FATEH BIBI Versus TALIB HUSSAIN
This matter originated as a petition for leave to appeal against a Lahore High Court judgment that had converted the death sentences of two convicts into life imprisonment for the murder of an eighteen-year-old youth. The petitioner challenged the reduction of the sentence, arguing that the High Court proceeded on the erroneous factual assumption that the complainant party still resided in the village where the incident occurred, despite evidence of their prior migration. The core legal question was whether the High Court’s reduction of the death sentence to life imprisonment was legally sustainable given the alleged factual error regarding the parties' residence. The Supreme Court held that while the High Court may have erred regarding the residency status of the complainant party, the reduction of the sentence remained justified. The Court reasoned that the motive for the murder was directed against the deceased's brother, Zulfiqar, rather than the deceased himself, who was a minor at the time of the prior incident. Consequently, the Court affirmed the High Court’s decision, holding that the reduction of the sentence did not constitute an error of law.
- Does a factual error regarding the residence of the complainant party necessarily invalidate the High Court's decision to reduce a death sentence to life imprisonment?
- Is the reduction of a death sentence to life imprisonment legally sustainable when the prosecution fails to prove motive beyond doubt?
- Can the appellate court maintain a conviction while altering the quantum of sentence based on the specific circumstances of the motive?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
AJMAL MIAN, J. ‑‑This is a petition for leave to appeal against the judgment dated 30‑11‑1992 passed by a Division Bench of the Lahore High Court in Criminal Appeal No.315 of 1990 and Murder Reference No.123 of 1990, arising out of the judgment dated 21‑4‑1990 of the learned Additional Sessions Judge, Sheikhupura, acquitting the two co‑accused Sawalla and Ayyub and convicting the private respondents under section 302/34, P.P.C. for the murder of Nausher, aged 18/19 years, and awarding the sentence of death with a fine of Rs.8,000 or in default to undergo one year R.I. and also with the direction to pay compensation of Rs.10,000 each to the legal heirs of the deceased or in default of payment of compensation, six months' R.I. each, allowing the same to the extent of converting the sentence of death into imprisonment for life for the following reasons and consequently rejecting ..........
"The contention of the learned counsel for the appellants with regard to the quantum of sentence requires serious consideration. We have noticed that the motive was directed against the deceased. At the time of earlier murder, which took place 4 years before the present occurrence, the deceased was 12/13 years of age. It was also in evidence that both the sides lived in the village yet no unpleasant incident ever took place. It was established that Zulfiqar, against whom motive was directed, was available, yet no harm was done to him. In these circumstances, we hold that the prosecution has not been able to prove motive beyond doubt. For what has been discussed above, we hold that the prosecution has been able to prove its case against the appellants beyond reasonable doubt. The eye‑witnesses are truthful and confidence inspiring, therefore, can safely be relied upon. In these circumstances, the appeal is dismissed. The sentence of death of both the appellants is, however, converted into imprisonment for life for the reasons discussed above. The sentence of fine of both the appellants, or in default thereof, al well as compensation, or the sentence of imprisonment in default of payment of the same, is, however, maintained."
The petitioner has, therefore, filed the above petition for leave to appeal.
2. In support of the above petition, Khawaja Muhammad Afzal, learned counsel for the petitioner, has vehemently urged that the reasons which prevailed with the learned Judges of the Division Bench for reducing the sentence from death to life imprisonment are not sustainable inasmuch as they proceeded on the assumption that the deceased Nausher and his brother Zulfiqar were living in Mat Kalian at the time of the incident, though factually after the murder of Muhammad son of Noora, the complainant party sold their land and property in Mat Kalian and migrated to Lahore. In support of his above submission, he has referred to the statement of P.W.7 Mst. Fateh Bibi, the complainant, and the F.I.R. (Exh.P/G), wherein the following averments have been made:‑‑
Extract from the statement of P.W.7:
"After the murder of Muhammad, we disposed of our land and property in Mat Kalian and migrated to Lahore."
Extract from the F.I.R.:
3. It is true that after the murder of Muhammad son of Noora, the complainant party was no longer residing in Mat Kalian but the fact remains that the alleged murder had allegedly taken place at the behest of Zulfiqar and not at the stance of the deceased Nausher and, therefore, apparently the accused party would have killed Zulfiqar and not Nausher, who was hardly 12/13 years of age at the time of the above murder. If the accused party wanted to kill Zulfiqar, they could have waylaid him at any other place. In our view, the learned Judges of the High Court have not committed any error of law in reducing the above sentence. Leave is, accordingly, refused.
N.H.Q/F‑290/S ?????????????????????????????????????????????????????????????????????? Leave refused.