accordingly.