Muhammad Umar Vs The State etc

JUDGMENT SHEET

IN TIIE PESHAWAR HIGH COURT,

BANINUBENCH.

(ludicial Department) Cr.A. No. 69-812025 with M.R No.02-Bl2025.

Muhammad Umar.

Vs:

The State etc.

JUDGMENT.

Date of hearing 31.03.2026.

For appellant: Mr. Iftikhar Durrani, advocate. For the State: Mr. Najibullah Khan Marwat Asstt: A.G.

For respondent: Mr. Harun-ur-Rashid Khattak, advocate.

SA ULI.AH KHAN. J..

1.The appellant, Muhammad Umar, was tried by the learned Additional Sessions Judge-I, Karak, in Sessions Case No. 98i7 of 2023 arising out of F.I.R No. 344 dated24.06.2023, registered under sections 302, 324, 452 P.P.C. and l5-AA of the Arms Ordinance at Police Station Karak, District Karak.

Vide the impugned judgment, he was convicted trnder section 302(b), P.P.C. for committing qatl-i-amd of Mst. Aqal Jana and Mst. Saleem Dana and was sentenced to death on two counts as Ta'zir, along with payment of compensation of Rs.500,000/- to the legal heirs of each deceased under section 544-A, Cr.P.C., and in default thereof to undergo simple imprisonment for six months. He was further convicted and sentenced to rigorous

imprisonment for seven years under section 324, P.P.C.;

rigorous imprisonment for three years with fine of Rs.10,000/- under section 452,P.P.C., and in default whereof to undergo simple imprisonment for one month; and simple imprisonment for three years with fine of Rs.1,000/- under section 15-AA of the Arms Ordinance, and in default thereof to undergo simple imprisonment for ten days. The benefit of section 382-8, Cr.P.C. was also extended to him.

2.The prosecution case, as set out in the FIR, is that the complainant reported the incident in the emergency room of KDA Hospital, Karak, at about 20:45 hours on 24.06.2023 while accompanying the dead bodies of the deceased Mst. Aqal Jana (his mother) and Mst. Saleem Dana (his wife), stating therein that earlier at about 19:20 hours, he along with the said deceased was present inside his house situated in village Saif Ali Banda, District Karak, when the accused, Muhammad Umar, duly armed with a firearm, entered into the house and resorted to firing upon them. As a result thereof, both the deceased sustained firearm injuries and succumbed to the injuries on the way to the hospital, whereas the complainant and eye-witness Hikmat Wali remained unhurt. No motive for the occurrence was alleged in the report. The said report, in the

shape of murasila, was thereafter reduced into writing and culminated in the registration of the case FIR.

3.After the arrest of the accused on 25.06.2023 arrd completion of the investigation, a complete challan was submitted before the trial Court. Upon conclusion of the trial, the appellant was convicted and sentenced, as detailed hereinabove, vide judgment dated 12.03.2025 passed by the leamed tial Court. The appellant, feeling aggrieved of his conviction and sentence, has assailed the same through the instant criminal appeal.

4.The prosecution, in order to substantiate its case, examined as many as nine (09) witnesses. Thereafter, on 08.01.2025, the learned Additional Public Prosecutor, assisted by private counsel for the complainant, closed the prosecution evidence. The statement ofthe accused was then recorded under section 342 Cr.P.C., wherein he did not opt to appear as a witness in his own defence under section 340(2) Cr.P.C., nor ( did he produce any evidence in defence. Upon hearing the leamed counsel for the parties, the leamed trial Court announced the impugned judgment.

5.We have heard the leamed counsel for the parties and the leamed Assistant Advocate General for the State at

considerable length and have gone through the record with their able assistance.

6.The case in hand arises out ofa double murder allegedly committed within the precincts of the house of the complainant, wherein the ocular account is fumished by closely related witnesses. The settled principle of law is that relationship per se is not sufficient to discard testimony; however, such evidence is to be scrutinized with greater care and caution.

7.The prosecution case hinges primarily upon the statements of the complainant Abdul Hameed (PW-5) and eye- witness Hikmat Wali (PW-6), who have supported the occurrence as narrated in the FIR. Both witnesses have consistently stated that the appellant, duly armed with a fuearm, entered the house and resorted to firing, resulting in the death of Mst. Aqal Jana and Msl Saleem Dana. Their presence at the spot appears natural, being inmates of the house, and no convincing reason has been brought on record to establish false implication on account of any previous enmity.

t 8. It is noteworthy that the FIR was promptly lodged at 20:45 hours, soon after the occurrence which took place at about 19:20 hours, in the emergency room of KDA Hospital, Karak, while the complainant was accompanying the dead bodies. Such promptitude rules out the possibility of

deliberation or consultation and lends credence to the prosecution version.

9.The medical evidence, fumished through the post- mortem reports and testimony of the medical offrcer, lends full corroboration to the ocular account. Both deceased were found to have sustained firearm injuries on vital parts oftheir bodies, which, in the ordinary course ofnature, were sufficient to cause death. The nature, seat, and dimension of the injuries are in complete harmony with the manner of occurrence as narrated by the eye-witnesses. No inconsistency, much less any material contradiction, has surfaced which may create a dent in the prosecution case. It is a settled principle that where ocular account is found to be confidence-inspiring, the same receives further strength when corroborated by unimpeachable medical evidence, as is the position in the present case.

10.Insofar as the recovery of weapon is concemed, the same, though pressed into service by the prosecution, does not constitute the sole basis of conviction. Even if, for the sake of argument, the recovery is kept aside, the ocular testimony, <l being natural, consistent, and confidence-inspiring, is sufficient to sustain the conviction. The law does not require that each and every piece ofevidence must independently prove the guilt;

rather, it is the cumulative effect of the evidence that is to be

considered. In the present case, the direct evidence fumished by the eye-witnesses, duly corroborated by the medical evidence, forms a complete chain pointing towards the guilt of the appellant.

11.Leamed defence counsel has pointed out certain discrepancies in the statements of the prosecution witnesses;

however, we have carefully examined the same in the light of the entire record and find that such discrepancies are minor in nature and do not go to the root ofthe case. It is by now well- settled that minor inconsistencies, which are attributable to lapse of time and normal errors of observation and memory, are to be ignored so long as the substratum ofthe prosecution case remains intact. In the present case, the occurrence took place on 24.06.2023, whereas the statements of the prosecution witnesses were recorded much later during trial, which commenced after submission of challan on29.06.2023, placing of the case before the Court on 11.08.2023, entrusfinent of trial on 06.09.2023, framing of charge on 02.03.2024 and ( subsequently on 14.06.2024, and recording of prosecution evidence from 06.08.2024 to 08.01.2025' In such circumstances, some variation in the statements of witnesses is but natural and does not impair the intrinsic worth of their testimony. The ocular account fumished by the complainant

and the eye-witness remains consistent on material particulars and finds full corroboration from the medical evidence; hence, the discrepancies so pointed out are inconsequential and not fatal to the prosecution case.

12.That said, while the prosecution has succeeded in establishing the guilt ofthe appellant beyond reasonable doubt, the question of sentence requires an independent and cautious examination. It is an established principle of criminal jurisprudence that conviction and sentence are to be considered separately, and even where the charge stands proved, the exteme penalty of death is not to be awarded as a matter of course

13.A sigrificant aspect of the present case is that no motive has been alleged in the FIR, nor has any convincing or tangible motive been brought on record during the course oftrial. It is well-settled that where direct evidence is available, absence of motive may not be fatal to the prosecution case so far as convrctron ls concerned; however, its relevance assumes ( considerable importance while determining the question of sentence. Motive, in criminal jurisprudence, serves as a window into the mental state, degree of culpability, and the underlying cause prompting the commission of the offence. Its absence, therefore, introduces an element of uncertainty regarding the

intensity of criminal intent, which, as a rule of prudence, must weigh in favour ofthe accused at the stage ofsentencing and be treated as a mitigating circumstance. tn this regard, guidance can also be sought from the case of Muhammad Zahir v. The State (2026 P Cr.L.J 344 [Balochistan]), wherein, despite maintaining the conviction under section 302(b), P.P.C. on the strength of reliable ocular and medical evidence, the Honourable Court altered the sentence of death to imprisonment for life on account of absence of motive and the occurrence having taken place at the spur of the moment. It was further observed that where the real cause of the occurence ls not determinable, the extreme penalty of death would be unwaranted. The relevant observations are reproduced hereunder for ready reference:-

" 10. Now, coming to the sentence awarded to the appellant tmder section 3020) P.P.C, on assessment of evidence, we also found that the motive has not been alleged by the complainant against the appellcnt in the FIR and for that the complainant in his statement recorded before the court stated that the said occurrence took place ot the sW of the moment due to altercation.

11.It is a well-recognized principle by now that the question of the quantum of the sentence requires utmost altention and thoughfulness on the part of the Courts- In ( this regard, we respectfiily refer to the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein the August SuPreme Court has held as tmder:- "It witl not be out of place to emphasize that in criminal cases, the Ercstion of quantum of sentence requires utmost care and caution on the parts of the Cotrts, as such decisiow restrict lhe life and liberties of the people. Indeed the accused lxrsons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."

Moreover, it is not deteminable in this case as to what 'reas the real cause of the occurrence and as to what had actually happened immediately before the occwrerrce, which had resulted in the death of Abdul Wahid (deceased), therefore, in ow view, the death sentence awarded to the appellant is quite hush. As such, while maintaining the conviclion tmder section 302(b), P.P.C., the sentence of death qworded to the appellant is altered to inprisonment for life. Ihe imposition of compensation and punishment in case of default thereof, as ordered by the trial court, shall remain inlact.tl

14.A similar view has been taken iL Muhammad Shafiq v. The State (2021 YLR 1410), wherein, despite maintaining the conviction on the basis of reliable ocular and medical evidence, the absence of motive and non-disclosure of the real cause of occurrence were treated as mitigating circumstances, and the sentence of death was held to be incompatible with the circumstances of the case and was consequently altered to imprisonment for life.

15.In Abrar A Farooa v. The Stat,e (PLD 2024 SC 815), the Honourable Supreme Court of Pakistan reiterated the settled principle governing the quantum of sentence in murder cases in the following terms:-

"i7. For determining the quantum of sentence, each ( case has to be judged upon its own facts and circumslances. A single mitigating circumslance, available in a particular case, would be sufrcient to put a Judge on guard for not awarding the penalty of death but impris onment for life. "

16.The above principle squarely applies to the present case, where no motive has been alleged or brought on record by the

prosecution, which, by itself, constitutes a substantial mitigating circumstance. Therefore, keeping in view the overall facts and circumstances ofthe case, the appellant does not fall within the category of cases warranting t}te extreme penalty of death

17.In the case of Khalid v. The State Q024 SC)&IIR 1474), the Honourable Supreme Court of Pakistan, while maintaining the conviction under section 302(b), P.P.C. on the strength of reliable ocular and medical evidence, was pleased to convert the sentence of death into imprisonment for life on the ground that the prosecution had failed to prove the alleged motive. It was held that non-proving of motive constitutes a mitigating circumstance relevant to the quantum of sentence. In the present case, the circumstances are even more favourable to the appellant, inasmuch as no motive has been alleged at all.

Therefore, applying the ratio of the said judgment, the case squarely falls within the category where the lesser sentence is to be preferred.

18.In a similar vein, in Muhammad Yasin and a er v.

The State (2024 SCMR 128), the Honourable Supreme Court of Pakistan upheld the judgment of the High Court whereby, despite maintaining the conviction under section 302(b), P.P.C.

on the basis of reliable ocular and medical evidence, the

sentence of death was altered to imprisonment for life on account of non-proving of motive. It was reiterated that motive, though not essential for sustaining conviction, is of significant relevance in determining the quantum of sentence, and where the same is not proved, the case ordinarily falls within the category warranting lesser punishment.

19.Likewise, in Ali Asshar alias Alesar v. The State (2023 SCMR 596), the Honourable Supreme Court of Pakistan, while maintaining the conviction under section 302(b), P.P.C. on the basis of reliable ocular and medical evidence, altered the sentence of death to imprisonment for life on the ground that the motive alleged by the prosecution was not established and remained shrouded in mystery. It was reiterated that where a specific motive is alleged but not proved through cogent evidence, the same constitutes a mitigating circumstance favouring the accused in the matter of sentence.

20.Similarly, it Muhammad Shohan v. The State (2o22 SCMR 1608), the Honourable Supreme Court of Pakistan held that mere allegation of motive is not sufficient unless the same is proved through cogent and reliable evidence, and where the prosecution fails to establish the alleged motive, such failure constitutes a mitigating circumstance relevant to the quantum of sentence. Consequently, while maintaining the conviction under

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section 302(b), P.P.C., the sentence of death was converted into imprisonment for life.

21.Furthermore, the manner in which the occurrence is alleged to have taken place also merits consideration. The incident, as per the prosecution's own showing, occurred within the confines of a house and appears to have been executed within a short span of time, without any established prelude, prior meeting of minds, or premeditated desigrr. There is no material available on record to indicate that the appellant had come prepared with any calculated plan or that the offence was committed with exceptional depravity or brutality exceeding the act itself. Likewise, nothing has been brought on record to demonstrate that the appellant is a previous convict, a hardened criminal, or a person having a history of violent conduct. These attending circumstances, when examined cumulatively, reasonably suggest that the case does not fall within that category of offences which shock the judicial conscience to an extent warranting the extreme penalty.

(- 22. The Honourable Supreme Court of Pakistan has consistently held, through a long line of authoritative pronouncements, that the sentence of death is not to be awarded merely on the basis of conviction, but only after a cautious and structured examination of the attending aggravating and

mitigating circumstances. It has been repeatedly emphasized that even a single mitigating circumstance, if suffrcient to create a reasonable doubt regarding the propriety of awarding capital punishment, is enough to extend the benefit thereof to the accused. This principle, rooted in the doctrine of safer administration of criminal justice, requires that in cases where the balance tilts even slightly in favour of life, the lesser sentence of imprisonment for life ought to be preferred over t}re irreversible penalty of death.

23.It is further well-settled that even in cases where motive has been duly established and the prosecution evidence is otherwise confidence-inspiring, the sentence of death is not to be awarded as a matter of course. The presence of mitigating circumstances, even to a minimal extent, is sufficient to justify the lesser sentence of imprisonment for life, and where a case admits of both punishments, the safer course is to prefer life imprisonment over capital punishment, as held in M. Ihsan alias Malkoo v. The State Q025P.Cr.L. J 334 [Lahorel).

,l 24. Applying the above settled principles to the facts of the present case, we find that the absence of motive, coupled with the surrounding circumstances in which the occurrence took place, constitutes a suffrcient mitigating framework. The occurrence appears to have taken place spontaneously, without

any prior planning or premeditation, and nothing has been brought on record to demonstrate that the appellant acted in a manner exhibiting exceptional brutality or depravity. The case, therefore, does not disclose such extraordinary or aggravating features which would render the lesser punishment wholly inadequate.

25.Consequently, upon a careful reappraisal of the entire evidence available on record, we find that the conviction recorded by the learned trial Court is based on a proper appreciation ofevidence and does not suffer from any illegality, irregularity, misreading, or non-reading of material evidence so as to wa.nant interference by this Court. However, insofar as the question of sentence is concemed, we are persuaded to hold that the imposition of the death penalty upon the appellant on two counts was not justified in the peculiar facts and circumstances of the case. The mitigating factors discussed above, when considered cumulatively, create reasonable doubt regarding the propriety of awarding the extreme penalty.

26.In such circumstances, and in keeping with the settled principles goveming the award of sentence in capital cases, the appellant is entitled to the benefit of the lesser sentence.

Accordingly, while maintaining the conviction under section 302(b), P.P.C., tJre sentence of death awarded to the appellant

v on two counts is altered to imprisonment for life on each count.

The remaining sentences awarded by the leamed trial Court under other provisions oflaw are maintained, and the benefit of section 382-8, Cr.P.C. shall remain available to the appellant.

27.Resultantly, this appeal is partially allowed in the above terms. The Murder Reference No.02-Bl2025 sent by the leamed trial Court for confirmation of the death sentence is answered in the negative.

Announced Dt: i L03.2026 b 'ImranullahtPS -sd- Judge JUDGE oAe

JUDGE

(D.B) Hon'ble Mr. Justice Muhrmmrd To q Aftidi & Hon'ble Mr. Justice Ssbit Ullrh Khtr.

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