' ATTAULLAH KHAN, J.---Through this single judgment we propose to decide the following cases:--
(1) Criminal Appeal No,134 of 2010 filed by convict/appellant Mahmood Khan against his conviction passed by learned Additional Sessions Judge-IV, Bannu dated 23-9-2010 vide which he has been convicted under section 302(b), P.P.C. And sentenced to death with payment of Rs,1,00,000 as compensation under section 544-A, Cr.P.C, to the legal heirs of deceased. In default thereof further to undergo six months, simple imprisonment.
(2) Dawood Khan (father of the deceased) filed Criminal Appeal No, 136 of 2010 against the acquittal of accused/respondents namely Mohibullah, Momin Khan Ahmad Gul and Riffatullah.
(2) Murder Reference No, 7 of 2010 forwarded by the trial Court.
' As all the above mentioned cases, are arising out of the same judgment/order passed by the learned trial Court, therefore are taken together for decision, through this single judgment.
2. Precisely facts of the present case as per F.I.R. Are that on 27-4-2009 at 1000 hours complainant/deceased namely Muhammad Raziq Khan in injured condition reported the matter to police in Emergency Ward Hospital, Bannu to the effect That on that day, he and Fayaz Khan son of Mir Biaz (his relative) were present in his Chowk, situated in his village, when at about 0930 hours, a motorcar bearing No,T-7573 Karachi white colour, came there. Mahmood Khan duly armed with .30 bore pistol and his three brothers empty handed and one driver unknown alighted from the motorcar, unknown could be identified on their appearance before him. Mahmood Khan accused demanded money from him and on his refusal, he infuriated and opened fire with his .30 bore pistol with intent to commit his qatl-e-amd, at the instance of his brothers and driver, as a result of which he sustained injuries. Alter the occurrence the accused decamped from the spot in the above mentioned motorcar. The motive is stated to be dispute over money transaction and the occurrence has been witnesses by his relative Fayaz Khan, hence case F.I.R. No,169 dated 27-4- 2009 under sections 302/148/149, P.P.C. Police Station, Saddar Bannu.
4. Challan against the appellant/accused was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellant/accused refused to plead guilty in response to the charge framed against him; therefore prosecution was directed to record its evidence to prove guilt of the appellant/accused.
3. The prosecution examined eleven witnesses during trial against the appellant/accused and then closed its evidence. Where after statement of appellant/accused was recorded under section 342, Cr.P.C. Neither the appellant/accused recorded his statement on Oath nor produced any evidence in defence.
5. The learned trial Court after hearing arguments of both sides convicted the accused/appellant and sentenced him as per detail given in first Para of this judgment..
6. Learned counsel for the appellant, complainant and state addressed their arguments in detail.
7. Before proceedings with the case further we have to point out that Mr. Muhammad Arif Khan learned counsel for the appellant Dawood Khan (father of the deceased) stated that he does not press the Criminal Appeal bearing No,136 of 2010.
8. We have gone through the record and evidence and considered the arguments of learned counsel of the parties, in the light of which our discussion is as under
9. Learned counsel for the appellant (Mahmood Khan) has submitted that he does not press the appeal on merit and pray for A alteration of sentence from death to life imprisonment because several mitigating circumstances are available which warrants lesser punishment. According to him the motive is not proved beyond reasonable doubt not it is specified either in the F.I.R. Or in the statement of witness. He further submitted that the occurrence took place after the demand of appellant accused for return of money was refused by the deceased and this caused the sudden provocation. He urged that according to F.I.R. And evidence the present appellant/accused along with three other co-accused came to the spot. Mahmood Khan appellant/accused deboarded from his car and demand money from the deceased which he denied and this denial caused provocation to the appellant/accused and, thereafter, effected fire with .30 bore pistol and left the spot.
10. The learned counsel for the complainant defended the sentence and submitted that the circumstances, pointed out by the learned defence counsel are not mitigating. He further submitted that the accused is guilty of brutal murder of an innocent person without any just cause, therefore, he is rightly sentenced to death.
11. We would discuss, both the contentions of learned counsel of the parties in view the evidence and other record on file. In the report it is stated that remaining three co-accused were empty handed. This report points out two facts. The first is that three co-accused were empty handed while appellant/accused was armed with .30 bore pistol. This reflects the attitude of the appellant/accused to the effect that they had not come to the spot with preparation, intention to kill and with preplanning. Had it been so, all of them would have armed with arms. Moreover, the pistol was licensed one. A person with intention to commit murder would never come with a licensed weapon because it is also helpful in identifying culprit. The second fact emerged from the report is that after the demand of money was denied by the deceased, the appellant/accused got provoked and fired at the deceased, so it means sudden provocation.
12. The eye-witness has appeared as P.W.8 and he also stated that when the demand of appellant/accused was dishonoured by the deceased he fired at him. He has given no motive which prompted the appellant/accused to commit this heinous offence. The motive as declared in the F.I.R. Is dispute over the business ( ){{urdu Text}}. The learned after getting injury remained under treatment and then expired. In the report he has stated the motive as business dispute. This motive is not proved through evidence.
13. Another mitigating circumstance is that the seats and nature of injuries on the body of the deceased. The postmortem report disclosed three injuries. All the injuries were on knee and thigh.
All these parts are non-vital. Question arises as to why the accused hit the deceased on non-vital part if he had an intention to kill him. The injuries on non-vital part of the body reflect that the accused had no intention to cause murder otherwise he would have fired on the vital part. This attitude of accused is a mitigating circumstances warranting lesser punishment.
14. The above discussion lead us to the conclusion in this regard that the occurrence is the result of sudden provocation. It was not a pre-planned and motive remained unproved. These three circumstances are to be examined as to whether these can be considered as mitigating circumstances for the award of lesser punishment.
15. As far as want of proof of motive is concerned there are several judgments of the superior Courts that if motive is not available or not proved, it is to be considered as mitigating circumstance for awarding lesser punishment under section 302/34, P.P.C. We may refer to case titled Muhammad Iqbal and others v. The State reported in 1984 SCM R 1184, wherein" it is held that when motive is set up by prosecution is not proved then the real cause of occurrence in the circumstances still remained shrouded in mystery. This plea was accepted by the August Court and considered it for lesser punishment under section 302 P.P.C. And sentence was altered from death to imprisonment for life. Similar view has been taken in case titled Naubahar v. The State reported in 1999 SCM R 637. In the said case the prosecution had failed to prove the motive as set up in the case and conviction was altered from death to life imprisonment. In case titled Muhammad Ashraf v. The State reported in 1998 SCM R 1764, the same view has been taken and the sentence of death was altered to life imprisonment. We also rely upon case titled Gul Muhammad and others v. The State reported in 1985 SCM R 491.
16. As proved from the evidence, before occurrence some altercation also took place between the deceased and the appellant/accused. We have gone through the evidence but have come across nothing to know about the nature of altercation. In such circumstances this Court in case titled Muhammad Nawaz v. The State reported in 2001 PCr.LJ 1014 has held that in case of doubtful nature of altercation the awarding of sentence of death is uncalled for.
17. Moreover, while awarding death sentence or life imprisonment the trial Court is required to record reasons and apply judicial application of mind. We may refer to case titled Israr Ali v. The State reported in 2007 SCM R 525, wherein it is held that:-- "7. In the case in hand clause (b) is applicable. Mere reading the said provision provides the following punishments:--(i) Punishment with death or (ii) Imprisonment for life as Tazir.
(8) It is pertinent to mention here that this provision does not spell out the circumstances in which either of the two punishments is to be awarded and as such it has been left for the superior Courts to lay down guidelines for awarding either of the punishment. Unamended section 302, P.P.C.
Shows that a Judge is not required to give reasons for imprisonment death sentence for murder as that was considered to be the proper sentence for murder but if he imposed a lesser punishment he was required to give reasons for it as law laid down by this Court in Piran Ditta' case PLD 1976 SC
300. Non after the said amendment in -section 302, P.P.C. Will be little different as a Judge while awarding either of two sentences will have to give reasons meaning thereby the learned Judge has to award the death penalty or life imprisonment after judicial application of mind with reasons.
The purpose and object of the amendment is based on the principles of Islamic Criminal Law introduced and enforced through Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) promulgated from time to time since 1990 in view of section 338-F of P.P.C. As in Islamic except for just cause and reason, a life cannot be taken away or in other words put to an end.
(9) For what has been discussed above, we are of the view that imprisonment for life will be adequate sentence in the circumstances of this case. We, therefore, alter the sentence of death into life imprisonment under sections 302(b), P. P. C. And 12 of Offence of Zina (EOH) Ordinance, 1979 on two counts. The remaining sentences are maintained. The appeal is dismissed with the aforesaid modification qua the sentence."
18. As far as the merit of the case is concerned, the learned counsel for appellant/accused has not pressed it and confined his arguments to the quantum of sentence. Keeping in view the arguments of the learned counsel for appellant/accused we have also confined over findings to quantum of sentence.
19. The upshot of our above discussion is that in this case the motive was set up by the complainant/deceased in the F.I.R. But no evidence has been produced at the trial Court and it remained unproved. It is also established from the contents of F.I.R. As well as statement of eye- witness that when the demand for money made by the appellant/accused was, not honoured by the deceased it provoked the appellant/accused and he fired which ultimately resulted in the death of deceased. So it seems that the case in hand is of a sudden provocation. The third fact emerged from the evidence was that there was altercation between deceased; and appellant/accused but nature of altercation has not been disclosed in the evidence. Lastly the accused fired on the non-vital part of the body of the deceased which prove his intention of not killing the deceased otherwise he would have fired on the vital part of the body. So in our opinion these four circumstances are of mitigating nature and therefore, lenient view is required to be taken. '
20. We, therefore, alter the sentence of death to life imprisonment while maintaining the remaining sentences. The appeal is dismissed with above-mentioned modification qua the sentence. As far as the murder reference is concerned it is answered in negative and accordingly dismissed and is not confirmed.
21. The Criminal Appeal bearing No,136 of 2010, filed by Dawood Khan (father of the deceased) against the acquitted accused/respondents namely Mohibullah, Momin Khan, Ahmad Gul and Riffatullah, is also dismissed being not pressed.