2001 PLP 1334 (SCMR)

HAMID ALI MIRZA, J.‑‑‑This criminal appeal with leave to this Court is directed against the judgment of conviction dated 9‑10‑1996 in Criminal Appeal No.285 of 1992, Criminal Revision No.240 of 1992 and Murder Reference No.175 of 1992 passed by a learned Division Bench of Lahore High Court, Lahore, whereby the appeal filed by the appellant was dismissed and his conviction under section 302, P.P.C. and sentence of death with fine of Rs.100,000 and in default R.I. for two years awarded to him by learned Sessions Judge, Gujrat as per his judgment dated 26‑3‑1992 was maintained; the murder reference was confirmed and the appeal against acquittal of the co‑accused filed by the State and the revision filed by the complainant were dismissed.

2. The brief facts of the case are that appellant Imtiaz Ahmad alongwith Rukhsar Ahmed, Riaz Ahmed and Ghulam Ahmed was tried by learned Sessions Judge, Gujrat for the murder of Ansar Ahmed. The trial Court, after recording the evidence of the parties and hearing the counsel, acquitted co‑accused Rukhsar Ahmed, Riaz Ahmed and Ghulam. Ahmed, but convicted appellant Imtiaz Ahmed under section 302, P.P.C. and sentenced him as stated above and also convicted him under section 449, P.P.C: and sentenced him to life imprisonment with fine of Rs.50,000 and in default R.I. for six months. The sentences were ordered to run consecutively. The appellant preferred a criminal appeal before Lahore High Court, Lahore, which was dismissed as per judgment dated 9‑10‑1996, maintaining the convictions and sentences passed by the trial Court. Leave was granted by this Court on 22nd November, 1999 and paragraph 3 of the leave‑granting order runs as follows:‑‑

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3. Insofar conviction of Imtiaz Ahmed under section 302, P.P.C. is concerned, we find that he was arrested at the spot and a 7MM rifle was also recovered from his possession. Both the Courts below have dealt with the ocular evidence in the case critically and have reached the conclusion that the petitioner had murdered Ansar Ahmed. We are, therefore, satisfied that insofar the conviction of the petitioner Imtiaz Ahmed under section 302, P.P.C. is concerned, no exception can be taken. However, the learned counsel for the petitioner very vehemently contended that the motive for the murder, which was alleged by the prosecution was not believed by the two Courts below and as the Court was never taken into confidence with regard to the motive of murder in the case, the petitioner Imtiaz Ahmed could not be awarded extreme penalty of death in the case. We are, accordingly, inclined to grant leave to appeal to consider whether in the circumstances of the case, extreme penalty of death awarded to the petitioner was justified? Insofar the petition filed by the complainant seeking leave to appeal against acquittal of other co-accused in the case is concerned, we find no merit in the same. Apart from it, the petition is also barred by limitation for which no plausible explanation has been offered. Criminal Petition No.16‑L of 1997 filed by the complainant is, therefore, dismissed and leave to appeal is refused."

3. We have heard the learned counsel for the parties and perused the record. The learned counsel for the appellant has, only urged for, reduction in sentence contending that extreme penalty of death awarded to the appellant, in the circumstances of the case was not justified. He further submitted that motive alleged by the prosecution was not proved and that with regard to injuries on the person of the appellant the prosecution has failed to account for and were suppressed. He also submitted that co‑accused were acquitted by both the Courts disbelieving their testimony in respect of co‑accused and that evidence on record showed that the appellant was summoned by the complainant to settle the matter with regard to the theft of cycle, who had in fact a suspicion that the appellant had liaison with Mst. Tehzeeb, the wife of Ilyas complainant, therefore, capital punishment was not called for. He also submitted that the motive being false and there being a counter‑version from the appellant side, which was taken by him from the initial stage that the appellant was called, required lesser penalty even if it be assumed that the deceased was murdered by the appellant. So far the rifle which is alleged to have been used in the crime, same was foisted upon him. He also submitted that as per evidence appellant had himself driven out his wife from his house therefore he could not have motive against the deceased to say that he was creating hindrances in the return of his wife. The learned counsel for the appellant placed reliance upon Muhammad Nawaz Khan v. Mubarak Ali 2000 SCMR 1582; Muhammad Yaqoob v. State 1999 SCMR 1138; Bilal Ahmad v. State 1999 SCMR 869 and Naubahar v. State 1999 SCMR 637.

4. Learned counsel for the State has submitted that the appellant was caught at the spot and the rifle with which the appellant committed the crime was secured and the empty recovered matched with the rifle as per report of the ballistic expert; and that ocular version supported the medical evidence. He further submitted that mere fact that motive was weak or was not proved would not be a mitigating circumstance warranting award of lesser punishment in view of the evidence on record.

5. We do not find merit in the contention of the learned counsel for the appellant. The appellant was caught at the spot and the rifle used in the crime was secured and the empty recovered also matched with the use of rifle. Mere fact that the trial Court held that motive as alleged was weak when there has been reliable, satisfactory and unimpeachable ocular evidence connecting the appellant with the commission of the crime, corroborated by strong evidence that the appellant was caught at the spot along with the rifle used by him and the empty having matched with the rifle used, the same would not be a mitigating circumstance for awarding lesser punishment other than the normal capital sentence of death in the peculiar circumstances of the case. It may also be observed that at the odd hours of the night, for the purpose of settlement, the appellant cannot be expected to carry a rifle to the house of the complainant. Mere fact that the prosecution has not stated about the injuries on the person of the appellant/accused would not itself be sufficient ground for awarding lesser punishment, which might not have been noticed at the time, in view of the fatal incident having taken place in the family, by the complainant or by the witnesses. Injuries might have been caused upon the person of the appellant after he had committed the crime by the persons present there or by the police when the police was called at the spot. It may also be observed that people generally do not admit to have inflicted injuries to the accused persons. It may also be observed that allegations and proof of motive are not legal requirements for awarding maximum penalty of death in murder case when the prosecution has proved the guilt of the appellant accused beyond reasonable doubt as in the instant case considering also the fact that in the dispensation of criminal justice, decision of the case must not be taken in relation to accused's case "but must rest on the examination of entire evidence" in view of principles in Woolmingtin's case 1935 AC

462. Reference may be made to Talib Hussain v. State (1995 SCMR 1776), so also even in case of weak motive when there has been otherwise strong and reliable evidence, motive would not come in p the way of the case of prosecution. Reference may be made to State v. Sobharo 1993 SCMR

585. It may also be observed that each criminal case is to be decided on its own peculiar facts and circumstances, as such the rule laid down in the earlier cases cannot be applied in the subsequent cases in the omnibus manner. Reference may be made to (i) Muhammad Nawaz Khan v. Mubarak Ali 2000 SCMR 1582 to 1585, (ii) State v. Rab Nawaz PLD 1974 SC 87 and (iii) Ghulam Muhammad v. Allah Yar PLD 1976 SC

241. The facts of the cases cited by the learned counsel for the appellant are quite different and distinguishable to the facts of the case in hand. We accordingly find no merit in the appeal, which is hereby dismissed, maintaining the conviction and sentence awarded by both the Courts. N.H.Q./I‑25/S???????????????????????????????????????????????????????????????????????? Appeal dismissed.