' NAIMATULLAH PHULPOTO, J.---Appellant Danial alias Dani son of Ayub Masih was tried by learned VI Additional Sessions Judge, Karachi East in Sessions Case No,273 of 2006. By judgment dated 14.11.2012, appellant was convicted under Section 302, P.P.C. And sentence to death. He was ordered to pay fine of Rs, 100,000/-. In case of default in payment of fine, he was ordered to suffer two years'
R.I. Trial Court made reference for confirmation of death sentence awarded to the accused to this Court as required under Section 374, Cr.P.C. Being aggrieved and dissatisfied, appellant Danial alias Dani filed Criminal Appeal No,322 of 2012 before this Court. The learned Division Bench of this Court vide short order dated 21.05.2014 dismissed the appeal and maintained the death sentence.
Reference made by the trial Court was confirmed, for the reasons to be recorded later on. On 26.05.2014, while recording the reasons, learned Division Bench noticed that appellant is a young boy. Learned Counsel for appellant did not invite attention of learned Division Bench to the statement of the accused recorded under section 342, Cr.P.C. At the time of hearing of appeal. Asm such, notices were issued to the Counsel for the appellant, prosecutor General as well as Counsel for the complainant for re-hearing of appeal. Learned Division Bench after hearing the learned Counsel for parties dismissed the appeal vide judgment dated 30.05.2014 maintained the ,conviction. However, reduced death sentence to imprisonment for life and answered reference made by trial Court in negative for the following reasons:-- "Coming to the quantum of sentence, minute scrutiny of the entire evidence repeals that there was no previous enmity between the parties not the appellant was harboring grudge against the victim. The witnesses produced by the prosecution have clearly deposed that they knew the appellant as well as the victim since long and did not bring on record anything which could reflect previous grudge or ill will. All prosecution witnesses as well as the appellant himself has admitted a fight between the victim and the appellant in between 15 to 30 minutes prior to the incident, the prosecution witnesses have not given the reason of such fight but the accused has stated that the deceased was selling wine. Notwithstanding, the cause of fight, the admitted position being a fight between the appellant and the victim which led the appellant to commit such act. Though strictly speaking neither grave and sudden provocation has been pleaded before the trial Court nor it appears to be a cause of grave and sudden provocation but on account of a fight between the appellant and the victim just before the incident in our opinion death penalty was not warranted specially when the appellant was a young man at the time of incident and was not a previous convict. In the case of Peer Abdul Razzak v. Khalid Dad (1984 SCMR 951) the niece of the accused was struck with the bicycle of the deceased and an complaint of the niece the accused committed murder of the deceased and the trial Court awarded death penalty. The High Court while maintaining conviction reduced sentence to imprisonment for life and the Apex Court maintained the reduced sentence. Likewise, in the case of Abdul Haq v. The State (PLD 1996 SC 1) the provocation offered by the deceased to the accused was treated as mitigating circumstances and death penalty was converted into imprisonment for life."
2. Complainant/State filed Criminal Appeal No,33-K of 2014 before Honourable Supreme Court. Vide judgment dated 19.03.2015, Honourable Supreme Court set aside the judgment passed by learned Division Bench of this Court dated 30.05.2014 and matter was remanded to this Court for a fresh decision of Criminal Appeal No,322 of 2012 and the connected Murder Reference No,03 of 2012, after hearing the learned Counsel for all the parties and attending to the record of the case afresh.
3. We have carefully heard Mr. Shahid Ali Qureshi learned Advocate for the appellant, Mr. Mohammad Iqbal Awan A.P.G, assisted by learned Advocate for the complainant and perused the entire evidence.
4. Learned Advocate for appellant did not press the appeal on merits and contended that appellant was young boy at the time of commission of offence and was not previous convict. It is contended that it was not the case of premeditated cold blooded murder. It is further contended that there was no previous enmity between the parties. It is lastly argued that there are mitigating circumstances to convert death sentence to imprisonment for life. In support of his contentions, he has relied upon the cases reported as Muhammad Ismail and others v. The State and others (2013 PCr.LJ 478), Rashid Bashir v. The State and others (2011 PCr.LJ 1522) and Bilawal v. The State (2012 M LD 1419).
5. Mr. Mohammad Iqbal Awan APG assisted by learned Advocate for complainant argued that appellant was aged about 21/22 years at the time of incident. It is further argued that there was a quarrel in between accused and deceased on 07.05.2006 at 1700 hours in cabin but due to intervention of persons, appellant went away. After half an hour at 5:30 p.m., deceased came out of pan Cabin to purchase goods for his house. Appellant Danial alias Dani emerged and attacked upon deceased with Churri. Learned APG argued that it was cold blooded premeditated murder of young person. It is submitted that at the time of first quarrel/fight, accused was empty handed, thereafter, he came armed with knife and caused three knife blows to deceased. He argued that youth of accused alone does not constitute extenuating circumstance. Learned APG lastly argued that there are no mitigating circumstances in this case to convert the sentence of death to one of the imprisonment for life. In support of contentions reliance has been placed upon the cases of Muhammad Saleem v. The State (2001 SCM R 536) and Faisal Aleem v. The State (PLD 2010 SC 1080).
6. The facts of this case as well as evidence produced before the trial Court find an elaborate mention in the judgment of the trial Court as well as in the judgment dated 30.05.2014, passed by this Court in Criminal Appeal No,322/2012. Therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.
7. Learned Advocate for appellant did not press the appeal on merits but we have minutely examined the evidence for our satisfaction. PW-3 Qaiser Manzoor has deposed that on 07.05.2006, he along with his friend was taking tea at Hayat Hotel situated at main road, Christian ' against the language of section 300 but is in deviation of the illustration to section 315, P.P. C.
Which defines Qatl shibh-iamd. The appellant had caused firearm injury with Kalashnikov, and in law, is liable to be punished under section 302(b), P.P.C., for which he was awarded lawful sentence of life imprisonment by the learned High Court. We, therefore, are of the view that the sentence of life imprisonment awarded to the appellant was in accordance with law with the modification that the appellant shall be deemed to have been convicted under section 302(b), P.P.C."
14. Now adverting to quantum of sentence and mitigating circumstances, the trial Court has awarded death sentence to the appellant on the charge of murder, which is undoubtedly is a normal penalty for the offence of murder, but in appropriate cases, the Court extends benefit of such mitigating circumstances in favour of the accused. In the present case, it is an admitted position that there exists no back ground of previous enmity or deep rooted hostility between the appellant and deceased. The evidence of PW-2 and PW-3 reveals that the act of inflicting single knife blow by appellant at deceased was preceded by a dialogue between accused and deceased followed by scuffle. It is also significant that the appellant inflicted only single below by means of knife and did not repeat it. All these factors cumulatively make out a case for mitigation of sentence. In Abdul Haq v. The State, PLD 1996 SC 1, wherein the appellant therein had taken the plea of provocation and stated that he was deprived of power of self-control. The provocation made basis for self-defence was something said to him in Pashto by the deceased upon which he took out his pistol and fired shot at the deceased. The abusive language was treated as mitigating circumstance.
15. In the instant matter, the case of the prosecution is also silent with regard to motive. 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 observed by the Hon'ble Supreme Court of Pakistan that it is to be relevant while considering the question of sentence. In Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCM R 1165, the Hon'ble Supreme Court 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 time motive is not known to any other person other than the deceased or the accused person, which never surfaced on the record. However, it cannot be denied that motive is always very relevant to determine the quantum of sentence that might be awarded to a person against whom charge of murder is proved. "
In Muhammad Yaseen v. The State, 2011 SCM R 905, the Hon'ble Supreme Court partly allowed the appeal and converted the death sentence 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 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. 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, we partly allow the Criminal Appeal No,229 of 2016 and while maintaining the conviction under section 302(b), P.P.C. Convert the death sentence into life imprisonment and further award compensation of Rs,300,000/- (three lac only) to be paid to the legal heirs of deceased Zakir Hussain, in case of default, the appellant shall further suffer SI for six months.
Benefit of section 382-B, Cr.P.C. Is also extended in favour of the appellant. Consequently the Murder Reference No,5 of 2016 is answered in NEGATIVE.