2016 PLP 210 (SCMR)

DOST MUHAMMAD KHAN, J.

The appellant, at a trial held by the learned Sessions Judge, Sheikhupura was handed down death penalty under section 302(b), P.P.C. and to pay a sum of Rs. 25,000 as compensation to the legal heirs of the deceased.

2. The appeal of the appellant was dismissed, while Murder Reference No.255 of 1997, sent by the trial Judge, was confirmed by the learned Lahore High Court, Lahore, hence this appeal with the leave of the Court.

3. The crime took place on 08.06.1995 at 10:45 pm in village Dhaban Khurd, Chak No.13/R.B. Munawwar Hussain was allegedly killed by the appellant Muhammad Sarwar by firing at him with 12 bore shot gun in the presence of the complainant and one Jamshed Ali near the deceased's shop. The report of the crime was made at 11:00 pm. probably near the crime spot, albeit shown near the Bus Stand/market.

4. Motive for the crime was that a quarrel had taken place between the appellant and the deceased on the same day.

5. At the conclusion of the investigation, charge sheet was filed in the trial Court, which ended in conviction and sentence awarded to the appellant, mentioned above. We have heard the learned ASC for the appellant and the learned Addl. Prosecutor General, Punjab and have carefully examined the record.

6. At the trial, beside the complainant Muhammad Arshad (PW-3) and Muhammad Sarwar (PW-4), the eye-witnesses, the medicolegal officer and witnesses to the recovery memos as well as investigating officer appeared and confirmed their role, played at the time of occurrence and thereafter.

7. True, that the eye-witness namely, Jamshed Ali, mentioned in the FIR was not produced at the trial however, this fact alone would not sufficient to discard the entire case. Although it is a night time occurrence but in the site plan, electric bulbs are shown lit near the shop of the deceased, while the spot is surrounded by residential houses therefore, strong presumption would be that, at the fateful time there was sufficient light to identify the culprit. The parties are co-villagers and well-known to each other, right from the age when they were toddlers. They were having no blood feud in the past nor immediately before the incident but on a petty quarrel, the appellant decided to take life of the deceased. The crime gun was recovered from the appellant. The Medicolegal Officer, Dr. Muhammad Aslam Hamid, in autopsy report and at the trial has confirmed that the deceased has sustained pellet injuries. There is a strong physical evidence in the shape of recovery of pellets from some of the wounds therefore, ocular testimony is getting support from the medical evidence and that too is based on the recovery of pellets, endorsing the ocular account with a seal of approval and confirmation that the deceased was fired at with a shot gun. However, no one has come forward nor was named in the FIR, who had witnessed the incident of quarrel, which had taken place between the deceased and the appellant on the same day. Therefore, in our view, the motive for the crime is not well established.

8. The appellant was arrested on 15.07.1995. He remained as under trial prisoner till the date when the Trial Court convicted him and right from that time, he has been put in the Death Cell, therefore, he has almost served out more than life imprisonment and that too in the Death Cell and because motive has not been proved therefore, combination of the above two factors would attract the principle laid down in the cases of Hassan and others v. The State (PLD 2013 SC 793), Dilawar Hussain v. The State (2013 SCMR 1582) and Ghulam Moy-ud-Din @ Haji Babu v. The State (2014 SCMR 1034).

9. Accordingly, this appeal is partly allowed. While maintaining conviction of the appellant, his death sentence is reduced to life imprisonment with benefit of section 382-B, Cr.P.C. However, the compensation amount awarded by the trial Court is maintained. These are the reasons for our short order of even date, which is reproduced herein below:- "We have heard the arguments of learned Advocate Supreme Court for the petitioner and the learned Additional Advocate General, Punjab. For the reasons to be record separately, this appeal is partly allowed to the extent that the conviction of the appellant is maintained, however, death sentence awarded to him is modified into imprisonment for life with benefit of section 382-B, Cr.P.C." MWA/M-40/SC Order accordingly.