2019 PLP 2009 (SCMR)

ASIF SAEED KHAN KHOSA, C.J.

Nawab Ali appellant had allegedly fired at and killed a person namely Iftikhar, his wife namely Mst. Riffat, their son namely Amir Khan and their daughter namely Sumbal in an incident taking place at about 08.50 p.m. on 24.05.2010 in the backdrop of a motive according to which a cousin of the present appellant namely Mst. Riffat deceased was in the habit of wandering around over which the appellant was annoyed and he used to refrain her from such habits. With these allegations the appellant was booked in case FIR No. 721 registered at Police Station Swabi, District Swabi on the same day and after a regular trial the appellant was convicted by the trial court on four counts of the offence under section 302(b), P.P.C. read with section 311, P.P.C. and was sentenced to death on each count and to pay compensation. The appellant challenged his convictions and sentences before the High Court through an appeal which was dismissed and the convictions and sentences of the appellant recorded by the trial court were upheld and confirmed. Hence, the present appeal by leave of this Court granted on 13.04.2015.

2. Leave to appeal had been granted by this Court only to consider the question regarding quantum of the appellant's sentences of death and with the assistance of the learned counsel for the parties we have attended to the said aspect of the case.

3. Leave to appeal had been refused by this Court as far as the merits of the case against the appellant were concerned because the prosecution had indeed succeeded in proving its charge against the appellant beyond reasonable doubt. The question to be considered by us now is as to whether there are any mitigating circumstances available on the record warranting reduction of the sentences of death passed against the appellant to imprisonment for life or not. In this context we have observed that the motive set up by the prosecution was quite vague and unspecific and admittedly no independent evidence worth its name had been brought on the record in support of the asserted motive. It is settled law 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 the charge of murder 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 alias 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). Apart from that the alleged recovery of a Kalashnikov from the appellant's custody during the investigation was legally inconsequential because, according to the record, the recovered Kalashnikov and the crime-empties secured from the place of occurrence had reached the Forensic Science Laboratory together. It has also intrigued us to notice that if there were some issues about some conduct of Mst. Riffat deceased then her father, husband or brothers had taken no action against her and it is not clear from the record as to why the present appellant had taken upon himself to do away with not only Mst. Riffat but her husband and children as well. This shows that something else was going on in the family which had led to the present occurrence but that something had been completely suppressed by the prosecution, although some indication in that regard had been made by the appellant in his statement recorded under section 342, Cr.P.C. For all these reasons we have decided to exercise caution in the matter of the appellant's sentences of death and have felt persuaded to reduce the said sentences of death to imprisonment for life on each count of the charge. This appeal is, therefore, dismissed and the convictions of the appellant on all the four counts of the charge under section 302(b), P.P.C. are maintained but this appeal is partly allowed to the extent of the appellant's sentences of death which are reduced to imprisonment for life on each of the four counts of the charge. We have found that the amount of compensation ordered by the trial court to be paid by the appellant to the heirs of each deceased is excessive and the same warrants reduction in the interests of justice. It is, therefore, ordered that the appellant shall pay a sum of Rs. 1,00,000/- (Rupees one hundred thousand only) to the heirs of each deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months on each of the four counts of the charge. All the sentences of imprisonment passed against the appellant shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. shall be extended to him. This appeal is disposed of in these terms. MH/N-13/SC Order accordingly.