Mitigating Circumstances and Quantum of Sentence

Mitigating Circumstances and Quantum of Sentence Case Laws Criminal Appeal Criminal Law Knowledge - Criminal Law Lahore High Court Life Imprisonment Litigation & Arbitration Murder Solutions - Criminal Law Theory of Subsitution Mr. Justice Raja Shahid Mehmood Abbasi in his judgment has decided the issue regarding mitigating circumstances and quantum of sentence in Criminal Appeal No. 22-J of 2011.

1. Through this single judgment, we intends to dispose of Criminal Appeal No. 24 of 2011 filed by appellant (convict) against his conviction and sentence as well as Murder Reference No. 22-J of 2011 transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to accused being derived from the judgment dated 15-03-2011 passed by the learned Addl. Sessions Judge, Taxila in case FIR No. 365 dated 17-10-2005, under Sections 302,341,34 PPC, registered at Police Station Taxila, whereby the appellant was convicted and sentenced as under:

Under section 302 (b) PPC, death sentence for the murder of Rehmat Ali and to pay compensation of Rs. 2,00,000/- under section 544-A Cr.P.C. to the legal heirs of deceased; in default thereof to further undergo S.I. for six months. Benefit of Section 382-B Cr.P.C. was extended in favour of the appellant.

2. Brief facts of the case as set forth in Ex.PC/1 FIR No. 365 dated 17-10-2005, under section 302, 341,34 PPC, registered at Police Station Taxila recorded on the complaint Ex.PC of Muhammad Mehrban, complainant are that he used to cultivate land in the village. On 17-10-2005 at about 12.0 noon a minor quarrel took place between his paternal cousin Munawar (PW.8) and his Mamoo Aslam, present appellant and afterwards they went towards their homes. In the evening at Aftari time, complainant came out of his house to see his brother Rehmat Ali (deceased), who had gone to the land with the tractor in day time and while seeing about 5.40 pm, he reached near the land of Nawab Asad Ullah and when he was at some distance, he saw that his brother Rehmat (deceased) was coming on tractor and the appellant/accused Muhammad Aslam armed with rifle 12 bore and his son Khadim Hussain, co-accused (since acquitted) armed with hatchet were standing while way laying Rehmat Ali (deceased). Muhammad Aslam, appellant/accused raised a Lalkara and fired with rifle 12 bore which landed at the abdomen of Rehmat Ali (deceased), who fell down. Muhammad Aslam, accused tried to made second fire shot, then he alongwith Ahmed Din after saving themselves rescued him. The accused persons decamped from the spot while brandishing the weapon of offences. The injured Rehmat Ali (deceased) succumbed to the injuries on the way to the hospital.

The motive behind the occurrence was a previous quarrel took place between Muhammad Aslam, appellant and Munawar Hussain (PW.8).

3. In order to prove its case, the prosecution produced as many as 15 witnesses during the trial; Munawar Hussain (PW.8), Muhammad Mehrban (PW.12) and Ahmad Din (PW.13) furnished the ocular account.

4. Dr. Tanveer Afsar Malik, (PW.9), who conducted the post mortem examination on the dead body of deceased and found one injury on his body. According to her opinion, the probable cause of death was shock and hemorrhage due to injury which was sufficient to cause death in ordinary course of nature. The probable time between injuries and death was within half an hour and between death and postmortem was two to four horus.

5. Investigation of the case was conducted by Khalid Hussain, SI (PW.14), who narrated various steps taken by him during the investigation.

6. The prosecution after producing report of FSL, Ex.PP, report of Chemical Examiner Ex.PQ and report of Serologist Ex.PR closed its evidence.

7. The statement of the appellant under Section 342 Cr. P.C. was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to a question, “why this case against you and why the PWs had deposed against you”, Muhammad Aslam, appellant stated as under:

“The case is false one and due to grudge of PW, we were falsely involved in an unseen murder case. The Pws are close relatives and are interested witnesses who has a grudge against me whereas other witnesses are the police officials who deposed falsely.”

The appellant opted not to appear as his own witness under Section 340(2) Cr. P.C. in disproof of the allegations levelled against him by the prosecution nor opted to produce defence evidence.

8. Upon completion of the trial the learned trial court found the case against the appellant Muhammad Aslam to have been proved beyond any shadow of doubt and thus convicted and sentenced him as mentioned above. Hence, the appeal before this Court. Whereas learned trial court acquitted co-accused namely Khadim Hussain acquitted of the charge.

9. The learned counsel for the appellant contends that judgment dated 15-03-2011 passed by Learned Additional Sessions Judge, Taxila is result of misreading and non-reading of evidence recorded during trial; that there are noticeable discrepancies between the eye witnesses but the learned trial court has ignored the same, that the eye witnesses of the occurrence produced by the prosecution in shape of Munawar Hussain (PW.8), Muhammad Mehrban (PW.12) and Ahmad Din (PW.13) are inter se related to each other and interested witnesses; that the alleged recovery of crime weapon at the instance of the appellant is inconsequential; that on the same set of evidence, the co-accused of the appellant has been acquitted by the learned trial court; the motive is also not proved; the eye witnesses are not trustworthy or reliable witnesses because in their cross examination they have made glaring improvements which create serious doubts in the prosecution story. The prosecution has miserably failed to prove its case against the appellant and it is golden principle of Criminal Jurisprudence that benefit of doubt, if any, has to be given to the appellant not as a matter of grace but as a matter of right; that the prosecution has failed to prove its case against the appellant beyond shadow of any reasonable doubt; that this appeal may be accepted, conviction and sentence of the appellant may be set aside, he may be acquitted and murder reference be answered in negative.

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