QAZI MUHAMMAD AMIN AHMED, J:-Muhammad Hayat son of Saadullah, appellant herein, was tried along with his father Saadullah and Muhammad Nasir alias Nasrullah by a learned Addl. Sessions Judge at Jhang on the charge of committing Qatl-eAmd of Khizar Hayat and Abdullah alias Dulla deceased; he was sentenced to death on two counts along with compensation vide judgment dated 30-10-2004; co-accused Saadullah and Nasir alias Nasrullah were acquitted from the charge. A private complaint, prosecuted side by side with the police case, culminated into acquittal of the accused named therein vide the same judgment. During the hearing of appeal and connected murder reference, a learned Division Bench set aside judgment dated 30-10-2004 and remanded the case for re-writing of separate judgments, both in private complaint as well as police case. The appellant met with no better fate as at the end of post remand proceedings, he once again stands convicted on two counts of homicide with penalty of death on each along with payment of compensation in the sum of Rs.200,000/- each or to undergo six months SI in the event of default. This brings him to this Court through Crl. Appeal No.355 of 2011; confirmation of death penalty is prayed for vide Murder Reference No.185 of 2011; these are being decided through this single judgment.
The prosecution case is founded upon statement Ex.PK of Noor Muhammad (PW-9) recorded by Mushtaq Ahmad, SI (PW-11) on 20-10-2002 at 11:30 a.m. Near Adda Tahir Wasnahmal wherein it is alleged that on the fateful day, complainant along with PWs was present at the spot, situating 6- k.m. Away from Police Station Barrana District Jhang; they were irrigating their land from a tube- well, when at about sunrise time, the appellant armed with a double barrel 12 caliber shot gun emerged from a corn field and started firing hitting Khizar Hayat, aged 45/48, who felled on the ground and received multiple fire shots in that posture to breath his last whereafter Muhammad Hayat directed his assault on Abdullah alias Dulla, deceased, aged 50/55, he was hit on his chest and other parts of the body and succumbed to injuries at the spot as well; The appellant decamped from the spot, while warning the witnesses to stay at bay. Motive for the occurrence is that Abdullah, Khizar Hayat and Saadullah, father of the appellant are real brothers inter-se. Umar Hayat son of Abdullah alias Dulla deceased married with the sister of the appellant without approval and blessing of his father and started residing with his in-laws. It is prosecution's case that the appellant in the lust of property on the instigation of his father Saadullah and brother Muhammad Nasir committed the crime. Mushtaq Ahmad, SI (PW-11) conducted initial investigation, besides taking other investigative steps, he secured bloodstained earth from the spot and dispatched dead bodies to the mortuary where autopsies were conducted by Dr. Munir Ahmad Mubashar (PW-1) at 1:00 p.m. And 2:30 p.m. Respectively. Khizar Hayat deceased received six firearm entry wounds on top of head, left chest, outer aspect of left thigh and on left side of umbilicus; injuries on the head and left side of umbilicus were opined as sufficient to cause death in the ordinary course of nature. Abdullah alias Dulla deceased was noted to have three entry wounds on the right of head and left side of chest with an exit on the left temporal area. Injuries on the head and temporal area were blamed as cause of death. Death in both the cases was immediate and probable time between the injury and postmortem examination was reckoned as within 6 to 10 and 4 to 8 hours respectively. The appellant was arrested on 26-12-2002 and pursuant to a disclosure led to the recovery of gun P-6 from his residential room; he was indicted along with Saadullah and Muhammad Nasir alias Nasrullah, co-accused on 25-3-2004 when he claimed trial pursuant whereto prosecution produced as many as 12 witnesses besides placing reliance on forensic reports. The appellant pleaded innocence and blamed the complainant to have substituted him in order to save the life of his own son and other close relative. Saadullah accused died before pronouncement of judgment; Muhammad Nasir alias Nasrullah stands acquitted and the appellant is convicted and sentenced as referred to above.
2. Mr. Abdul Khaliq Safrani, learned counsel for the appellant does not contest appellant's conviction and instead prays for alteration of his death penalty into imprisonment for life on the ground that the prosecution miserably failed to establish motive set up in complaint Ex.PK; that recovery of gun P-6 in the absence of casings from the spot and a positive forensic report being inconsequential is an additional mitigating circumstance. It has lastly been argued by the learned counsel for the appellant that remand of case during appellant's first visit to this Court rekindled hope of a life and according to the learned counsel these factors/circumstances cumulatively make out a case to visit the appellant with alternate penalty of imprisonment for life which is a legal sentence. Learned Law Officer has contested the plea raised by the learned counsel for the appellant; he contends that it is a case wherein two innocent persons were done to death in a brutal and merciless manner and as such the appellant deserves no leniency.
3. Heard. Record perused.
4. We have very cautiously attended the question of quantum of sentence to be exacted from the appellant. On prosecution's stated position, the appellant gunned down both the deceased for the sake of their legacy; this requires a pinch of salt. After having given the hand of his sister to the son of Umar Hayat, who after tying the knot was living with him, it is inconceivable as to how he would have benefitted by committing these murders; it is equally incomprehensible that his son-in-law Umar Hayat would have countenanced murder of his father Abdullah alias Dulla at appellant's hand. The alleged motive does not fit in within the ambit of probability and that prosecution's failure to prove motive would constitute a mitigating circumstance so as to visit the convict with the penalty of imprisonment for life. Reliance is placed in the cases of Naveed alias Needu & others vs. The State & others (2014 SCM R 1464), relevant partition whereof is reproduced below:- "Upon our own assessm ent of the evidence available on the record we have felt no hesitation in concluding that the specific motive set up by the prosecution had indeed remained far from being established on the record. The law recently declared by this Court in the case of Ahmed Nawaz and another V. The State (2011 SCM R 593), Iftikhar mehmood and another Vs. Qaiser Iftikhar and others (2011 SCM R 1165) and Muhammad Mumtaz and another Vs. The State and another (2012 SCM R 267) reiterates the settled and longstanding principle that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice"
The same view was further fortified in the case of Ahmad vs. The State (2015 SCM R 993). Motive alleged by the prosecution is far from being plausible and thus liable to be discarded. Similarly, an inconsequential recovery can also be validly taken into account to the benefit of the appellant. It is prosecution's own case that the appellant committed these murders under the influence and on the instigation of his father Saadullah and brother Muhammad Nasir, this aspect of the prosecution case cannot be lost sight of. All these circumstances cumulatively make out a case wherein alternate penalty of imprisonment for life, in the facts and circumstances of the case, would meet the ends of justice. It has been held in the case of Muhammad Mumtaz Khan Vs. The State (1999 SCM R 837) "where more than one factors, just mentioned, are found present, none in itself qualifying for any condonation but each carrying a degree of persuasiveness, such cumulative circumstances of the case, calling for a lessor punishment, can, in appropriate cases, be resorted to." Reliance is also placed in the case of Ghulam Mohy-ud-Din alias Haji Babu Vs. The State (2014 SCM R 1034), relevant partition is reproduced below:- "Once the legislature had provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty was the normal penalty and should ordinarily be awarded. If the intent of the legislature was to take away the discretion of the court, then it would have omitted from S. 302 (b), P.P.C. The alternative sentence of life imprisonment. Sentence of death and life imprisonment were alternative to one another, however, awarding one or the other sentence essentially depended upon the facts and circumstances of each case."
For the above reasons, Crl. Appeal No.355 of 2011 is dismissed, however, the penalty of death is altered into imprisonment for life on each count. Both the sentences to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898. Amount of compensation and consequences of default are kept intact. Murder Reference No.185 of 2011 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.