1999SCMR2164 (PLP)

RAJA AFRASIAB KHAN, J.

On 30-6-1988 at 11-15 a.m., a case under section 302, P.P.C. was registered on the statement of Age Dino with police Station Gambat, District Khairpur against Akhtar Ali for the murder of Barkat Ali. Sessions Judge, Khairpur, vide his judgment, dated 9th of June, 1992 convicted the appellant under section 302, P.P.C. and sentenced him to death plus fine of Rs.20,000 or in default to suffer six months R.I. It was ordered that half of the fine,. if recovered, would be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. On appeal and reference, a Division Bench of Sindh High Court vide its judgment, dated 7th of July, 1994 dismissed the appeal of the appellant and confirmed his death sentence. This Court vide its order dated 25-4-1995 dismissed the petition for leave to appeal on merits. However, on the question of sentence, leave to appeal was granted.

2. It has been submitted by the learned counsel that motive has been set up by the complainant Age Dino P.W.1 in his evidence in the following words:-- "Deceased Barkat Ali was .my son. About nine months back at about 10.00 a.m. I was present in the Bazar of Pir Mohalla. My son Barkat Ali was standing few paces away from me. Suddenly, I saw accused Akhtar Lohar came and met with the deceased. Accused Akhtar had told the deceased that, he will not be spared that day because he had abused Moso his brother". (emphasis supplied) According to the learned counsel, motive to commit the offence has not been proved. He has drawn our attention to the following portion of the statement of Age Dino P.W.1, "I had stated in my F.I.R. that accused had taken out dagger. Deceased had not told me that he had abused Mosobrother of the accused". (emphasis supplied)

3. We have beard the learned counsel for the appellant. However, none has appeared on behalf of the other side. In the above state of evidence, motive to commit the murder is, surely, shrouded in mystery. Muhammad Azim another eye-witness did not support the prosecution about motive inasmuch as he did not say a word about it in his evidence. The prosecution was under legal obligation to prove the motive and, in our view, it had miserably failed to do so. The evidence of P.W.1 also did not disclose the nature of abuses which were hurled by the deceased upon the brother of the accused prior to the occurrence. ' It, therefore, does not appear safe to award capital punishment to the appellant in this case. In such a situation, benefit of doubt shall go to the appellant even in awarding the sentence to him. His sentences is, accordingly, converted from death to imprisonment for life. To that extent, this appeal succeeds and is allowed. N.H.Q./A-121/S Sentence reduced..