2018 PLP 354 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Ali Bux and Yousaf appellants and some others had allegedly murdered one Nasarullah by firing at him at about 12.15 p.m. on 14.03.2013 on a roadside near Taluka Hospital Johi in the are of Police Station Johi, District Dadu in the backdrop of a motive according to which about 6/7 years prior to the present occurrence the accused party of this case entertained a suspicion that Nasarullah deceased had murdered one of their relatives and despite an oath taken on the Holy Quran by Nasarullah deceased in that regard the accused party of this case did not feel satisfied regarding his innocence. With these allegations the appellants and their co-accused were booked in case FIR No. 22 registered at the above mentioned Police Station during the ensuing evening. After a regular trial the present appellants were convicted by the trial court for an offence under section 302(b), P.P.C. read with section 34, P.P.C. and were sentenced to death each and to pay compensation which convictions and sentences of the appellants were subsequently upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 28.06.2016.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. The occurrence in this case had taken place in broad daylight and at a place whereat the same could have been seen by many persons available around the place of occurrence. An information about the said occurrence had been provided to the police on telephone within fifteen minutes of the occurrence. In the FIR lodged in respect of the incident in question the present appellants had been nominated and specific roles had been attributed to them therein. The ocular account of the incident had been furnished before the trial court by three eye-witnesses namely Ali Akbar complainant (PW1), Ghulam, Shabbir (PW2) and Bilawal (PW3) who had made consistent statements and had pointed their accusing fingers towards the present appellants as the main perpetrators of the murder in issue. The said eye-witnesses had no reason to falsely implicate the appellants in a case of this nature and the medical evidence had provided sufficient support to the ocular account furnished by them. Both the courts below had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the appellant having been established to the hilt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that concurrently taken by the courts below.

4. We have carefully attended to the sentences of death passed against the appellants and have found in that context that the motive set up by the prosecution was quite weak and it had not even been proved. According to the prosecution about 6/7 years prior to the present occurrence the accused party had suspected that Nasarullah deceased had murdered one of their relatives and despite taking of an oath by Nasarullah deceased on the Holy Quran maintaining his innocence in the matter the accused party did not feel satisfied. It is not disputed that during the ensuing 6/7 years no untoward incident had taken place between the parties. In any case the alleged motive was only based upon a suspicion which too stood removed through an oath on the Holy Quran taken by Nasarullah deceased. There is no independent evidence available on the record that the grudge against the deceased still continued unabated. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on a capital charge and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran @ Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148). It is not denied that nothing had been recovered from the custody of Yousaf appellant and although a firearm had allegedly been recovered from the custody of Ali Bux appellant during the investigation yet the record of the case shows that the crime-empties secured from the place of occurrence had been sent to the Forensic Science Laboratory after the arrest of Ali Bux appellant which factor denuded the alleged recovery of its evidentiary worth. According to the prosecution four accused persons including the present appellants had effectively fired at the deceased on different parts of his body and the statement made by the concerned doctor shows that no particular injury sustained by the deceased had been declared by the doctor to be fatal. It is, thus, obvious that it had remained unclear as to which of the culprits had caused the fatal injury to the deceased. It had been held by this Court in the cases of Muhammad Latif and another v. The State (1984 SCMR 284), Saee and others v. The State (1984 SCMR 1069), Allah Dad and another v. The State (1995 SCMR 142), Muhammad Younis v. Ashiq Hussain and others (PLD 2007 SC 217), Muhammad Riaz and another v. The State and another (2007 SCMR 1413) and Naik Muhammad alias Naika and another v. The State (2007 SCMR 1639) that a sentence of death may ordinarily be withheld where it is not clear from the record as to which of the culprits had caused the fatal injury to the deceased. For all the reasons recorded above we have decided to exercise caution in the matter of the appellants' sentences of death.

5. As a result of the discussion made above this appeal is dismissed to the extent of the appellants' convictions for the offence under section 302(b), P.P.C. read with section 34, P.P.C. but the same is partly allowed to the extent of the sentences of death passed against the appellants which sentences are reduced to imprisonment for life each. The order passed by the trial court regarding payment of compensation by the appellants to the heirs of the deceased as well as the order in respect of imprisonment in default of payment of compensation are, however, maintained. The benefit under section 382-B, Cr.P.C. shall be extended to the appellants. This appeal is disposed of in these terms. MWA/A-39/SC Order accordingly.