2012 SCMR 1936 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

Appellant Hasil Khan was tried for the murder of Saeed Bakhsh (in the case registered vide F.I.R. No.21 of 2006 dated 20-5-2006 under sections 302/324, P.P.C. at Police Station Cattle Farm, District Jaffarabad) and the learned trial Court vide its judgment dated 18-1-2007 while convicting him under section 302(b), P.P.C. sentenced him to life imprisonment and a fine of Rs.50,000 to be paid to the legal heirs as compensation, in default whereof to suffer SI for six months but did not award maximum penalty of death as it found that there were mitigating circumstances inter alia that the immediate cause of murder and actual motive remained shrouded in mystery. The learned High Court, however, allowed complainant's criminal revision and while dismissing appellant's appeal, enhanced the sentence from life imprisonment to death as according to it "there was no mitigating and extenuating circumstance at all, warranting the commutation of sentence. Since appellant Hasil Khan son of Rab Dina has committed a premeditated, intentional cold blooded murder of an innocent person, therefore, he deserves the normal penalty as provided under section 302(b), P.P.C. i.e. death sentence".

2. The prosecution story as given in the F.I.R. briefly stated is that the complainant Dil Murad (P.W.1) along with his brother Saeed Bakhsh (deceased), nephew Zareef Khan, relatives Nabi Dad and other family members went to Kachhi Pul near Pat Feeder in order to attend a marriage ceremony of one Mashooq Ali Chinjani. After attending the said ceremony, they were returning in a bus on 20-5-2006 at about 12.00 mid noon, as the bus stopped at Chalgari Dip, Hasil Khan appellant boarded, took out a T.T. pistol from his waist and started firing at Saeed Bakhsh, as a result of which the latter, a small kid Muhammad Bakhsh and a woman namely Sher Bano wife of Abdul Samad received serious injuries. The accused thereafter fled and Saeed Bakhsh succumbed to the injuries at the spot and died. The motive alleged was that a few years back, appellant had murdered his own sister Mst. Sobhan on the pretext of Siahkari with the brother of complainant namely Sohna.

3. During trial, the prosecution examined the following witnesses:-- P.W.1 Dil Murad P.W.2 Zareef P.W.3 Nabi Dad P.W.4 Zafar Abbas P.W.5 Dr. Naseer Ahmed P.W.6 Dr. Naila Yasmeen, Medical Officer P.W.7 Muhammad Khan P.W.8 Mst. Shahar Bano P.W.9 Safdar Ali, I.O.

4. The accused when examined under section 342, Cr.P.C. denied the prosecution story but neither appeared himself as a witness nor produced any other witness in defence. However, he tendered in evidence Exh.D/1-A. It is a judgment of acquittal in a case in which Khuda Bakhsh and Shabbir relatives of the complainant party were tried and acquitted (judgment dated 27-2-2006) but there were three absconding co-accused in the said case including the appellant in the instant case regarding whom the court observed that their case should be kept on dormant file till their formal arrest.

5. Learned counsel for the appellant submits that the learned High Court has not appreciated that the prosecution had failed to prove its case beyond reasonable doubt; that though the occurrence had taken place within the bus but no recovery was effected from the bus; that neither the bus driver nor any passenger was examined; that the so called eye-witnesses are closely related with the deceased and there is no independent corroboration; that the positive report of the ballistic expert does not inspire confidence as the weapon and empties were sent to the said expert the same day; that the enhancement of sentence by the learned High Court was not tenable in law and is harsh and cannot be sustained.

6. Learned Prosecutor-General however, defended the impugned judgment by submitting that it was a broad daylight occurrence; that the appellant was specifically named; that there is no reason why he should be falsely implicated; that mere relationship of the eye-witnesses with the deceased would not discredit them as their testimony stands corroborated not only by the medical evidence but also by the evidence of recovery of T.T. pistol and the positive report of the ballistic science expert.

7. We have gone through the evidence led with the assistance of learned counsel for the appellant and learned Law Officer and given anxious consideration to the submissions made.

8. The ocular account in this case was furnished mainly by P.W.1 Dil Murad (complainant) and Zareef Khan P.W.2. The former is a brother whereas the latter is nephew of the deceased. Though both are relations but mere relationship would not make a witness unworthy of reliance if his testimony is corroborated by any independent evidence or circumstance appearing on record. Both these witnesses have reasonably explained their presence at the spot i.e. the reason of their travel was that they were returning from a marriage ceremony and this reason has not been specifically challenged by the defence during cross-examination. Their testimony is corroborated by the medical evidence and the recovery of T.T. pistol. All the eye-witnesses were subjected to lengthy cross-examination but their credibility could not be shaken as they not only corroborated each other but also remained consistent on all material particulars of the prosecution case. The argument of learned counsel for the appellant that since one of the injured eye-witnesses namely Mst. Sher Bano has not supported the prosecution story, therefore, the case is not free from doubt, is not tenable because she did partly support the prosecution story to the extent to which she could. She deposed about the occurrence, about an assailant having entered the bus and firing at Saeed Bakhsh but added that she could not identify the said assailant. Her testimony partly corroborates the remaining eye-witnesses and nothing would turn on the prosecution case if she could not identify because she did not know the assailant prior to the said occurrence. Her inability to identify the assailant/accused was understandable as in that moment of commotion and shock, people generally cannot keep their composure intact. The non-association of passengers and the bus driver is a lapse on the part of the investigating agency but it would not erode the credibility of the remaining evidence if it inspires confidence, because the Court cannot lose sight of a certain behaviour pattern in our society where people are generally reluctant to come forward to give evidence for fear of reprisal from one of the parties. This was taken note of by this Court in Muhammad Ahmad v. The State (1997 SCMR 89). Even otherwise, there is no reason why the appellant should have been falsely implicated.

9. Both the courts i.e. the learned trial Court and the learned High Court having appreciated the evidence led have found the same to be credible and have concurrently rendered findings of guilt against the appellant. We do not find the said appreciation of evidence to be reflective of any misreading, non-reading or violative of law declared. However, coming to the question of enhancement of sentence by the learned High Court, we find that the learned High Court did not appreciate that the motive alleged in the F.I.R. was rather weak and there was no reason why Saeed Bakhsh, deceased, should have been the victim of the said motive part of the prosecution story. Moreover, as rightly observed by the learned Trial Court the immediate motive remained shrouded in mystery and the Trial Court rightly did not award the maximum sentence of death provided under section 302(b), P.P.C. to the appellant. The enhancement of sentence by the learned High Court, we may observe with respect, is not in accord with the law laid down by this Court in Muhammad Ashraf Khan Tareen v. The State (1996 SCMR 1747) wherein at page 1755, the Court dismissed complainant's appeal and did not enhance the sentence by holding as follows:-- "In respect of sentence, learned counsel for the complainant/State wanted conversion of the life imprisonment into death sentence. Learned counsel cited case of Iftikhar Ahmad v. The State (PLD 1990 Supreme Court 820) where criminal petition by the complainant challenging reduction of sentence by the High Court, was dismissed by this Court on the ground that the principle of origin of offence remained shrouded in mystery. This authority does not further prayer of the complainant for awarding death penalty to the appellant. In the present case prosecution did not allege any specific motive for commission of the offence. In the circumstances, the appellant could not have been awarded the death penalty."

10. Similarly in Jehanzeb v. The State (2003 SCMR 98), the Court altered the sentence of death of the convict to life imprisonment by observing that where motive alleged by the prosecution has not been satisfactorily proved, this may be considered as a mitigating circumstance qua the quantum of sentence.

11. For what has been discussed above, these appeals are partly allowed and the sentence of death awarded by the learned High Court to the appellant Hasil Khan is converted into life imprisonment. The sentence of fine of Rs.50,000 awarded by the learned Trial Court shall be treated as compensation to be paid to the legal heirs. It is further directed that the conviction and sentence of two years' imprisonment recorded in the connected case Criminal Petition No.81-Q of 2009 (in the case registered vide F.I.R. No.25/06 dated 9-6-2006 under section 13-E of the Arms Ordinance) shall run concurrently with the sentence awarded, which is subject matter of Criminal Appeals Nos.59-Q and 60 -Q of 2009. With this observation, Criminal Petition No.81-Q of 2009 is converted into appeal and partly allowed. MWA/H-4/SC Order accordingly.