1987 PLP 1965 (SCMR)

Nemo for Respondent. Date of hearing: 14th June, 1987. NASIM HASAN SHAH, J.--By this petition, leave is sought from the judgment & order dated 14-10-1986 passed by the Lahore High Court in Criminal Appeal No.270 of 1984 and Murder Reference No.109 of 1984. The relevant facts are that the petitioner alongwith another, namely, Ghulam Nabi was tried by the learned Additional Sessions Judge, Faisalabad for the murder of one Khalid Hussain. The learned trial Court, vide its order dated 31-5-1984, convicted and sentenced both the petitioner as well as his co-accused to death with a fine of Rs.5,000 each (or two years' further R.I. each in default of payment of fine).

2. The petitioner filed Criminal Appeal No.270 of 1984 in the Lahore High Court, Lahore. His co-accused Ghulam Nabi also challenged his conviction and sentence by a separate appeal (Criminal Appeal No.322 of 1984). Both the appeals were heard together alongwith Murder Reference No.109 of 1984 by a Division Bench of the Lahore High Court, who, by its judgment dated 14-10-1986, dismissed the appeal of the petitioner and confirmed the sentence of death awarded to him by the trial Court. However, the appeal of the co-convict Ghulam Nabi was partly accepted and his death sentence was altered to imprisonment for life. He has not challenged the said conviction and sentence any further but the petitioner has submitted this petition for leave to appeal against the aforesaid judgment & order of the High Court. The case of the prosecution briefly was that shortly after the mid-night on 20-7-1982 while Muhammad Bashir complainant was as usual sleeping in his Ihata to guard his cattle and tractor and Khalid Hussain his nephew, was also sleeping nearby on a cot and Abdur Rehman P.W was sleeping outside the Ihata in the street the shrieks of Khalid Hussain were heard at about 11.30 a.m. and the complainant got up and saw that Muhammad Ashraf petitioner and Ghulam Nabi, co-convict, both armed with "Khanjars" were holding Khalid Hussain deceased. Ghulam Nabi, co-convict, caught Khalid from his back and fell him down on the cot. Muhammad Ashraf petitioner gave two successive blows to Khalid on his chest and left wrist. In the meanwhile, Abdur Rehman P.W also reached the spot. The P.Ws tried to intervene but the accused threatened them not to come near. After causing injuries to Khalid deceased they ran away from the spot. Khalid died at the spot on account of the injuries. The motive for the offence was stated to be that Muhammad Ashraf (petitioner herein) had illegally occupied one Ihata in the village belonging to Muhammad Nawaz, P.W.8. The said Ihata was got vacated by the complainant party from Muhammad Ashraf petitioner and was handed over to Muhammad Nawaz P.W.8. This annoyed Muhammad Ashraf petitioner who, therefore, came to the spot alongwith his friend Ghulam Nabi, co-accused and caused fatal injuries to the deceased. Mr. M.A. Zafar, learned counsel for the petitioner, has not challenged the conviction of the petitioner but has merely prayed for reduction of the sentence. In this connection, it is submitted that the motive, as alleged by the prosecution, has not been established and, therefore, the petitioner is entitled to the lesser sentence. In this connection, he drew our attention to the statement of Muhammad Nawaz, P.W. 8 who admitted in cross-examination that I had not stated before the police that Khalid Hussain deceased got the possession of Ihata restored to me". He also stated that "the possession was given to me by the Patwari in the first instance in presence of Noor Muhammad Lambardar".

4. Learned counsel also invited our attention to the statement made by Muhammad Bashir P.W.9 (complainant) in his cross-examination viz "I had stated in the F.I.R. Ex. PH that myself, Khalid Hussain deceased and his father Muhammad Sharif had got the possession of Ihata delivered to Muhammad Nawaz P.W. from Muhammad Ashraf accused (confronted with Ex.PH where there is no mention of Muhammad Sharif and his son Khalid Hussain deceased as such)." Counsel also drew our attention to his further statement, namely, that "there was no specific reason as to why Khalid Hussain deceased was taken by us for getting the possession restored to Muhammad Nawaz P.W." These statements read together, it is submitted go to show that the petitioner took no part in getting the Ihata restored to Muhammad Nawaz and, therefore the motive, as alleged by the prosecution, has not been established. This submission appears to be correct. This Court in Manzoor Ahmad v. The State (PLD 1983 S C 197) has observed that in cases where the prosecution fails to establish the motive as alleged, this failure reacts on the question of sentence and that the sentence can be reduced. Moreover, in Mirza Khan v. The State (1984 S C M R 1006) it was 'held that:- "It is not always possible or necessary for the prosecution to prove the motive of the accused in committing a crime and in the absence of any proof of motive, this circumstance is not in itself sufficient to justify the rejection of evidence if it is otherwise reliable. But if the motive is falsified the accused, as in the case in hand, would be entitled to lesser punishment." The dictum appears to be attracted in the facts of the present case also. Leave is granted to consider whether in the facts and circumstances of this case the, lesser sentence of imprisonment for life will not be sufficient for the ends of justice and the appeal can be accepted to this extent. S. S. Q./M-191/S Leave granted.