NAIMATULLAH PHULPOTO, J. Nawab alias Tharo and Nizamuddin alias Nizam were tried by learned let Additional Sessions Judge (MCTC), Ghotki, in Crime No.130/2010 of P.S Khanpur Mahar, for offences under sections 302 read with sections 148, 149, P.P.C. On the conclusion of trial, vide judgment dated 15.09.2021, appellants were convicted under section 302(b), P.P.C. read with section 149, P.P.C. for committing Qatl-i-amd of deceased Kehar and Faiz Muhammad and sentenced to death on two counts. The appellants were ordered to pay compensation of Rs.500,000/- for each deceased to be paid to the legal heirs of both deceased in terms of section 544-A, Cr.P.C. In case of default thereof, compensation was ordered to be recovered from them as arrears of the land revenue. Both the appellants were also convicted under sections 148, 149, P.P.C. for two years R.I and to pay fine of Rs.10,000/- each. In case of failure in payment of fine, they were ordered to suffer S.I for one month.
2. Brief facts of the prosecution case are that on 28.08.2010 at about 09:00 hours, Complainant Dilber Ali lodged FIR, alleging therein that he had old enmity with accused Ali Sher (absconder) in this case, who used to issue threats to the Complainant that his father Kehar will be killed. It is alleged that on 27.08.2010, complainant along with PWs Muhammad Moosa, Menghlo, his father Kehar (now deceased) and maternal uncle Faiz Muhammad (now deceased) were coming to their village via link road on two motorcycles. At about 11:00 a.m. when Complainant party reached near Jhandho Bus stop where they saw absconding accused Ali Sher, Ali Nawaz, Ali Gul, Panhoon, Tharo and present appellants Nizamuddin alias Nizam and Sarwar alias Saroo armed with G-3 Rifles and KKs appeared on two motorcycles. It is further alleged in the FIR that they stopped their motorcycles and declared that complainant party would not be spared. It is alleged that absconding accused Ali Sher made fire from G-3 Rifles upon Kehar with intention to kill him, fire hit him and he fell down, whereas, absconding accused Tharo and present appellant Nizamuddin alias Nizam made direct fire from their KKs and G-3 Rifle upon Faiz Muhammad, he received injuries. Both injured succumbed to the injuries on spot. Thereafter, accused persons made their escape good on their motorcycles. Complainant took the dead bodies with the help of PWs to PS Kbanpur Mehar and dead bodies were referred to the Hospital for conducting their postmortem examination and FIR of the incident was lodged against accused on 28,08.2010, at P.S. Khanpur Mahar, for offences under sections 302, 148, 149, P.P.C.
3. After usual investigation, challan was submitted against the accused under section 512, Cr.P.C.
Appellant Nawab alias Tharo was arrested on 02.07.2011, whereas, Nizamuddin was arrested on 01.02.2018. Learned trial Court declared Ali Sher and Ali Gul as absconders. Trial Court firstly framed the charge against appellant Nawab alias Tharo at Ex-8 on 28.09.2011. Accused Nizamuddin was subsequently arrested. Amended charge was framed against both appellants on 21.05.2012. They pleaded not guilty and claimed trial. Trial Court had examined as many as eleven (11) witnesses. On the conclusion of trial, appellants were found guilty to the charge and they were convicted under section 302(b), P.P.C. read with section 149, P.P.C. and sentenced to death on two counts. Trial Court has made reference to this Court for confirmation of death sentence.
4. It is pertinent to mention here that both appellants were previously tried by learned Sessions Judge, Ghotki, in Sessions Case No. 505/2010 (in same case) and they were convicted under section 302(b), P.P.C. and sentenced to death vide judgment dated 15.02.2019. The appellants had assailed the same before this Court by filing Criminal Jail Appeal No.18 of 2019, which was party allowed and the case was remanded to the trial Court with direction to record the evidence of prosecution witnesses afresh. Thereafter, trial Court proceeded with the trial in terms of aforesaid judgment passed by this Court and again appellants have been sentenced to death as stated above and trial court has made reference to this Court for confirmation of death sentence.
5. We have carefully heard learned Counsel for the parties and re-examined the entire evidence and examined the impugned judgment minutely.
6. After reading all the prosecution evidence and the impugned judgment, learned advocate for the appellants candidly conceded that prosecution had proved charge against both appellants beyond a reasonable doubt and, on the instructions, did not want to argue their appeal on merits but instead only prayed for reduction from death sentence to imprisonment for life on the ground that motive as alleged by the prosecution in the FIR has not been established at the trial. Reliance is placed upon the case of Mst. Nazia Anwar v. The State and others (2018 SCMR 911).
7. Learned Additional Prosecutor General assisted by advocate for the Complainant based on the mitigating circumstance conceded that motive as set up in the FIR has not been established at trial and submitted that death sentence may be converted to imprisonment for life in the view of judgment in the case of Mst. Nazia Anwar supra.
8. We have come to the conclusion that prosecution succeeded to prove its case against the Appellants for the reasons that the occurrence in this case had taken place in broad daylight at 11:00 a.m. Eye-witnesses have explained their presence at the time of incident; ocular evidence is supported by the medical evidence; delay in lodging of FIR has been fully explained; parties were known to each other; despite lengthy cross-examination, not a single major contradiction has been brought on record. Learned advocate for the Appellants did not press the appeal on merits.
Trial Court had undertaken the exhaustive analysis of evidence available on record and found appellants guilty. On our re-examination of evidence, we have not been able to take a view of the matter different from that taken by the trial Court.
9. We have particularly attended to the sentence of death passed against the appellants and have found that motive as set-up by the prosecution in the FIR had remained far from being established.
Motive as set up in FIR was that absconding accused Ali Sher declared that he had old enmity with Kehar (deceased). Complainant, in his evidence at Ex.37, had deposed that absconding accused Ali Sher used to say that due to old enmity he will kill his father. According to the FIR, motive was against absconding accused Ali Sher. On the conclusion of trial, circumstance of the specific motive was not put to the appellants in their statements under section 342, Cr.P.C. for their explanation. Trial Court in the impugned judgment has held that prosecution has proved motive.
Finding of the trial Court regarding motive is against the record. Complainant in his FIR and in evidence before trial Court attributed motive against absconding accused Ali Sher. The law is settled by now that prosecution asserts a motive in the FIR 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. Rightly reliance is being placed on the case of Mst. Nazia Anwar supra. Relevant portion is reproduced as under:- 'The motive asserted by the prosecution had remained utterly unproved. 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 Ahmed Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaisar 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)."
10. For what has been discussed above this appeal is dismissed to the extent of the appellants conviction for the offence under section to 302(b), P.P.C. but the same is partly allowed to the extent of their sentence of death which is reduced to imprisonment for life. The order passed by the trial court regarding payment of compensation by the appellants to the heirs of both deceased as well as the order regarding imprisonment in default of payment of compensation are, however, maintained. It is made clear that in case of default in payment of compensation, appellants shall suffer S.I for 06 months more. It is ordered that all sentences awarded to the appellants shall run concurrently. In the view of above, confirmation reference is answered in negative.
11. For the above stated reasons, above appeal and Confirmation Reference No.D-11 of 2021 are disposed of in above terms.