IN THE SUPREME COURT OF PAKISTAN 
 
         (Appellate Jurisdiction) 
 
 
 
 
 
Present: 
 
 
 
 
Mr. Justice Amir Hani Muslim 
 
 
 
 
Mr. Justice Umar Ata Bandial 
 
 
 
 
Mr. Justice Khilji Arif Hussain 
 
 
 
 
CRIMINAL APPEAL NO. 103 OF 2010 
(On appeal from the judgment/order dated 04.02.2009 passed by  
Lahore High Court, Rwp. Bench in Cr.A. No. 351, 360 & 217/2002) 
 
Amjad Shah  
 
 
 
… 
… 
… 
Appellant. 
 
 
 
 
Versus 
The State  
 
 
 
 
… 
… 
… 
Respondent.  
 
For the appellant  
 
: 
Mr. Qadeer Ahmed Rana, ASC.  
 
For the State   
 
: 
Mr. Ahmed Raza Gillani, Addl. PG.  
 
Date of hearing  
 
: 
01.02.2016. 
 
 
 
 
 
JUDGMENT: 
 
  
 
UMAR ATA BANDIAL, J. – The appellant Amjad Shah 
along with his co-accused Sajid Shah (since acquitted) were sentenced to 
death by the learned Sessions Judge Attock vide judgment dated 
24.06.2002 upon conviction under Section 302 read with Section 34 PPC for 
committing the murder of Muhammad Saleem deceased in an occurrence 
reported vide FIR No.73 dated 17.04.2002 lodged with Police Station 
Saddar, Hassan Abdal, District Attock. The two convicts were also fined 
with Rs.200,000/- each and in case of non-payment thereof, were ordered 
to suffer imprisonment for two years; half of the amount of fine upon 
recovery was ordered to be paid to the legal heirs of the deceased as 
compensation. On appeal the learned High Court vide the impugned 
judgment dated 04.02.2009 acquitted Sajid Shah accused and maintained 
the conviction and sentence awarded to the appellant Amjad Shah. 
Cr.A.103/2010 
 
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Against the impugned judgment leave to appeal was granted by this 
Court on 03.03.2010.  
2. 
 
The fateful incident as reported in the FIR is stated to have 
taken place on 17.04.2002 at about 3:00 p.m. in the area of village Kot 
Dadu, District Attock. The FIR was lodged at 5:20 p.m. on the written 
complaint of Sahibzada (PW-12), brother of deceased Muhammad Saleem, 
who handed over the same to the Investigation Officer (PW-13) at Civil 
Hospital, Hassan Abdal. On 17.04.2002 at about 1:00 p.m. the deceased 
along with his brother (PW-12) and nephew Shafaqat Ali (PW-11) rode 
their tractor trolley to load harvested wheat lying in their land described 
as ‘Mera’ in the statements of PW-11 and PW-12 recorded by the learned 
Trial Court. En route, while crossing another piece of their land described 
as ‘Wasan’ they spotted Sajid Shah accused grazing his cattle in their 
standing wheat crop. The deceased Muhammad Saleem reprimanded and 
abused Sajid Shah for damaging his standing crop. He had also insulted 
Sajid Shah for the same reason on the previous day. Feeling humiliated 
and hurt, Sajid Shah threatened to avenge his disgrace and left for his 
home. Later in the day, at 3:00 p.m. when the deceased Muhammad 
Saleem along with his brother Sahibzada (PW-12) and nephew Shafaqat 
Ali (PW-11) were returning after loading the harvested wheat, they again 
crossed their ‘Wasan’ land where both the appellant and Sajid Shah, each 
armed with 0.30 bore pistol raised lalkara for avenging the insult caused by 
the deceased Muhammad Saleem. The latter jumped from the tractor and 
started running away. Both the accused persons chased him; with PW-11 
and PW-12 raising alarm and following at a short distance. The accused 
Sajid Shah fired one shot from his pistol which missed Muhammad 
Saleem deceased. Meanwhile, Amjad Shah appellant ran past the 
Cr.A.103/2010 
 
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deceased and fired at him from the front side striking him fatally on the 
forehead. Both the accused made good their escape. PW-11 and PW-12 
stopped a wagon and took Muhammad Saleem in injured condition to 
Civil Hospital, Hassan Abdal, where he breathed his last. The police 
reached the hospital at about 5:00 p.m. where the PW-12 handed over to 
the Investigation Officer (PW-13) a complaint against the two accused 
persons for murdering Muhammad Saleem deceased with common 
intention to avenge the insult and humiliation caused by the deceased to 
Sajid Shah accused in the incidents of 17.04.2002 and 16.04.2002. 
3. 
 
The usual investigation was commenced and the accused 
Sajid Shah was arrested on 24.04.2004 whilst the appellant Amjad Shah 
was arrested on 28.04.2004. After completion of the investigation the two 
accused were sent up to face trial under Section 302/34 PPC. The 
prosecution examined 13 witnesses including Dr. Ishtiaq Hussain (PW-8) 
who conducted post-mortem examination of the deceased, eyewitnesses 
Shafaqat Ali (PW-11) and Sahibzada (PW-12) who furnished the ocular 
account of the incident and the Investigation Officer, Saleem Akhtar, 
Inspector (PW-13) who provided details about the different limbs of the 
prosecution case. Both the accused got recorded their statements under 
Section 342 Cr.P.C wherein they pleaded their innocence and claimed 
their false implication in the case due to political rivalry. However, they 
opted not to appear in their own defence as witness under oath in terms of 
Section 340(2) Cr.P.C. Upon conclusion of the trial, the learned Trial Court 
vide judgment dated 24.06.2002 convicted/sentenced both the accused as 
detailed in the opening paragraph of this judgment.  
4. 
 
Feeling aggrieved by their conviction/sentence, both the 
accused filed appeals before the learned High Court. A Murder Reference 
Cr.A.103/2010 
 
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was also sent by the learned Trial Court for confirmation or otherwise of 
their death sentence. By means of the impugned judgment dated 
04.02.2009 the learned High Court allowed the appeal of accused-Sajid 
Shah  and acquitted him of the charge on the ground of his ineffective 
firing upon the deceased and also because the motive set up by the 
prosecution was vague and tenuous. However, conviction as well as the 
sentence of the appellant-Amjad Shah was maintained on the grounds: 
that he caused the fatal injury to the deceased; that there was no reason for 
the prosecution to falsely implicate him in the commission of crime; and 
that lack of his motive was inconsequential on account of the clear and 
convincing ocular account. 
5. 
 
Learned counsel for the appellant has argued against the 
view taken by the learned High Court about the motive in the present case 
being irrelevant and has urged that the appellant was roped into the 
occurrence on account of the political rivalry, which is conceded by both 
the eye-witnesses i.e. (PW-11) and (PW-12). 
6. 
 
We have heard the learned counsel for the appellant, the 
learned Additional Prosecutor General; have gone through the impugned 
judgments and carefully examined the prosecution evidence available on 
record.  
7. 
 
The promptitude of the postmortem of the deceased at 
5:00pm within 50 minutes of his death at 4:10pm and the virtually 
contemporaneous lodging of the FIR at 5:20 pm by the complainant  
(PW-12) exclude the availability of time for deliberations or substitution. 
This view is reinforced by the fact that there is no previous enmity 
between the complainant and accused parties. Moreover, the medical 
evidence fully corroborates the ocular account which is therefore 
Cr.A.103/2010 
 
5
forthright and truthful. These aspects make the prosecution case credible. 
Also the single shot by the appellant fatally struck the forehead of the 
deceased both effectively and decisively in achieving the object of murder. 
On that score, the case of the appellant Amjad Shah stands on a different 
footing from the case of acquitted accused Sajid Shah, whereby the 
conviction of the appellant is sustainable.  
8. 
 
Be that as it may, according to the Forensic Science 
Laboratory (“FSL”) report (Exb.PM), the parcel of two crime empties was 
delivered by Rafiullah Constable (PW-7) on 04.05.2002 simultaneously 
with the two parcels, each containing 0.30 bore pistols. This destroys the 
evidentiary value of the recoveries effected and of the FSL report. One 
may also note that no motive whatsoever for the commission of offence is 
attributed to the appellant by the prosecution. The verbal reprimand or 
insult inflicted upon Sajid Shah (acquitted accused) by the deceased 
Muhammad Saleem lacks gravity and nexus with the appellant-Amjad 
Shah to enrage him to kill the deceased. In his evidence PW-11 admits that 
the appellant is not related to the acquitted accused; that they belong to 
the same clan and are friends. Importantly, the absence of repeated firing 
dispels premeditation by the appellant to kill the deceased. Indeed the 
Investigating Officer (PW-13) admitted that he was neither shown any 
damaged wheat crop nor recovered any harvested wheat, which would 
fortify the motive given by the prosecution. In these circumstances, the 
learned High Court disbelieved the motive alleged in the FIR.   
9. 
 
On an objective appreciation of evidence, the appellant is 
merely a volunteer in the occurrence and not a party to the friction 
between the two sides. The real cause of the occurrence as it unfolded is, 
therefore, not known; its origin vis-a-vis the appellant is vague and 
Cr.A.103/2010 
 
6
incomprehensible. Whilst giving an accurate account of the incident, it is 
possible that the eye-witnesses have withheld evidence that could fairly 
explain the immediate cause of the occurrence. Notwithstanding that the 
participation of the appellant in the commission of offence is duly 
established, his intention, guilty mind or motive to commit the same 
remains shrouded in mystery and is therefore unproven. In such like cases 
where the motive is not proved or is not alleged by the prosecution, the 
Court for the sake of safe administration of justice, adopts caution and 
treats the lack of motive as a mitigating circumstance for reducing the 
quantum of sentence awarded to a convict. Reference is made to Zeeshan 
Afzal  v. The State (2013 SCMR 1602). Another ground for mitigation in 
sentence of the appellant is the fact that about two months after the 
occurrence, on 10.06.2002 the learned Trial Court whilst framing the 
charge has recorded the appellant’s age to be 24 years and that of his co-
accused to be 19/20 years. Youthful tendency toward excitement and 
impulsiveness are also treated by the law as a mitigating circumstance. 
Under Section 302(b) PPC imprisonment for life is one of the lawful 
sentences for the commission of offence under Section 302 PPC. In the 
light of the aforesaid discussion the sentence of the appellant merits 
reduction from death to life imprisonment. 
10. 
 
It is rightly urged that although a sentence of life 
imprisonment under Section 57 PPC extends to 25 years, the same is liable 
to reduction through remissions granted by the Executive under Section 
401 Cr.P.C. and also Rule 216 and Rule 218 of the Pakistan Prison Rules, 
1978 (“Prison Rules”). By virtue of Rule 140 of the Prison Rules, every 
‘lifer-prisoner’ must undergo a minimum of fifteen years substantive 
imprisonment. Notionally, the Executive authorities may on that basis 
Cr.A.103/2010 
 
7
remit in their discretion 10 years imprisonment from the statutory 
sentence of a lifer-prisoner. Such remission is granted lawfully in exercise 
of powers vested in the Provincial Government by the aforementioned 
provisions of law. Reference is made to Abdul Malik  v. The State (PLD 
2006 SC 365) for an informed discussion on the subject. However, the 
availability of remissions to lifer-prisoners cannot deprive a sentence of 
life imprisonment from being a lawful punishment in terms of Section 302 
(b) PPC. Indeed, imprisonment for life is one of the legal sentences 
following conviction of an accused under Section 302(b) PPC.  
11. 
 
Nevertheless, it is the criteria of entitlement to or for 
disentitlement to receive remissions granted by the Executive that ought, 
on account of their considerable impact, be subjected to judicial scrutiny. 
However, this may be done in a suitable case probing the ambit, object  or 
effect of the remitting power of the Executive rather than a case as the 
present which involves adjudication on the appellant’s culpability and its 
punishment on merits, rendered in the exercise of appellate jurisdiction. 
To appreciate the purpose, principles and powers for the grant of 
remission of sentences under the Prison Rules may require harmonious 
interpretation of different provisions of such Rules and the Code of 
Criminal Procedure, 1898 and the manner of dispensations to be made by 
the overlapping authorities specified in such laws.  
12. 
 
For the foregoing reasons, this appeal is partly allowed in 
the terms that the sentence of death of the appellant-Amjad Shah is altered 
to that of life imprisonment under Section 302(b) PPC. The remaining 
punishment of fine and imprisonment in case of default thereof shall 
remain intact. He shall also be entitled to the benefit of Section 382-B 
Cr.P.C. 
Cr.A.103/2010 
 
8
13. 
 
Herein above are the reasons of our short of even date.  
 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
 
J. 
Islamabad, 
01.02.2016. 
Irshad Hussain /* 
  
 
 
 
APPROVED FOR REPORTING.  
