2005 PLP 427 (SCMR)

KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑This petition is directed against a judgment of the Rawalpindi Bench of the Lahore High Court, dated 8‑10‑2003 passed in Criminal Appeal No.210 of 1997 whereby Muhammad Ali respondent who had been convicted by the learned trial Judge under section 302(b), P.P.C. and under section 337‑F(ii), P.P.C. was acquitted and whereby while maintaining ‑the conviction of Muhammad Azam respondent under section 302(b), P.P.C. and under section 337‑F(ii), P.P.C. the sentence of death awarded to the said respondent under section 302(b), P.P.C. was converted into a sentence of imprisonment for life.

2. It is this reduction in the quantum of punishment awarded to Azam respondent which is being questioned by Hamid Mukhtar complainant through this petition.

3. The reasons which had weighed with the Hon'ble Judges in the High Court in converting the normal penalty of death into a sentence of imprisonment for life were, that the prosecution had failed to establish the motive alleged by it; that Muhammad Azam convict had not repeated the shot fired by him at the deceased and further that when only one shot had hit the deceased and two persons were charged for the consequent murder, a sentence of death could not be awarded to anyone of them and was to be reduced to a punishment of imprisonment for life.

4. Before proceedings further it may be mentioned here that Azam respondent had felt satisfied with the conviction recorded against him and as maintained by the learned High Court and had not impugned the same any further i.e. before this Court. . S. We have heard the learned counsel for the parties and have also examined the record relevant to the question in issue.

6. It was through a judgment delivered in .the case of Saeed Akhtar and others v. The State reported as 2000 SCMR 383 that this Court had declared that insufficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non awarding of the normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment. This view has been consistently followed by this Court ever since. In the case of Arshad Ali alias Achhu v. The State reported as 2002 SCMR 1806 it was held that even where the occurrence resulting in a murder had taken place at the spur of the moment and even where B only one shot had been fired and same had not been repeated, the only penalty deserved by the killer was the normal punishment of death prescribed for the said offence. This Court reitrerated in Hameed Khan's case reported as 2002 SCMR 1155 that inadequacy of weakness of the alleged motive or where motive had not been proved, an assailant C if found guilty of causing the murder of another, did not deserve any leniency and the only punishment awardable in such‑like circumstances would be the sentence of death.

7. The Hon'ble Judges in the High Court had elected not to follow the last mentioned judgment of this Court because the same according to, their lordships was distinguishable from the facts of the present case. Having perused the judgment in the said Hameed Khan's case we find that the principle laid down through the said case was fully attracted to the facts and circumstances of the present case and their lordships were in error in concluding that the same was distinguishable.

8. It is true that in the present case two persons had been accused of committing the murder of Safdar deceased but it is also on record that the co‑accused of Azam respondent, namely, Muhammad Ali respondent was admittedly empty‑handed at the time of occurrence and had not been burdened with any injury either to the deceased or even to the complainant of the said occurrence. Since there was no doubt about the assailant who had fired the fatal shot, therefore, there was no question of any benefit being extended to Azam respondent who stood specifically saddled with the fatal injury.

9. Needless to add that in a case where a fire‑arm is aimed at the chest of the victim and causes fatal injuries on the said vital area then non‑repetition of the said act is hardly of any consequence in the matter of determining the quantum of punishment deserved by the assailant.

10. Having thus examined all aspects of the matter vis‑a‑vis the quantum of punishment which was the only issue before us with respect to Azam respondent, we find that the impugned judgment of the learned High Court to the said extent could not be sustained and we hold accordingly.

11. Consequently, this petition is converted into an appeal, to the said extent and is allowed. The decision of the learned High Court directing reduction of sentence of death awarded to Azam respondent to a punishment of imprisonment for life is set aside and the said respondent is awarded a sentence of death under section 302(b), P.P.C. as ordered by the learned trial Judge through his judgment, dated 10‑12‑1997.

12. Learned counsel for the complainant/petitioner had not seriously pressed this petition vis- -vis the acquittal of Muhammad Ali accused‑respondent who was empty‑handed at the time of occurrence and had not caused any injury to either of the two victims of the present case. The reasons which had weighed with the Hon'ble High Court in reaching the said conclusions are not open to any exception. Criminal Petition No.489 of 2003 to the extent of Muhammad, Ali respondent is, therefore, dismissed. M.B.A./H‑24/S Order accordingly.