2012 PLP 267 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This judgment shall dispose of Criminal Appeal No.221 of 2010 (arising out of Criminal Petition No.685-L of 2009 filed by Muhammad Mumtaz convict) and Criminal Appeal No.222 of 2010 (arising out of Criminal Petition No.411 of 2009 filed by the complainant) as they are directed against the same judgment dated 14-5-2009 passed by a learned Division Bench of the Lahore High Court, Lahore whereby the appeal of the appellant-convict was partly allowed and by maintaining the conviction of the appellant (In Cr.A. 221 of 2010) under section 302(b), P.P.C. for the murder of Hafeezullah (in the case registered vide F.I.R. No. 108 dated 4-5-2002 under section 302, P.P.C. at Police Station Kamar Mushani, District Mianwali) his sentence of death was converted into life imprisonment. The appellant was tried along with Abdullah his father by the learned Additional Sessions Judge, Mianwali and in terms of its judgment dated 29-10-2003, he acquitted co-accused Abdullah and convicted the appellant and sentenced him to death as also to pay compensation to the tune of Rs.100,000 to the legal heirs of the deceased in default whereof to suffer SI for six month.

2. The prosecution story briefly stated is that on 4-6-2002 at about 6-30 p.m. the complainant Muhammad Amir P.W.11 along with his brother Hafeezullah deceased and his cousin Hashim Khan (P.W.12) was going towards his shop. Hafeezullah was a little ahead of them and as they reached near the "Laari Adda Mosque" suddenly they were ambushed by Muhammad Mumtaz appellant armed with pistol and Abdullh who too was armed with pistol. At latter's bidding the former namely Mumtaz fired at Hafeezullah which landed on his right flank where after they fled from the spot. The injured was taken to the hospital where he succumbed to the injuries and died. The motive alleged was blood feud between Abdullah etcetera and the complainant party.

3. During trial the prosecution examined 14 witnesses including the Doctor and the Investigating Officer. Pistol was recovered from the appellant but in absence of any empty recovered from the spot, the same was found to be of no consequence. When examined under section 342, Cr.P.C, appellant denied the prosecution story and attributed false implication to enmity.

4. Learned counsel for the appellant-convict in Criminal Appeal No.221 of 2010 submits that it was an un witnessed occurrence; that none of the so called eye- witnesses are residents of the place where the occurrence took place; that Muhammad Amir P.W.11 resides at a place about 2 kilometer from the spot; that Hashim Khan P.W.12 also does not reside in the same vicinity and that in the background of enmity, the witnesses who are so closely related with the deceased cannot be relied upon in absence of some independent circumstance, which is lacking in this case. In the alternative, he submitted that if the Court is not persuaded to reverse the finding of guilt, it is a fit case in which the death sentence was not called for and the learned High Court had rightly converted the same into life imprisonment, which does not warrant interference.

5. Learned counsel for the complainant in Criminal Appeal No.222 of 2010 submitted that it is a case of prompt F.I.R.; that both the accused were specifically named and a specific role was assigned to Muhammad Mumtaz appellant which role stands corroborated by the medical evidence and the evidence of motive. He further contended that the normal sentence under section 302(b), P.P.C. is death and if the Court does not award him the said sentence or converts the same into life imprisonment it has to give valid reasons, which are sustainable and the reasons given by the learned High Court are not borne out from the record.

6. We have heard learned counsel for the parties and have gone through the evidence as also the impugned judgment.

7. Leave was granted by this Court in both the afore-referred petitions vide order dated 3-6-2010 which reads as follows:-- "CRIMINAL PETITION NO. 685-L OF 2009 RAJA FAYYAZ AHMED, J.

Heard the learned counsel for the petitioner. With his assistance the impugned judgment and the evidence on record has been perused. It has, inter alia, been contended by the learned counsel that Shoukat Saleem (P.W.13), who took the injured Hafeezullah Khan to the hospital, has not mentioned about the presence of the other ocular witnesses of the occurrence namely, Muhammad Amir complainant (P.W.11) and Hashim Khan (P.W.12) cousin brother of the deceased. According to the learned counsel, the injured succumbed to the injuries in the hospital, moreover, the learned counsel contends that both the above said ocular witnesses failed to satisfactorily explain about their presence at the place of occurrence and having witnessed the occurrence for the reason that the complainant is not the resident of the mohallah in which the incident had taken place who was only the resident of the village and he being brother of the deceased was planted, whereas; Hashim Khan (P.W.12) was the resident of Lari Adda, Kamar Mashani. Moreover, according to the learned counsel, the material evidence comprising of ocular witnesses was not appreciated in its true perspective and the charge against the petitioner Muhammad Mumtaz has not been established beyond doubt.

2. Having considered the submissions put forth on behalf of the convict petitioner, we are inclined to grant leave in order to re-appraise the entire evidence and to examine the contentions raised before us by the learned counsel. CRIMINAL PETITION NO. 411 OF 2009 The learned counsel, inter alia, contends that motive by itself is not a ingredient constituting the offence and secondly, the motive as set-up even if not proved, shrouded in mystery or be doubtful would not per se furnish any legal basis for commuting the normal penalty of death to that of imprisonment for life in absence of any mitigating circumstance, which according to the learned counsel is completely lacking in the instant case. Further, the learned counsel submits that by stretching certain circumstances being unwarranted in law, illegally the learned High Court commuted the sentence of convict Mumtaz to that of imprisonment for life. Reliance has been placed on the judgments of this Court in the case of Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427), Zulfiqar Ali v. the State (2008 SCMR 796) and Nazir Ahmed v. The State (2009 SCMR 523)

2. Having gone through the operating paragraph No. 20 of the impugned judgment containing reasons for reducing the death penalty to that of imprisonment for life and the case law cited by the learned counsel, we are inclined to grant leave to appeal in this petition as well, to examine and determine, inter alia, the questions noted above raised by the learned counsel for the petitioner."

8. It was a case of prompt F.I.R. i.e. lodged within 15 minutes of the occurrence; the accused were specifically named therein; a definite role was attributed to the appellant Muhammad Mumtaz (In Cr.A. 221 of 2010) and a motive too was alleged. The promptitude with which the matter reported would rule out the possibility of false implication and even otherwise it is repellent to common sense that the complainant would let off the real culprit and involve someone else. During trial both the witnesses namely Muhammad Amir P.W.11 and Hashim Khan P.W.12 remained consistent on all material particulars of the prosecution case in so far as the role attributed to appellant Muhammad Mumtaz is concerned. Their testimony is corroborated by the medical evidence, which is consistent with the ocular account in so far as the weapon, locale of injury and the time which lapsed between the injury and postmortem examination is concerned. In the afore-referred circumstances, the concurrent assessment of the evidence made by the two courts below culminating in the finding of guilt has not been found by us to be arbitrary, capricious or against the evidence led. So far as the question of mitigation is concerned, the learned High Court has specifically attended to this issue and in para 20 of the impugned judgment. The Court has exhaustively dealt with the matter and has given reasons which have not been found by us to be against the law declared. The Court observed as under:-- "

20. We are, however, in agreement with the learned counsel for the appellant regarding the question of quantum of sentence. There is no doubt that mere weakness or absence of motive for murder cannot justify the departure from awarding normal penalty of death for murder prescribed in section 302, P.P.C. but in a case where the motive as such is shrouded in mystery and the circumstances of the case also indicate that despite the murder both the parties have suppressed the truth or they have given the versions which may not be plausible in stricto sensu the absence or the weakness of the motive can be considered as an additional factor for the mitigation of the sentence. In the instant case the question of previous enmity as claimed by the prosecution has not been shown on record through tangible evidence. Although the defence version regarding the belated lodging of the F.I.R. has not been accepted yet there is no explanation of the prosecution nor the relevant witness could explain it as to why the name of the accused was not incorporated in the documents Exh.PF and Exh.PH. According to the record, the deceased when still alive being a victim of the assault was taken to hospital from the spot by Shaukat Salim The shop of Shaukat Salim is situated in the vicinity of the place of occurrence. Introduction of the character of Qasim and Mst. Shahida in this case also cannot escape the notice. Mst. Shahida on the one hand was related to the accused party while on the other hand was also given in the nikah of the deceased. The position and role of Qasim also give rise to various doubts regarding the motive of the occurrence. Admittedly just after 12 days of the occurrence i.e. death of Hafiullah she married the said Qasim. This situation shows that there may be such circumstances and situation which both the parties have either concealed or made mis-statement in that behalf. This is a situation where absence or weakness of the motive can operate as an additional factor for the mitigation of the sentence."

9. Learned counsel for the complainant in the connected Criminal Appeal No.222 of 2010 has not been able to persuade us to hold that the observations made in the preceding paragraph by the learned High Court are against the record or violative of any judgment of this Court rather the law declared by this Court to which appellant-convict's learned counsel has referred is in line with the view of the learned High Court. In Promilla v. Safeer Alam (2000 SCMR 1166), this Court did not interfere with the question of sentence based on the concurrent assessment of evidence of the Courts below and the Court reiterated the view taken by it in the earlier following judgments:-- (i) Shaheb Ali v. The State (PLD 1970 SC 447) (ii) Muhammad Rafiq v The State (1971 SCMR 378) (iii) Ghulam Muhammad v The State (1972 SCMR 393) (iv) Ameer Umar v The State (1976 SCMR 338) (v) Muhammad Jamal v The State (1997 SCMR 1595) (vi) Muhammad Shafique and others v. Akhtar Shah and others (1997 SCMR 1964)

10. There is no cavil to the proposition that the motive is not a condition precedent to warrant a finding of guilt. However, it has been found by this Court to be relevant while considering the question of sentence. In Ahmad Khan v. Abdur Rasheed (2008 SCMR 378) this Court did not interfere with the conversion of death sentence into life imprisonment by the High Court as it found that the prosecution had failed to prove the motive. The court observed as under:-- "It is to be noted that learned High Court after having taken into consideration that the prosecution witnesses kept on jumping from one motive to another during the trial, therefore, in view of the judgment of this Court reported in Feroze Khan v. The State 2002 SCMR 99 convict has made out a case for lesser punishment. There is no reason to disagree with the said finding because the prosecution after having alleged the motive, has failed to establish the same in order to show the involvement of the accused." In Iftikhar Mehmood v. Qaiser Iftikhar (2011 SCMR 1165) taking a similar view, this Court did not interfere with the judgment of the learned High Court on the question of sentence by observing as follows:-- "

6. We agree with the proposition that motive is not sine qua non for the proof of commission of the crime and at time motive is not known to any other person other than the deceased or the accused person which never surfaced on the record. However, it cannot be denied that motive is always very relevant to determine the quantum of sentence that might be awarded to a person against whom charge of murder is proved.

7. There is always a motive behind the commission of any crime. If a person commits theft or commits the offence of Haraaba/robbery, the motive and the object is to procure money. In case of sex related offences, the motive is to satisfy the sexual lust and so on and so forth; however, the gravity of motive differs from offence to offence and from case to case. There can be an immediate motive for the commission of a crime or an old motive for taking some revenge; there can be a small motive or a bigger one. In any case, motive is always relevant for the commission of crime. It is "reason" for which an accused person takes the law into his hands and commits the crime. Motive is in fact the foundation of the structure which ultimately culminates into the accomplishment of the crime. When motive is so basic and relevant for the commission of the crime, it would definitely have bearing in every case while determining the quantum of sentence." In yet another case Muhammad Yaseen v The State (2011 SCMR 905), this Court partly allowed the appeal and converted the sentence of death into life imprisonment inter alia on the ground that the prosecution had failed to prove motive. The Court observed as follows:-- "It is not denied that no resident of the lane in which the occurrence took place appeared and supported the prosecution story. The prosecution has failed to prove the motive for the offence. The appellant allegedly fired only one shot and decamped from the place of occurrence. The P.Ws. were at a considerable distance from the place where Pervaiz Iqbal was done to death. Therefore, in the above circumstances, we consider it just and proper to convert the sentence of death into imprisonment for life".

11. For what has been discussed above, we do not find any merit in these appeals, which are dismissed. M.H./M-98/SC Appeal dismissed.