2017 PLP 148 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Qaddan, Jaro, Rajib, Esso and Sikandar appellants had been booked and tried in case FIR No. 86 registered at Police Station Mehar, District Dadu at 03.00 p.m. on 05.06.1989 in respect of offences under sections 302, 307, 148 and 149, P.P.C. and after a full dressed trial they were convicted and sentenced by the trial court on various counts of the charge under sections 302(b), 449, 324 and 148, P.P.C. read with section 149, P.P.C. On the four counts of the charge under section 302(b), P.P.C. Qaddan, Jaro, Rajib and Esso appellants were sentenced to death each on each count whereas Sikandar appellant was sentenced on the said counts of the charge to imprisonment for life. Their convictions and sentences were subsequently upheld and maintained by the High Court. Hence, the present appeal by leave of this Court granted on 21.04.2011.

2. A report received from the relevant jail shows that Jaro, appellant had died a natural death on 11.05.2015 whereas Sikandar appellant has already been released from the jail after serving out his sentence. This appeal is, therefore, dismissed to the extent of Jaro appellant as having abated and the same is also dismissed to the extent of Sikandar appellant as having become infructuous.

3. We have noticed that before the High Court the only prayer made by the learned counsel for the appellants was that in view of some peculiar circumstances of this case the sentences of death passed against the appellants may be reduced to imprisonment for life and, thus, we have confined our consideration of this case only to the issue of mitigation of the appellants' sentences of death. In this context it has straightaway been noticed by us that according to the FIR as well as the statements of the eye-witnesses made before the trial court the appellants and the other members of the accused party had come armed and had gone into the house of one Ali Sher Brohi quite peacefully and it was the complainant party which had provoked the accused party at the spot which provocation had led to the present occurrence. It is, thus, obvious that but for the intervention and provocation of the complainant party the present occurrence might not have taken place at all. We have further observed that one lady died and three others had received injuries during the occurrence in issue which also indicates that the occurrence in question had developed at the spur of the moment without any premeditation and that different members of the accused party as well as of the complainant party embroiled with each other in a developing occurrence. Apart from that the motive set up by the prosecution had never been put to the present appellants at the time of recording of their statements under section 342, Cr.P.C. The law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him. The alleged recovery of the weapons of offence from the appellants during the investigation had been discarded by the High Court. The criminal case in hand had originated in the year 1989 and the appellants have already spent more than 16 years in jail in connection with this case. All these factors available on the record do make out a case for reduction of the appellants' sentences of death to imprisonment for life and particularly the motive part of this case going out of consideration because of its not having been put to the appellants at the time of recording of their statements under section 342, Cr.P.C. brings into operation the settled principle that failure on the part of the prosecution to establish the motive may react upon a sentence of death 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 Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran @ 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) and Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658). This appeal is, therefore, dismissed to the extent of the convictions and sentences of Qaddan, Rajib and Esso appellants except to the extent of their sentences of death on all the counts of the charge under section 302(b), P.P.C. read with section 149, P.P.C. which sentences of death are reduced to imprisonment for life on each such count of the charge. All the sentences of imprisonment passed against the said appellants shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. shall be extended to them. This appeal is disposed of in these terms. MWA/Q-2/SC Order accordingly.