2018 P Cr. L J 726
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
AZEEM KHAN and 2 others ---Appellants
Versus
The STATE and another ---Respondents
Criminal Appeal No. 183 and Murder Reference No. 12 of 2015, decided on 20th November,
2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34 ---Qatl-i-amd, common intention---Appreciation of evidence---Sentence,
reduction in---Ocular account supported by medical evidence ---Prosecution case was that
complainant and his cousins we re attacked by the accused and co -accused ---Accused with pistol
fired upon cousin of complainant, who sustained injuries and was taken to the hospital, where he
succumbed to the injuries ---Motive behind the incident was old enmity ---Ocular account was
furnished by witnesses including complainant and his cousin and narrated the incident as in the
FIR---Eye -witness corroborated the version of complainant and his cousin and they had taken the
injured to hospital, where injured succumbed to the injuries ---Ocula r evidence furnished by three
witnesses had not been shaken during the lengthy cross -examination with regard to firing by the
accused ---Ocular evidence had been corroborated by the Medical Officer, who produced the
death certificate of the deceased which i ndicated gunshot wound at the head of deceased by
means of bullet and injuries were found fresh ---Circumstances suggested that there was no doubt
with regard to presence of eye -witnesses at the place of incident at the relevant time ---Co -
accused was charged for sharing common intention---Admittedly, co -accused was empty handed
and if he had any intention, he would have been equipped with weapon--- Prosecution had failed
to prove instigation on the part of co- accused ---No overt act had been assigned to co -accused nor
there was any material on record to show that co -accused shared common intention with the
accused ---Ocular evidence though was corroborated by the medical evidence, however,
prosecution had not been able to prove motive, which was a mitigating cir cumstance for
reduction of sentence ---Conviction of accused, in circumstances, was maintained, however,
sentence of death was converted into life imprisonment ---Appeal was dismissed to the extent of
accused with said modification; however, prosecution had failed to prove its case against the co -
accused beyond any shadow of doubt, benefit of which would resolve in his favour ---Appeal to
the extent of co -accused was allowed in circumstances and he was acquitted by setting aside
convictions and sentences recor ded by the Trial Court.
Hassan v. The State 1969 SCMR 455; Hasan Din v. Muhammad Mushtaq and 2 others
1978 SCMR 49; Maqsood Pervez alias Billa and another v. The State 2000 SCMR 1859 and Ghulam Haider and others v. Muhammad Nadeem Sajid and another 2006 SCMR 1251 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34 ---Qatl -i-amd, common intention---Appreciation of evidence ---Recovery of
weapon of offence from accused ---Reliance--- Scope ---Accused were arrested on the day of
occurrence and during their a rrest, a pistol 30- bore along with magazine and nine live cartridges
were recovered from the accused ---Empties secured from the place of incident and crime weapon
was sent to Forensic Science Laboratory ---Positive Report of crime weapon, recovered from the
accused and crime empties secured from the place of incident matched with the crime weapon ---
Defence had objected that incriminating articles were sent with delay, therefore, had lost its
admissibility ---Record transpired that incriminating articles were sent after sixteen days of the
incident and received after two months of its dispatch--- In presence of truthful and reliable
ocular evidence, the report of Forensic Science Laboratory with regard to crime weapon recovered from the accused and crime empties secured from the place of incident could not be
treated fatal, as no question had been raised by the defence with regard to tampering or manipulating of the report ---Circumstances established that report of Forensic Science
Laboratory had corroborated the case of prosecution.
2003 SCMR 647 ref.
Muhammad Mushtaq v. The State PLD 2001 SC 107 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Interested
witness ---Scope ---Testimony of closely related witness ---Reliance---Complainant and
eyewitnesses were related to the deceased ---Defence objected that three witnesses of ocular
account were related to deceased, therefore, in absence of independence corroboration, conviction of the accused persons could not be sustained---Validity ---Record showed that the
evidence of three ocular witnesses were consistent, which had been corroborated by the medical evidence, recovery of crime weapon and positive report of matching the crime empties with the pisto l recovered from the possession of accused--- Said witnesses, in circumstances, were natural
and seem to be possible eye -witnesses of the case ---Evidence given by related witnesses were
not impeachable and thus could not be discarded merely on the ground th at they were related to
the deceased.
2003 SCMR 581 and Muhammad Aslam v. The State 2012 SCMR 593 rel.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Motive not
proved---Mitigating circumstance---Effect ---Sentence, reduction in ---Motive behind the
occurrence was stated to be previous enmity between the parties ---No such enmity/motive had
been established by the prosecution---Statements of prosecution witnesses were silent with regard to moti ve, therefore, a case of mitigation in the sentence of accused was made out ---
Conviction was maintained, sentence of accused from death was altered to imprisonment for life in circumstances.
Ahmed Khan v. Abdul Rasheed and others 2008 SCMR 378 and Muhamm ad Yaseen v.
The State 2011 SCMR 905 rel.
Muhammad Aslam Chishti and Muhammad Akram Shah for Appellants (in Criminal
Appeal No. 183 of 2015).
Shaukat Ali Rakhshani for the Complainant (in Criminal Appeal No. 183 of 2 015).
Yahya Baloch, DPG for the State (in Criminal Appeal No. 183 of 2015).
Yahya Baloch, DPG for the State/Appellant (in Murder Reference No. 12 of 2015).
Muhammad Aslam Chishti and Muhammad Akram Shah for Respondent (in Murder Reference No. 12 of 2015).
Date of hearing: 8th November, 2017.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---On 3rd December 2013 at about 3:15 p.m., the
complainant Abdul Hadi after closing his shop situated at Killa Saifullah Bazar along with his cousin Asmatullah and Mehboob Khan were going back to their home on their motorcycle
Honda 125- CC, when reached at Tanki Mori near Raza Shah Orchard Zhob Road, the appellants
Azeem Khan and Juma Khan suddenly came in front and attacked upon the complainant and his cousins. It was alleged that the appellant Juma Khan st arted fighting with the complainant Abdul
Hadi, whereas Asmatullah tried to rescue him and the appellant Azeem Khan while taking out
pistol fired upon Mehboob Khan son of Muhammad Ashraf, who fell down on the ground. During this, Muhammad Sharif son of Saddar -ud-Din also reached at the spot. The appellants
escaped from the place of incident. The injured Mehboob Khan was taken to the hospital, but he succumbed to the injuries and died. The motive behind the incident was stated to be an old enmity. The matter was reported to Police Station, Killa Saifullah on 3rd December 2013 at
about 4:10 p.m. by the complainant Abdul Hadi, whereon, an FIR No. 50 of 2013 under section 302/34, P.P.C. was registered. On the same day at about 6:00 p.m. on spy information, about
presence of the appellants in Raza Shah Orchard, it was cordoned off, from where, the appellants were arrested. During search of appellant Azeem Khan, a pistol along with a magazine containing 4 live cartridges and a Hamail Charmi containing 5 live cartridges total 9 live cartridges were recovered, which was taken into possession.
2. During trial, the prosecution examined 8 witnesses. When examined under section 342,
Cr.P.C. the appellant denied the allegations of the prosecution. They neither recorded the ir
statements under section 340(2), Cr.P.C. nor produced any witness in their defence.
3. The learned Sessions Judge, Killa Saifullah (hereinafter the "trial Court") vide judgment
dated 30th May, 2015 (hereinafter the "impugned judgment") convicted the appellants to the
following effect:
"Under section 302(b)/34, P.P.C. for committing murder of deceased Mehboob Khan
liable to Taz'ir. As the convict Juma Khan's role is different than that of convict Azeem
Khan, as such the accused Juma Khan son of Hazar Khan resident of Ali Khail, Killa
Saifullah is punished with imprisonment of life. He is further directed to pay Rs. 2- lac to
the legal heirs of deceased as contemplated by section 544A, Cr.P.C. and in default to suffer six (6) months' S.I. Benefit of section 382 -B, Cr.P.C. is also extended in his favour.
Whereas the convict Azeem Khan has committed murder of a young boy aging about
eighteen (18) years in brutal manner by firing his forehead, as such the convict does not
entitle any leniency, further there is n o mitigating circumstance in his favour. Thus the
convict Azeem Khan son of Alam Khan caste Akhtarzai resident of Killa Saifilllah is sentenced to death. He is further ordered to pay compensation amounting to Rs. 2- lac to
the legal heirs of deceased Mehboo b Khan in default thereof to further suffer six (6)
months' S.I. The convict Azeem Khan is directed to be hanged by the neck till he is dead as provided by section 368, Cr.P.C. the death sentence shall not be executed unless it is confirmed by the Hon'ble High Court of Balochistan."
4. The appellants had assailed their conviction and sentences by way of filing Criminal
Appeal No. 183 of 2015, whereas Murder Reference No. 12 of 2015 has also been sent by the trial Court for confirmation or otherwise of death sentence of appellant Azeem Khan.
5. Learned counsel for the appellants contended that the impugned judgment reflects
misreading and non- reading of evidence; that the eye -witnesses PW -1 Abdul Hadi, PW -2
Asmatullah and PW -6 Muhammad Sharif had failed to justify their presence at the place of
incident; that the alleged pistol recovered from the possession of the appellant Azeem Khan was not sent for analysis and the FSL report was also not produced in accordance with law, which lost its credibility; that PW -1, PW -2 and PW -6 are interested witnesses, having relationship with
the deceased, therefore, in absence of any independent corroboration, their statements were not
sufficient to award major penalty to the appellant; that the statements of the prosecution witnesses including eye -witnesses suffer from material improvements and contradictions, which
aspect of the matter has totally been ignored by the trial Court; that the medical evidence further contradicts the ocular account furnished by PW -1, PW -2 and PW -6; that in absence of any role
on the part of the appellant Juma Khan, his conviction on the basis of common intention does not attract from the evidence of the prosecution; that the motive was alleged, but has not been proved by the prosecution, therefore, normal penalty awarded to the appellant Azeem Khan cannot be
sustained; that the incriminating articles were sent for chemical examination with unexplained delay, therefore, the corroborative piece of evidence lost its evidentiary value; that the prosecut ion has failed to prove its case beyond reasonable doubt, as such the impugned judgment
is liable to be set aside.
The learned DPG assisted by the learned counsel for the complainant contended that it
was a case of promptitude FIR implicating the appellan ts in the commission of the offence with
reference to eye -witnesses, therefore, no question of deliberation or consultation arises in the
case; that the prosecution through ocular evidence proved the commission of offence on the part of the appellants beyond any shadow of doubt; that there was an old enmity between the parties, therefore, to revenge the same, the appellants blocked the road, pre -planned and in meeting of
mind, in furtherance. of common intention committed the murder, which reflects their pr e-intend
to commit the offence; that the ocular evidence produced by the prosecution has further been
corroborated by the medical evidence and recovery of crime weapon matched with empties
secured from the spot, which was further proved from the positive r eport of FSL; that mere
relationship of eye -witnesses with the deceased in absence of false implication on their part,
same cannot be discarded; that the ocular evidence has been found reliable, trustworthy and truthful by the trial Court, therefore, in such circumstances, rule of independent corroboration
does not arise; that direct role of firing has been attributed to the appellants and the appellant
Juma Khan also restrained the complainant to rescue the deceased and their presence at the place
of incident along with pistol further established their meeting of mind and pre -arrangement prior
to the incident, as such the prosecution has well established the participation of the appellant Juma Khan in furtherance of common intention; that the prosecution while alleging the motive also proved the same through ocular evidence and the facts related to motive have also been reflected from the suggestion put to PW -1 by the defence, therefore, the motive has also been
established; that no mitigating circumstance e xisted in the case for lesser punishment of the
appellant Azeem Khan; that the prosecution through overwhelming evidence of truthful witnesses proved its case, as such the appeal filed by the appellants is liable to be dismissed; that there is no inordinat e delay in sending the incriminating articles to the expert and furthermore
sending of such articles with delay is not fatal as no suggestion was put to the witness with regard to tampering or manipulating the report. They placed reliance on the judgments reported in 2003 SCMR 581, 2003 SCMR 647 and PLD 2001 SC 107.
6. We have heard the learned counsel for the parties and perused the record. The ocular
account furnished by the prosecution witnesses comprises on PW -1 Abdul Hadi and PW -2
Asmatullah, who were accompanying the deceased on a motorcycle and on 3rd December 2013, they after closing the shop were returning to their home and when at 3:00 p.m. they reached at Tanki Morr near Raza Shah Orchard Zhob Road, the appellants were ambushed and suddenly
appear ed in front of the motorcycle and attacked upon them. According to PW -1 Abdul Hadi,
PW-2 Asmatullah tried to rescue him. During this, the appellant Azeem Khan took out a pistol
and started firing upon deceased Mehboob Khan. who fell down on the ground. Dur ing this, PW
Muhammad Sharif reached at the spot. PW -6 Muhammad Sharif further corroborated the version
of PW -1 and PW -2 and they had taken the injured to the Hospital, where Mehboob Khan
succumbed to the injuries in the way and died. The ocular evidence f urnished by the above three
prosecution witnesses has not been shaken with regard to firing by the appellant Azeem Khan, during the lengthy cross -examination. The overwhelming evidence of above truthful prosecution
witnesses related to appellant Azeem Khan cannot be discarded merely on the ground that they
are related to the deceased Mehboob Khan. The ocular evidence has further been corroborated by the medical evidence produced by PW -5 Dr. Abdul Samad, who produced the death certificate of
the deceased ind icating "gunshot wound at head" by means of bullet and injures were found
fresh. The incident was taken place at about 3:00 p.m. while the deceased was examined by PW -
5 at about 3:12 p.m. According to PW -5, the deceased was brought by PW -1 Abdul Hadi,
therefore, in such circumstances, the ocular evidence produced by the prosecution has further
been corroborated by the medical certificate and there is no element of doubt with regard to presence of aforesaid eye -witnesses at the place of incident at the relev ant time. The
bloodstained earth and two empties of pistol as well as motorcycle 125 CC Honda bearing red colour model 2009 were taken into possession through the recovery memo Ex.P/4 (memo of bloodstained earth), Ex.P/4- A (memo of two empties), Ex.P/4 -B (recovery of motorcycle) from
the place of incident, which facts had also been brought on record by PW -4 Muhammad Khalil,
ASI and report of the Chemical Examination with regard to bloodstained articles were also
produced as Ex.P/8- F. The appellants were arr ested on the same day i.e. 3rd December 2013
from Raza Shah Orchard Zhob Road and during their arrest, a pistol .30 bore along with magazine and 9 live cartridges were recovered from the appellant Azeem Khan vide recovery memo Ex.P/III. The empty secured f rom the place of incident and crime weapon was sent to
Punjab Forensic Science Agency, who after examination through Ex.P/8- H drawn its conclusion
indicating that the item "C -1 and C -2" cartridges cases were identified has having been fired in
the item pis tol. The positive report of crime weapon recovered from the appellant Azeem Khan
and crime empties secured from the place of incident matched with crime weapon further corroborates the case of prosecution. The argument of the learned counsel for the appell ants that
these incriminating articles were sent with delay, therefore, it has lost its admissibility, is not tenable, though the aforesaid incriminating articles were sent on 20th December, 2013 after 16 days of the incident and received its report on 24t h February, 2014. In presence of truthful and
reliable ocular evidence, the report of FSL with regard to crime weapon recovered from the appellant Azeem Khan and crime empties secured from the place of incident cannot be treated fatal, as no question has been raised by the defence with regard to tampering or manipulating of the report. The FSL report was produced by PW -8 Muhammad Yousaf, SI, but during cross -
examination, no suggestion has been put to him either the report Ex.P/8- II had been tampered or
mani pulated. Reference in this respect is to be made to the case titled Muhammad Mushtaq v.
The State PLD 2001 SC 107, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"Learned counsel for appellant objected on the delay of sending the incriminating articles i.e. empties and shotgun for expert opinion without offering plausible explanation. A perusal of record revealed that no such objection was raised either before trial Court or the learned Appellate Court. As per settled law the delay in send ing the incriminating
articles to the concerned quarter for expert opinion cannot be fatal in absence of objection of tampering or manipulating the articles as held in the case of Muhammad Iqbal v. Muhammad Tahir and others (PLD 1985 SC 361)."
7. The argum ent of the learned counsel for the appellants that PW -1, PW 2 and PW -6 are
related to deceased, therefore, in absence of independent corroboration, conviction of the appellants cannot be sustained is also not tenable. The evidence given by PWs -1, 2 and 6 w ere
not impeachable and it could not be discarded, as stated by the learned counsel for the appellants that they were related to deceased. If such a wide proposition is to be accepted, the evidence of witnesses, who were relatives of the victim of a violen t crime, would be rendered unacceptable,
merely because they happened to be the relatives of deceased. The evidence of above three ocular witnesses are consistent evidence given by them, which has further been corroborated by the medical evidence, recovery of crime weapon coupled with positive report matching the crime
empties with the pistol recovered from the possession of the appellant Azeem Khan. In such circumstances, these witnesses are natural and seem to be possible eyewitnesses in the circumstances of the case. It is settled principle that any eye -witness's version cannot be
discarded by the Court merely on the ground that such eye -witness happened to be a relative or
friend of the deceased. In the case titled Muhammad Aslam v. The State 2012 SCMR 593, the ocular version had been furnished by PW -6, who was real son of deceased and PW -7, the other
eyewitness, who was cousin of the complainant and their statements were not discarded on the ground that they made consistent statement against the accused persons and specific role of firing was attributed and in Mirza Zahir Ahmed v. The State 2003 SCMR 1164, two eye -witnesses PW
Muhammad Zaheer and Muhammad Shafiq were closely related to deceased, but they had
furnished trustworthy evidence to support the prosecution case. It was held by the Hon'ble Supreme Court that "the statements of both the witnesses get corroboration from each other. As far as the medical evidence is concerned, it being in the nature of conformity has also substantiated their version, therefore, the evidence of these prosecution witnesses cannot be
discarded merely for the reason that they were closely related to Tariq Javed deceased".
8. In the instant case, the overwhelming evidence of truthful witnesses coupled with
corroborative evi dence as mentioned hereinabove, the prosecution has successfully proved its
case beyond any reasonable doubt against the appellant Azeem Khan.
9. Whereas the case of prosecution against appellant Juma Khan is concerned, he has been
charged for committing t he offence in furtherance of common intention. In order to bring home
the charge of common intention, the prosecution has to establish by evidence whether direct or
circumstantial that there was plan or meeting of mind of all the accused persons to commit the offence. It is pre -arranged or in spur of moment, but it must necessarily be before the
commission of the crime. The true concept of section 34, P.P.C. is that, if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them had done it individually by himself. The existence of common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that act of all participants in an offence must be the same or identically similar; the act may be different in
character, but must have been actuated by one and the same common intention. The existence of common intention is a state of mind to get or procure direct proof of common intention. It is to be gathered from the act or conduct of the accused or other relevant circumstances of the case.
This criminal liability can arise only when such inference can be drawn with a certain degree of
assurance. In the instant case PW -1 and PW -2 though stated that when they reached at Tanki
Morr near Raza Shah Orchard Zhob Road, the appellants suddenly emerged and the appellant Juma Khan started fighting with PW -1 Abdul Hadi. In absence of any injury on the person of
PW-1 Abdul Hadi or PW -2 Asmatullah, their version i n this respect has not been corroborated
through any corroborative or circumstantial evidence, as no medical certificate came on record to further corroborate the version of PW -1, PW -2 in this respect. Admittedly, appellant Juma Khan
was empty handed. Had he any intention, he would have equipped with weapon. In absence of
any weapon in his hand, it is difficult to believe that he had shared common intention during said episode. There is no proof of some overt act done on his part in furtherance of common intention. From the evidence of PWs it has only been proved that appellant Juma Khan was
present at the scene of incident along with appellant Azeem Khan and they were found running from the place of incident. Now it is to be seen whether mere presence of ap pellant Juma Khan
empty handed at the scene of incident attracts the provision of section 34, P.P.C. The Hon'ble Supreme Court of Pakistan examined the same point in case of Hassan v. The State 1969 SCMR 455 and observed as under:
"The Sessions Judge had a pplied section 34 of the case and in order to support conviction
under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P.W.3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is
no e vidence that he assaulted anybody or that in the circumstances he could have
intended to cause a grievous hurt to anybody. Judged by the standard applied by both the
High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and
sentence on the appellant are set aside and he is acquitted."
In case titled Hasan Din v. Muhammad Mushtaq and 2 others, 1978 SCMR 49 and at
page No.51, it was observed as under:
"In our view the learned counsel has misconceived the correct application of section 34,
P.P.C. The mere presence of a person on the spot does not necessarily attr act section 34,
P.P.C. This section is not to be applied lightly, particularly in acquittal cases. Vicariously liability cannot be visited unless there is some strong circumstance to show common intention. In view of the foregoing discussion, we think Bashir respondent has been rightly given the benefit of doubt."
In the case titled Maqsood Pervez alias Billa and another v. The State, 2000 SCMR 1859,
the Hon'ble supreme Court of Pakistan observed as under:
"It is admitted position that the appellants were not armed. It is also not denied that the
appellants had no enmity with the deceased or any of the P.Ws. It is also established on record that the appellants, the deceased and the P.Ws. met all of a sudden. It is also admitted that initially the trouble be tween the P.Ws. and Muhammad Ali, principal
accused, started because the said accused had a pistol in his possession and when called by the P.Ws. he started running and when he was chased he fired two shots in the air. It is
not believable that the principal accused could have fired at the deceased when the appellants had either caught hold of the deceased or had encircled him because that act was not only dangerous to their lives but there appears no reason to resort to it when they in the beginning starte d running after noticing the P.Ws. there is also no denying the fact
that all that occurred between the deceased and the P.Ws. on one hand and the principal accused on the other was abrupt and all of a sudden as admittedly firing by the principal accused w as not the result of any pre -arranged plan. Moreover common intention is to be
inferred from the entire conduct of the accused and not from an individual act which he committed on the spot. It is clear that evidence on record is not sufficient to come to a
conclusion that the appellants had at any stage common intention with the principal accused to commit the murder. In the absence of the common intention the appellants would be liable for their individual act which they committed in the episode. We thus hold that the prosecution has not been able to prove beyond any reasonable doubt the common intention of the appellants along with the main accused to commit the murder of Hakim Ali in furtherance of pre -planned design. Thus we extend the benefit of doubt t o
the appellants and acquit them of the charge of murder and while accepting their appeal to that extent modify the impugned judgment."
In the case of Ghulam Haider and others v. Muhammad Nadeem Sajid and another 2006
SCMR 1251, it was alleged that on the fateful day accused persons emerged on the motorcycle
driven by accused Danish, confronted PWs and deceased, who were on the way to District,
Court. Effective firing from .30 bore pistol was attributed to main accused persons; while
accused Danish was onl y driving the motorcycle, the Hon'ble supreme Court observed as under:
"As regards respondent Danish, the High Court has dealt with this case elaborately and noticed that he did not play any active role in the commission of the crime except being an innoce nt driver of the motorcycle. Indeed he had neither any motive for taking the life
of the deceased nor had he any intention or reasonable knowledge of Qatl -i-amd of the
deceased on the part of the principal accused. Undisputedly he was not carrying any weap on therefore, High Court appears to be right in taking the view that he might not
have shared a common intention with his co- accused to cause the death of the deceased.
On examination of the record, we are inclined to endorse the same view and do not find any strong ground for reappraisal of evidence against the said respondent."
10. In the instant case, we find that prosecution has failed to prove the part of any instigation.
No other overt act has been assigned to appellant Juma Khan, nor there is any mat erial on record
to show that appellant Juma Khan shared common intention with the main accused. As such, appellant Juma Khan is entitled for benefit of doubt, therefore, impugned judgment passed by the trial Court to his extent is not sustainable.
11. Now adverting to the quantum of sentence awarded to the appellant Azeem Khan, the
complainant in his report Ex.P/1- A mentioned that the incident was result of enmity between the
parties; but through evidence produced by the prosecution, no such enmity/motive has been established. There is no cavil to the proposition that motive is not a conditional precedent to warrant a finding of guilt, however, it has been found by the Hon'ble Supreme Court to be relevant while considering the question of sentence. In Ahmed Khan v. Abdul Rasheed and
others, 2008 SCMR 378, the Hon'ble Supreme Court did not interfere with conversion of death sentence into life as it found that the prosecution has failed to prove the motive and it was observed as under:
"There is no reason to disagree with the said finding because the prosecution after having alleged the motive, has failed to establish the same in order to show the involvement of the accused. However, there is other sufficient material available on record against the
accused/respondent, therefore, it has rightly been concluded and convict has been found entitled for the lesser punishment in the facts and circumstances of the case. As such we find that so far as conviction of respondent is concerned it is i n accordance with law and
the arguments put forwarded by the convict in his jail petition are without any substance."
In Muhammad Yaseen v. The State 2011 SCMR 905, the Hon'ble Supreme Court partly
allowed the appeal and converted the sentence of death into life inter alia on the ground that the prosecution has failed to prove the motive and observed as under:
"The occurrence took place in a broad -daylight on a thoroughfare when Pervaiz Iqbal was
on his way back to his 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 matter 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. Th e PWs. were at a considerable distance from
the place where Pervaiz Iqbal was done to death. Thereafter, in the above circumstances, we consider it just and proper to convert the sentence of death into imprisonment for life."
12. In the instant case, the s tatements of PW -1 Abdul Hadi, PW -2 Asmatullah and PW -6
Muhammad Sharif are quite silent with regard to motive, therefore, in view of the above, a case of mitigation in the sentence of the appellant Azeem Khan is made out.
In view of the above, the convict ion of the appellant Azeem Khan under section 302(b),
P.P.C. and compensation awarded by the trial Court vide impugned judgment is maintained,
however, his sentence of death awarded by the trial Court is converted into life imprisonment with benefit of sec tion 382- B. Cr.P.C. In the aforesaid modification in the impugned judgment,
the appeal to his extent is otherwise dismissed.
Consequently, Murder Reference No. 12 of 2015 is answered in negative.
The appeal to the extent of appellant Juma Khan son of Haz ar Khan is allowed, the
impugned judgment dated 30th May 2015 passed by the learned Sessions Judge, Killa Saifullah to the extent of appellant Juma Khan is set aside and he is acquitted of the charge. He be released forthwith, if not required in any other case.
JK/189/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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