P L D 2000 Supreme Court 12 (PLP)

(On appeal from the judgment of the Lahore High Court, dated 29‑3‑1994 passed in Criminal Appeal No.79 of 1991 and Criminal Revision No.145 of 1991). (a) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.1185(3)‑‑‑Leave to appeal was granted by Supreme Court firstly to consider whether High Court was justified in awarding lesser punishment to accused on the ground referred to in the judgment, and secondly to examine whether in view of the observations made in the impugned judgment, conviction of other accused under S.302/34, P.P.C. was justified. (b) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Appraisal of evidence‑‑‑Line of reasoning adopted by High Court while allowing lesser sentence of imprisonment for life to the accused did not appear to be based on correct appreciation of evidence‑‑‑Observation of High Court that the motive for the occurrence was shrouded in mystery was not supported by evidence on the record‑‑‑Prosecution had not only established motive in the case, but it had also established that the offence committed by the accused was premeditated and although the shot fired by the main accused from his pistol had caused the fatal injury to the deceased, but the other accused had also shared the same intention with him‑‑‑Act of ‑main accused was too brutal an4 merciless who had killed a young man of about 18 years depriving him of his life in prime of his youth‑‑‑Sentence of imprisonment for life awarded to accused by High Court was converted into sentence of death in circumstances‑‑‑Conviction and sentence of other accused were also upheld accordingly. Sher Zaman v. The State 1973 SCMR 503; Niaz Ahmad v. Naim Akhtar 1977 SCMR 159; Muhammad Mukhdoom v. The State 1984 SCMR 837; Muhammad Yaseen v. Muhammad Shafique 1997 SCMR 1527; Akram Beg v. The State 1998 SCMR 317; Muhammad Ishaque Khan v. The State PLD 1994 SC 259; Muhammad Ashraf v. The State 1981 SCMR 856; Ghulam Muhammad v. The State 1972 SCMR 393; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi PLD 1976 SC 452 and Bismillah v. Muhammad Jabbar 1998 SCMR 860 ref. (c) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Sentence‑‑‑Interference by Supreme Court‑‑‑Supreme Court is reluctant to interfere with the sentence awarded by High Court unless the sentence is against law or it is not in consonance with sound judicial principles. Niaz Ahmad v. Naim Akhtar 1977 SCMR 159; Muhammad Mukhdoom v. The State 1984 SCMR 837; Muhammad Yaseen v. Muhammad Shafique 1997 SCMR 1527; Akram Beg v. The State 1998 SCMR 317; Muhammad Ishaque Khan v. The State PLD 1994 SC 259; Muhammad Ashraf v. The State 1981 SCMR 856 and Ghulam Muhammad v. The State 1972 SCMR 393 ref. (d) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Sentence‑‑‑Where circumstances of the case do not justify awarding of lesser penalty of imprisonment for life, sentence of death is to be awarded by the Court. Muhammad Sharif v. Muhammad Javed alias Jeda Tedi PLD 1976 SC 452 and Bismillah v. Muhammad Jabbar 1998 SCMR 860 ref. Respondent No.3 in person (in Criminal Appeal No.256 of 1994). Malik Ainul Haq, Advocate Supreme Court for the State (in Criminal Appeal No.357 of 1994). JUDGMENT MAMOON KAZI, J.‑‑These two appeals arise out of the judgment passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, dismissing Criminal Appeal No.79 of 1991 filed by appellants Ghulam Asghar and Mumtaz Hussain, and Criminal Revision No. 145 of 1991 filed by appellant Muhammad Afzal.

2. It may be pointed out that, appellants Ghulam Asghar and Mumtaz Hussain were tried by Additional Sessions Judge, Attock alongwith one Muhammad Iqbal for murder of one Nazir Iqbal. Whereas the said Muhammad Iqbal was given benefit of doubt and acquitted, appellants Ghulam Asghar and Mumtaz Hussain were found to be guilty under section 302/34, PT.C. and convicted. Appellant Ghulam Asghar was sentenced to death and to pay a fine of Rs.6,000, or in default to undergo further R.I. for one year while appellant Mumtaz Hussain was sentenced to imprisonment for life and to pay a fine of Rs.6,000 or in default to suffer R.I. for one year. Both the appellants were also directed to pay compensation to the heirs of the deceased. 3.? Case of, the prosecution against the said appellants is that, on 5‑2‑1990, at about 3‑00 p.m. when deceased Nazir Iqbal was sitting in front of Baithak of one Sher Jang alongwith his father, Muhammad Afzal, and one Nadeem Iqbal, the two appellants and their acquitted co‑accused went there and attacked Nazir Iqbal. Appellant Ghulam Asghar fired a shot at him with his pistol, which hit him on his abdomen, while Mumtaz Hussain gave a hatchet blow on his left arm. , The third accused was, however, empty‑handed the witnesses then intervened and got the deceased free.

4. Motive for the occurrence, as stated in the dying declaration made by the deceased to the Investigating Officer shortly after the occurrence was revenge, as appellant Ghulam Asghar and the deceased had an altercation about two or three months prior to the said occurrence where the deceased had allegedly made. assault on the said appellant.

5. The said dying declaration was recorded at Police Station Khorr at 4‑45 p.m. by A.S.I. Muhammad Adam Khan (P.W.14) on the basis of which a formal F.I.R. (Exh.PG) was drawn the same day at Police Station Pindigheb at about 5‑30 p.m. by P.W.4 H.C. Afzal Khan. In the meanwhile, Nazir Iqbal was shifted to T.H.Q. Hospital, Pindigheb where he expired at about 6‑15 p.m.

6. After recording of F.I.R. investigation was started by the police. Appellant Mumtaz Hussain and co‑accused Muhammad Iqbal were arrested on 13‑12‑1990 and on 20‑2‑1990, the former led the police to the recovery of a blood‑stained hatchet from his residence which was secured by the police under a Mashirnama. On the same day, appellant Ghulam Asghar was also arrested and a revolver was recovered by the police from his Dera.

7. The accused at their trial denied the said allegations. Appellant Ghulam Asghar also denied that he had been insulted by Nazir lqbal about two or three months prior to the said occurrence. The appellants also got their statements recorded under section 340(2), Cr.P.C., and examined Muhammad Raiz, Ghulam Ahmad and Muhammad Munsha Khan in their defence.

8. The case of the prosecution. rested on the evidence of twelve witnesses. P.W.11 Muhammad Afzal and P.W.12 Nadeem lqbal were the eye‑witnesses of the said incident. The former was the father of the deceased. Although the learned Judges in the High Court placed reliance on the evidence of the said eye?witnesses as they found their evidence to be straightforward and confidence inspiring, however, in regard to motive, the learned Judges were not impressed by the prosecution evidence as they. found that the alleged insult had been caused to accused Ghulam Asghar two or three months prior to the said occurrence during which the parties stayed in the village, yet no other unpleasant incident occurred. Consequently, the learned Judges concluded that something must have suddenly transpired between the deceased and the accused at the time of the attack. Therefore; according to .the learned Judges, real motive for commission of the said crime was shrouded in mystery and therefore, although, the conviction of the accused was maintained, but the sentence of death awarded to appellant Ghulam Asghar was altered to that of imprisonment for life. Revision filed by the complainant to challenge acquittal of the third accused and awarding of lesser punishment to Mumtaz Hussain by the trial Court was also dismissed.

9. Both the appellants as well as the complainant were dissatisfied with the said findings and they consequently filed their respective petitions for leave to appeal before this Court.

10. Leave was granted firstly on the question, whether the learned Judges were justified in awarding lesser punishment to appellant Ghulam Asghar on the ground referred to by them in the said judgment and secondly, to examine whether in view of the said observations made in the impugned judgment, conviction awarded to appellant Mumtaz Hussain under section 34, P.P.C. could be justified.

11. Taking a clue from the said observations made by the learned Judges in the High Court, Sardar Muhammad Ishaq Khan has firstly argued that, in case motive for commission of the said crime was shrouded in mystery and the prosecution had no clue as to what had suddenly transpired between the accused and the deceased just before the attack, accused Mumtaz Hussain cannot be said to have shared the same intention with co‑accused Ghulam Asghar. Therefore, conviction of accused Mumtaz Hussain under section 302/34, P.P.C. was liable to be set aside.

12. It is pertinent to point out in this regard that the line of reasoning adopted by the learned Judges in the High Court while allowing benefit of imprisonment for life to appellant Ghulam Asghar does not appear to be based on correct appreciation of evidence as the learned Judges in the High Court clearly appear to have overlooked the evidence of P.W.11, Muhammad Afzal and P.W.12, Nadeem Iqbal. the evidence of the said witnesses indicates that after the first incident, the deceased had left the village and had taken a job in Faisalabad. It was after his return from Faisalabad that the said occurrence took place. Therefore, the observations that the deceased and appellant Ghulam Asghar had stayed in the same village after occurrence of the said unpleasant incident were clearly against the evidence recorded by the trial Court. The learned Judges also appear to have overlooked‑the fact that the deceased had made a dying declaration where motive for the said crime was clearly stated to be the said unpleasant incident which had occurred a few months prior to the said occurrence. Therefore, in our opinion the observations made by the learned Judges that the motive for the said occurrence was shrouded in mystery, do not appear to be supported by evidence on the record.

13. Sardar Muhammad Ishaq Khan has, however, argued that, reliance cannot be placed on the dying declaration as allegedly the death of deceased. Nazir Iqbal had occurred shortly after the incident. Consequently, the deceased could not have been in a stable condition to make a dying declaration before the Investigating Officer. However, this contention is not supported by any medical evidence. Dr. Shahid Iqbal, the Medical Officer, who attended the deceased before his death, does not appear to have been cross‑examined by the defence counsel on this point. On the other hand, evidence of the Investigating Officer and P.W.11 Muhammad Afzal, the father of, the deceased, lends further corroboration to the fact that the deceased had made such dying declaration. Consequently, we are unable to agree with the said contention of the learned counsel.

14. Both the dying declaration as well as the evidence of P.W.11 Muhammad Afzal clearly indicate that the unpleasant incident, which is said to have occurred between the deceased and appellant Ghulam Asghar a few months prior to the said occurrence, was the motive for commission of the said crime. There appears to be no other evidence on record which can render this evidence doubtful. It would, therefore, be erroneous to assume that there was no clear evidence led, by the prosecution in regard to motive. In our view, the prosecution had not only succeeded to establishing motive to this case, but it was also established that it was a premeditated crime committed by the accused. So far as the question in regard to sharing of the common intention by accused Ghulam Asghar and Mumtaz Hussain is concerned, no doubt, it was allegedly D the shot fired by accused Ghulam Asghar from his pistol which is said to have caused the fatal injury to the deceased, but the circumstances further indicate that appellant Mumtaz Hussain had also shared the same intention with him. As was held by this Court in Sher Zaman v. The State 1973 SCMR 503, common intention can even be formed at the spur of the moment. Therefore, in our view there appears to be no doubt that both the accused had shared the same common intention at the time of commission of the said crime‑

15. Adverting now to the question of sentence, Mr. Zamir Hussain, learned counsel for the complainant has argued that in case motive has been successfully established by the prosecution and there are no mitigating circumstances available in the case to justify awarding of lesser punishment of life imprisonment to accused Ghulam Asghar, maximum penalty of death should have been awarded to the said accused. The contention of Sardar Muhammad Ishaq, on the other hand, was that as benefit has already been allowed to accused Ghulam Asghar by the High Court for which reasons have also been assigned, further interference by this Court on the question of sentence would be unwarranted.

16. Several judgments of this Court can be referred to in support of the contention of Sardar Muhammad Ishaq (See Niaz Ahmad v. Naim Akhtar 1977 SCMR 159; Muhammad Mukhdoom v. The State 1984 SCMR 837; Muhammad Yaseen v. Muhammad Shafique 1997 SCMR 1527; Akram Beg v. The State 1998 SCMR 317; Muhammad Ishaque Khan v. The State PLD 1994 SC 259; Muhammad Ashraf v. The State 1981 SCMR 856 and Ghulam Muhammad v. The State 1972 SCMR

393. The said judgments clearly indicate that reluctance has been shown by this Court to interfere with the sentence awarded by the High' Court unless the sentence is against law or it is not in consonance with sound judicial principles. However, as pointed out earlier, the findings of the learned Judges in the High Court that motive for commission of the crime was shrouded in mystery are not warranted by the circumstances of the case. Even otherwise, it is erroneous to assume that in every case, if motive for commission of the crime is pot established by the prosecution, benefit of lesser punishment of imprisonment for life should go to the accused. We would like to point out that this principle cannot be applied in every case as a general rule. There may be cases where, though, motive is not established, but owing to heinous nature of the crime the accused may not be entitled to any leniency while awarding punishment to him. Therefore, the question would depend upon the circumstances of each case. However, circumstances of the present case clearly indicate that there are no mitigating factors, benefit of which may go to appellant Ghulam Asghar. The circumstances of the case indicate that the act of? the accused was too brutal and merciless. The deceased was a young man of about 18 years and he was deprived of his life when he was in the prime of his youth. It is no gainsaying that it circumstances of the case do not justify awarding of lesser penalty of imprisonment for life, sentence of death is to be awarded by the Court. In Muhammad Sharif v. Muhammad Javed alias Jeda G Tedi PLD 1976 SC 452 tendency of the Courts to find pretext to alter a sentence of death to imprisonment for life was disapproved by this Court in strong words. This judgment has been followed by this Court in other cases as well. In Bismillah v. Muhammad Jabbar 1998 SCMR 860, recently decided by this Court, benefit of lesser punishment allowed to the accused by the High Court by conversion of death penalty to sentence of imprisonment for life was declined in view of the heinous nature of the crime.?

17. In the result, Appeal No.356 of 1994 filed by Muhammad Afzal is allowed and the sentence of imprisonment for life awarded by the High Court to appellant Ghulam Asghar is converted into sentence of death. The sentence of accused Mumtaz Hussain shall however, remain intact. The other appeal filed by Ghulam Asghar and Mumtaz Hussain is dismissed. N.H.Q./M‑396/S???????????????????????????????????????????????????????????????????? Order accordingly.