2017 PLP 1662 (SCMR)

SARDAR TARIQ MASOOD, J.

Through this appeal, with leave of the Court, the appellant Zahoor Ahmad impugns the judgment dated 13.01.2009, passed by the learned Division Bench of the Lahore High Court, Lahore, through which Criminal Appeal No.368/2003 filed by the appellant was dismissed and death sentence awarded to him by the trial Court was maintained.

2. Precisely facts of the case are that the appellant Zahoor Ahmad was indicted in case FIR No.126, registered at Police Station Saddar, District Jhang on 28.02.1999, in respect of the offence under section 302(b), P.P.C. for committing murder of Sada Bahar, son of the complainant. After a full dressed trial, the learned trial Court convicted the appellant under section 302(b), P.P.C. and sentenced him to death. He was further directed to pay Rs.50,000/- as compensation under section 544-A, Cr.P.C. or in default thereof to further undergo six months' S.I. The amount of compensation was also ordered to be recovered as arrears of land revenue. The appeal filed by the appellant was dismissed by the learned Division Bench of the Lahore High Court vide impugned judgment dated 13.1.2009, hence this appeal with leave of the Court granted on 22.04.2009, for reappraisal of the evidence but today the learned counsel for the appellant instead of pressing the appeal on merits, argued that it was not a case of capital punishment as both the Courts below had disbelieved the motive and recovery.

3. We have heard the learned counsel for the parties and have perused the available record with their assistance.

4. We have observed that in this case the matter was reported to the police within one hour of the occurrence as after the occurrence the complainant Muhammad Khan proceeded towards Police Station, to lodge the report but met the Police on the way where he reported the matter at about 10:00 a.m. So in this case the matter was reported to the police promptly and there was hardly any chance of consultation and deliberation in the intervening period. It is also a circumstance that postmortem was conducted on the same day just after 07 hours of the occurrence. In a promptly lodged FIR the name of the appellant with his role of firing at the deceased is specifically mentioned. The ocular account in this case consists of Muhammad Khan complainant (PW-6) and Shehbaz (PW-7). They gave the specific reasons of their presence at the place of occurrence as, according to them, they along with the deceased were proceeding to harvest the sugarcane crops. Although they are related to the deceased but they have no previous enmity or ill-will against the appellant and they cannot be termed as interested witnesses in the absence of any previous enmity. They remained consistent on each and every material point. The minor discrepancies pointed out by the learned counsel are not helpful to the defence because with the passage of time such discrepancies are bound to occur. The occurrence took place in broad day light and both the parties knew each other so there was no mistaken identity and in the absence of any previous enmity there could be no substitution by letting off the real culprit especially when the appellant alone was responsible for the murder of the deceased. The evidence of the two eye-witnesses was consistent, truthful and confidence inspiring. The medical evidence fully supports the ocular account so far injuries received by the deceased, time which lapse between the injury and death and between death and postmortem. Both the Courts below have rightly convicted the appellant under section 302(b), P.P.C. and the learned counsel for the appellant has rightly opted not to press this appeal on merits and confined himself only to the extent of quantum of sentence. We observe that the motive asserted in the FIR was that Zahoor Ahmad appellant had illicit relations with Mst. Saddan Mai, wife of the brother of complainant. It was also alleged that Sada Bahar deceased had continuously forbidden the appellant to visit the house of Saddan Mai as their family was being disgraced in the area. Muhammad Ashraf, SI/IO (PW-9) admitted that neither he had joined Saddan Mai in connection with the motive part nor recorded her statement; even he had not recorded any statement of her husband Sahib Khan to verify the motive part. He also admitted that there was no complaint about the intimacy of the appellant with Mst. Saddan Mai from the family of Sahib Khan. Although both the Courts below disbelieved the motive but opined that non-proving of motive is not fatal to the prosecution case. There is no cavil to said observation of both the Courts below but now it is almost settled that non proving of motive is one of the mitigating factors. No one from the family of Sahib Khan had any complaint regarding any intimacy between the appellant and Saddan Mai, even no respectable of the area was examined during the investigation or trial to prove the feelings of disgrace of the complainant party. So we also observe that the motive in this case, asserted by the prosecution, is not proved and the actual motive is shrouded in to mystery. Besides that the recovery of rifle in the absence of any positive report of Forensic Science Laboratory is inconsequential and both the Courts below had rightly disbelieved the said recovery. The above mentioned two factors arc sufficient mitigating circumstances in this case. Consequently, this appeal is partly allowed and while maintaining the conviction of the appellant Zahoor Ahmad, under section 302(b), P.P.C. passed by the trial Court and upheld by the Lahore High Court, Lahore, we reduce the sentence of death into imprisonment for life. The compensation awarded by the trial Court and sentence in default thereof is maintained. Benefit of section 382(b), Cr.P.C. is also extended to the appellant. MWA/Z-5/SC Order accordingly.