2017 PLP 2048 (SCMR)

MANZOOR AHMAD MALIK, J.

Crl. Appeal No.73-L/2009 and Crl. M. A. No.452-L of 2015 (in Crl. A.No.72-L/2009 Wazir Ali (appellant) and Muhammad Aslam (applicant in Crl. M.A.No.452-L/2015) along with their co-accused namely Muhammad Ramzan were indicted in case FIR No.362/2001 dated 02.12.2001 offence under section 302 read with section 34, P.P.C. registered at Police Station Sadar Mailsi, District Vehari for the murder of Mukhtar Hussain, brother of the complainant. Vide judgment dated 22.07.2002, Wazir Ali appellant was convicted under section 302(b), P.P.C. and sentenced to death. He was also directed to pay Rs.1,00,000/- (rupees one lac) only as compensation to the legal heirs of Mukhtar Hussain (deceased) and in default whereof to undergo six months simple imprisonment. Muhammad Aslam (applicant in Crl. M.A.No.452-L of 2015) was also convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. He was also directed to pay Rs.1,00,000/- (rupees one lakh only) as compensation to the legal heirs of Mukhtar Hussain (deceased) whereas Muhammad Ramzan co-accused of the appellant was acquitted by the learned trial court. Feeling aggrieved by the judgment passed by the learned trial court the appellant along with Muhammad Aslam filed Criminal Appeal No.428-J of 2003 whereas the learned trial court sent Murder Reference No.232 of 2004 for confirmation or otherwise of the sentence of death awarded to the appellant. The complainant filed Criminal Revision No.322 of 2009 for enhancement of the sentence of Muhammad Aslam (applicant in Crl. M.A.No.452 of 2015). All these matters were heard together by a learned Division Bench of the Lahore High Court and through impugned judgment dated 13.10.2008, appeal as well as the revision was dismissed. The Murder Reference was answered in the affirmative and the sentence of death awarded to Wazir Ali appellant was confirmed. Being still dissatisfied with the judgment of the learned Lahore High Court Wazir Ali convict preferred Jail Petition No.250 of 2008 whereas Ghulam Muhammad filed Criminal Petition No.497-L of 2008 and leave to appeal in both the petitions was granted vide order dated 31.03.2009 to re-apprise the entire evidence for the safe administration of criminal justice. During the pendency of these appeals Muhammad Aslam co-convict has filed an application through jail which was registered by the office as Crl. M.A.No.452-L of 2015.

2. Today none is present on behalf of convicts. In the interest of justice, we have gone through all the relevant record with the assistance of learned Additional Prosecutor General Punjab for the State and learned counsel for the complainant who is also appellant in connected Criminal Appeal No.72-L of 2009.

3. In the FIR, Wazir Ali (appellant) and Muhammad Aslam (convict-applicant) have been attributed hatchet blows on the person of Mukhtar Hussain (deceased). Ocular account was furnished by Ghulam Muhammad complainant (PW.6) and Mehtab Hussain (PW.7) who while appearing before the learned trial court stood by the contents of the FIR. The injuries caused by the said convicts were observed by Dr. Irshad Hussain (PW.3) who conducted autopsy on the dead body of Mukhtar Hussain (deceased). Prosecution case is further corroborated by the recovery of hatchets (Ex.PF/PG) at the instance of both the convicts and positive reports of Chemical Examiner and Serologist vis-a-vis the said hatchets. Therefore, we hold that the prosecution successfully brought home guilt against both the convict to the hilt and Crl. M.A.No.452-L of 2015 is dismissed and his conviction and sentence recorded/maintained by the learned courts below is upheld. So far as Criminal Appeal No.73-L of 2009 is concerned, conviction under section 302(b)/34, P.P.C. recorded against Wazir Ali (appellant) is fully justified in the circumstances of the case but at the same time it is not a case of capital punishment because motive behind the occurrence was not believed by the learned appellate court. It is well settled by now that once the prosecution alleges a motive and fails to prove the same during the trial, the same can be taken as a mitigating circumstance while deciding the quantum of sentence of a convict. Therefore, Criminal Appeal No.73-L of 2009 is partly allowed and the sentence of death awarded to Wazir Ali appellant is altered to imprisonment for life. The amount of compensation and the sentence of six months' simple imprisonment in default thereof as ordered by the learned trial court and maintained by the learned appellate court is upheld. The appellant is extended the benefit of section 382-B, Code of Criminal Procedure. Criminal Appeal No.72-L of 2009:

4. For the above reasons, there is no merit in this appeal which is dismissed. MWA/G-6/SC Order accordingly.