2002 PLP 1473 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑This petition for leave to appeal has been instituted by petitioner against the judgment, dated 17th July, 2001 , passed by Lahore High Court, Bahawalpur Bench, Bahawalpur whereby Criminal Appeal No.82 of 1999 tiled by respondents against the judgment, dated 25th May, 1999 passed by Additional Sessions Judge‑I, Bahawalnagar has been partially allowed.

2. Succinctly stating the facts of the case as gleaned from the F.I.R. No.86 of 1996 dated 10‑8‑1996 (Exh.P.A) registered at Police Station Khichi Wala, Tehsil Fort Abbas, District Bahawalnagar under sections 302/148/149, P.P.C. are that the respondents being armed with lethal weapons including 12 bore gun, hatchets and Sotas assaulted Muhammad Bakhsh son of Mehram mercilessly due to which he succut$bed to injuries in the hospital and to accomplish the object allegedly they committed rioting in the village as welt' The motive for the commission of the offence was stated to be a civil litigation wherein the deceased appeared and gave evidence against the respondent, therefore, on account of such annoyance he was done to death.

3. On completion of investigation the respondents were sent to Court of law to answer the charge. The trial Court i.e. learned Additional Sessions Judge‑I, Bahawalnagar read over charge under sections 302/ 148/ 149, P. P. C. to which the respondents did not plead guilty, as such to substantiate accusation prosecution produced 10 witnesses. Thereafter, statements of respondents were recorded under section 342, Cr.P.C. wherein they denied the prosecution case except respondent Muhammad Irshad alias Shada who pleaded that on account of sudden and grave provocation he committed the murder of Muhammad Bakhsh as on entering in the house he had seen him grappling with her widow mother for the purpose of committing Zina- bil‑Jabr. He explained that on the demise of his father Siraj Din, Muhammad Bakhsh demanded the hand of his mother which was not only denied but he was reprimanded. On behalf of defence one witness was also produced.

4. Learned trial Court vide judgment, dated 25th May, 1999 concluded that the respondents are guilty for the commission of the offence, therefore, they were convicted and sentenced as under:‑‑ (1) Under section 302(b), P. P. C. respondent Manzoor Ahmad was sentenced to death whereas remaining respondents i.e. Muhammad Khan, Muhammad Irshad alias Shada, Muhammad Ramzan, Muhammad Sarwar and Ahmad Khan to life imprisonment as Tazir and to pay compensation of Rs.30,000 each. If the amount of compensation is realized the same shall be paid to the legal heirs of the deceased under section 544‑A, Cr.P.C. In case of default in payment of fine they were directed to undergo simple imprisonment for six months. (2) Under section 148, P.P.C. all the respondents were convicted and sentenced to 2 years' R.I.

5. The‑respondents being aggrieved from the judgment of trial Court preferred Criminal Appeal No.82 of 1999. Learned trial Court also forwarded Murder Reference No. IS of 1999 for confirmation or otherwise of death sentence of respondent Manzoor Ahmad within the purview of section 374, Cr.P.C. A learned Division Bench of the High Court vide impugned judgment concluded that Muhammad Irshad alias Shada alone was responsible for commission of murder of Muhammad Baksh because he acted under grave and sudden provocation when he .saw the deceased grappling with his mother to outrage her modesty, therefore, while altering his conviction from death he was convicted/setenced under section 302(c), P.P.C. to undergo 25 years' R.I. with benefit of section 382‑B, Cr.P.C. whereas the remaining respondents were acquitted from all the charges, as such they are ordered to be released. Hence instant petition for leave to appeal has been filed.

6. Learned counsel contended that learned Judges in the Chambers of the High Court acquitted the respondents from the principal charge of murder for want of motive whereas established law presently on the subject is that motive proved or not but if the accusation has been established against accused he deserves to the normal penalty of death for the crime of murder. He further stated that' the prosecution evidence has been brushed aside by learned High Court without assigning cogent reasons, therefore, he prayed that leave to appeal may be granted.

7. On perusal of file we noticed that the prosecution has based its case on the ocular testimony of P.Ws. Muhammad Amin and Muhammad Hanif, the recovery of incriminating articles i.e. crime weapon from the possession of the accused persons, medical evidence and the motive. Learned High Court discussed the evidence of the prosecution in depth following the principles of appreciation of evidence and ultimately discarded the same for convincing and strong reasons. Therefore, on excluding the prosecution evidence from consideration there was no option for the Court except to decide fate of the case on the statement of convict Muhammad Irshad alias Shada. It may be noted that it is by the time well‑settled that in the criminal administration of justice when the prosecution evidence stands rejected in totality then the statement of the accused has to be accepted in totality. In this behalf reference may be made (1) State v. Muhammad Hanif (1992 SCMR 2047), (2) Muhammad Yaqub v. State (2000 SCMR 1827) and (3) Waseem ud‑Din v. The State (2001 SCMR 290).

8. As it has been observed hereinabove that for convincing, cogent and strong reasons the prosecution evidence has not been found believable, therefore, in our opinion following the version of respondent Muhammad Irshad alias Shada relating to getting provoked on having seen deceased Muhammad Bakhsh (50/60) grappling with his mother (50) for the purpose of committing Zina with her has rightly been convicted/sentenced under section 302(c), P.P.C. It may be noted that the conclusion drawn by learned High Court to convict/sentence respondent Irshad alias Shada is entirely in consonance with the principle of law laid down by this Court in the case of Abdul Haq v. The State (PLD 1996 SC 1), therefore, no exception in this behalf can be taken.

9. Now turning towards the argument of learned counsel for petitioner that if the prosecution has succeeded in establishing offence then presence of motive or no motive would not be a ground for awarding lesser punishment to the accused. As far as the legal proposition is concerned there is no cavil with it but this principle would only be invoked when the prosecution has not alleged the motive but if the motive is alleged then it becomes its duty to prove the same. But if the prosecution failed to prove the motive so alleged and it has also' not proved through convincing evidence that the accused has committed the crime charge against him then on considering non‑establishing of motive to be a mitigating circumstance sentence can be awarded to the accused charged for the murder having regard to the facts and circumstances of the case. Reliance in this behalf can be placed on the case of Bilal Ahmad v. The State (1999 SCMR 869) and Anar Gul v. The State (1999 SCMR 2303). There is no necessity to repeat the factual narration of the case except observing that it is the case in which conviction of Irshad alias Shada is based on his own statement and the prosecution has not proved the motive as it has alleged against all the respondents, therefore, conviction/sentence awarded to respondent Irshad alias Shada to undergo R.I. for 25 years under section 302(c), P.P.C. deserves no interference by this Court in view of the judgment of this Court in the case of Muhammad Mansha v. The State (2001 SCMR 199). Thus for the foregoing reasons leave to appeal is declined and petition is dismissed. M.B.A./M-518/S Petition dismissed