MUHAMMAD NAWAZ KHAN vs MUBARAK ALI and others

' RAJA AFRASIAB KHAN, J.---On 21-2-1991 at 11-20 a.m., a case under section 302/34, P.P.C. was registered with Police Station Saddar, Gojra, District Toba Tek Singh on the statement of Muhammad Nawaz Khan against Mubarak Ali and Nasar for the murder of Ashfaq Khan. An Additional Sessions Judge, Toba Tek Singh vide his judgment dated 10-10-1992 convicted both the accused under section 302/34, P.P.C. Nasir was sentenced to death while Mubarak was sentenced to imprisonment for life. Both of them were ordered to pay compensation of Rs.50,000 (rupees fifty thousand) each to the legal heirs of the deceased or in default to undergo R.I. for six months. On appeal and reference, the Lahore High Court upheld the conviction of Nasir, his sentence was, however, reduced from death to imprisonment for life. his co-convict, Mubarak Ali was acquitted by giving him the benefit of doubt. This is a petition for leave to appeal by the complainant against the said judgment.

2. Learned counsel has argued that this is a case of brutal murder and as such, the respondent No.2 has to be awarded normal penalty of death. According to him, the High Court has committed an error of law in not following the mandatory provisions of section 367, Cr.P.C. In support of the plea, learned counsel has relied upon the rule laid down in Fazal Ghafoor v. The State (1987 SCNiR 1136), Safdar Abbas v. The State (PLD 1987 SC 467), Talib Hussain v. The State (1995 SCM R 1776), Abdul Wahab v. The State (1999 SCM R 1668), Zafar v. The State (1999 SCM R 2028) and Noor Muhammad v. The State (1999 SCM R 2722).

2. After hearing the learned counsel for the petitioner and perusing the record, we conclude that no case for our interference has been made out. In dealing with the controversy, the High Court has critically discussed the entire prosecution version including the motive. It is advantageous to refer the operative part of the impugned judgment which is as follows:-- "So far as appellant Mubarak is concerned, he was admittedly unarmed and no role except Lalkara is attributed to him. He is a crippled man, the question whether a man of his disability would accompany his son for such a crime would be a moot point, his participation in the alleged occurrence proved be and doubt to sustain conviction on a capital charge.

' We are, therefore, persuaded to set aside the conviction of Mubarak appellant and direct that he shall be released from jail forthwith unless detained in some other case. (Emphasis supplied).

' Coming to the sentence awarded to Nasir appellant, we find that it is in evidence that the house of P.W.10 is at a distance of 50 Karams from the place of occurrence and there are eight houses in- between his house and the shop of the deceased where the occurrence took place. He admitted in cross-examination that none from the occupants of the sight properties in between the place of occurrence and the place where he was standing were cited as a witness. The evidence of P.W.10 qua what preceded the occurrence, is not proved beyond doubt. P.W.11 is not the witness of motive and even he could not have heard what transpired between the appellant and the deceased prior to the occurrence. The motive alleged is too trivial to prompt Nasir appellant to cause the murder of Ashfaq Khan deceased. As the immediate cause of the alleged occurrence remains shrouded in mystery, the extreme sentence of death would not be in accord with the 'principles of safe administration of justice. This is in line with the judgment of the Honourable Supreme Court in Abbas Hussain v. The State (1992 SCM R 320) where at page 328, the sentence was reduced in similar circumstances and it was observed as under:--- ' There appears to be a petty dispute between the parties over the teasing of the girls of the Mohallah. We hold the view that something serious happened immediately before the occurrence for which the appellants while armed with Churri opened an attack upon the complainant party and murdered two persons from the complainant side. Even the possibility of an altercation having taken place between the parties cannot be ruled out. Both the parties had been living in the same locality. We are convinced about the insufficiency of the immediate cause of unfortunate occurrence. In this view of the matter, we do not feel inclined to uphold the death sentences' ...."

(Emphasis supplied).

' The afore-referred view was reiterated in yet another judgment in Mst. Rasheeda v. Khan Bahadur and another (1992 SCM R 1036) wherein at page 1046 it was observed as under:--- As regards the sentence, since the motive as alleged in this case is not fully proved, we feel that the lesser penalty as provided under the law will amply meet the ends of justice...."

' For what has been discussed above, Criminal Appeal No.859 of 1992 is partly allowed and while acquitting Mubarak appellant by giving him benefit of doubt, the same is dismissed to the extent of Nasir appellant. However, the sentence of death awarded to him is converted into that of life imprisonment. He shall also be given the benefit of section 382-B, Cr.P.C.

' It was evident from the above that Mubarak Ali was acquitted mainly on the ground that he was attributed Lalkara in the commission of the crime. He was, therefore, given the benefit of doubt. We do not any substance in this petition for sentencing Mubarak Ali. He was, therefore, rightly acquitted, inasmuch as, there was no evidence against him to show that he took part in the incident. The other convict, Nasir was convicted but was not awarded the normal penalty of death as mentioned above. Motive was set up by the prosecution but it could not be proved. It was for the High Court to see the actual quantum of sentence to be awarded to the respondent, Nasir on the basis of evidence available on record. The impugned judgment does not suffer from any infirmity. It has been passed in accordance with the principles laid down by this Court. It may be observed that each criminal case has to be decided on its own peculiar facts and circumstances. We are fully satisfied to hold that the High Court was justified to grant lesser sentence to the respondent in the given circumstances. This being so, there is no substance in this petition which is hereby dismissed and leave to appeal declined.