2018 M L D 1033
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
MUHAMMAD HUSSAIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.187 of 2009 and Murder Reference No.16 of 2009, decided on 12th June,
2017.
Qanun- e-Shahadat (10 of 1984) ---
----Art. 47---Penal Code (XLV of 1860), Ss. 302(b), 109 & 34---Relevancy of certain evidence
for proving the truth of facts therein stated---Qatl -i-amd, abetment, common intention, act of
terrorism ---Appreciation of evidenc e---Sentence, reduction in---Mitigating circumstances ---
Ocular account supported by medical evidence ---Prosecution case was that accused party had
assaulted on complainant party, made firing thereon, as a result of which two persons died and one person sus tained injuries ---All the victims had sustained injuries by a Pistol---Motive for the
incident was business dispute between the parties ---Ocular account was furnished by two
witnesses including deceased then injured---Accused remained fugitive and the case was tried
against him in absentia and he was awarded capital punishment ---Accused filed appeal after his
arrest, which was accepted and the case was remanded to the Trial Court for commencing de novo trial of the accused---When the case proceeded in absen tia, the statement of one injured
was recorded by the Trial Court; however, after arrest of the accused, the said injured witness, according to the prosecution, had died---Complainant submitted application along with death certificate of the said witness, with the submission that the statement of said witness be placed on record ---Said application was allowed and the statement of said witness was placed on record ---
Validity ---Trial Court relied upon the ocular account furnished by a witness and statement of
deceased then injured under Art. 47 of Qanun- e-Shahadat, 1984---Record showed that incident
took place on 27.1.2002---Witness had stated to be present at the place of incident, but neither at the time of incident she recorded her statement, nor explained the sufficient reasons for delay in recording her statement ---Said witness had appeared after about three months of the incident
sworn an affidavit, but no plausible explanation for such inordinate delay had been put forth---Statement of such witness, in c ircumstances, was not safe to be relied upon ---In the present case,
only ocular evidence of deceased then injured, which had been taken into consideration under Art. 47 Qanun- e-Shahadat, 1984 was on the record---Record showed that death certificate of the
witness had not been challenged by the defence nor rebutted through any cogent evidence ---At
the time of accepting the application for transfer of statement of witness, evidence regarding death of said witness was already on record, thus the requirement of Art. 47 of the Qanun -e-
Shahadat, 1984 was proved with regard to the death of said witness ---Evidence of said witness
was also put to the accused under S.342, Cr.P.C.---Contention of defence that conviction
awarded to the accused, which was recorded in abs entia, had been set -aside in appeal and the
previous trial was not judicial proceeding, was not tenable ---Statement of said witness was
recorded in the previous trial in judicial proceedings and counsel for pauper accused cross -
examined the said witness, t herefore the statement of said witness qualified the requirements of
Art. 47 of the Qanun -e-Shahadat, 1984---Deceased, then injured witness, had given a detail
account of the incident by attributing role of firing to the accused and co- accused and firearm
injuries sustained by him and deceased persons ---Evidence of said witness was supported by
medical evidence, recovery of empties, bloodstained clothes of deceased and injured, thus was
worth of credence, independent, natural and trustworthy ---No reason exi sted to discard his
testimony, therefore, the testimony of single witness was found entirely reliable ---Prosecution,
however, had not been able to prove motive part of the occurrence, which was mitigating circumstance for reduction of sentence ---Conviction was maintained but sentence of accused was
reduced/altered from death to imprisonment for life in circumstances.
AIR 1945 Kolkata 139; PLD 1958 SC (Pak) 290; AIR 1944 Lah. 206; 2007 YLR 1046;
2013 PCr.LJ 282; PLD 2010 SC 642; PLD 2014 Pesh. 189; 2012 PCr .LJ 768 and PLD 1978 SC
102 ref.
Muhammad Khan v. Muhammad Bakhsh 1998 SCMR 570; Arbab Tasleem v. The State
PLD 2010 SC 642; Muhammad Mansha v. The State 2001 SCMR 199 and Muhammad Yaseen v. The State 2011 SCMR 905 rel.
Muhammad Aslam Chishti for Appella nt (in Criminal ATA Appeal No.187 of 2009).
Raja Abdur Rehman for the Complainant. (in Criminal ATA Appeal No.187 of 2009).
Yahya Baloch, Deputy Prosecutor General for the State (in Crl. ATA Appeal No.187 of 2009).
Muhammad Yahya Baloch, D.P.G. for the Sta te (in Murder Reference No.16 of 2009).
Muhammad Aslam Chishti for Respondent (in Murder Reference No.16 of 2009).
Raja Abdur Rehman for the Complainant (in Murder Reference No.16 of 2009).
Date of hearing: 25th April, 2017.
JUDGMENT
MUHAMMAD EJAZ SWAT I, J.---The appellant has challenged the validity of the
judgment dated 13th June 2009 (hereinafter the "impugned judgment") passed by Special Judge
Anti-Terrorism Court -I, Quetta (hereinafter the "trial Court"), whereby the appellant Muhammad
Hussain son of Akhtar Ali was convicted under sections 302(b), 109/34, P.P.C. read with sections 7(a) and 21 -I of Anti -Terrorism Act, 1997 (hereinafter the "Act, 1997") and sentenced to
death as Tazir with fine of Rs.200,000/ - as compensation to be paid to the legal h eirs of each
deceased i.e. Syed Arif Hussain and Asadullah and in default thereof to further suffer R.I. for two years with benefit of section 382- B, Cr.P.C. The appellant was further convicted under
sections 324, 109, 34, P.P.C. read with sections 7(b) and 21- I of the Act, 1997 for causing
grievous injuries to the injured Amjad Ali and sentenced to suffer R.I for 14 years with fine of
Rs. 100,000/ - as compensation to be paid to the legal heirs of injured Amjad Ali and in case of
default thereof to further suffer R.I. for one year with benefit of section 382 -B, Cr.P.C.
Whereas the trial Court has also sent Murder Reference No. 16 of 2009 for confirmation
of death or otherwise.
2. The brief facts of the instant case are that on the complaint of Syed Shah Hus sain an FIR
No. 07 of 2002 dated 27th January, 2002 under sections 302, 324, 109/34, P.P.C. read with sections 7 -A and 21- I of the Act, 1997 was registered with Police Station Quaid Abad, Quetta,
wherein it was alleged that the deceased Syed Arif was his n ephew and on the fateful day, he
was present at his house and received an information by phone that Syed Arif was injured, who had been taken to the hospital. He reached to the hospital at about 5:40 p.m., where he came to know that the said Syed Arif succ umbed to the injuries. The complainant alleged that he came to
know in the hospital that the friends of deceased Syed Arif namely Asadullah and Amjad Ali had also sustained injuries and further he was told that firing was made from a Gray Colour Pajero and in the said incident, Zia son of Ali Murad, Muhammad Hussain son of Akhtar Ali
(appellant), Ali Ahmed son of Sabz Ali and Qurban son of Haji Ahmed Ali were involved. All the victims including the deceased had sustained injuries by means of Makarov Pistol. The
motive behind the incident was that Qurban son of Haji Ahmed Ali and Syed Muhammad Ali, who is father of deceased, had a business relationship, which turned hostile. Haji Ahmad Ali advanced threats to the complainant that to tell his brother and Muham mad Arif to settle the
account with him or in consequence the result would be dangerous. After registration of the FIR, the appellant remained fugitive and the case was tried against him in absentia, as such vide
judgment dated 16th August 2003, he was awa rded capital punishment. The appellant was
arrested from Iran and brought to Quetta on 19th February 2007. Thereafter, he filed an appeal before this Court, which was accepted vide judgment dated 15th September 2008 and the case was remanded to the trial C ourt for commencing de novo trial of the appellant after providing
him full opportunity of hearing in accordance with law. On 9th February 2009, the challan against the appellant was submitted and the charge was framed on 20th February 2009, to which he pl eaded not guilty and claimed trial.
3. The prosecution examined six witnesses. It is relevant to mention here that in the earlier
round when the case was proceeded in absentia, the statement of one injured namely Amjad Ali (an eye -witness) was recorded by the trial Court, however, after arrest of the appellant, the said
witness, according to the prosecution, had died. Whereon, the counsel for the complainant submitted an application along with death certificate of Amjad Ali issued by Nazim of the area, whic h was obtained by the third Investigating Officer of the case and the same was produced as
Ex.P/6 -A with the submission that the statement of PW Amjad be placed on record. The defence
counsel opposed the contention of the complainant's counsel and prayed f or rejection of the
application. However, the trial Court allowed the application, as such statement of the aforesaid witness was placed on record.
4. When examined under section 342, Cr.P.C. the appellant denied the allegations of the
prosecution. He neit her examined himself on oath as envisaged under section 340(2), Cr.P.C. nor
produced any witness in defence.
5. The trial Court vide impugned judgment convicted and sentenced the appellant as
mentioned hereinabove.
6. Learned counsel for the appellant contended that the complainant Syed Shah Hussain was
not an eye -witness of the incident; that PW -1 Shafiqa Bibi was also not an eye -witness of the
incident and she had received information from her son Amjad, but he had not been produced;
that statement of PW -1 Shafiqa Bibi was taken during investigation on an affidavit dated 24th
April 2002, that too after three months of the incident and she could not justify her presence at the place of incident; that the whole case of t he prosecution was based upon the statement of
injured Amjad recorded in the first round of trial in absence of the appellant on 10th December 2002, regarding which, the conviction of the appellant was set aside being tried in absentia, therefore, the stat ement of Amjad cannot be used against the appellant for the reason that his
death had been disputed by the defence; that the prosecution has failed to establish the death of PW-5 Amjad and in absence of any death certificate of PW -5 Amjad, his statement ca nnot be
used against the appellant; that according to law, the previous statement can only be used, if fair and full opportunity of cross -examination had been provided to the accused, but in this case, no
opportunity of cross -examination was provided to the appellant in the previous round, even
otherwise punishment awarded to the appellant in absentia was set aside and the said previous trial was held contrary to section 10 -a of the Constitution of Islamic Republic of Pakistan, 1973;
that while announcing t he judgment in absentia, the Hon'ble High Court had declared the
proceedings illegal and unconstitutional, as such any statement recorded during illegal proceedings cannot be used against the appellant; that capital punishment has been awarded to the appel lant merely on the basis of previous statement of the injured, but the same had not been
put to him at the time of his statement recorded under section 342, Cr.P.C; that the trial Court without examining the Nazim, who allegedly issued the death certificate of PW Amjad, no opportunity of cross -examination was provided to the defence, has passed the impugned
judgment, which is contrary to law; that the appellant contested the death of PW -5 Amjad,
therefore, in such circumstances, it was for the prosecution t o have independently proved the
criteria laid down under Article 47 of the Qanun- e-Shahadat Order, 1984 (hereinafter the "Order,
1984"), but the trial Court conducted the trial in a haphazard manner without providing proper opportunity to the appellant. He , at the end of his arguments, submitted that in alternate, the
capital punishment could not be awarded to the appellant on mere previous statement of an injured, regarding which criteria laid down under Article 47 of the Order, 1984 had not been fulfilled . He placed reliance on the judgments reported in AIR 1945 Kolkata 139, PLD 1958 SC
(Pak) 290 and AIR 1944 Lahore 206.
On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for
the complainant while controverting the contenti ons of the learned counsel for the appellant
contended that the prosecution besides producing eye -witness i.e. PW -1 Shafiqa Bibi mother of
deceased, also produced the statement of injured Amjad PW -5, which was recorded on 10th
December 2002 in the previous trial and in the said statement, opportunity of cross -examination
was also provided to the learned counsel for the appellant; that recording of statements of prosecution witnesses in absentia was mandate of the Act, 1997, therefore, the said statements cannot be regarded against the law; that previous conviction of the appellant, recorded in
absentia, though was set aside by this Court, but the said aspect of the matter would not debar the
prosecution to rely upon the statement of PW -5 and in this respect, the third Investigating Officer
produced his certificate with regard to death of PW Amjad and the said certificate in respect of death of Amjad was put to the appellant while recording his statement under section 342, Cr.P.C; that, though the statement wa s submitted by the counsel for the complainant through an
application and the said application was accepted by the trial Court vide order dated 5th June
2009 and the said order was not assailed by the appellant further, which had attained finality; that
besides statements of PW -1 and PW Amjad, which could be treated under Article 47 of the
Order 1984 coupled with recovery of crime empty, recovery of vehicle and medical certificate, are sufficient to prove that the appellant has committed murder of Syed Arif Hussain and
Asadullah and caused injuries to Amjad; that there was no mitigating circumstance and the normal sentence was justified; that the appellant was also convicted for making murderous assault upon PW -5 Amjad and awarded him sentence for 14 years w ith fine of Rs. 100,000/ -. He
placed reliance on the judgments reported in 2007 YLR 1046, 2013 PCr.LJ 282, PLD 2010 SC 642, PLD 2014 Peshawar 189, 2012 PCr.LJ 768 and PLD 1978 SC 102.
7. We have heard the learned counsel for the parties and perused the record of case. In the
instant case, the appellant after the incident went to hiding. thus after completing the codal
formalities, the trial Court proceeded the previous trial in absentia after completing the procedure
as provided under section 19(10) of the Act, 1997 and as per provision an Advocate was also appointed and in the previous trial, the statement of prosecution witness PW Amjad Ali was recorded as PW -5 and he was cross -examined by the counsel, appointed by the trial Court. In the
previous trial, t he trial Court after recording statements of prosecution witnesses including PW -5
Amjad, convicted the appellant and awarded him death sentence, which findings were challenged by the appellant after his arrest. This Court set aside the previous judgment be ing passed in
absentia and the case was remanded for de novo trial.
8. After remand, the prosecution examined six PWs. The trial Court relied upon the ocular
account by PW -1 Shafiqa and statement of PW Amjad Ali under Article 47 of Qanun- e-Shahadat
Order, 1984. PW -1 Shafiqa though narrated the incident and implicated the appellant in the
commission of offence, but her testimony required reconsideration on the point of delay. The incident had taken place on 27 January 2002. PW -1 stated to be present at the p lace of incident,
but neither at the time of incident she recorded her statement, nor explained the sufficient reasons for such delay. She appeared after about three months of the incident sworn an affidavit Ex.P/1-A, but no plausible explanation for such inordinate delay had been put forth, therefore, her statement is not safe to be relied upon. In Muhammad Khan v. Muhammad Bakhsh 1998 SCMR 570, it was observed that "credibility of a witness is looked with serious suspicion, if his statement under section 161, Cr.P.C. recorded with delay without offering plausible explanation.
In case of Muhammad Asif v. The State, 2017 SCMR 486, the honourable Supreme Court of Pakistan observed as under:
"There is a long line of authorities/precedents of this court and the High Courts that even
one or two days unexplained delay in recording the statement of eye -witnesses would be
fatal and testimony of such witnesses cannot be safely relied upon."
In the instant case, the only ocular evidence i.e. PW Amjad Ali, whose state ment had
been taken into consideration under Article 47 of Order, 1984 by the trial Court, in the
subsequent proceedings (instant trial) for awarding capital punishment, therefore, this aspect of
the matter requires reconsideration/reappraisal by this Cour t.
Article 47 of the Order, 1984 is reproduced herein below:
"Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any
person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot
be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable;
Provided that;
the proceeding was between the same parties or their representatives -in-interest;
the adverse party in the first proceeding had the right and opportunity to cross -examine;
the question in issue were substantially the same in the first as in the second proceeding."
Article 47 of the Order, 1984 deals relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein. Evidence given by a witness in a judicial
proceeding, or before any person authorized by law to take it is relevant for the purpose of
provi ng, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding,
the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. The provision of the Order ibid further states that "provided that the proceeding was between t he same party or their representatives -in-interest; that the adverse
party in the first proceeding had the right and opportunity to cross -examine. The provision of
Article 47 of the Order, 1984 further lays down the condition under which secondary evidence of
the testimony of a witness given in former proceeding civil or criminal is rendered admissible in subsequent proceeding, or in a later stage of the same proceeding. It is based on the rule that the best evidence available must always be produced, there fore, previous deposition of the witness
and thereafter admissible in subsequent proceeding subject to the requirement/condition of the Order, 1984
The statement of Amjad Ali PW -5 (recorded in the previous trial) was transferred in this
case under Articl e 47 of the Order, 1984, due to death of the said witness. The learned counsel
for the appellant criticized the statement on the ground that death of PW Amjad Ali was not proved and secondly that previous trial/proceeding, wherein the statement of PW -5 was
recorded, was set aside by this Court being nullity in the eyes of law, therefore, previous trial was neither judicial proceeding nor the appellant had been provided opportunity of cross -
examination. He placed reliance on the judgments reported in AIR 1944 Lahore 206 and AIR 1945 Calcutta 137. The case laws referred to and relied upon by the learned counsel are
distinguished, as in the first case, the witness given up by the prosecution due to illness of that
witness, was transferred on record by the Sessi ons Judge on the request of defence counsel and
held that "there are two criticism to be made on this procedure. In the first place, the learned Sessions Judge should not have admitted in evidence on the sessions record by transferring the statement of Has san Khan whether at the request of the public prosecutor or of the defence
counsel without proof that Hassan Khan was in fact ill and that his presence could not be
obtained without necessary inconvenience, expense and delay as laid down in Section 33,
Evidence Act".
In the second case, it was observed that "further Section 33, (Section to Article 47)
Evidence Act sanctioned the admission of the evidence of an absent witness only on certain specified grounds, which includes inquiry and evidence to establis h the inability of the witness of
his appearance".
09. In the instant case, the appellant was arrested from Iran, brought to Quetta on 19.02.2007
and thereafter challan to his extent Ex.P/5 -B dated 18th November 2008 was submitted after
conducting investig ation by PW -6 Maqsood Ahmed Inspector (IP) maintain that during,
investigation, he came to know that PW Amjad Ali son of Nadir Ali had been died on 24th March 2008 and his death was certified by the Nazim of the area (Ahmed Ali) through B.P/6- A.
It appears that challan to the extent of appellant Ex.P/6 -B was submitted after conducting
investigation by PW -6. This witness was cross -examined to that effect and he replied as under:
10. From the above, it appears that certificate Ex.P/6 -A, with regard to the death of PW
Amjad Ali had not been challenged by the defence nor rebutted through any cogent evidence, therefore, when application for transfer of statement of PW Amjad Ali was allowed by the trial Court on 05th June, 2009, the above evidence regarding deat h of Amjad Ali was already on
record, thus the requirement of Article 47 of the Order, 1984 was proved with regard to death of prosecution witness and the said evidence was also put to the appellant under section 342, Cr.P.C. Whereas the contention of the learned counsel for the appellant that previous conviction awarded to the appellant was recorded by the trial Court in his absentia, and this Court in appeal set aside the same, therefore, as per Article 47 of the Order, 1984, the previous trial was not judicial proceeding, is also not tenable. Since section 19(10) of the Act, 1997 empowers the
Anti-Terrorism Court to record statement of a person in the absence of the accused, if it is
proved, that an accused has absconded and there is no immediate prospect of arresting him, the
Court may record deposition of prosecution witness after appointing an Advocate as provided under section 19(11) of the Act, 1997. The statement of PW Amjad Ali was recorded in the previous trial in a judicial proceeding and counsel for pauper accused also cross -examined the
said witness, therefore, statement of PW Amjad Ali qualifying the stander embodied in Article 47 of the Order, 1984. In the case of Arbab Tasleem v. The State PLD 2010 SC 642 the Hon'ble Supreme Court of Pakistan observed as under:
"As a general rule of evidence only such statement is legal and admissible which is given
during the course of judicial proceedings and is on oath and is taken by a person authorized under the law to take down the evidence and that it is made in the presence of
the adverse party, giving the right to the adverse party to cross -examine the statement of
such deponent."
11. The provisions of Act, 1997 read with Article 47 of the Order, 1984 are an exception and
testimony of a witness becomes a legal piece of evidence, therefore, much care and caution be exercised by the Court before placing reliance on it, particularly in case of capital charge. In the instant case, PW Amjad Ali in his testimony recorded on 10th December 2002 before the trial
Court stated that on the fateful day, he along with deceased Arif Hussain and Asadullah were in
the vehicle of deceased Arif Hussain and when going towards bazar, the appellant along with his
co-accused in a Pajero for second time overtook them and stopped in front of them. The
appellant and his co- accused got down and while coming towards them started firing upon them.
As a result of their firing, he, Asadullah and Arif (deceased) sustained injuries. They were taken to hospital, where he was informed that his cousin Asadullah and friend Arif have succumbed to the injuries. The statement of PW Amjad had further been supported by PW -3 Dr. Muhammad
Anwar, who produced death certificate of Muhammad Arif Ex.P/3- A and death certificate of
deceased Asadullah Ex.P/ 3-B, which indicates fire -arm injuries. PW -4 Khaliq Dad further
corroborated the testimony of PW Amjad and stated that after receiving information about the incident, he along with SHO and other officials reached at the place of incident. The dead body of Syed Arif and injured Amjad and Asadullah (who later on succumbed to the injuries) were
found in a Yellow Taxi bearing registration No.PT -0092. Besides recovery of vehicle, empties,
bloodstained pieces of seat cover, the Pajero vehicle bearing registration No. BC -3535 was also
taken into possession vide recovery memo. Ex.P/4- H. The inured witness of prosecution i.e. PW
Amjad had given a detail account of the incident by attributing role of firing to the appellant and
co-accused in respect of fire- arm injuries sustained by him and deceased Syed Arif and
Asadullah. Evidence of witnesses were duly supported by medical evidence, recovery of empties, blood- stained clothes of deceased and injured, The injured witness PW Amjad Ali) was
worthy of credence, independe nt natural and trustworthy and there was no lawful reason to
discard his testimony, therefore, the testimony of single witness is found entirely reliable. Reference in this respect is placed to the case of Muhammad Mansha v. The State 2001 SCMR 199, wherei n the Hon'ble Supreme Court observed as under:
"A bare perusal would reveal that the language as employed in the said Article 17(1)( b) is
free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a
fact can be proved only by a single witness "it is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial
evidence. If the Legislature were to insist upon plurality witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal
impediment to the conviction of the accused person on such proof. Even as the guilt of an
accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a sing le witness, even though
considerable number of witnesses may be forth coming to testify to the truth of the case for the prosecution. The Court is concerned with the quality and not with the quantity of
the evidence necessary for proving or disproving a fa cts. "
12. Whereas the question of quantum of sentence is concerned, the complainant in the FIR
has alleged the motive of the incident as a business dispute and threat of dire consequence on the
part of accused persons, but PW Amjad Ali during cross -examin ation admitted that the appellant
had no enmity with him or deceased persons. The prosecution has set up a motive, but failed to
prove the same. There is no cavil to the proposition that a motive is not a condition precedent to
warrant a finding of guilt, however, it has been found by the Hon'ble Supreme Court of Pakistan to be relevant while considering the question of sentence. In Iftikhar Mehmood v. Qaiser Iftikhar 2011 SCMR 1165, the Hon'ble Supreme Court of Pakistan did not interfere with the judgment of High Court on the question of sentence and observed as under:
"We agree with the proposition that motive is not sine qua non for the proof of commission of the crime and at the time the motive is not known to any other person
other than deceased or accu sed which never surfaced on record. However, it cannot be
denied that motive is always very relevant to determine the quantum of sentence."
In Muhammad Yaseen v. The State 2011 SCMR 905, the Hon'ble Supreme Court of
Pakistan partly allowed the appeal and converted the sentence of death into life imprisonment
inter alia on the ground that prosecution has failed to prove motive and observed as under:
"The occurrence took place in a broad- daylight on a thoroughfare when Pervaiz lqbal was
on his way back to hi s house after purchasing ice, therefore, the story of substitution
propounded by learned counsel for the appellant cannot be accepted. In the absence of any corroboration, the Courts are expected to follow the rule of abundant care and caution in the matte r of sentence. It is not denied that no resident of the lane in which the
occurrence took place appeared and supported the prosecution story. The prosecution has failed to prove the motive for the offence. The appellant allegedly fired only one shot and decamped from the place of occurrence. The P.Ws. were at a considerable distance from
the place where Pervaiz Iqbal was done to death. Therefore, in the above circumstances, we consider it just and proper to convert the sentence of death into imprisonment for life."
In view of the above, while maintaining the conviction of the appellant, we partly allow
Criminal (A.T.A.) Appeal No. 187 of 2009 and convert the sentence of death into life imprisonment. However, the remaining sentences with regard to the compensation and in default thereof shall remain intact. Benefit of section 382 -B, Cr.P.C. already extended by the trial Court
shall remain intact. Consequently, the Murder Reference No. 16 of 2009 is answered in "NEGATIVE ".
JK/101/Bal. Order accordingly .This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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