2014 PLP 1658 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Both these appeals with leave of the Court are directed against the judgment dated 7-9-2005 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeals Nos. 2010 and 2011 of 2000 filed by the convict appellants against their conviction and sentence of death under section 302(b), P.P.C. passed by learned Additional Sessions Judge, Samundri vide judgment dated 20-12-2000 have been dismissed and Murder Reference No.151 of 2001 sent by the trial Court has been answered in the affirmative.

2. Brief facts of the case are that in between the night of 24th/25th December, 1999, the complainant Muhammad Abbas (P.W.8) along with his brother Muhammad Aslam and his brother-in-law Nadeem Ahmed went to sleep at their poultry farm situated within the area of chak No.412/GB. It was the month of Ramzan-ul-Mubarak. At about 4.45 a.m. the complainant along with Nadeem Ahmed were going to the village for sehri and when they reached near Nuka Square No.36, sugarcane crop of Muhammad Sharif, complainant's brother Muhammad Aslam crossed them on a motorcycle. When Muhammad Aslam brother of the complainant, reached in front of square No.36, Muhammad Ghafran and Muhammad Nadeem both armed with their respective dattars, jointly raised lalkara to stop the complainant, his brother Muhammad Aslam and Nadeem Ahmad brother of the complainant. Muhammad Aslam stopped the motorcycle and alighted from it. Accused Muhammad Ghafran alias Khan gave dattar blow to complainant's brother Muhammad Aslam hitting him upon wrist of his left arm while accused Muhammad Nadeem gave blow with his dattar upon elbow of his right arm. Then accused Muhammad Ghafran gave dattar blow hitting him upon his head and forehead from the front side and then accused Muhammad Nadeem Waqas gave dattar blow hitting him on right side of the head and face. Then accused Muhammad Ghafran gave dattar blow on right side of his neck. After receiving injuries Muhammad Aslam fell down and in that condition the accused gave dattar blows consecutively with their respective dattars on the body of Muhammad Aslam hitting on his head, face and neck. The accused after being satisfied that Muhammad Aslam had succumbed to his injuries, ran away from the spot.

3. According to the F.I.R. the motive behind the occurrence was that some time ago, Muhammad Aslam, deceased, on a dispute over watbandi, abused and slapped Qurban, the father of accused Muhammad Nadeem Waqas for which the accused Nadeem kept grudge in his mind and due to this grudge he, along with Muhammad Ghufran, had committed qatl-e-amd of Muhammad Aslam deceased.

4. After completion of investigation a report under section 173, Cr.P.C. was submitted against the appellants before the learned trial Court. Charge was accordingly framed to which they pleaded not guilty and claimed trial. Prosecution in order to prove the guilt of the accused produced 11 witnesses in all. After recording of prosecution evidence, statements of the appellants were recorded under section 342, Cr.P.C. wherein they denied the allegations levelled against them. After conclusion of trial, learned trial Court through judgment dated 20-12-2000 convicted and sentenced both the accused appellants to death under section 302(b), P.P.C. for qatl-e-amd of Muhammad Aslam, deceased with direction to pay Rs.50,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In case of default of payment of compensation the defaulter accused was to suffer six months' S.I. Against the said judgment both the appellants filed their respective appeals before the Lahore High Court, Lahore which were dismissed vide the impugned judgment, their sentence of death was maintained and the Murder Reference sent by the trial Court was answered in the affirmative. Against the judgment of the High Court the appellant Muhammad Nadeem Waqas preferred Criminal Petition for Leave to Appeal No. 501-L of 2005 while the appellant Muhammad Ghufran sent his petition through jail before this Court which was numbered as Jail Petition No. 386 of 2005. Both the petitions came up for hearing before this Court on 7-11-2006 and leave to appeal was granted only to re-examine the question of quantum of punishment, however leave was not granted to reappraise the evidence for conviction under section 302(b), P.P.C. and the same was maintained.

5. Learned counsel for the appellants contend that incident allegedly has taken place due to the reason that deceased had insulted the father of the appellant Muhammad Nadeem Waqas; that even otherwise the motive is not strong and has not been proved and that two accused have been convicted and sentenced to death for one deceased. Learned counsel for the appellants have drawn our attention to certain portions of evidence and have argued that since motive was not proved, the sentence of death of the petitioner may be reduced as this Court has consistently reduced the sentence of death to life imprisonment in the above circumstances.

6. Learned counsel for the complainant has opposed the appeals on the ground that deceased has received 21 injuries and has been brutally murdered; that both the courts below and the Supreme Court had accepted the evidence of the prosecution and that this Court has not granted leave for reappraisal of the evidence and in such situation no case is made out for reduction of sentence, therefore, both the appeals may be dismissed.

7. We have heard arguments of the learned counsel for the parties and perused the record.

8. At the time of first hearing of the matter in question on 7-11-2006 this Court by appreciating the entire evidence available on record while maintaining conviction of the appellants granted leave to appeal only to examine the question of quantum of punishment keeping in view the motive part of the prosecution story wherein the prosecution itself alleged that Muhammad Aslam deceased had caused a grave insult to the father of accused Muhammad Nadeem Waqas who was a young man which insult could have become more provocative as the father of Muhammad Nadeem convict happened to the a "Chacha" of Muhammad Aslam deceased. Now the question arises whether such a circumstance could be treated as a mitigating circumstance showing leniency in sentence in favour of the appellants. In this respect we have noticed that according to the motive part of the prosecution story Muhammad Aslam deceased had abused and slapped Qurban father of Muhammad Nadeem appellant and Muhammad Aslam deceased. The said motive part of the prosecution story could not be proved by the prosecution and the same shrouds in mystery as Ghulam Haider (P.W.6) produced by the prosecution itself in order to prove motive stated in the Examination-in-Chief that he was present at the time of motive incident, had separated them and settled the dispute but during cross-examination he had admitted in answer to a question put by the learned defence counsel that "it is incorrect that I, Muhammad Amin, Jameel Muhammad Asghar and Tariq was witnesses of motive of offence." Likewise Muhammad Abbas (P.W. 8) and other witnesses of motive had admittedly not seen the motive incident and were not present at that time, therefore, in our estimation the prosecution failed to prove motive part of the prosecution story and the reason for this brutal incident which had taken place in odd hours of night at a place not surrounded by Abadi Deh and what happened immediately before the incident provoking both the appellants to cause such number of injuries with dattars on the person of deceased is not known to anyone, as such, the same shrouds in mystery. In such an eventuality the same can be considered as a mitigating circumstance for showing leniency in favour of the appellants in the matter of punishment. Even otherwise, two appellants have been convicted and sentenced to death for murder of one deceased, which, in the peculiar circumstances of the case and for the above reason, is a bit harsh.

9. For what has been discussed above, we partly accept both the appeals and while maintaining conviction under section 302(b), P.P.C. reduce the sentence of both the appellants from death to imprisonment for life with direction to pay compensation of Rs. 50,000 each to the legal heirs of the deceased and in default thereof the defaulter will undergo six months' S.I. Benefit of section 382-B, Cr.P.C. is extended to both the appellants. MWA/M-29/SC Order accordingly.