2006 PLP 1744 (SCMR)

CH. IJAZ AHMAD, J.

The appellants along with their acquitted co-accused namely Ayub and Muhammad Yar were tried for Qatl-e-Amd for Dewan Riaz Ahmad and Ahmad Din alias Manzoor Ahmad under section 302(b)/34 of P.P.C. and sentenced to death each also directed them to pay compensation of Rs.80,000 each to the L.Rs. of the aforesaid deceased vide judgment, dated 26-5-1996 passed by the learned Additional Sessions Judge, Depalpur. Their conviction and sentence were maintained by the learned High Court on their appeal vide impugned judgment, dated 30-4-2001. Appellants being aggrieved filed Criminal Petition No.356-L of 2001. Leave was granted by this Court vide order, dated 18-3-2003 in the following term:

"The motive as alleged in the F.I.R. was old enmity but learned counsel for the petitioners submitted that the prosecution has failed to prove any such enmity on the record. The incident took place in a "Mela". Learned counsel for the petitioners submitted that the recovery of weapon of offence was disbelieved by the Courts below, though even if believed it would not have been substantial evidence. He submitted that from the manner in which the incident took place, it appears that it was a sudden flare and as to what was the motive, the same is shrouded in mystery, therefore, it is a case of lesser punishment which aspect of the case has not received consideration of the Courts below. Leave is granted to consider inter alia, the question of quantum of sentence."

2. Learned counsel for the appellants submits that eye-witnesses P.W.1 Muhammad Iqbal, P.W.2 Niaz Ahmad and P.W.3 Ghulam Rasool were not present at the spot as they furnished their presence on the ground that they had gone to attend the Punchayat which was not believed by the Courts below, therefore, their presence at the spot was highly doubtful. Motive was also not proved as alleged by the prosecution. The occurrence allegedly had taken place in the fair at the local shrine and prosecution failed to produce any independent witness to prove the ocular account. All the three eye-witnesses did not belong to the area in question and they had admitted in their cross-examination before the trial Court that their residences are at distance of 4 or 5 Kms. from the place of occurrence. The trial Court on the basis of the same evidence had acquitted Ayub and Muhammad Yar and erred in law to convict the appellants on the basis of the same evidence and the same error was committed by the learned High Court while dismissing their appeal. The eye-witnesses had improved their statements before the trial Court to involve the appellants and their acquitted co-accused in the commission) of offence and this fact was not considered in its true perspective by the learned High Court as the eye-witnesses account furnished by such type of witnesses need careful examination along with the independent corroboration which is not available in the present case. The deceased Dewan Riaz Ahmed was big landlord of the area and was not enjoying good reputation and was involved in criminal cases and this fact was also not scrutinized in its true perspective by the Courts below. Both the Courts below erred in law to discard the defence version without judicial application of mind. Ladies of the family of the appellants namely their sister and cousin who had gone to shrine of Mai Sahibah were tried to be abducted by the Dewan Riaz deceased after sun set. The present occurrence took place under grave and sudden provocation. Therefore, the Courts below erred in law to award capital punishment to the appellants. Appellants have committed the offence under the direction of their father and this fact was not considered by both the Courts below at the time of awarding capital punishment. The same is not in consonance with the law laid down by this Court. In support of his contention, he relied upon the following judgments: (a) Nazeer Ahmad v. The State 1999 SCMR 396; (b) Muhammad Riaz and another v. The State 1999 SCMR 976; (c) Ulfat Hussain alias Ulfar Nawaz v. The State 2001 SCMR 652.

3. The prosecution has failed to prove the conspiracy against conspirators which fact proved that the two deceased were killed without premeditation in heat of moment. Motive was not proved and in fact immediate motive shrouded in mystery. Medial evidence contradicts the ocular account. One injury is attributed to each of the appellant and learned High Court erred in law at the time of awarding capital punishment to the appellants in spite of the fact that the aforesaid circumstances were sufficient to convert the sentence of death to life imprisonment. He maintains that eye-witnesses have no enmity with the appellants which does not mean that their statements are trustworthy. He relied upon Muhammad Iqbal v. Abid Hussain and others 1994 SCMR 1928. That medical evidence or recovery evidence only proves the weapons used, the number and nature of injuries but not the identity of the assailants. In support of his contention, he relied upon Ahmad v. Muhammad Nawaz and others PLD 1989 SC 440 and Abdul Rehman v. The State 1998 SCMR 1778.

4. Learned counsel for the respondent has supported the impugned judgment. He maintains that F.I.R. was lodged promptly within one hour mentioning the role of each of the appellant. Both the Courts below had given findings of fact that eye-witnesses were present at the shot who had explained their cogent reasons for their presence at the spot at the relevant time. Mere non-proving of the fact that Punchayat was not convened would not effect the prosecution case in any manner. The prosecution proves the case against the appellants beyond any shadow of doubt and the version of the defence was rejected by both the Courts below with cogent reasons.

5. We have considered the submissions and perused the record. It is admitted fact that both the Courts below had believed the statement of the eye-witnesses as the eye-witnesses had explained their presence at the place of occurrence. All the contentions raised before us are exactly the same which were raised before the learned Courts below. The learned trial Court rejected the same vide paras.16 to

27. The said pleas were reagitated before the learned High Court which were rejected after judicial application of mind by the learned High Court in paragraphs Nos.21 to 26 of the impugned judgment coupled with the fact that the incident has been admitted by the appellants as is evident from reply of Khan alias Khani in reply of question No.5. Both the Courts below were justified to reject the defence version on the ground that when eye-witnesses appeared before the trial Court, the defence version was not suggested to them which plea was taken only at the fag end of the trial and even his plea was not taken before the Investigating Officer at appropriate time. Both the Courts below were justified to accept the prosecution version and reject the defence version as the appellants failed to prove the plea in terms of Article 121 of Qanun-e-Shahadat Order, 1984. All the three witnesses were consistent in their statements in spite of facing lengthy cross-examination. It is a settled law that minor contradiction and discrepancies between testimony of eye-witnesses and that of other prosecution witnesses in a murder case do not materially affect the testimony of eye-witnesses which otherwise appeared to be true and genuine meaning thereby the discrepancies in the statements of eye-witnesses are of no importance. The statements of eye-witnesses are in consonance with the medical evidence. It is a settled law that absence of motive is no ground to award lesser punishment as the law laid down by this Court in Haroon Rashid and 6 others v. The State 2005 SCMR 1568. It is a settled law that weakness of motive or its absence might not be helpful to accused when unimpeachable ocular evidence is available as the law laid down by this Court in Moazarn Shah v. Mohsin Shah and another PLD 2001 SC

458. It is a settled law that each and every case is to be decided on its own peculiar circumstances and fact and verdict given in a criminal case must be confined to the facts of the reported case and cannot be universally applied to all cases. See Allah Wadhayo and another v. The State 2001 SCMR

25. Thee contention of learned counsel for the appellants that their death penalty be converted into life imprisonment as the appellants had committed offence under the instigation of their father has no force. In the cited judgment of Muhammad Riaz's case (supra), petitioner was of tender age whereas in the present case, the appellants, were aged about 30 and 32 years respectively. In the cited case of Ulfat Hussain (supra), it is also distinguishable on facts and law as evident from the operative part of the cited judgment, which is to the following effect:

"We are inclined to take a lenient view as the appellant and the two deceased were close relatives and there was no enmity between them; there was no premeditation because the appellant was empty-handed."

6. It is a statutory requirement that the Court has to give reasons for not awarding the capital punishment in view of section 367(5) of Cr.P.C. The learned Courts below had believed the ocular account furnished by three witnesses with cogent reasons and also justice to award capital punishment. The judgments of the Courts below are in consonance with the law laid down by this Court in Moazam Shah's case (supra). The relevant observation is as follows:-- "In case reported as Abdul Wahab alias Rehra v. The State 1999 SCMR 1668, this Court having taken into consideration more than 20 cases referred to therein held that motive remained shrouded in mystery by itself was not a mitigating circumstance for lesser sentence. It was also held that motive would not play any effective role on the question of sentence, when it was established beyond reasonable doubt from the evidence that accused had committed premeditated and cold-blooded murder in, a brutal manner. In this reported matter, an observation recorded in Appeal No.174 of 1995 (Noor Muhammad v. the State) was quoted, which is as under:-- "However, we may observe that the people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentences. It is high time that the Courts should realise that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such, which should act as a deterrent to the commission of offences. As a result, we find no mitigating circumstance to commute the death sentence, a legal and appropriate sentence awarded by the trial Court and confirmed by High Court." Besides, such cases must be seen with reference to the interest of society and be condemned as such. To curb crime is the need of hour. One of the object of criminal justice is to award t exemplary punishment to offenders in order to deter them from committing crimes and in this way also to serve a stern warning to those members of society, who have behavioural leaning towards criminality."

7. Both the Courts below have recorded concurrent conclusions qua the guilt of the appellants as the appellants had murdered two persons in brutal manner without any substantial motive by inflicting fire-arm injuries. In the interest of justice and fairplay we have re-examined the evidence on record and we find that conclusions arrived at by the Courts below are valid and sustainable in the eye of law. Therefore, same is upheld. In this view of matter we do not find any valid reason to reduce the sentence of death into life imprisonment. Therefore, both the Courts below were justified to award death sentence. See Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR

427. It is admitted position that general reluctance to appear as witness and to tell the truth is a lamentable situation in this country. Seel Muhammad Iqbal alias Javed Iqbal v. The State PLD 1976 SC 291 and Yaqub Shah v. The State PLD 1976 SC

53. This Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the Constitution as law laid down in Noora and another v. State PLD 1973 SC

469. In the present case, the statement of eye-witnesses in spire confidence as they were in consistent in their statements subject to lengthy cross-examination.

8. Accordingly, the appeal has no merit and the same is dismissed. M.H./K-14/SC Appeal dismissed.