2026 PLP 709 (SCMR)

IRFAN SAADAT KHAN, J.

This jail petition has been filed by the petitioner-accused, Abdul Jabbar, impugning the judgment of the High Court dated 30.11.2017, whereby his Criminal Appeal No. 466-J of 2013 was dismissed with the modification of the sentence of death awarded by the Trial Court to that of imprisonment for life; however, the sentence of compensation and the sentence in default thereof were maintained, while the petitioner-accused was extended the benefit of Section 382-B, Cr.P.C.

2. Briefly stated, the facts of the prosecution case are that, on 31.05.2009, FIR bearing No. 369/2009, under Sections 302/324/148/149/109 of the Pakistan Penal Code, 1860 ('P.P.C.') was registered by the complainant, Taj Din, stating therein that he is a resident of Bhala, Police Station Saddar, Kasur, and is a cultivator. On said date, at about 9:00 a.m., the complainant, along with his sons Allah Wasaya Sikandar, Mustafa, as well as Shaukat Ali and Mukhtar Ahmad, was sitting on his dera. Abdul Jabbar alias Jabbari (petitioner-accused) duly armed with a 30-bore pistol, Muhammad Yasin alias Phalli armed with a 44-bore rifle and Habib armed with his 30-bore pistol, along with two unknown co-accused armed with firearms, came there on two motorcycles. Abdul Jabbar raised lalkara to catch hold of Mustafa etc. and shot them. Then Abdul Jabbar made a straight fire with his 30-bore pistol at Mustafa which landed on his abdomen, who fell down smeared with blood and succumbed to the injuries. Yasin fired with his 44-bore rifle at Allah Wasaya hitting him on his left thigh. Habib fired a straight shot with his 30-bore pistol at Sikandar, which landed on his left thigh. The complainant and his companions then tried to rescue them, however, Abdul Jabbar raised lalkara that if anyone came near he would be done to death. The accused persons then, while firing and brandishing their weapons, went to the dera of Sardar Khalil, as the latter used to support and harbour them at his dera. The motive behind the occurrence, as alleged in the FIR, was that at morning time, Abdul Jabbar etc., were passing through the village on their motorcycles whereas, sons of complainant, Mustafa etc., were fetching fodder on cart (rehri); because of narrow street, the motorcycles could not pass through, whereupon an altercation took place between them, due to which, after a short while, Abdul Jabbar etc., in consultation and abetment of Sardar Khalil, came from his dera and committed the murder of Mustafa and caused injuries to Sikandar and Allah Wasaya.

3. The usual trial then commenced, and the Trial Court, after hearing the parties and recording the evidence in Sessions Case No. 31 of 2009 and Sessions Trial No. 03 of 2010, through judgment dated 07.12.2013, found the petitioner-accused guilty of the offence under Section 302(b) of the P.P.C. and awarded him death sentence, with a further direction to pay compensation of Rs. 200,000/- under Section 544-A, Cr.P.C., to the legal heirs of the deceased, and in default thereof, to undergo simple imprisonment for six months. However, the Trial Court, having found that co-accused Habib and Muhammad Yasin alias Phalli had made a murderous assault upon the injured Sikandar and Allah Wasaya, respectively and had also caused injuries, convicted and sentenced them under Sections 337-F(iii) and 324 of the P.P.C. Being aggrieved with the said order of the Trial Court, the petitioner-accused filed a criminal appeal before the High Court, which, vide the impugned judgment dated 30.11.2017, dismissed the same however converted the sentence of death awarded by the Trial Court to that of imprisonment for life by observing that the motive had not been proved; the alleged recovery of a 30-bore pistol at the instance of the petitioner-accused has also not been proved; and the petitioner-accused has caused only one firearm injury on the deceased and that there was no allegation of repetition of the same. The High Court, however, maintained the conviction regarding payment of compensation and, in default thereof, the sentence of simple imprisonment for six months.

4. Syed Muhammad Tayyab Shah, Advocate, has appeared on behalf of the petitioner-accused and stated that the High Court was not justified in converting the death sentence awarded by the Trial Court to that of life imprisonment after finding that the aspects of motive and recovery were not proved by the prosecution. He stated that when these two factors were not proved by the prosecution, the case was one of acquittal and not of converting the death sentence into life imprisonment. In the alternative, he stated that under identical circumstances, the co-accused Habib and Muhammad Yasin alias Phalli, whose cases, in his view, were akin, were given seven years' punishment with a fine of Rs.50,000/- each and simple imprisonment for six months in case of non-payment of fine and Daman of Rs.20,000/-; whereas the petitioner-accused has been awarded life sentence by the High Court, which, according to him is harsh and uncalled for since the role of the petitioner-accused and the other two co-accused, in his view, was the same; hence, similar conviction should have been awarded by the Trial Court and affirmed by the High Court to the petitioner-accused as well.

5. Mr. Irfan Zia, APG, has appeared on behalf of the State and submitted that the occurrence was committed in broad daylight. He stated that the parties knew each other; hence, there could be no question of any misidentification. He further stated that a specific role has been assigned to the petitioner-accused in the FIR with regard to a fatal fire made by him on the deceased and the crime empties were also recovered from the place of occurrence . To strengthen his arguments, he read out the FIR to show the specific role attributed to the petitioner-accused in killing Mustafa mercilessly. He, however, conceded that no record is available with regard to any appeal, if any, filed by the complainant or the prosecution seeking enhancement of the sentence against the life sentence awarded by the High Court to the petitioner-accused before this Court. He stated that since neither the prosecution nor the complainant has filed any enhancement appeal, therefore, he would pray that the sentence of the life imprisonment and other convictions awarded to the petitioner-accused by the High Court may be upheld and that this petition, being bereft of any merit, may accordingly be dismissed.

6. We have heard both the learned counsel at some length and have perused the record.

7. There is no denial of the fact that the incident took place in broad daylight. We also agree that there would be no question of misidentification as the parties know each other, as they belong to the same area/village. We also agree that the manner and method in which the petitioner-accused killed the deceased do not warrant any interference, as the ocular evidence is fully supported by the medical evidence, as is evident from the depositions of various prosecution witnesses (PWs) and that of Dr. Javed Akhtar, PW-13, who conducted the post-mortem of the deceased. We have also seen that the Trial Court, while conducting the trial, examined as many as 16 PWs and from their depositions no major contradiction or inconsistency, which could put a dent in the prosecution case, has been pointed out by the learned counsel for the petitioner-accused. The High Court's order, especially Para 12, clearly reveals that the High Court, after a detailed discussion, has observed that the prosecution has failed to prove the motive. Moreover, vide Para 14, the aspect of recovery was discussed by the High Court, wherein it has been noted that the Forensic Laboratory Report has simply confirmed that the pistol was in mechanical operating condition and is totally silent about the connection of the crime empties with that of the recovered pistol. It has been observed by the High Court that if a scuffle took place in the morning of the day of the incident between Abdul Jabbar and others and the deceased, then why was no complaint of the incident made by them in this regard and why no such material has been produced in support thereof. We have further observed that no witness of the said altercation, which allegedly took place between the accused party and the deceased party, was also produced by the prosecution side; hence, we affirm the order of the High Court that the aspect of motive has not been satisfactorily proved by the prosecution and the benefit of not proving the same has rightly been given to the petitioner-accused in this behalf. We have also observed that the recovery of a 30- bore pistol has also not satisfactorily been proved by the prosecution, since the incident took place on 31.05.2009 whereas the petitioner-accused was arrested (as per jail roll) on 23.02.2012, and during this period he remained a proclaimed offender; hence, the recovery of the pistol after his arrest, i.e. after a substantial period, in view of the facts and circumstances of the present case, has rightly been disbelieved by the High Court.

8. Apart from these two aspects, i.e. motive and recovery of the pistol, in our view, the other aspects have satisfactorily been proved by the prosecution, i.e. ocular evidence has supported the medical evidence, the depositions of various PWs have remained unshattered and beyond shadow of doubt. It is a settled proposition of law that in case of non-proving of the motive, the case is always considered to be that of life imprisonment and not capital punishment. Reference in this regard may be made to the decisions of this Court in Bashir-ud-Din and others v. the State (2025 SCMR 1380), Muhammad Bilal v. The State (2025 SCMR 1580), Nawab Ali v. The State (2019 SCMR 2009), Mst. Nazia Anwar v. The State and others (2018 SCMR 911), Arshad Beg v. The State (2017 SCMR 1727), Allah Wasaya and another v. The State (2017 SCMR 1797), Mazhar Abbas alias Baddi v. The State (2017 SCMR 1884) and Ghulam Muhammad and another v. The State and another (2017 SCMR 2048).

9. If all these factors are considered in juxtaposition, it would reveal that the High Court has rightly converted the death sentence, awarded by the Trial Court to the petitioner-accused, to that of life imprisonment and no exception in this regard is warranted from us. We, therefore, dismiss this petition and confirm the order of the High Court and refuse the leave accordingly.

10. Above are the reasons of our short order dated 11.12.2025, which is reproduced hereinbelow: "For reasons to be recorded later, this petition is dismissed and leave to appeal is refused." JK/A-1/SC Petition dismissed.