1999 PLP 2414 (SCMR)

RAJA AFRASIAB KHAN J.

On 18-12-1995, petition of the appellant, Muhammad Bashir was dismissed by this Court on merits. However, leave was granted to him to consider the quantum of sentence awarded to him with the following order:-- "For murder of Khaliqdad deceased on 28-2-1997 at 5.30 p.m. the petitioner Muhammad Bashir was convicted for offence under section 302, P.P.C. on 26-1-1989 by the Additional Sessions Judge, Sargodha, and sentenced to death and fine. On 10-6-1991 a Division Bench of Lahore High Court, Lahore dismissed his appeal and maintained conviction and sentence of the petitioner. The petitioner seeks leave for appeal against his conviction and sentence before this Court. With the assistance of the learned counsel for the petitioner we have gone through the record of the case and impugned judgment. The incident has taken place during the broad daylight at 5.30 p.m. The report thereof was lodged at the police station at 7.00 p.m. The distance between the place of vardat and the police station is 5/6 miles hence there is no delay in lodging the F.I.R. The names of the eye-witnesses Allah Bux and Dost Muhammad appear in the F.I.R. The above said both witnesses have fully implicated the petitioner for the offence. Though Allah Bux brother-in-law of the deceased but he has no grudge against the petitioner to falsely implicate him. Witness Dost Muhammad is totally independent. The evidence of the above said two witnesses was found to be confidence inspiring by the two Courts below. No infirmity was pointed out by the learned counsel for the petitioner to discard it. However, an ignorable contradiction regarding number of shots was pointed out which in our view is not sufficient to discard their evidence. In such a situation the learned counsel for the petitioner pointed out that the motive was far fetched of about 22/23 years back which may not be sufficient to maintain death sentence of the petitioner. In such view of the fact we maintain the conviction of the petitioner for offence under section 302, P.P.C. and dismiss his petition to that extent. However, we grant leave to appeal to examine if on the motive alleged by the prosecution sentence of imprisonment for life instead of death sentence be awarded to the petitioner. Leave to appeal is granted accordingly. ".

2. We have heard the learned counsel for the respondent at some length. No one has appeared on behalf of the appellant despite service. It is evident from the above order that the earlier incident which provided motive to the appellant to commit the aforesaid offence, took place about 22/23 years ago. It is in the evidence of Allah Bakhsh P.W. 6 that since the date of murder of Muhammad Yousaf, Muhammad Bashir, the appellant and the deceased lived in the same village. In other words, no untoward incident took place in the last about 22/23 years between the parties. It can, therefore, safely be said that the parties to this case lived amicable and peacefully in the village. It was the bounden duty of the prosecution to have proved as to what actually happened immediately before the occurrence in hand took place. This has not been done by the prosecution. This being the position, motive is shrouded in mystery. In the peculiar facts and circumstances of this case, we are inclined to award lesser sentence to the appellant on the aforesaid ground. The sentence of the appellant is converted from death to imprisonment for life to meet the ends of justice. The fine is, however, increased from Rs.10,000 to Rs.1,00,000 which, on recovery, would be paid to the legal heirs of the deceased as compensation. Benefit of section 382-B, Cr.P.C. shall be extended to the appellant. With these observations, the appeal is partly allowed. N.H.Q./M-230/S Sentence reduced.