Asif Saeed Khan Khosa; J.--Nadeem Ramzan appellant had allegedly caused seven injuries to one Mst. Kausar Bibi with the use of a dagger inside the complainant party's house at 09.40 A.M. on 10.09.2009 which injuries had killed the said Mst. Kausar Bibi. The said occurrence had taken place in Mohallah Miana in the area of Police Station City, Mianwali in the backdrop of a motive according to which a sister of the present appellant fell mentally ill and the appellant suspected that Mst.
Kausar Bibi deceased had applied Taveez on her. With the said allegations the appellant was booked in case FIR No, 419 registered at the above mentioned Police Station during the same morning and after a regular trial the appellant was convicted by the trial Court for an offence under Section 302 (b), PPC and was sentenced to death and to pay compensation. The appellant challenged his conviction and sentence before the High Court through an appeal which was dismissed, his conviction and sentence recorded by the trial Court were upheld and the sentence of death passed against him was confirmed. Hence, the present appeal by leave of this Court granted on 16.02.2015.
2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.
3. A bare look at the site-plan of the place of occurrence shows that the incident in issue had taken place inside the house of the complainant party in a thickly populated area. The occurrence had taken place in broad daylight and an FIR in respect of the same had been lodged with sufficient promptitude wherein the appellant was nominated as the sole perpetrator of the alleged murder.
The ocular account of the incident in question had been furnished before the trial Court by two, eye witnesses namely Zubair Iqbal complainant (PW7) and Muhammad Ramzan (PW8) who were the husband and a brother-in-law of the deceased who resided in the same house with the deceased.
The said eyewitnesses were inmates of the house wherein the occurrence had taken place and, thus, were nothing but natural witnesses. The record of the case shows that the present appellant was also closely related to the above mentioned eye witnesses as well as to the deceased and, thus, the case in hand could not be a case of a mistaken identity. The consistent ocular account furnished by the above mentioned eye witnesses had received full support from the medical evidence inasmuch the date and time of occurrence, the weapon used and the locale of the injuries stated by the eye witnesses had all been confirmed by the medical evidence. Both the Courts below had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the appellant having been established to the hilt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that concurrently taken by the Courts below.
4. We have specifically attended to the sentence of death passed against the appellant and have noticed in that context that the motive set up by the prosecution had not been established by it.
While discussing the motive part of the case the High Court had observed that both the eye witnesses had stated about the alleged motive and they had not been cross-examined by the defence on that aspect of the case and, thus, the alleged motive stood proved. This approach adopted by the High Court has been found by us to be fallacious inasmuch as it had been clarified by this Court in the case of S. Mahmood Alam Shah v. The State (1987 PSC 1277) that the principle that a fact would be deemed to be proved if the witness stating such fact had not been cross- examined regarding the same was a principle applicable to civil cases and not to criminal cases.
It was held that a criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him. A similar view had already been expressed by this Court in the case of State v. Rab Nawaz and another (PLJ 1974 SC 25) wherein it had been observed that a criminal case is to be decided on the basis of totality of circumstances and not on the basis of a single element. We have noticed that even the investigating officer of this case had failed to collect any material in support of the asserted motive. The lady who had statedly fallen mentally ill because of application of Taveez on her by Mst. Kausar Bibi deceased had not even been examined by the investigating agency nor any investigation had been conducted in that regard. The motive asserted by the prosecution had, thus, remained far from being proved. During the investigation a dagger had allegedly been recovered from the custody of the appellant but it is admitted at all hands that the recovered dagger was not stained with blood and, hence, the same did not stand connected with the alleged murder. It has been held by this Court in many cases 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 a capital charge and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCM R 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCM R 1165), Muhammad Mumtaz v. The State and another (2012 SCM R 267), Muhantmad Imran @ Asif v. The State (2013 SCM R 782), Sabir Hussain alias Sabri v. The State (2013 SCM R 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCM R 1602), Naveed alias Needu and others v. The State and others (2014 SCM R 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCM R 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCM R 2035) and Qaddan and others v. The State (2017 SCM R 148). In the case in hand we find that in the absence of proof o the asserted motive the real cause of occurrence had remained shrouded in mystery and this factor has put us to caution in the matter of the appellant's sentence of death.
5. For what has been discussed above this appeal is dismissed to the extent of the appellant's conviction for the offence under Section 302(b), PPC but the same is partly allowed to the extent of his sentence of death which is reduced to imprisonment for life. The order passed by the trial Court regarding payment of compensation by the appellant to the heirs of the deceased as well as the order in respect of imprisonment in default of payment of compensation are, however, maintained.
The benefit under Section 382-B, Cr.P.C. shall be extended to the appellant. This appeal is disposed of in these terms.