2014 PLP 1464 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Naveed alias Needu and Sagheer alias Sagheeru appellants were booked in case F.I.R. No.383 registered at Police Station Kotwali, District Gujranwala on 20-12-1996 in respect of offences under sections 302/324/34, P.P.C. for the murder of one Muhammad Tariq allegedly committed by them on the same day near Chowk Urdu Bazar within the area of the above mentioned Police Station. After a full-dressed trial conducted by the learned Sessions Judge, Gujranwala the appellants were convicted for an offence under section 302(b), P.P.C. read with section 34, P.P.C. vide judgment dated 13-7-2002 and were sentenced to death each and to pay a sum of Rs.3,00,000 in equal shares to the heirs of the 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 each. The appellants challenged their convictions and sentences before the Lahore High Court, Lahore through Criminal Appeal No. 1367 of 2002 which was heard by a learned Division Bench of the said Court along with Murder Reference No. 675 of 2002 and vide judgment dated 3-6-2008 the said appeal was dismissed, the sentences of death passed against the appellants were confirmed and the Murder Reference was answered in the affirmative. Hence, the present appeal by leave of this Court granted on 26-3-2009.

2. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. The learned counsel for the appellants has stated at the outset that instead of pressing this appeal on the merits of the case he would only pray for reduction of the appellants sentences of death to imprisonment for life on the ground that the motive set up by the prosecution had remained far from being established. As against that the learned counsel for the complainant has vehemently argued that the motive asserted by the prosecution had been fully established before the learned trial court through the statement made by Khurram Saeed complainant (P.W.5) who was not only present during the incident forming the motive but he had also given elaborate details of the same to the entire satisfaction of the learned courts below. With this submission the learned counsel for the complainant has maintained that there is no mitigating factor available in this case so as to reduce the appellants sentences of death to imprisonment for life. The learned Additional Prosecutor-General, Punjab appearing for the State has submitted that the prosecution had succeeded in establishing the guilt of the appellants to the hilt but at the same time on account of failure of the prosecution to establish the motive set up by it this Court may consider this aspect of the case to be providing some justification for reduction of the appellants' sentences of death to imprisonment for life.

3. The occurrence in this case had taken place in broad daylight and the place of occurrence was a busy market place. The F.I.R. regarding the incident in issue had been lodged with sufficient promptitude wherein both the appellants had specifically been nominated as the perpetrators of the alleged offence and the roles individually played by the appellants during the occurrence had been detailed therein with particularity. The ocular account of the occurrence had been provided before the learned trial Court by Khurram Saeed complainant (P.W.5) and Abdul Waheed (P.W.6) who had made consistent statements and there was hardly any reason for them to substitute the appellants for the actual culprits. The ocular account furnished by them had received ample support from the medical evidence. After assessing and evaluating the entire evidence the learned courts below had concurred in their conclusion that the prosecution had succeeded in establishing the appellants' guilt beyond reasonable doubt and after appraising the evidence we too concur with the said conclusion. In this view of the matter we have found the learned counsel for the appellants to be quite justified in not pressing this appeal as regards the merits of the case.

4. The question of sentences of the appellants has engaged our serious consideration and we have looked at this aspect of the case from diverse angles. We have noticed in, this context that according to the F.I.R. two days prior to the present occurrence the appellants had allegedly committed some high-handedness with a girl belonging to the same locality and the mother of that girl had reported the said matter to the complainant's father namely Muhammad Saeed who was a former counselor upon which the complainant's father and the complainant's brother-in-law namely Muhammad Tariq had reprimanded and admonished the appellants threatening them to be sent to jail for such high-handedness. It had specifically been asserted by the complainant in the F.I.R. that it was on account of that grievance that the appellants had done Muhammad Tariq to death by firing upon him on the day of occurrence. We have observed that the motive set up in the F.I.R. had been deposed about before the learned trial Court by none other than Khurram Saeed complainant (P.W.5) who had claimed that he was physically present in the incident forming the motive. We note that at the relevant time the complainant was a student of class-IX in a school and at the time of the alleged incident forming the motive he was statedly absent from his school. The complainant had been cross-examined on this aspect of the matter before the learned trial court and he had conceded that he was statedly absent from his school at the relevant time without even applying for leave. The complainant had further stated before the learned trial court that during the incident forming the motive no serious reprimand or rebuke had been offered by the complainant's father and Muhammad Tariq deceased to the appellants and no altercation had taken place or hot words exchanged on that occasion. It is not disputed that the girl around whom the said motive revolved had never been named or identified either during the investigation or during the trial. The complainant's father before whom a complaint had been lodged by the girl's mother against the alleged high-handedness of the appellants had never been produced either before the investigating officer or before the learned trial Court. The statement made by the investigating officer of this case namely Shahnaz Ahmed, SI (P.W.12) before the learned trial Court confirms the fact that no serious effort had been made by the investigating agency to collect any evidence regarding the motive asserted by the complainant party. A perusal of the impugned judgment passed by the learned trial Court shows that the learned trial Court had not felt fully satisfied with the motive set up by the prosecution and the impugned judgment handed down by the learned Division Bench of the Lahore High Court, Lahore also shows that the motive set up by the prosecution had been found by it to have been proved without attending to the specifics of the same or probing deeper into the relevant details of the incident forming the motive. Upon our own assessment of the evidence available on the record we have felt no hesitation in concluding that the specific motive set up by the prosecution had indeed remained far from being established on the record. The law recently declared by this Court in the cases of Ahmed Nawaz and another v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165) and Muhammad Mumtaz and another v. The State and another (2012 SCMR 267) reiterates the settled and longstanding principle that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice. Apart from that we note that one person had lost his life in this case and for that murder two persons have been sentenced to death. We are also mindful of the fact that Dr. Zahid Hussain (P.W.3) had stated before the learned trial court that the possibility that all the injuries sustained by the deceased had been caused by one and the same weapon was a possibility which could not be ruled out of consideration. For all these reasons we have decided to exercise caution in the matter of the appellants' sentences.

5. For what has been discussed above this appeal is dismissed to the extent of the appellants' convictions recorded and upheld by the learned courts below but the same is partly allowed to the extent of the appellants' sentences which are reduced from death each to imprisonment for life each. The order passed by the learned trial court regarding payment of compensation and the sentence of imprisonment in default of payment thereof is, however, maintained. The appellant shall be extended the benefit under section 382-B, Cr.P.C. This appeal is disposed of in these terms. MWA/N-7/SC Order accordingly.