HAMEED KHAN alias HAMEEDAI Versus ASHRAF SHAH

MIAN MUHAMMAD AJMAL, J.‑‑‑ The petitioner has sought leave to appeal against the judgment of the Peshawar High Court, Peshawar dated 16‑10‑2001, whereby Criminal Appeal No.37 of 1999 filed by him was dismissed, his conviction and sentences were upheld and Murder Reference was answered in affirmative.

2. Succinctly stated, facts of the case are that on 27‑11‑1983 at 5‑15 p.m., a case under section 302, P.P.C. was registered against the petitioner with Police Station Badaber, District Peshawar on the statement of Ashraf Shah, complainant, for the murder of his father Munawar Shah. The prosecution version is that on the day of occurrence, the complainant alongwith his father Munawar Shah (driver of the truck) and uncle Qabil Shah (labourer) had gone to bring gravel (Bajri) from Surezai Khawar. At 3‑30 p.m., they reached Surezai Khawar and as soon as they got down from the truck, Hamid Khan, the petitioner duly armed with Topak, came there and fired at Munawar Shah, who died at the spot. The accused/petitioner after commission of the offence fled away, towards Maira Surezai. Motive was that 4 months prior to the occurrence an oral altercation took place between the petitioner and the deceased which was patched up by the elders. The petitioner was arrested after 15 years of the occurrence in 1998, whereafter supplementary challan was put in Court. He was charged by Additional Sessions Judge‑I, Peshawar, to which he pleaded not guilty and claimed trial. The learned trial Judge, after conclusion of the trial, convicted the petitioner under section 302(b), P.P.C. and sentenced him to death with fine of Rs.1,00,000 or in default to undergo two years' R.I. vide his judgment dated 22‑2‑1999. Half of the fine, on realisation, was ordered to be paid to the legal heirs of the deceased as compensation under section 544‑A, Cr.P.C. The petitioner challenged his conviction and sentence before the Peshawar High Court, Peshawar through Criminal Appeal No.37 of 1999 while the trial Court sent Murder Reference No.30 of 2000 for confirmation of his death sentence. The learned High Court dismissed the appeal of the petitioner and confirmed his death sentence vide its judgment, impugned

3. Learned counsel for the petitioner did not press this petition on merits. However, on the question of quantum of sentence, he submitted that motive as alleged by the prosecution has not been proved and what happened immediately before the occurrence is shrouded in mystery, hence in such circumstances, capital punishment of death is not awarded, as such, the petitioner's sentence be reduced to life imprisonment.

4. We do not find any substance in the contention of the learned counsel for the petitioner. The occurrence had taken place at 3‑30 p.m. in Khawar Surezai where the deceased alongwith the P. Ws. had gone in the truck to bring gravel (Bajri). When they got down from the truck, ‑the petitioner gunned down Munawar Shah, father of the complainant. The presence of the petitioner with fire‑arm at the spot at the relevant time shows that the crime was premeditated and pre‑planned. Sometime atrocious crimes are committed without any motive or for very minor motive as such adequacy or weakness of the motive or where motive is alleged but not proved, in such cases it is the duty of the Court to scrutinize the prosecution evidence carefully. If the ocular evidence is trustworthy and reliable the motive part becomes immaterial as motive is a guess of the complainant who speculates that such motive might have motivated the assailant to commit the crime as the real motive is only known to the offender being within his exclusive knowledge. Absence of motive or failure to prove the motive would not adversely affect the prosecution case if prosecution has proved its case by reliable evidence. In the instant case, the prosecution has proved its case by reliable and trustworthy evidence beyond an doubt. We do not find any mitigating or extenuating circumstance for reducing the normal penalty of death to lesser penalty. Consequently, finding no merit in this petition it is dismissed and leave refused.

N.H.Q./H‑55/S

Leave refused.