2018 PLP 21 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Haq Nawaz appellant had allegedly fired at and killed one Manzoor Hussain at about 12 Noon on 06.08.2008 in Chak No. 1 Rakh Dullewala in the area of Police Station Dullewala, District Bhakkar in the backdrop of a motive based upon a suspicion that Manzoor Hussain deceased was becoming an obstacle in a patch-up between the appellant and his wife. With the said allegations the appellant was booked in case FIR No. 91 registered at the above mentioned Police Station in the same afternoon and after a regular trial the appellant was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to death. The appellant challenged his conviction and sentence before the High Court through an appeal which was dismissed and the High Court also ordered the appellant to pay compensation to the heirs of the deceased under section 544-A, Cr.P.C. Hence, the present appeal by leave of this Court granted on 30.09.2014.

2. Leave to appeal had been granted in this case only to the extent of the sentence of death passed against the appellant and to explore as to whether any mitigating circumstance was available on the record or not for the purpose of reduction of the appellant's sentence of death to imprisonment for life.

3. After hearing the learned counsel for the parties and going through the record we have observed that the High Court had categorically concluded that the motive set up by the prosecution had not been proved by it. 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 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 @ 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 two sons of Abdul Ghafoor complainant had also been shown in the FIR as eye-witnesses and those sons of the complainant were real brothers of Manzoor Hussain deceased but they had not been produced by the prosecution before the trial court. Two other prosecution witnesses had been given up by the prosecution as having been won over. Post-mortem examination of the deadbody had been conducted with a noticeable delay and in the Inquest Report it had been mentioned that at the time of inspection of the deadbody by the investigating officer the eyes of the deceased were open. The impugned judgment passed by the High Court shows that notice was issued to the complainant twice so as to appear before the High Court but the complainant had failed to appear and had shown no interest in the proceedings before the High Court. All these factors have put us to caution in the matter of the sentence of death passed against the appellant.

4. For what has been discussed above this appeal is dismissed to the extent of the appellant's conviction for the offence under section 302(b), P.P.C. but the same is partly allowed to the extent of his sentence of death on the charge of murder which sentence is reduced to imprisonment for life. The order passed by the High Court regarding payment of compensation by the appellant 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 appellant. This appeal is disposed of in these terms. MWA/H-8/SC Order accordingly.