2026 P Cr (PLP)

Khawaja Muhammad Nasim, J.

The captioned appeal has been filed against the consolidated judgment dated 25.11.2022, passed by the Shariat Appellate Bench of the High Court (hereinafter to be referred as "High Court") in Criminal Appeal No.104/2017 and Criminal Reference No. 102/2017.

2. The prosecution case in brief as stated in the FIR is that Azhar Iqbal son of Muhammad Fazal, made a written report at Police Station Bhimber, on 23.03.2011. It was stated by him that on 23.03.2011, at 11:45 am, he along with his wife, Mst. Yasmeen Akhtar, and the wife of his elder brother Akhtar Hussain, Mst. Shazia Bibi, upon receiving information about matrimonial dispute between Mazhar Iqbal and his wife, Mst. Shamim Akhtar, went to the house of Mazhar Iqbal. It was further stated that relations between Mazhar Iqbal and his wife were strained since long time. The complainant was sitting in the courtyard when his wife Mst. Yasmeen Akhtar and sister in law Mst. Shazia Bibi were negotiating for compromise between Mazhar Iqbal and his wife Mst. Shamim Akhtar. He narrated that in the meantime, his brother Akhtar Hussain also reached there. Mazhar Iqbal, with premeditation, closed the door and fired straight shots with 12 bore Repeater Gun with intention to kill which resulted into murder of his wife Mst. Yasmeen Akhtar, his sister in law, Mst. Shazia Bibi, and the wife of Mazhar Iqbal, Mst. Shamim Akhtar. He further narrated that Mazhar Iqbal threatened them to run away if they want to save their lives. Consequently, they ran away and Mazhar Iqbal fled away from the place of occurrence. The motive was stated to be the matrimonial dispute between Mazhar Iqbal and his wife. The occurrence is alleged to have been seen by the complainant and his brother Akhtar Hussain.

3. On this report, FIR No.27/2011, in the offence under section 302, APC, was registered at Police Station, Bhimber, on the same day at 12:20 pm. After registration of the case, the police went on the spot and secured some clay, sustained with blood and empties in its possession. The convict-respondent, Mazhar Iqbal, was absconded and proceedings under section 512, Cr.P.C. were initiated against him. Thereafter, on 08.09.2011, the convict-respondent was arrested by the police and on his pointation, the weapon of offence i.e. 12 bore Repeater Gun was recovered, hence, while adding section 13 of the Arms Act, 1965, challan was presented before the District Criminal Court, Bhimber, on 22.09.2011. The statement of the convict-respondent under section 242, Cr.P.C. was recorded on 13.10.2011. He pleaded not guilty and claimed trial, whereupon, the prosecution was directed to lead evidence in support of the charge. The statements of 11 out of 17 witnesses were recorded. Thereafter, the statement of the convict-respondent under section 342, Cr.P.C. was recorded on 31.01.2017. The convict-respondent neither recorded his statement on oath under section 340 (2), Cr.P.C. nor produced evidence in defense. At the conclusion of the trial, the learned District Criminal Court, Bhimber, vide Judgment dated 16.08.2017, found the convict-respondent guilty of the murder of the deceased Mst. Yasmeen Akhtar, Mst Shazia Bibi and Mst. Shamim Akhtar, and under section 302 (b), APC, awarded him death sentence (two times) for the murder of Mst. Yasmin Akhtar and Mst. Shazia Bibi and life imprisonment for the murder of his wife Mst. Shamim Akhtar. He was also sentenced to five years' rigorous imprisonment and fine of Rs.5000/- under section 13 of the Arms Act, 1965. It was ordered that in case of non-payment of the fine, he will further undergo 3 months' simple imprisonment. The convict-respondent was also held liable to pay compensation to the tune of Rs.30,00,000/- (thirty lac) to the legal heirs of the deceased. It was also ordered that the sentences shall run concurrently. Feeling aggrieved from the judgment dated 16.08.2017, passed by the learned District Criminal Court, Bimber, the convict-respondent filed an appeal before the High Court. A reference was also sent by the trial Court for confirmation of death sentence awarded to the convict. The learned High Court, vide impugned judgment dated 25.11.2022, while accepting the appeal filed by the convict, awarded him 25 years' rigorous imprisonment (three times) for committing murder of the deceased i.e. Mst. Yasmeen Akhtar, Mst. Shazia Bibi and Mst. Shamim Akhtar, under section 302 (b), APC. The rest of the sentences awarded by the trial Court were sustained, whereas, the reference submitted by the trial Court for confirmation of death sentence awarded to the convict was answered in negative. This appeal has been filed by the legal heirs of the deceased for restoration of the judgment of the trial Court.

4. Mr. Abdul Razzaque Chaudhary, the learned Advocate representing the complainant-appellants, filed written arguments, wherein, he stated that the impugned judgment passed by the learned High Court is against law and facts of the case, hence, is not sustainable in the eye of law. He further stated that this case is of direct evidence and broad daylight. Neither there is any doubt regarding identification of the convict-respondent nor any contradiction is found in the statements of the eye-witnesses. The prosecution has succeeded to establish its case beyond any shadow of doubt. He further stated that the ocular account is further corroborated by the recovery of the weapon of offence and other incriminating material. The learned trial Court after appreciating the evidence produced by the prosecution, rightly awarded the death sentence (two times) and life imprisonment to the convict-respondent for the murder of two innocent ladies and his wife, but the learned High Court without considering the record, awarded 25 years' rigorous imprisonment (three times) to the convict-respondent, whereas, he did not deserve any leniency for the reason that he acted in a brutal manner. He submitted that the place of occurrence, time of occurrence and manner of occurrence is admitted, hence, there was no justification to convert the death sentence (two times) and life imprisonment into 25 years' rigorous imprisonment (three times). He lastly prayed that in the light of peculiar facts of this case, while accepting the appeal, the punishment awarded by the learned trial Court to the convict-respondent be restored. In support of his submissions, the learned counsel referred to and relied upon the following case law:- a) M. Nadeem alias Deemi v. The State [2011 SCMR 872] b) Khalid Rasheed v. The State [MLD 2012 Lahore 1274] c) Muhammad Yaqoob v. The State and 2 others [2014 SCR 121] d) Muhammad Bashir and another v. Sain Khan and 2 others [2014 SCR 821] e) Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others [2001 PCr.LJ 524]

5. On the other hand, Mr. Javed Iqbal Satti, the learned Advocate representing the convict-respondent, argued with vehemence that the prosecution has produced only closely related witnesses and on the basis of the statements of such witnesses, imposition of conviction is against the principles of administration of criminal justice. A deep scrutiny of evidence will lead to the conclusion that neither the complainant nor the other so-called eye-witness were present at the time of occurrence. He further argued that the prosecution story, on the face of it, does not appeal or is not acceptable to the mind of a prudent person, therefore, it is obviously clear that the incident has not taken place in the manner as the prosecution has constructed the story, rather the prosecution has deliberately suppressed some material facts. He submitted that the motive alleged by the prosecution remained obscure and could not be proved because the convict-respondent had divorced his wife on 05.05.2010, therefore, the stance taken by the prosecution regarding negotiating for resettlement is totally false and incorrect. He further submitted that the learned High Court has awarded 25 years' rigorous imprisonment (three times) to the convict-respondent. He is behind the bars since 2011, therefore, he has developed an expectancy of life and it is a well settled principle of law that no extreme penalty should be awarded to a person who has developed an expectancy of life. He defended the impugned judgment and prayed for dismissal of the appeal.

6. Mr. Ahmed Saad, the learned Assistant Advocate-General, while appearing on behalf of the State, has adopted the arguments advanced by the learned counsel for the complainant-appellants.

7. We have considered the arguments of the learned Advocates representing the parties and have gone through the record of the case as well as the impugned judgment. The facts of the prosecution case have already been narrated hereinabove, hence, need not to be reiterated for the sake of brevity. Suffice it to observe that an unfortunate incident which claimed the lives of three innocent ladies i.e. Mst. Yasmin Akhtar, Mst. Shazia Bibi and Mst. Shamim Akhtar, took place on 23.03.2011, at 11:45 am, which was reported to the Police Station, Bhimber, on the same day at 12:20 pm, by Azhar Iqbal, complainant/appellant, herein. It may be stated that the prosecution has cited 17 witnesses in support of the challan but out of them 11 witnesses have been examined. The prosecution evidence consists upon two eye-witnesses, the post-mortem report as well as the recoveries including that of the weapon of offence. It is felt advantageous to reproduce here the statements of the eye-witnesses. The eye-witness namely, Azhar Iqbal, stated that:- Likewise, the other eye-witness namely, Raja Muhammad Akhtar, deposed that:- The evidence produced by the prosecution was believed by the trial Court. The impugned judgment shows that reappraisal of the evidence was conducted after which the learned High Court also reached the conclusion that the prosecution evidence was trustworthy. Reappraisal of evidence is not a function of this Court. Once it is settled that there has been proper appraisal of the evidence, this Court does not even draw a conclusion different from that drawn by the trial Court and the first appellate Court. However, this Court does examine the evidence to see whether there has been proper appraisal or any gross misreading or non-reading of the same has been committed which may have resulted into miscarriage of justice. In the instant case, for our own satisfaction, we have examined the entire evidence produced by the prosecution. We are satisfied that the learned trial Court as well as the learned High Court has properly appreciated the evidence and there is not a single piece of evidence which has not been duly considered.

8. The vital question argued by both the parties relates to quantum of sentence. The learned trial Court awarded death sentence (two times) to the convict-respondent for the murder of Mst. Yasmin Akhtar and Mst Shazia Bibi and life imprisonment for the murder of his wife Mst Shamim Akhtar. The learned High Court while accepting the appeal filed by the convict, awarded him 25 years' rigorous imprisonment (three times) for the commission of murder of all the three deceased ladies, whereas, kept intact the rest of the sentences awarded by the trial Court. It is pertinent to mention here that the convict-respondent has not challenged the impugned judgment passed by the learned High Court, rather the complainant-appellants have filed the appeal before this Court for restoration of the judgment passed by the trial Court. The learned High Court while attending this vital point has dived deep for drawing the conclusion that the convict-respondent deserves lesser sentence; firstly, for the reason that the motive set up by the prosecution has not been proved; and secondly, according to the prosecution record, some other persons also saw the convict fleeing from the place of occurrence but the said independent persons were not sighted in challan as witness. Now, the question arises whether the learned High Court has rightly awarded 25 years' rigorous imprisonment (three times) to the convict-respondent instead of death sentence (two times) and life imprisonment. The quantum of sentence requires utmost care. The same must be weighed in the golden scale and should be properly balanced to cater rest of society from the commission of crime without being unnecessarily harsh. In the instant case, the motive alleged by the complainant party was that the complainant and the deceased, Mst. Yasmeen Akhtar and Mst. Shazia Bibi went to the home of the convict-respondent for negotiating compromise between him and his wife Mst. Shamim Akhtar, whereas, it is evident from the record that convict-respondent, Mazhar Iqbal, had divorced his wife Mst. Shamim Akhtar, on 05.05.2010, much before the incident. The divorce deed has also been brought on the record, hence, the question of compromise or resettlement does not arise, meaning thereby, that the motive alleged by the prosecution remained obscure and could not be proved as alleged. The motive though not sine qua non for bringing the offence of murder at home but it has importance regarding the quantum of sentence. Where the motive, as alleged, is not positively proved, extreme penalty of death is not warranted under law. Our this view finds support from the case reported as Muhammad Khurshid Khan v. Muhammad Basharat and another [PLD 2007 SC (AJ&K) 27] wherein, it has been observed as under:- "The motive alleged by the prosecution remained obscure and could not be positively proved. The motive though not a sine qua non for bringing the offence of murder at home but it has importance regarding the quantum of sentence. This view finds support from a case reported as Ali Hussain and another v. Mukhtar and 2 others [1983 SCMR 806]. It is a well settled principle of law that where the motive for the offence is shrouded in mystery then the extreme penalty of death is not warranted. The sentence of life imprisonment should be sufficient to meet the ends of justice. This view also finds support from a case reported as Muhammad Ali v. The State [1988 P.Cr.L.J. 307]. It is a celebrated principle of law that where the motive for the offence is either not proved or not satisfactorily established, it is a circumstance where the extreme penalty of death is usually avoided and lesser penalty of life imprisonment is awarded. This view finds support from the cases reported as The State v. Bahadur and another [1987 PCr.LJ 1689] and Ghulam Hussain v. The State [1987 PCr.LJ 1812)."

9. Moreover, it is revealed from the record that as per prosecution version some other persons also saw the convict-respondent fleeing from the place of occurrence but the said independent persons were not cited in the challan as witnesses and only related and interested witnesses have been produced by the prosecution. Although, it is not mandatory for the prosecution to produce all the witnesses cited by it in the calendar of witnesses but the situation is quite different in the instant case. The Police has not cited independent persons as witnesses in the challan. It is a settled principle of law that if independent persons were not cited in the challan or withheld by the prosecution then the presumption can be inferred against the prosecution that such witnesses, if cited or produced, would have not supported the case of the prosecution. We are fortified in our view by the case reported as Muhammad Asif v. The State [2017 SCMR 486] wherein, the learned Apex Court of Pakistan has opined in para 9 as under:- "

9. In our considered opinion these two independent witnesses could provide the first degree of evidence of reliable nature, thus, adverse inference has been drawn that because they were not supporting the prosecution case so set up, therefore, they were dropped at the trial. In this way, the best evidence, independent in nature, was withheld from the court for obvious reasons. This fact by itself is sufficient to discard the evidence of the interested and related witnesses because their evidence is not only of the second degree but also for the reason given above due to their unnatural conduct." Thus, in the circumstances of this case, we are of the considered opinion that for the safer dispensation of justice, it will be appropriate not to impose the extreme penalty of death sentence rather the sentence awarded by the learned High Court will meet the ends of justice. Consequently, this appeal, having no substance, is hereby dismissed. 59/SC(AJ&K) Appeal dismissed.