IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Appeal No.D-58 of 2019 a/w

Cr. Confirmation Case No.D-26 of 2019

BEFORE:

Mr. Justice Omer Sial,

Mr. Justice Khalid Hussain Shahani.

Appellant: Tarique Ali s/o Sabir Ali Mangi

Through Mr. Athar Abbass Solangi, Advocate.

State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General for the State.

Mr. Muhammad Afzal Jagirani, Advocate for the complainant.

Date of hearing: 11-03-2025

Date of Judgment: 18-03-2025

J U D G M E N T

Khalid Hussain Shahani, J. The appellant Tariq Ali was tried and convicted by the learned Additional Sessions Judge-I/MCTC, Shahdadkot, in Sessions Case No.28/2013 (The State v. Tariq Ali), emanating from FIR No.172/2012, offence u/s 302, 324, 34 PPC of PS A-Section, Shahdadkot. He was sentenced to death and directed to pay compensation of Rs.10,00,000/- to the legal heirs of the deceased Farman Ali, failing which he was to undergo an additional one-year imprisonment. A reference in compliance with Section 374 Cr.P.C, was forwarded to this Court for confirmation of the death sentence awarded to the appellant.

02. At the very outset the learned counsel for the appellant submitted that he will not argue on merits if the Court considered a reduction in sentence. We have heard the counsel to the extent of the concession sought, the learned Deputy Prosecutor General and the learned counsel for the complainant.

03. From the examination of the record, we have noted, the incident transpired spontaneously, without prior intention, premeditation, or specific motive being established by the prosecution witnesses in their testimonies. The evidence suggests that the appellant, along with co-accused Muhammad Juman and Shahid, arrived at venue of occurrence (the saloon owned by the deceased Farman Ali) where they intended to stay momentarily. However, upon refusal by the deceased, an altercation ensued, culminating in the accused Tariq and Juman each firing a single shot at Farman Ali, while co-accused Shahid Chandio fired at PW Irfan Ali Brohi. Importantly, there was no repeated firing by the appellant. Additionally, co-accused Juman had already been acquitted during trial based on a compromise between the parties, wherein the complainant party accepted compensation amounting to Rs.12,00,000/- to settle the matter.

04. The learned counsel has stressed that there was no motive to kill and that the occurrence was a sudden happening after the three men had had an altercation. It was not a pre-meditated murder or planned. In this regard we note that absence or not proving the motive has often been considered a mitigating circumstance to reduce a death penalty to life imprisonment.

05. In Ghulam Rasool vs The State (2025 SCMR 74) the Court observed:

"However, the prosecution has succeeded in proving its case against the appellant under section 302(b) read with section 34, P.P.C. for the act done by him along with the co-accused. In such view of the matter, awarding capital punishment to the appellant was unjustified. On the basis of the mitigating circumstances discussed herein above, the fora below were required to exercise their discretion by awarding lesser punishment as provided by section 302(2), P.P.C., but they did not exercise their jurisdiction." We notice that in this case one of the learned members of the Bench disagreed with the majority view and held that absence of motive was no ground for reduction in sentence. The majority order however considered it a mitigating factor.

06. In Liaquat Hussain vs The State (2024 SCMR 1600) the Court held:

"In the instant case though the complainant and legal heirs of the deceased have not filed compromise documents but the complainant has made statement before this Court on 27 February 2023 that the legal heirs of both the deceased have pardoned the convict and they are not interested to further pursue the matter. The above circumstance coupled with motive of the occurrence and altercation of the convict with the deceased prior to the occurrence are considered as mitigating circumstances to reduce the sentence of death of the convict under section 302(b), P.P.C. as Ta'zir to imprisonment for life.”

07. In Khalid vs The State (2024 SCMR 1474) it was held:

"According to the settled principles, non-proving of the motive alleged by the prosecution can be considered as a mitigating circumstance for reducing the quantum of sentence awarded to an accused."

08. In Muhammad Yasin and another vs. The State and others (2024 SCMR 128), the Supreme Court noted:

“It is a well-settled proposition of the law that in the absence of pre-meditation to commit murder where motive is not proved by the prosecution, the same may be considered as the mitigating factor in order to reduce the quantum of sentence in cases involving the capital punishment.”

09. In Ali Asghar alias Aksar vs The State (2023 SCMR 596) the Court observed:

"It is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the said motive might be considered a mitigating circumstance in favour of an accused."

10. In Mohammad Shobhan vs The State (2022 SCMR 1608) the Court held:

"The law of the land in this regard is much settled by now that absence of motive or absence of proof of the same would be a sufficient mitigating circumstance to determine the quantum of sentence. We can lay hands on some of the latest judgments of this court for a matter of reference i.e. Mst. Nazia Anwar v. The State (2018 SCMR 911), Nadeem Ramzan v. The State (2018 SCMR 149), Haq Nawaz v. The State (2018 SCMR 21), Ghulam Muhammad v. State (2017 SCMR 2048), Saif Ullah v. State (2017 SCMR 2041), Waris Ali v. The State (2017 SCMR 1572). So keeping in view the above discussion, we are of the considered view that the prosecution has utterly failed to prove the motive so alleged in the FIR, benefit of which for the purpose of quantum of sentence in this case will have to go to the appellant and the appellant in the given circumstances, cannot be awarded major penalty of death."

11. In Zeeshan Afzal alias Shani and another v. The State and others (2013 SCMR 1602), the Court held that:

“. . . . if motive is not alleged or is not proved, normally the sentence of death is converted into imprisonment for life."

12. In Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), it was observed:

“. . . . We agree with the prosecution that motive is not sine qua non for the proof of commission of the crime, and at times, motive is not known to any other person other than the deceased or the accused person, which never surfaced on the record. However it cannot be denied that motive is always very relevant to determine the quantum of sentence that might be awarded to a person against whom charge of murder is proved."

13. Another aspect that we have considered is that the evidence reflects that the appellant made one fire. As mentioned above, the record does not show that it was a pre-meditated murder. The altercation was sudden, and the appellant seemed to have felt rage leading to the shooting. In Shameem Khan vs The State (2024 SCMR 1802) the Court observed that: “There are precedents of the Supreme Court that firing only once from a firearm is a mitigating factor attracting the alternate sentence of imprisonment for life.”. In Rehmat Khan and another vs The State (2017 SCMR 2034) where the High Court had considered a single shot fired as a mitigating factor, the Supreme Court upheld the same and observed "In appeal, the learned Division Bench of the Lahore High Court after taking into consideration the mitigating circumstances of the case i.e. single fire shot attributed to the petitioner and the alleged recovery of pistol being inconsequential rightly converted his death sentence to life imprisonment." In Fayyaz alias Faizi vs The State (2017 SCMR 2024) it was held: "However, we hold that it is not a case of capital punishment because only a single fire-shot was attributed to the appellant and there was no allegation of repetition of firing against him.” In Zafar Iqbal vs The State (2017 SCMR 1721), it was held: "As far as awarding of death sentence to the appellant by the Courts below is concerned, we have observed that the occurrence had taken place at the spur of the moment due to sudden provocation without any pre-planning and pre-mediation. The mode and manner of the occurrence would further reveal that there was a single shot fired at the deceased without repeating the same. There was no motive for the appellant to commit Qatl-i-amd of the deceased. All these aspects compel us to exercise caution in the matter of the appellant's sentence of death."

14. We have also considered the no-objection given by the learned counsel for the legal heirs of the deceased and the learned Additional Prosecutor General on behalf of the State to the death penalty being converted into one of life imprisonment.

15. Given the above, and being guided by the wisdom of the Honorable Supreme Court, the appeal is dismissed; however, the sentence of the appellant is reduced from death to rigorous imprisonment for life. The appellant shall continue to be liable to pay the compensation amount to the legal heirs of the deceased in accordance with the sentence meted out to him by the learned trial court. He will be entitled to remissions under section 382-B Cr.P.C. The death reference, in view of the above is answered in the negative.

JUDGE

S.Ashfaq