2005 PLP 639 (YLR)

5. After lodging F.I.R. No. 158, dated 4‑11‑1996 under section 302, P.P.C. at Police Station Nabpara, Islamabad, Inspector Jan Nisar Khan reached the place of occurrence and collected from the drawing room of the Meridian Guest House one pistol .30 bore along with five bullets which were taken 'into possession vide memo. Exh.PJ. One empty was taken into possession from the spot vide recovery memo. Exh. PK. The I.O. also secured blood‑stained carpet and made the same into sealed parcel vide memo. Exh. PL. He also took into possession one Chadder P‑6 and one Bed Sheet P‑7 vide recovery memo. Exh. P.M. Pieces of glass P‑8/1‑4 were also taken into possession vide recovery memo. Exh. P.N. A packet of cigarette Benson Brand P‑9 was taken into possession vide memo. Exh.PQ. He also took into possession one pair of lady's shoes P‑10/1‑2 vide memo. Exh. PR. Twenty‑four glass bangles Exh. 11/1‑24 and two hair pins P‑12/1‑2 were also recovered from the place of occurrence and taken into possession vide memo. Exh. P.S. One lady's purse Exh. P‑13 was also taken into possession vide memo. Exh.PT. All these memos. were attested by Sher Muhammad, A.S.‑I. and Zahoor Muhammad, A.S.‑I.

6. After competing necessary investigation the accused was challaned. On 14‑3‑2000 charged was framed against the accused Ehsan Sharif under section 302, P.P.C. to which he pleaded not guilty and claimed trial.

7. During the trial the prosecution produced as many as 16 witnesses in support of its case against the appellant. Tariq Mehmood complainant P.W.6, Muhammad Ilyas P. W .9 and Amraiz Khan P.W.10 furnished the ocular account of the incident in question. Sher Muhammad S.‑I. P.W.8 and Jan Nisar Khan Inspector P.W.15 proved the recovery of Pistol .30 bore and other articles from the drawing room of Meridian International Guest House, Islamabad during the investigation of the case. The medical evidence was provided by P.W.16. Dr. Zaib‑un‑Nisa who conducted post‑mortem examination of the deceased. Jan Nisar Khan, Inspector P.W.15 deposed about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.

8. After the close of prosecution case the accused was examined under section 342, Cr.P.C. .He pleaded not guilty. To a question as to why this case against you and why the P.Ws have deposed against you, the accused Ehsan Sharif answered as below:‑‑ "It is a cooked up story against me. Mst. Sitara Kanwal deceased entered into a sacred marriage bond with me. I fell in love with her. I never knew it that her mother Mst. Hamida Kausar P.W. is sending her to brothel house for prostitution purposes because I used to be away in connection with my business. Tariq Amraiz and Ilyas P.Ws. were PIMPS and were selling girls for prostitution purposes. The alleged place of occurrence was a den being used for prostitution purposes and the P.Ws actually knew the details of the occurrence. However, as per my knowledge it is a case of suicide by a girl for non‑payment of immoral and illegal earning of the deceased P.Ws were having interest to save themselves, therefore, I was made a scapegoat in this case. The I.O. has left the best evidence for involvement of the accused in connivance with the P. Ws. The accused did not opt to make any statement on oath under section 340(2), Cr.P.C. and did not produce any witness in his defence.

9. At the conclusion of the trial the learned trial Court found the prosecution case against the appellant Ehsan Sharif to have been proved beyond reasonable doubt and thus the appellant was convicted and sentenced by it as mentioned in detail hereinabove. Hence the present appeal and the connected murder reference before this Court.

10. We have heard the learned counsel for the parties and have gone through the record with their assistance.

11. The learned counsel for the appellant at the very outset submitted that he would not challenge the conviction and sentence of the appellant and would only confine his arguments to the quantum of sentence. According to him on account of facts and circumstances of the case the maximum penalty of death sentence was not warranted as there were mitigating circumstances available for lesser sentence. He argued that the entire prosecution evidence would show that no motive has been set up in this case and more importantly it is not spelt out from the prosecution case as to what had transpired immediately before the occurrence. To support his contentions the learned counsel for the appellant was relied on the following reported judgments:‑‑ "(i) Abid Hussain v. The State PLD 1994 Supreme Court 641, wherein their Lordships of the apex Court had converted the death sentence of the accused to life imprisonment as it had appeared in evidence that harsh words were exchanged between the accused and the deceased before the act of firing; (ii) Naubahar v. The State, 1999 SCMR 637, wherein their lordships had come to the conclusion that the motive remained shrouded in mystery and what had immediately transpired before the occurrence was not known, therefore, it was held to be not a fit case for awarding extreme penalty of death; (iii) Abid Ali and others v. The State, 1995 PCr.LJ 834 (Lahore), in which a Division Bench of this Court had altered the sentence of death awarded to the accused to imprisonment of life as the motive and attending circumstances under which the deceased had been murdered remained shrouded in mystery; (iv) Muhammad Sharif Khan Tareen v. The State, 1995 PCr.LJ 313 (Peshawar), wherein a Division Bench of the Peshawar High Court had converted the sentence of death into life imprisonment because there was no previous ill‑will between the parties and the immediate cause of death was not ascertainable from the record; and (v) Khalid alias Khaldi v. The State, 2003 PCr.LJ 638 (Lahore) in which case a Division Bench of this Court while maintaining the conviction and sentence of the accused under section 302, P.P.C. had converted the death sentence into sentence of life imprisonment as the Court had noted certain mitigating circumstances in the case for awarding a lesser punishment. "

12. The learned Assistant Advocate -General has maintained that the conviction and sentence has rightly been recorded by the learned trial Court, however, he had no option but to concede that the circumstances which immediately preceded the firing of the shot were not ascertainable from the record.

13. After examining the record from all angles in detail, we have come to the conclusion that the conclusion of guilt arrived at by the learned trial Court against the appellant is well‑founded and does not need any interference. Eye‑witnesses were natural witnesses of the occurrence and had supported one another on all material points. Ocular account was corroborated by medical evidence, report of Forensic Science Laboratory and Chemical Examiner's report. The witnesses did not have any enmity or ill‑will against the accused. His unexplained abscondence for 2‑1/2 years also lent a lot of support to the prosecution case. However, we are in agreement with the learned counsel for the appellant that what happened immediately before the death of Sitara Kanwal is not ascertainable from the record. We are, therefore, of the view that in the peculiar facts and circumstances of the case the maximum sentence of death awarded to the appellant for murder. Sitara Kanwal is quite harsh and the ends of justice would be better served if lesser penalty of imprisonment of life is imposed. No evidence of previous ill‑will and the immediately cause which resulted into unfortunate death of Sitara Kanwal deceased is ascertainable from the record. The motive has neither been alleged in the F. I. R. nor has been stated by anyone of the P.Ws produced by the prosecution.

14. Resultantly we commute the death sentence into life imprisonment and decline to confirm the decline penalty, however, the amount of Rs.50,000 awarded as compensation to the legal heirs of Sitara Kanwal deceased under section 544‑A, Cr.P.C. in default whereof the appellant shall have to further undergo six months R.I., is maintained. We also direct that the benefit of section 382‑B, Cr.P.C. shall be extended to the appellant. With this modification in the sentence the appeal is dismissed. The sentence of death awarded to the appellant by the learned trial Court vide its judgment dated 30‑10‑2000 is not confirmed. Murder Reference No. 637 of 2000 is answered in the negative. Sentence reduced accordingly. H.B.T./E-11/L