2017 PLP 880 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Qurban Hussain appellant had allegedly murdered one Mushtaq Ahmed at about 07.00 a.m. on 18.07.2006 by giving hatchet blows to him in village Ali Kharak in the area of Police Station Saddar, Ahmadpur Sharqia, District Bahawalpur in the background of an alleged dispute over some money. With the said allegations the appellant was booked in case FIR No. 253 registered at the above mentioned Police Station on the same day and after a regular trial he was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to death and to pay compensation which conviction and sentence were subsequently upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 29.05.2012.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. The occurrence in this case had taken place in broad daylight and the appellant had been apprehended with a hatchet immediately after the occurrence inside the house of Sajjad Ahmed (PW2) and thereafter he was produced with the weapon of offence before the local police. The FIR had been lodged quite promptly and the appellant had been nominated therein as the sole perpetrator of the alleged murder. Sajjad Ahmed (PW2) was a natural witness of the occurrence being an inmate of the house of occurrence and there was no earthly reason available on the record prompting the said eye-witness to falsely implicate the appellant in a case of this nature. The said eye-witness had made a straightforward statement before the trial court which had inspired confidence not only of the trial court but also of the High Court. The ocular account furnished by the said eye-witness had found full support from the medical evidence. After assessing and evaluating the evidence in some detail both the courts below had concurred in their conclusion that the prosecution had succeeded in establishing the appellant's guilt to the hilt and upon our own independent reappraisal of the evidence we have not been able to take a view of the matter different from that concurrently taken by the courts below.

4. We have also attended to the sentence of death passed against the appellant and in that context we have noticed that Haji Bashir Ahmed complainant (PW1) was not an eye-witness of the occurrence and even Saeed Ahmed (PW3) had not witnessed the occurrence with his own eyes as both the above mentioned eye-witnesses had reached the place of occurrence after the injuries had already been caused by the appellant to Mushtaq Ahmed deceased. In the impugned judgment passed by it the High Court had clearly concluded that the motive set up by the prosecution had not been proved by it. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iflikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Inman @ Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148). The record of the case also shows that the alleged recovery of hatchet from the appellant's possession was not of much legal consequence because no report of the Serologist had been brought on the record of this case confirming that the recovered hatchet was stained with human blood. As the motive set up by the prosecution had not been proved by it, therefore, the real cause of occurrence had remained shrouded in mystery. For all these reasons we have decided to exercise caution in the matter of the appellant's sentence of death. This appeal is, therefore, dismissed and the appellant's conviction for the offence under section 302(b), P.P.C. is upheld but this appeal is partly allowed to the extent of the appellant's sentence of death which is reduced to imprisonment for life. The benefit under section 382-B, Cr.P.C. shall be extended to the appellant. The order passed by the High Court regarding payment of compensation by the appellant to the heirs of the deceased as well as the order in respect of imprisonment in default of payment of compensation are, however, maintained. This appeal is disposed of in these terms. MWA/Q-1/SC Order accordingly.