2013 PLP 1554 (SCMR)

AMIR HANI MUSLIM, J.

This appeal, by leave of the Court, is directed against judgment dated 24-12-2008 of the Lahore High Court, Lahore, whereby the appeal of the appellant against his conviction and sentence, as awarded by the trial Court, was dismissed.

2. Facts of the case are that the complainant lodged an F.I.R. with the police stating therein that he is farmer by profession and on 7-6-2001 at about 6-00 p.m. he went to call back his son Munir Hussain and brother Allah Nawaz, who had gone to plough the fields of relations. He went little further when he heard alarm of his nephew Salah-ud-Din (deceased) upon which he ran towards the place of occurrence. He saw the appellant Sabir Hussain alias Sabri armed with .222 rifle running towards his nephew and was raising lalkaras that he would not spare him. On hearing hue and cry Messr Munir Hussain and Allah Nawaz, who, were present nearby, attracted to the place of occurrence and within their sight, Sabir Hussain appellant fired a shot with his rifle which hit on the right shoulder of his nephew due to which he fell down. In the meanwhile, Muhammad Saeed, injured P.W., who was working in the nearby fields, attracted to the place of occurrence and Sabir Hussain appellant, within their sight, fired a shot at Saeed Ahmed, which hit on his both thighs. Thereafter, the appellant fled away with his fire-arm.

3. Motive, behind the occurrence was that a few days prior to the occurrence Sabir Hussain appellant had forbidden his brother in law Shabbir Hussain to refrain from divorcing Mst. Sajjada Bibi, who was the sister of Sabir Hussain appellant, therefore, the appellant nurtured grudge against the deceased and murdered him.

4. Accordingly, F.I.R. No. 82 dated 7-6-2001 under sections 302/324, P.P.C. was lodged at Police Station Gellewal, District Lodhran. After observing codal formalities, the accused was put to trial. Charge was framed and evidence of the prosecution was recorded. On conclusion of trial, the trial Court convicted the appellant under section 302(b), P.P.C. and sentenced him to death with further direction to pay compensation of Rs.1,00,000 to the legal heirs of the deceased or in default to further undergo R.I. for six months. The appellant was further convicted under section 324, P.P.C. for attempting to commit qatl-e-amd of Saeed Ahmed, injured P.W., and sentenced him to 5 years' R.I. with further direction to pay Rs.25,000 to Saeed Ahmed and in default of payment to further undergo three months' S.I.

5. The appellant filed appeal before the Lahore High Court, Multan Bench, against his conviction and sentence and the trial Court made Murder Reference for confirmation or otherwise of the death sentence of the appellant. The learned High Court, vide impugned judgment dated 24-11-2008, dismissed the appeal and answered the Murder Reference in affirmative. Upon the petition of the appellant from jail, this Court granted leave to appeal to consider, inter alia, whether in the peculiar facts and circumstances of the case, the sentence of death was too hard and inappropriate. Hence this appeal.

6. The learned counsel for the appellant has contended that the eye-witnesses did not see the occurrence and even injured witness namely Saeed Ahmed P.W.3, has stated in his deposition that the incident has taken place near the tube-well. According to him, the site plan does not mention any tube well near the place of occurrence. He further contended that the doctor, who appeared in Court, did not depose that he examined injured P.W.3 Saeed Ahmed when he was brought to the hospital. He next contended that motive was not directed against the deceased.

7. On the other hand, the learned Additional Prosecutor-General, has submitted that he has no objection if the sentence of death of the appellant is reduced to that of life imprisonment.

8. We have heard the learned counsel as well as the learned Law Officer, and have perused the record. The appellant is the single accused in this case, who has been awarded death sentence by the trial Court which was confirmed by the High Court. No motive has been attributed against the deceased and it can safely be held that motive was not proved by the prosecution.

9. The contention of the learned counsel that the tube well was not mentioned in the site plan was explained by the Patwari P.W.6, who admitted in his deposition that there was a tube well which he did not mention in the site plan. The doctor was re-examined under section 540, Cr.P.C. on an application by the prosecution, in which he admitted that he did examine the injured witness namely Saeed Ahmed. Leave was granted only on the ground of quantum of punishment and the complainant, who claims to have been present on the crime scene, was not attacked by the appellant whereas the motive has been attributed to him. This, by itself, is an extenuating circumstance on which we are of the view that the death sentence of the appellant can be reduced to that of life imprisonment.

10. We, for the aforesaid reasons, partly allow this appeal. The conviction of the appellant under section 302, P.P.C. is maintained, however, his sentence of death is commuted to that of life imprisonment. The appellant is extended benefit of section 382-B, Cr.P.C. The conviction and sentence of the appellant under section 324 is also maintained. All the sentences of imprisonment shall run concurrently. The amounts of compensation, awarded by the trial Court and upheld by the High Court, are maintained. MWA/S-22/SC Order accordingly.