HABIB AHMAD alais Habibi vs STATE
This criminal appeal by leave of the Supreme Court arose from the conviction of the appellant for qatl-i-amd under Section 302(b) of the Pakistan Penal Code and his consequent sentence of death, which had been confirmed by the High Court. The core legal question was whether mitigating circumstances existed to warrant the reduction of the appellant's death sentence to imprisonment for life. The Supreme Court upheld the conviction on merits as the appellant did not press the appeal against conviction, noting the admission of firing, matching forensic evidence, and lack of independent proof for the plea of grave and sudden provocation. However, the Court held that the prosecution's failure to establish the asserted motive, coupled with previous conduct by the deceased insulting the appellant a couple of hours prior to the incident, contradictions in medical evidence, and the acquittal of a co-accused creating a dent in the eye-witnesses' veracity, constituted mitigating circumstances. Consequently, the Court partly allowed the appeal by reducing the sentence of death to imprisonment for life, while maintaining the conviction and compensation orders, and extended the benefit of Section 382-B of the Code of Criminal Procedure 1898 to the appellant.
- Does the failure of the prosecution to prove the asserted motive serve as a mitigating circumstance for reducing a sentence of death to imprisonment for life?
- Whether inconsistencies in the medical evidence and acquittal of a co-accused can create a dent in eye-witness testimony warranting caution in sentencing?
- Can an appellate court reduce a death sentence to life imprisonment when the appellant does not press the appeal on the merits of the conviction?
- Section 302(b), Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
Asif Saeed Khan Khosa, J.--Habib Ahmad alias Habibi appellant had allegedly murdered one Muhammad Aslam with the use of a firearm at about 09.30 A.M. on 15.08.2007 in village Mohar Wali in the area of Police Station Doonga Boonga, District Bahawalnagar in the backdrop of an altercation taking place between the parties a couple of hours prior to the present incident. With the said allegations the appellant was booked in case FIR No, 301 registered at the above mentioned Police Station on the same day and after a regular trial he was convicted by the trial Court for an offence under Section 302(b), PPC and was sentenced to death and to pay compensation which conviction, and sentence had subsequently been upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 21.03.2012.
2. Leave to appeal had been granted in this case in order to reappraise the evidence and also to consider the question regarding quantum of the appellant's sentence. At the outset the learned counsel for the appellant has submitted that he does not press this appeal as far as the merits of the appellant's case are concerned and he prays only for reduction of the appellant's sentence of death to imprisonment for life in view of some mitigating circumstances floating at the surface of the case. As against that the learned counsel for the complainant and the learned Additional Prosecutor-General, Punjab appearing for the State have submitted that the appellant had shown extreme highhandedness and he was a known criminal of the area involved in many criminal cases and, thus, he does not deserve any sympathy in the matter of his sentence.
3. It is apparent from the record that before the trial Court the appellant had admitted firing at and killing Muhammad Aslam deceased, two crime-empties secured from the place of occurrence had matched with the firearm recovered from his custody during the investigation and he had advanced a plea of grave and sudden provocation but no independent proof in support of the said plan had been adduced by him before the trial Court. Be that as it may the fact remains that in the FIR itself it had been mentioned by the complainant that Muhammad Aslam deceased had insulted the appellant only a couple of hours prior to the present occurrence and, thus, it was some conduct on the part of the deceased himself which had contributed towards his murder. The motive set up by the prosecution had remained far from being established and no independent evidence in support of the asserted motive had been produced before the trial Court. It has been held by this Court in a number of judgments that where the prosecution asserts a motive and fails to prove the same then such failure on the part of the prosecution may react against the sentence of death passed against the accused person. A reference in this respect may be made to the cases of Ahmads 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), Muhammad 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), Naueed alias Needu and others v. The State and others (2014 SCM R 1464), Muhammad Nadeern 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). The record of the case also shows that initially the doctor conducting the post-mortem examination of the dead body had found many injuries on the dead body which were opined to be stab wounds but subsequently the doctor had tried to explain the said aspect of the case. It was nobody's case that any injury with a sharp-edged weapon had been caused by the appellant or his co-accused to Muhammad Aslam deceased. A co-accused of the appellant namely Farooq, attributed a firearm injury to Muhammad Aslam deceased, had been acquitted by the trial Court which had surely caused some dent to the veracity of the eye-witnesses produced by the prosecution. For all these reasons we have decided to exercise caution in the matter of the appellant's sentence of death. This appeal is therefore, dismissed to the extent of the appellant's conviction for the offence under Section 302(b), PPC recorded and upheld by the Courts below but the same is partly allowed to the extent of the appellant's sentence of death which is reduced to imprisonment for life. The benefit under Section 382-B, Cr.P.C. shall be extended to the appellant. 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. This appeal is disposed of in these terms.