2023 Y L R 107
[Balocshitan]
Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ
ABDUL NASIR and others ---Appellants
Versus
The STATE and another ---Respondents
Criminal Appeals Nos. 150, 152 and Murder Reference No. 2 of 2021, decided on 7th June,
2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence ---Sentence, reduction in ---Delay of about six hours in lodging the
FIR---Scope ---Accused were charged for committing murder of parents of complainant and
also injuring him by firing---Admittedly, there was a delay of about six hours in reporting the matter ---Conduct and attitude on the part of the complainant appeared to be quite natural as
the complainant detailed everything in a straightforward manner while recording the FIR ---
Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt ---Certain mitigating circumstances were found, thus while
maintaining the convictions, death sentence was altered to imprisonment for life ---Appeal
was dismissed with said modification in sentence.
Muhammad Zubair v. State 2007 SCMR 437; Mushtaq Hussain and another v. State
2011 SCMR 45 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence ---Sentence, reduction in---Ocular account supported by medical
evidence--- Scope ---Accused were charged for committing murder of parents of complainant
and also injuring him by firing---Ocular account of the occurrence had been furnished by complainant/injured and an eye -witness ---Eye -witness narrated the whole story with regard
to the occurrence and had correctly stated the time,date and manner i n which the occurrence
took place ---Complainant had categorically identified the accused before the court ---Said
witnesses attributed the role of firing to the accused persons ---Said witnesses gave a
consistent and straightforward ocular account of the occurrence ---Despite conducting
extensive and lengthy cross -examination, nothing was brought on record which might
significantly demonstrate that the account of said eye -witnesses was false or their presence at
the scene of the crime was doubtful or distrustf ul---Presence of the said witnesses on the spot
was also proved ---On the same date, the Investigation Officer recorded the statement of eye-
witness under S.161, Cr.P.C.--- Complainant and eye- witness were real sons of the deceased
persons ---Witnesses were residents of the vicinity and they had given a plausible explanation
for their presence at the spot at the relevant time--- Medical evidence was in complete
harmony with the ocular testimony of the complainant and eye -witness ---No conflict could
be pointed out to create a dent in the prosecution case ---Medical evidence of the deceased
and injured was produced by Medical Officer, who examined the dead bodies of the
deceased, according to which the male deceased received three injuries of firearms and
female deceased received one injury of fire- arm---Circumstances established that the
prosecution had proved its case against the accused beyond shadow of doubt, however, some mitigating circumstances were found, thus while maintaining the convictions, death sentence was altered to imprisonment for life ---Appeal was dismissed with said modification in
sentence.
(c) Criminal trial ---
----Witness --- Interested and related witness --- Reliance--- Scope --- Mere relation of witness
with the deceased was no ground to discard their testimonies if their evidence was found entirely independent and truthful, therefore, their testimony, without looking for any other corroborative evidence, would alone be sufficient to establish the charge ---Evidence of
related witnesses who were not found inimical and were confidence- inspiring would hardly
need any corroboration.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl -i-amd, common intention ---
Appreciation of evidence ---Sentence, reduction in ---Recovery of weapon of offence and
crime empties ---Scope ---Accused were charged for committing murder of parents of
complainant and also injuring him by firing---Record showed that Kalashnikov was
recovered on the pointation of the accused on 13.02.2020 beneath the stones from the
mountains ---Said Kalashnikov was recovered from an open area, and it was not recovered
from exclusive possession of the accused or from the residence of the accused---Kalashnikov
which was allegedly recovered on pointation of the accused and the crime empties recovered from the place of occurrence were not sent to the Firearm Expert for comparison or to determine whether it was in working condition and whether the empties allegedly recovered from the place of occurrence had been fired from the allegedly recovered Kalashnikov---In
the absence of any positive report of the Forensic Science Laboratory, the recovery of crime
weapon was inconsequential ---In such circumstances, while maintaining the convictions,
death sentence was altered to imprisonment for life ---Appeal was dismissed with said
modification in sentence.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence ---Sentence, quantum of ---Mitigating circumstances ---Scope ---
Accused were charged for committing murder of parents of complainant and also injuring
him by firing--- Statement of accused recorded under S.342, Cr.P.C., showed that no question
about the asserted motive was put to them ---Some mitigating circumstances were noted in
favour of the accused persons, firstly; the recovered crime weapon had been disbelieved;
secondly, the prosecution had alleged a specific motive in the case but had failed to prove the
same---Question of quantum of the sentence required utmost attention and thoughtfulness on
the parts of the Courts ---Not determinable as to what was the real cause of occurrence and as
to what had actually happened immediately before the occurrence, which had resulted in the
death of two persons, therefore the death sentence awarded to the accused was quite harsh ---
In such circumstances, while maintaining the convictions, death sentence was altered to
imprisonment for life ---Appeal was dismissed with said modification in sentence.
Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Haq Nawaz v. The
State 2018 SCMR 21 rel.
(f) Criminal Procedure Code (V of 1898) ---
----S. 342---Examination of accused---Scope ---If a piece of evidence or a circumstance is not
put to accused persons at the time of recording their statements under S.342, Cr.P.C., the same could not be considered against them.
Imtiaz alias Taju v. The State and others 2018 SCMR 344; Qadan and others v. The
State 2017 SCMR 148 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others
2017 SCMR 1710 rel.
Taj Muhammad Mengal for Appellants.
Fazal -ur-Rehman, State Counsel.
Date of hearing: 19th May, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant Abdul Nasir son of Muhammad
Yaqoob in Criminal Appeal No. 150 of 2021 and the appellant Mst. Rabia, wife of Abdul Nasir, in Criminal Appeal No. 152 of 2021, having been involved in case FIR No.02/2020 dated 12.01.2020 registered under sections 302, 324 and 34, P.P.C. at Levies Thana Khuzdar were tried by the learned Additional Sessions Judge Khuzdar ("trial court") and on completion thereof by means of the judgment dated 31.03.2021 ("impugned judgment") passed in Case No.05/2020, the appellants were convicted and sentenced in the following terms:--
"24........., thus, accused Abdul Nasir son of Mohammad Yaqoob is convicted under section 302(b) read with 34, P.P.C. as tazir and sentenced him to death. He be hanged to neck till he is dead, subject to the confirmation of the Honorable High Court of Balochistan, Quetta. Accused Abdul Nasir son of Mohammad Yaqoob is also liable to pay compensation of Rs.4,00,000/ - (Rupees Four Lac) to the legal heirs of deceaseds
Mohammad Anwar and Bibi Sakina. In case of default accused shall undergo for a period of six (6) months S.I. Accused Abdul Nasir is further convicted under section
324 read with 34, P.P.C. and sentenced to imprisonment for a period of four (04) years (R.I.) with fine of Rs.10000/ - (Ten Thousand Rupees). In case of default
accused shall undergo for a period of Six (06) months (S.I). Accused is further convicted under section 337- F(iii) read with 34, P.P.C. and sentenced to
imprisonment as Tazir for a period of one (01) year (S.I). He is also liable to pay
Daman of Rs. 25000/ - (Twenty Five Thousand Rupees) to injured namely sultan (PW -
1). In case of default in payment of Daman accused shall be dealt in accordance with the provision of 337- Y(ii), P.P.C. Since, accused Rabia Bibi is woman and her gender
is considered as mitigating circumstances while awarding sentenced, hence Mst. Bibi
Rabia Wife Abdul Nasir is hereby convicted under section 302(b), read with 34,
P.P.C. and sentenced to suffer life imprisonment (R.I). She is also liable to pay
compensation of Rs.4,00,000/ - (Rupees Four Lac) to the legal heirs of deceaseds
Mohammad Anwar and Bibi Sakina. In case of default accused shall further undergo for a period of six (6) months S.I. Accused Mst. Bibi Rabia is further convicted under section 324 read with 34, P.P.C. and sentenced to imprisonment for a period of four (04) years R.I. with fine of Rs.10000/ - (Ten Thousand Rupees). In case of default
accused shall further undergo for a period of Six (06) months (S.I). Accused is further convicted under section 337/F (iii) read with 34, P.P.C. and sentenced to imprisonment as Tazir for a period of one (01) year (S.I). She is also liable to pay Daman of Rs.25000/= (Twenty Five Thousand Rupees) to injured namely Sultan (PW -1). In case of default in payment of Daman accused shall be dealt in accordance
with the provision of 337- Y(ii), P.P.C. The sentence of imprisonments awarded to
both accused persons shall run concurrently. Benefit of section 382 -B, Cr.P.C is
extended in favour of accused persons."
Aggrieved from the impugned judgment, the appellants Abdul Nasir and Mst. Rabia,
wife of Abdul Nasir, have assailed their conviction and sentence through Criminal Appeals Nos. 150 and 152 of 2021, whereas the trial court has sent the Murder Reference No. 02 of 2021 for confirmation or otherwise of the death sentence awarded to the appellant Abdul Nasir.
Since all the above cases are arising out of one and the same judgment of the trial
court, therefore same are being disposed of through this single judgment.
2. The prosecution story as disclosed in the FIR (Ex.P/8- A) recorded on the written
complaint (Ex.P/1 -A) of the complainant Sultan Ahmed son of Muhammad Anwar (PW -1) is
that on 12.01.2020 at 5:0 pm he along with his father Muhammad Anwar and mother Bibi Sakina (deceased) were present in the room of the house, where his uncle Abdul Nasir along with his wife Bibi Rabia (appellants) and his son Naseer Ahmed (absconding accused) entered into the house being equipped with Kalashnikov and pistol and abused his father and subsequently the accused Abdul Nasir made fire shots by Kalashnikov at his father, who expired on the spot while Naseer Ahmed also made fire shots by Kalashnikov at his mother Bibi Sakina who also expired on the spot while Mst. Bibi Rabia made fire shots by a pistol at his mother and he also suffered injuries, thereafter the accused persons made their escape good from the place of occurrence. Hence, the crime report.
3. After completion of the usual investigation, the challan was submitted before the trial
court wherein the convict/appellants were formally charge -sheeted to which they did not
plead guilty and claimed trial. The prosecution in order to prove its case produced eight witnesses in all. After the closure of the prosecution witnesses, the statements of the
appellants were recorded under section 342, Cr.P.C, wherein they denied the prosecution
evidence and professed innocence. The appellants opted not to record their statements on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in their defense. On conclusion of the trial, the trial court, after hearing arguments from both the parties, convicted and sentenced the appellants in the aforesaid terms. Where- after the titled criminal
appeals along with the Murder, Reference have been filed.
4. Arguments advanced from both sides have been heard. We have also minutely gone
through the record available on file with the able assistance of learned counsel for the parties.
5. Learned counsel for the appellants at the very outset attacked the FIR while saying
that the same was lodged with inordinate delay. It is an admitted fact that the alleged occurrence took place on 12.01.2020 at 5:00 pm and on the same date, the FIR was lodged at 11:00 pm. The incident took place at Samand Ferozabad, Khuzdar, which is 30 kilometers from the Levies Thana Khuzdar. According to the trial court the area in which the occurrence took place is a remote area. It was also 'B' area that comes within the jurisdiction of the levies officials. Tehsildar is incharge of Levies Thana. He received information about the occurrence through a wireless message, and then he reached to hospital. After the occurrence, the ambulance was called from Khuzdar City whereafter the injured were shifted to the District Headquarter Hospital Khuzdar, wherein the complainant/injured (PW -1) made
a complaint Ex.P/1 -A for registration of the FIR. According to the report of the complainant,
the accused/appellants and absconding accused armed with deadly weapons came into the house of the complainant and made firing upon them due to which the complainant, his father, and mother received injuries by means of firearms, and due to the injuries his father and mother succumbed to the injuries. The delay in lodging the FIR has been explained by
the circumstances of the case. Two persons have lost their lives, and another was injured, therefore preference was to get treatment of PW- 1. It is also admitted fact that on the day of
occurrence, the Tehsildar received information about the occurrence, and he himself reached the DHQ Hospital, but it was also the duty of Tehsildar to lodge the FIR, and he did not do so, and it was a fault of Tehsildar. PW- 1/complainant himself was in DHQ hospital ad he
himself received injuries. In the peculiar facts and circumstances of the case are self -
explanatory, with regard to delay in lodging of FIR and defence could not succeed to prove any consultation, deliberation or premeditation on the part of the complainant to falsely charged the appellants in the case. It is not possible in the ordinary course or even not appealable to the prudent mind that the actual and real culprit is let off and instead an innocent person is charged. As regards the plea of delay in lodging of FIR, we would say that it is by now a settled principle of law that mere delay in the lodgment of the FIR shall never be sufficient to believe or disbelieve the contents of the FIR, but the question of guilt or innocence shall always need required standard of evidence. The promptness or delay will, however have their relevance as a circumstance which otherwise would not prejudice the liabilities of either side and that of the Court to examine this aspect by holding the scale of justice tight. Reference may be made to the case of Muhammad Zubair v. State 2007 SCMR 437 wherein it is held as under: -
"4 ……Generally delay in lodging FIR cannot in all cases lead to the inference that the case set up in the FIR is necessarily true or false, however, it is relevant circumstance to be considered. FIR or reject the matter, reported therein".
6. It is stated earlier that delay in recording the FIR may be for the reason of deliberation
so as to contrive anything to his advantage, then the accused has to show or at least plead
that the delay in reporting the matter had been to his disadvantage because spontaneous information shall also not debar the accused from attacking the contents thereof. Reference may be made to the case of Mushtaq Hussain and another v. State 2011 SCMR 45 wherein it
is held as under: -
"... The purpose of the FIR is to set the criminal law in motion and to obtain the first
hand, spontaneous information of occurrence in order to exclude the possibility of fabrication of story or consultation or deliberation or the complaint has had time to devise or contrive anything to his advantage and the disadvantage of others and to safeguard the accused of such like happenings/occurrence in the FIR, as the spontaneity is the guarantee of truth to a greater extent".
7. Admittedly, there is a delay of about six hours in reporting the matter, and the
complainant filed an application on the same day after six hours of the occurrence. On the other hand, the conduct and attitude on the part of the complainant appear to be quite natural as the complainant detailed everything in a straightforward manner while recording the FIR, which prima -facie attaches truthfulness to such narration, particularly where no
benefit/advantage appears to have been obtained so as to settle any personal score etc. Reference may be made to the case of Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 wherein it is held as under: -
"7 ….. The scrutiny of their evidence does not suggest any exaggeration rather not assigning any specific role to the accused persons reflects the truthfulness of their testimony when in hustle and bustle of the occurrence which has been committed within a few seconds or minutes it is humanly impossible to assign specific role and
giving detailed description of the same would rather infer or input to have been made out to falsely rope the accused persons, as such lodging of the FIR in straightforward manner in the fact and circumstances of the cases rules out any possibility of falsely roping the accused persons rather the lodging of the FIR in a straightforward manner shows that it carries the lodging of the FIR in a straightforward manner shows that it carries the true version".
For the purpose of safe administration of justice, it is essentially required of the Court
to satisfy itself whether the eye -witness is natural and his presence on the spot could
reasonably be believed and that whether the testimony is free from any intrinsic improbabilities and in the case of an interested witness whether any corroboration is forthcoming.
8. The Court, in a case involving capital punishment, will not base the conviction of an
accused solely on the testimony of an interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstances in the case. On a capital charge, when the accused is tried, there has to be evidence of unimpeachable character, which must lead to the only inference that the accused is found guilty beyond a reasonable doubt.
9. The prosecution case primarily rests on the ocular testimony of complainant/PW- 1
Sultan Ahmed, who is the complainant/injured witnesses, PW -5 Salman was the eye- witness,
medical evidence and other circumstantial evidence. PW -1 Sultan Ahmed narrated the whole
story with regard to the occurrence and has correctly stated the time, date and manner in
which the occurrence took place. PW- 1 has categorically identified the accused before the
court. Likewise, PW -5 Salman has claimed to be the eye -witness of the occurrence. The
above witnesses attributed the role of firing to the appellants. They gave a consistent and straightforward ocular account of the occurrence. Despite conducting extensive and lengthened cross -examination, nothing was brought on record which may significantly
demonstrate that the above eye -witness' account is false or their presence at the scene of the
crime was doubtful or distrustful
10. The presence of the said witnesses on the spot was also proved. On the same date, the
Investigation Officer recorded the statement of PW -5 Salman Ahmed under section 161,
Cr.P.C.
The complainant/PW -1 Sultan Ahmed and PW -5 Salman Ahmed are real sons of the
deceased Muhammad Anwar and Mst. Bibi Sakina. They are residents of the vicinity. They have given a plausible explanation for their presence at the spot at the relevant time.
11. PW-1 Sultan Ahmed, the injured witness, also supported the prosecution case since he
sustained injuries on his person and was immediately shifted to DHQ hospital Khuzdar where PW- 2 Dr. Javed Ahmed Zehri issued a medical certificate in favour of PW- 1,
according to which he received firearm injuries. Thus the presence of this injured PW is also established. Under such circumstances, it cannot be further disbelieved that the present appellants were substituted by the real culprits. In this regard, reliance is placed on the
judgment of august Supreme Court of Pakistan titled Abdul Rauf and others v. Mehhi Hassan and others 2006 SCMR 1106, wherein it was held that" --
"Presence of eye- witnesses who had received firearm injuries at the place of
occurrence at the relevant time was not open to any doubt. None of the eye -witnesses
was shown to have any motive or ill -will to maliciously implicate the accused in the
case"
This ratio has further been affirmed by the august Supreme Court in the case titled
Muhammad Waris v. The State 2008 SCMR 784, wherein it was held that: -
"Eye -witness had explained their presence at the place of occurrence at the relevant
time and thus, they were natural and independent witnesses of the incident. Medical evidence was not destructive of the ocular testimony".
It is worthwhile to mention here that the prosecution also produced PW -6 Abdul
Salam, who claimed to be an eye -witness of the occurrence, but the trial court disbelieved the
statement of PW -6 being a chance witness.
12. So far as the plea of the learned counsel for the appellant that only interested
witnesses were produced by the prosecution and the case of the prosecution is lacking
independent corroboration, suffice to state here that mere relation of witnesses with the
deceased is no ground to discard their testimonies if their evidence is found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence- inspiring would hardly need
any corroboration. It is stated earlier that PW1/complainant Sultan Ahmed and PW -5 Salman
Ahmed are real sons of deceased Muhammad Anwer and Mst. Bibi Sakina. Being a close relative of the deceased, the above witnesses were subjected to lengthy cross -examination,
but nothing advantageous was brought, rendering inconsistent to the case of the appellants, who were implicated by the above PWs. No serious enmity whatsoever was alleged against them, and besides that being real sons, the question of substitution of the real culprits with that of appellants does not arise, which otherwise is a rare phenomena.
13. It may be observed that the medical evidence is in complete harmony with the ocular
testimony of the complainant/PW -1 Sultan Ahmed and PW -5 Salman Ahmed, and no conflict
could be pointed out to create a dent in the prosecution case. The medical evidence of the deceased and injured/ PW- 1 was produced by PW -2 Dr. Javed Ahmed Zehri. On 12.01.2020,
he examined the dead bodies of the deceased Muhammad Anwar and Mst. Bibi Sakina, wife
of Muhammad Anwar, according to which the deceased Muhammad Anwar received three
injuries by means of firearms and deceased Mst. Bibi Sakina received one injury by means of a firearm. He issued medical certificates Ex.P/2 -A and Ex.P/2 -B. On the same day, he
examined the injured Sultan Ahmed (PW- 1) and issued a medical certificate Ex.P/2 -C,
according to which the injured Sultan Ahmed received injuries by means of firearms.
14. Testimonies of the above eye -witnesses have also been corroborated by the recovery
of the blood- stained earth, recovery of crime empties from the place of occurrence and their
blood stained garments. The said recoveries have been duly proved through recovery witnesses, and nothing adverse could be achieved despite cross -examination. The medical
evidence produced by the prosecution also supported and corroborated the testimony of the eye-witnesses, and no contradiction at all could be pointed out by the defense.
15. So far, the recovery of crime weapon, i.e. Kalashnikov on the pointation of the
accused/appellant Abdul Nasir is concerned the same was recovered on the pointation of the accused / appellant Abdul Nasir on 13.02.2020 beneath the stones from the mountains situated at Guftari mountain. The said Kalashnikov was recovered from an open area, and it was not recovered from exclusive possession of the accused or from the residence of the accused/ appellant. The Kalashnikov which was allegedly recovered on pointation of the appellant Abdul Nasir and the crime empties recovered from the place of occurrence were not sent to the firearm expert for comparison or to determine whether it was in working condition and whether the empties allegedly recovered from the place of occurrence had been fired from the allegedly recovered Kalashnikov. In the absence of any positive report of the Forensic Science Laboratory, the recovery of crime weapon was inconsequential. Even the recovery of crime weapon as well as a statement of PW- 6 Abdul Salam are excluded from
consideration being inconsequential, it has been observed by us that the direct evidence in the form of ocular account furnished by complainant/PW -1 and PW -5 Salman Ahmed are
confidence -inspiring, which is supported by medical evidence.
16. So far as the principle of constructive liability is concerned vis -à-vis section 34,
P.P.C., if several persons would unite with a common purpose to do any criminal offence, all
those who assist in the completion of their object would be equally guilty. Foundation for constructive liability was the common intention in meeting the accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence. In order
to constitute an offence under section 34, P.P.C., it is not required that a person should
necessarily perform any act with his own hand. If several persons had the common intention
of doing a particular criminal act and if, in furtherance of their common intention, all of them joined together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hand, do the act but if he helps by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of section 34, P.P.C. Paramount consideration is whether the offence has been committed in furtherance of the common object. In the case in hand, both the appellants armed with deadly weapons entered into the house of the complainant and made firing and due to the firing made by the accused/appellants the deceased Muhammad Anwar, his wife, Mst. Bibi Sakina and the complainant received injuries.
17. We have no hesitation to hold that the prosecution has been successful to prove its
case against the appellants beyond reasonable doubt, and concluding so, it has been observed by us that the accused/appellants and absconding accused armed with deadly weapons made firing upon deceased Muhammad Anwar and Mst. Bibi Sakina, who later on succumbed to the injuries and also caused injuries to Sultan Ahmed (PW -1), as such the conviction
recorded by the trial court is based on correct appreciation of evidence, which does not call for interference.
18. Now, coming to the quantum of sentence awarded to the appellant Abdul Nasir son of
Muhammad Yaqoob under section 302(b), P.P.C., on assessment of evidence, we also found that the motive has not been proved by the prosecution against the appellants, we have observed that the motive set up by the prosecution was quite vague and admittedly no independent witness was brought by prosecution even not a single word deposed by the complainant before the trial court during his evidence in support of the asserted motive though it was mentioned in the FIR. The complainant/ PW -1 also failed to give detail of the
property or date and time about the dispute in the property between both the accused/appellants and the complainant party in the FIR. The Investigation Officer also failed to collect any evidence about the asserted motive nor he deposed a single word during the trial.
19. We have also carefully examined the statements under section 342, Cr.P.C. of the
appellants and found that no question about the asserted motive was put to them. It is a well -
settled principle of law that a piece of evidence or a circumstance is not put to an accused person at the time of recording their statements under section 342, Cr.P.C. the same could not be considered against them as has been held by Hon'ble Supreme Court of Pakistan in cases Imtiaz alias Taju v. The State and others (2018 SCMR 344), Qadan and others v. The State (2017 SCMR 148) and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710).
20. We have noted some mitigating circumstances in favour of the appellant, namely
Abdul Nasir, son of Muhammad Yaqoob; firstly; the recovered crime weapon has been
disbelieved by us for the reasons mentioned in Para No. 15 of this judgment; secondly, the prosecution has alleged a specific motive in this case but has failed to prove the same. It is well-recognized principle by now that the question of quantum of the sentence requires
utmost attention and thoughtfulness on the parts of the Courts. In this regard, we respectfully
refer to the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein
august Supreme Court has held as under: --
"It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
21. Moreover, it is not determinable in this case as to what was the real cause of
occurrence and as to what had actually happened immediately before the occurrence, which had resulted in the death of Muhammad Anwar and his wife Mst. Bibi Sakina (both deceased), therefore, in our view, the death sentence awarded to the appellant is quite harsh. It has been held in a number of judgments of the August Supreme Court of Pakistan that if a
specific motive has been alleged by the prosecution, then it is the duty of the prosecution to
establish the said motive through cogent and confidence -inspiring evidence and non- proof of
motive may be considered a mitigating circumstance in favour of the accused. While treating it as a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case reported as "Haq Nawaz v. The State" (2018 SCMR 21), in which it has been observed as under; -
"After hearing the learned counsel for the parties and going through the record we
have observed that the High Court had categorically concluded that the motive set up by the prosecution had not been proved by it. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran alias Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148). "
In the light of the above discussion, the conviction of the appellant namely Abdul
Nasir, son of Muhammad Yaqoob, as awarded by the trial Court through the abovementioned judgment, is maintained, but the sentence of death awarded to the appellant, namely Abdul Nasir, son of Muhammad Yaqoob, under section 302(b), P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544- A of Cr.P.C.
and sentence in default thereof as well as the conviction and sentence awarded to the
appellant under sections 324, 337- Y(ii) are maintained and upheld. The benefit provided
under section 382- B of the Code of Criminal Procedure, 1898, is also extended to the
appellant, namely Abdul Nasir son of Muhammad Yaqoob.
Consequently, with the above said modification in the sentence of the appellant,
namely Abdul Nasir, son of Muhammad Yaqoob, Criminal Appeal No.150 of 2021, and Criminal Appeal No. 152 of 2021 are hereby dismissed. The Murder Reference No. 02 of 2021 is answered in the NEGATIVE. The death sentence awarded to the appellant Abdul Nasir son of Muhammad Yaqoob, is not confirmed.
JK/104/Bal. Appeals dismissed.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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