Abher Gul Khan, J. Muhammad Nadeem Aslam (appellant) involved in case FIR No.378/2017 dated 08.05.2017 registered under Sections 302, 363, 377 & 201 PPC at Police Station Hanjerwal, Lahore, was tried by learned Additional Sessions Judge, Lahore, who vide judgment dated 02.02.2022 convicted and sentenced him as under:- (i).Under Section 363 PPC to suffer rigorous imprisonment for seven years with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for two months.
(ii).Under Section 377 PPC to suffer imprisonment for life with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for two months.
(iii).Under Section 201 PPC to suffer rigorous imprisonment for five years with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for two months.
(iv).Under Section 302 (b) PPC to suffer death sentence. He was also directed to pay compensation of Rs.3,00,000/- as compensation in terms of 544-A Cr.P.C. to the legal heirs of the deceased which was ordered to be recovered as arrears of land revenue and in default whereof to undergo simple imprisonment for 06-months.
All the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C., was extended to the convict.
Challenging his convictions and sentences Muhammad Nadeem Aslam (appellant) filed Criminal Appeal No.8752 of 2022, whereas trial court forwarded a reference which was numbered as Murder Reference No.26 of 2022 under Section 374 Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the convict, Muhammad Nadeem Aslam. Both these matters are being decided through this single judgment.
2. Briefly stated the facts of the prosecution case as unfolded by Muhammad Afzal complainant (PW.5) in FIR (Exh.PA/2) are that on 08.05.2017 at about 12:00 Noon his son Muhammad Waseem aged about 31/2 years went out from the house for playing but did not return. After sometime, the complainant became worried and tried to search him. The complainant was on the way to Bazar in search of his son where his elder brother Niamat Ali and cousin Zubair told him that they had seen his son in the company of Muhammad Nadeem Aslam (appellant) who was driving motorcycle bearing registration No.LEN-2045 and proceeding towards Main Bazar Jamal Colony. The motive behind the registration of instant case was that approximately 8/10 days prior to the incident in question, an altercation took place between the children for which the appellant had nourished grudge, who allegedly had kidnapped Muhammad Waseem and it was suspected that Muhammad Nadeem Aslam (appellant) would commit his murder.
3. On 08.05.2017 Muhammad Afzal complainant (PW.5) presented application (Exh.PA) before Akbar Ali SI (PW.1) at Jamal Colony who recorded the police proceedings on application (Exh.PA) and sent the same to the Police Station through Muhammad Aslam Constable for the registration of a criminal case. Subsequent thereto, investigation of the instant case was entrusted to Muhammad Shafique Inspector (PW.15) on 08.05.2017 and he arrested Muhammad Nadeem Aslam (appellant) on 09.05.2017. During interrogation, Muhammad Nadeem Aslam (appellant) got recovered the dead body of Muhammad Waseem and he prepared pointation memo of the dead body (Exh.PK) and identification memo of dead body (Exh.PD). He added Section 302 PPC and returned file to Incharge Homicide Rana Naseem Ahmad (PW.14) for investigation on 09.05.2017. Upon entrustment of investigation to Rana Naseem Ahmad (PW.14) he visited the place of occurrence, inspected the dead body, prepared injury statement (Exh.PT), inquest report (Exh.PU), application for postmortem examination (Exh.PV) and application for docket (Exh.PW). He also took into possession plastic bag (P.1) and seven plastic bags (P.2/1-07) which were handed over to him by the team of crime scene unit vide recovery memo Exh.PE. The team of PFSA also secured swabs from the dead body of deceased and that of accused Nadeem Aslam for DNA analysis which were taken into possession through memo Exh.PF. He handed over the dead body of Muhammad Waseem (deceased) to Shabbir Ahmad HC and Safdar Ali Constable along with relevant documents for postmortem examination. He formally arrested Nadeem Aslam accused in this case and recorded his version.
On 11.05.2017 he got issued docket for DNA analysis of Nadeem Aslam accused (Exh.PP) from the office of S.P., concerned and produced him before the doctor at Jinnah Hospital, where his potency test was conducted. He added Section 7 of Anti-Terrorism Act, 1997 and sent the file to S.P., concerned for entrustment of investigation to some other officer. Thereafter the investigation of the case was conducted by Muhammad Aslam DSP (PW.16) and during the course of investigation Nadeem Aslam accused made disclosure and led to the recovery of extension lead and wire (P.5), plastic bottle of oil (P.6) from the rooftop of his residential quarter situated at Jamal Colony, Lahore which were taken into possession through memo Exh.PL. After recording the statements of witnesses under Section 161 Cr.P.C. and complying with legal formalities, he transmitted the file to concerned SHO for the submission of report under Section 173 Cr.P.C.
4. Prosecution in order to prove its case against the appellant produced 16-witnesses, out of whom, Dr.Muhammad Faraz (PW.13) and Muhammad Jameel Record Keeper (PW.11) furnished the medical evidence, Muhammad Afzal (PW.5) is the complainant of the case and narrated the details of events mentioned in the FIR, Niamat Ali (PW.6) and Muhammad Zubair (PW.7) deposed about the last seen evidence, whereas Rana Naseem Ahmad Inspector (PW.14), Muhammad Shafique Inspector (PW.15) and Muhammad Aslam DSP (PW.16) investigated the case. The remaining PWs were more or less formal and acted according to the law to aid and support the investigation.
5. On 09.05.2017 at about 7:00 p.m. Dr. Muhammad Faraz (PW.13) conducted the autopsy of Waseem alias Sajid and after making his external examination observed as under:- "It was a dead body of male of above stated age and body was initial of moderate stage with black scalp hair, mouth was opened, one eye was opened (bulging out) and other closed. Body was clad in orange shirt and white shalwar, signs of marbling were present on front of abdomen both upper and lower limbs. Skin slipped, signed was present on upper and lower limbs and chest from front to back. Blood clots were present on Shalwar, covering anlagen. Parchment like wounds were present in both hands on front and back. Blood clots were present on anal canal, two anal tears were found on 03' Oclock and 11'Oclock position. And were fresh having blood surface.
Parchment wounds measuring 3.5 x 2.5 cm on right hand, on front and back surface and 3 x 1.5 cm on left hand on front and back surface."
After perusing the PMR (Exh.PS) and the reports from PFSA (Exh.PCC & Exh.PDD), Dr.Faraz opined as under:- "Body was mild to moderate stage of putrefaction. Soft tissue findings could not commented upon, however, manner of disposal was homicidal in this case. Moreover, anal and per anal swabs were taken and sent to PFSA and other samples as stated for chemical analysis in case of poisoning if any.
According to autopsy report and toxicology from PFSA, the cause of death could not be commented upon due to mild to moderate stage of putrefaction, however manner of disposal body was homicidal. My finding Exh.PR on back side of PFSA report regarding Forensic toxicology analysis report. Time between death and postmortem was 24 to 36 hours."
6. After the conclusion of prosecution evidence, Muhammad Nadeem Aslam (appellant) was examined under section 342 Cr.P.C. who in response to question "why this case is against you and why the PWs have deposed against you" replied as under:- "I am innocent. Actually it was an un-witnessed occurrence. The complainant is a hearsay witness of the occurrence and PW.6 Niamat Ali and PW.7 Muhammad Zubair were not present in Bazar.
They were informed regarding the occurrence at late hours. They falsely nominated me in this case being inimical and PW.6 Niamat Ali is the real brother of the complainant, PW.7 Muhammad Zubair is cousin (Mamonzad) of the complainant, both are not residents of the locality, so, due to close relationship with each other they have brought tutored statements in this Court. They have deposed falsely against me with ulterior motive. It is pertinent to mention here that the place of occurrence where alleged sodomy was done as alleged by the I.O and the complainant, was not possible due to presence of many persons living in the house. The occurrence was done by unknown person at unknown place but the complainant falsely implicated me."
Appellant neither opted to appear as of his own witness under Section 340(2), Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence the instant criminal appeal and murder reference.
7. It is contended on behalf of the appellant that there is a delay of more than eight hours in lodging the FIR for which no plausible explanation has been offered by the prosecution. In fact it was a blind murder and through concocting a fabricated story and procuring the attendance of false witnesses the appellant has been booked in this case. The PWs who narrated the last seen evidence are closely related with the complainant and the mode and manner under which they saw the deceased in the company of the appellant is not believable. The DNA report is negative, thus the case of the prosecution becomes highly doubtful. The prosecution also failed to prove the motive set out in the FIR. The electric wire allegedly used for the commission of crime was foisted upon the appellant just to strengthen the prosecution case. Learned counsel in the said circumstances argued that for acquitting an accused a single doubt is sufficient but in the instant case there are many factors which create serious dents in the prosecution case, thus the appellant deserves clean acquittal.
8. On the other hand, learned law officer assisted by learned counsel for the complainant controverted the arguments advanced on behalf of the appellant and argued that when Muhammad Waseem, the son of the complainant went missing, Muhammad Afzal complainant made all possible efforts to search him and when he came to know from the witnesses of last seen that he was seen last time alive in the company of appellant, the complainant got lodged the FIR, thus the delay is very much explicated. The appellant got recovered the dead body of Muhammad Waseem in pursuance of the disclosure made by him. The two witnesses who saw the deceased last time alive in the company of the appellant, deposed in a very natural way, thus their testimony provides sufficient proof implicating the appellant in the commission of offence. The appellant committed sodomy before committing the murder of Waseem aged about 3 1/2 years, thus he deserves no leniency even in his sentence.
9. Arguments heard. Record perused.
10. It divulges from record that the law in this case was set into motion by Muhammad Afzal (PW.5) regarding an incident in which Muhammad Nadeem Alsam (appellant) kidnapped his son namely Muhammad Waseem aged about 31/2 years, committed sodomy and subsequently murdered him by giving electric shocks. From scrutiny of record it further unfolds that Muhammad Waseem (deceased) left his house on 08.05.2017 at about 12:00 Noon for playing and did not return. Being panicky and worried Muhammad Afzal (PW.5) initiated efforts to search his son and while returning home came across his elder brother Niamat Ali (PW.6) and cousin Muhammad Zubair (PW.7) who told him that they saw Muhammad Waseem in the company of Muhammad Nadeem (appellant) who was driving motorcycle bearing registration No.LEN-2045 and was going towards Main Bazar Jamal Colony. The record further unfolds that initially the matter was reported qua the kidnapping of Muhammad Waseem under Section 363 PPC but when the appellant was arrested and got recovered the dead body upon his disclosure offences under Sections 302, 377 & 201 PPC were also added in the case.
11. In the wake of facts mentioned above, we have observed that the conduct of the complainant Muhammad Afzal (PW.5) towards the search of his son Muhammad Waseem was natural. After the missing of his son on 08.05.2017 at 12:00 p.m. Muhammad Afzal complainant (PW.5) quickly started searching him and when his elder brother Niamat Ali (PW.6) and cousin Muhammad Zubair (PW.7) informed him that they had seen the deceased-son of the complainant in the company of the appellant he got registered the FIR (Exh.PA/2). In these circumstances the delay occasioned in the registration of FIR is very much explicated, thus the same being immaterial in nature is ignored and no benefit favourable to the appellant can be extracted therefrom.
12. After holding the factum of delay in registration of FIR as irrelevant having no adverse effect upon the prosecution case, we have observed that the prosecution is seeking upholding of the conviction of the appellant on the basis of circumstantial evidence in the form of last seen narrated by Niamat Ali (PW.6) and Muhammad Zubair (PW.7), the evidence of extra-judicial confession of the appellant, recovery of dead body and certain other articles at the pointing out of the appellant, medical evidence and the motive.
13. Before marching any further we consider it appropriate to observe here that the conviction of an accused even on capital charge can be maintained while basing the circumstantial evidence if the same eliminates all hypotheses qua his innocence. Furthermore, the needful towards the acceptance of such evidence ought to be done with significant care and attention, and there should be only a single conclusion that no reasonable alternative exists other than the accused's guilt. The prosecution is also obliged to establish each factor individually, as these are interconnected in a continuous chain that can only lead to the inference of the guilt of the accused. Reliance is placed upon case reported as Munawar Hussain and 2 others v. Imran Waseem and another [2013 PSC (Crl.) 156] wherein the Supreme Court of Azad Jammu & Kashmir held as under:- "Even death penalty can also be awarded on circumstantial evidence but it should be beyond any shadow of doubt. The chain of facts be such that reasonable inference can be drawn that accused has committed the offence. All the facts established should be consistent only with the hypotheses of guilt of the accused. If any link is missing that will destroy the whole links of such evidence and all the links of circumstances must lead to the guilt of the accused. It is not a such type of evidence, but it is sufficiency and quality which matters. The circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches the dead body and the other the neck of accused thereby excluding all hypothesis of his innocence."
In the instant case Niamat Ali (PW.6) and Muhammad Zubair (PW.7) while appearing before the trial court deposed that on 08.05.2017 at about 12:00 Noon they while being present at Main Bazar in connection with some work saw that Muhammad Nadeem (appellant) along with Waseem (deceased) was going towards the Main Bazar and after sometime, Muhammad Afzal complainant (PW.5) met them who informed him that they had seen Muhammad Waseem in the company of the appellant who were going towards Main Bazar and ultimately a criminal case was registered against the appellant. We are conscious of the fact that the evidence of last seen is required to be appraised on the strict criteria of proximity of time and the distance. The evidence of last seen qualifies for acceptance if it fits into the criteria of proximity of time and distance, according to which the time and distance between the event of last seen and death of deceased must not be too long. The lesser is the duration and distance between the event of last seen and homicidal death of the victim, stronger is such evidence. The logic behind evaluating the evidence of last seen on the touchstone of proximity of time and distance lies behind the theory that longer duration and distance between the two events gives rise to the hypotheses that after having been seen in the company of accused, the deceased might have parted his way and joined the company of some other. In support of our view, we rely upon the observation of Supreme Court of Pakistan expressed in case reported as Rehmat alias Rhaman alias Waryam alias Badshah v. The State (PLD 1977 Supreme Court 515) which for reference sake is mentioned as under:- "On a balance of the decided cases, it appears that the circumstances of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company".
While appearing before the trial court both Niamat Ali (PW.6) and Muhammad Zubair (PW.7) took a unanimous stance that they saw Muhammad Waseem alive in the company of the appellant on 08.05.2017 at 12:00 Noon, thus the time of seeing the appellant by both these witnesses very much coincides with the statement of complainant Muhammad Afzal (PW.5) whereby the time of missing his son Waseem is mentioned as 12:00 Noon. Both Niamat Ali (PW.6) and Muhammad Zubair (PW.7) were cross-examined by the defence at length but nothing favourble to the appellant could be extracted. We have observed that though the defence during cross-examination of both the afore- mentioned witnesses became able to bring on record certain omissions but the same in the peculiar circumstances of the case are nothing but natural. We are compelled to observe in this regard that the case in hand pertains to year 2017, the examination-in-chief of both the witnesses was recorded by the learned trial court on 02.09.2019, whereas the defence counsel cross- examined them on 30.06.2021. It will also be not out of context to observe that with the passage of time a normal person cannot retain the memory regarding an event like a machine. If a person is asked to give detail regarding an event having taken place 3/4 years before and asked probing questions the occurring of omissions pointed out by the defence during the cross-examination of afore-said witnesses would be natural. In these circumstances, we are not hesitant in holding that the evidence of both the witnesses of last seen is confidence inspiring and can be based for upholding the appellant's conviction.
14. The scrutiny of the record further unveils that Muhammad Nadeem Aslam (appellant) was arrested on 09.05.2017 by Muhammad Shafique Inspector (PW.15), who summoned complainant Muhammad Afzal (PW.5) and other witnesses in the Police Station where the appellant made disclosures which can be divided into the following three categories:- (i).The commission of sodomy with Muhammad Waseem (deceased).
(ii).The commission of murder of Muhammad Waseem (deceased) through giving him electric shocks & (iii).Pointing out of the place where he threw the dead body of Muhammad Waseem (deceased).
Admittedly these facts were not known to Muhammad Afzal complainant (PW.5) and other witnesses prior to the arrest of the appellant which has changed the dynamics of the case and pursuant to the afore-said disclosures the appellant got recovered the dead body of Muhammad Waseem (deceased). Regarding the recovery of dead body, Muhammad Shafique Inspector (PW.15) prepared the memo of place of recovery (Exh.PK) the perusal of which unfolds that he got recovered a sack from the bushes, out of which the dead body of Muhammad Waseem alias Sajid was recovered. Muhammad Shafique Inspector (PW.15) also prepared the memo of identification (Exh.PD) attested by Muhammad Afzal (PW.5), Niamat Ali (PW.6) and Waris Ali (given up PW). As far as the disclosure of the appellant that he committed sodomy before murdering Muhammad Waseem through giving him the electric shocks is concerned, we have observed that the medical evidence furnished by Dr.Muhammad Faraz (PW.13) is very much relevant in this regard. At the cost of reiteration, it is noticed that according to the doctor "Blood clots were present on anal canal, two anal tears were found in 03 O'clock and 11 O'clock position. And were fresh having blood surface". In this view of the matter, there is no ambiguity in our minds that Muhammad Waseem was sodomized before he was done to death.
The other disclosure of Muhammad Nadeem Aslam (appellant) was regarding the manner by which victim Muhammad Waseem was done to death. Though Dr.Muhammad Faraz (PW.13) did not comment upon the cause of death, however it was due to mild to moderate stage of putrefaction and the manner of disposal of dead body described by the doctor was homicidal in nature. Even otherwise, the recovery of extension lead and wire (P.5) at the disclosure of the appellant proves his culpability as far as it relates to death of Muhammad Waseem through electric shocks. It is further noticed that though the disclosures were made by the appellant in police custody even then discovery of any fact on the information of accused in custody of police is admissible in the eye of law and under Article 40 of Qanun-e-Shahadat Order, 1984, thus we are leaned to give it due weight keeping in view the new facts brought on record.
Needless to observe here that in order to attract the provision of Article 40 of Qanun-e-Shahadat Order, 1984 the prosecution was obliged to prove that the information given by the accused led to the recovery of a fact, which was not previously known to anybody.
For reference sake Article 40 of Qanun-e-Shahadat Order, 1984 is reproduced hereunder:- "40. How much of information received from accused may be proved. When any fact is deposed to as disclosed in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
From above, it can safely be concluded that upon the disclosure of the appellant the new facts which were not known to any person were got discovered by him, hence the same are admissible to be brought on record in terms of Article 40. Reference in this context may be made to the case reported as Nazir Shehzad and other v. State (PLJ 2010 SC 1092) the Supreme Court of Pakistan observed as under:- ".....There is no doubt about it that prior to information furnished by the appellants the whereabouts of dead body were not known to anyone. The information furnished by the appellants to the I.O. can be used against them under Article 40 of Qanun-e-Shahadat Order, 1984."
In case reported as Sh.Muhammad Amjad v. The State (PLD 2003 Supreme Court 704) the Supreme Court of Pakistan further held as under:- "Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a Police Officer, such information whether it amounts to a confession or not as it relates distinctly to the fact whereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible."
If any further reference on the subject is needed that can also be made to the cases reported as Pervaiz Masih v. State (PLJ 2006 FSC 11), Fazal Akbar and another v. The State through A.A.-G and another (2013 PCrLJ 369) and Khalid Mehmood v. The State (2024 PCrLJ 1212).
15. While pondering upon the medical evidence, we have observed that Dr.Muhammad Faraz (PW.13) conducted the autopsy of Muhammad Waseem on 09.05.2017 at about 7:00 p.m. and described the cause of death as homicidal. The doctor while appearing before the trial court also confirmed that he found anal tears owing to the sodomy committed by the appellant. The doctor also gave the duration between death and postmortem as 24 to 36 hours. As stated above, the time when the child went missing given by Muhammad Afzal complainant (PW.5) is 12:00 Noon on 08.05.2017 and the victim was also last seen by Niamat Ali (PW.6) and Muhammad Zubair (PW.7) at about 12:00 Noon on the eventful day. Thus, the medical evidence provides corroboration to the prosecution case as far as it relates to the time of missing son of the complainant as well as the duration within which he was done to death after sodomizing.
16. We have also embarked upon the defence put forth by the appellant. In this context, it is noticed that during the evidence of complainant Muhammad Afzal (PW.5) it was the defence of the appellant that he has been involved in this case on the suspicion of the complainant that his wife had relations with the appellant because of which the quarrels had also taken place between them. Since this is an important aspect, hence the suggestion put by the defence to Muhammad Afzal (PW.5) is being reproduced hereunder:- "It is incorrect to suggest that I was having suspicion that my wife had relations with accused due to which quarrels had been taking place between me and my wife and that is why I have involved accused in this case."
Almost the similar suggestion was put by the defence to Niamat Ali (PW.6) which on account of relevancy is also mentioned below:- "It is incorrect to suggest that complainant was having suspicion that his wife had relations with accused due to which quarrels had been taking place between complainant and his wife and that is why we have involved accused in this case."
However, when the appellant was examined under Section 342 Cr.P.C., he took altogether a different stance that in fact it was an un-witnessed occurrence, both the witnesses of last seen were not the residents of the vicinity where the occurrence took place and he was made scape- goat by falsely implicating him. Since a detailed reply of the appellant in response to question No.10 is duly mentioned in para-6 above, hence it will be a futile exercise to recapitulate the same here. Needless to mention here that in terms of Article 121 of Qanun-e-Shahadat Order, 1984 if an accused takes up a specific plea then burden to prove the same would shift upon him. However, the divergent pleas of the appellant during a trial manifestly make it clear that he had no defence in disproof of the evidence produced against him.
17. The main emphasis of the arguments of learned counsel for the appellant was that since the report of DNA is negative, hence on this sole score alone he deserves clean acquittal. We are afraid that the contentions raised by learned counsel have no force because PFSA has issued a compromised report (Exh.PDD) wherein it is crystal clear that "No analysis was conducted on item #1 and 2". In this case item No.1 was the reference swabs from Muhammad Waseem alias Sajid (victim/deceased), whereas item No.2 was the reference swabs from Muhammad Nadeem Aslam (accused/appellant). No explanation whatsoever was given by the Analyst of PFSA that as to why the required test was not conducted when sufficient samples were with him and apparently the undue benefit seemed to have been extended to the appellant through the afore-said report. No doubt DNA is a powerful investigative tool because with the exception of identical twins, no two people shall have the same DNA, therefore, DNA evidence collected can be linked to a suspect or can eliminate a suspect from suspicion. Nevertheless, Exh.PDD cannot be considered as negative report because by non-performing DNA analysis it did not eliminate the suspect from suspicion. In this view of the matter, we see nothing on the record the benefit of which can be given to him.
18. In spite of discussion alluded above, we have observed that a specific motive was set out in FIR (Exh.PA/2), according to which Muhammad Nadeem Aslam (appellant) and Muhammad Afzal complainant (PW.5) are neighbourers and about 8/10 days prior to the incident an altercation over the issue of children took place inter se the parties for which the appellant had nourished grudge and abducted the complainant's son Muhammad Waseem. We have noted that though Muhammad Afzal complainant (PW.5) while appearing before the trial court deposed regarding the motive part of the occurrence, however no witness of the quarrel incident over the issue of the children was either produced at investigative phase or at trial stage. Rana Naseem Ahmad Inspector/Investigating Officer (PW.14) in his cross-examination categorically admitted that he did not mention any of the children between whom the altercation took place. Thus, we are feeling no hesitation in holding that the prosecution failed to prove its motive part of the incident. It is settled principle that failure to prove motive itself warrants the Court to have resort to the alternate sentence of imprisonment for life. The guidance in this respect can be sought from the case reported as Zeeshan Afzal alias Shani v. The State and another (2013 SCMR 1602) wherein the Supreme Court of Pakistan gave the following observation:- "It has repeatedly been held by this Court that if motive is not alleged or is not proved, normally the sentence of death is converted into imprisonment for life."
Moreover, the failure to prove motive is an acknowledged extenuating circumstance. In this respect, reference can also be made to the cases reported as Hasil Khan v. The State (2012 SCMR 1936) and Noor Muhammad v. The State and another (2010 SCMR 97).
19. In view of foregoing, the convictions and sentences of Muhammad Nadeem Aslam (appellant) under Sections 363,377 & 201 PPC are upheld. However, since the prosecution failed to prove the motive part of its case, hence while maintaining the conviction of the appellant under Section 302(b) PPC, his death sentence is converted into that of imprisonment for life. It is made clear that all the sentences of imprisonment of the appellant shall run concurrently with the benefit of Section 382-B Cr.P.C. The appellant shall also pay the compensation/fine on the same terms and conditions as fixed by the learned trial court. With this modification in the sentence of Muhammad Nadeem Aslam (appellant), Criminal Appeal No.8752 of 2022 is otherwise dismissed. Resultantly, Murder Reference No.26 of 2022 is answered in the NEGATIVE and Death sentence awarded to Muhammad Nadeem Aslam (convict) is NOT CONFIRMED.