P L D 1967 Supreme Court 185 (PLP)

FAZLE‑AKBAR, J.‑The appellant, Ajun Shah, was granted special leave to appeal against a judgment of a Division Bench of the High Court of West Pakistan, confirming his conviction and sentence under section 302, P. P. C., for the murder of one, Fazal Raziq. His conviction and sentence under section 19(f) of the Arms Act were also affirmed by the High Court. The murder was committed at 4‑30 p.m. on the 6th of February 1965, at Shankar Chowk, Mardan and was allegedly witnessed by Foot . Constable, Lajbar, who was then on traffic duty. The prosecution case briefly was that the Foot .Constable, Lajbar, saw a tonga coming from Hoti Bazar, carrying two passengers, one seated in front with the tonga driver and the other at the rear. On tonga driver's asking permission to cross the traffic point, the Constable gave him the signal to proceed. As soon as the tonga crossed the Constable, he saw the accused, Ajun Shah, following the tonga and then firing two shots in quick succession at the passenger in the front seat, namely, Fazal Raziq. Both the shots hit him and he fell down in the pit of the tonga. The assailant who was seen running away, was pursued by the Constable and others and captured near Kalpani Wooden Bridge with the weapon of offence, i.e., a D. B. gun with two live cartridges in its chambers and a bandolier containing 14 live cartridges was also taken away from him. The assailant, while running, re‑loaded his gun after dropping its empties on the way and one of the empty shells was picked up by a retired Head Constable, Hamesh Gul. Lajbar, Foot Constable and Sultan, S. H. O., who had also joined the pursuit, then took Fazal f,aziq to C ;vii Military Hospital. Shortly thereafter,, that is, at about 5 p.m., Muzaffar Shah, S. I., who was then on patrol, duty, arrived at the Hospital on learning of the occurrence and Lajbar reported the incident to him. Muzaffar Shah then started the investigation and took into custody the shot gun with two live cartridges and the bandolier containing 14 live cartridges. Hamesh Gul made over to him the empty shell which he had picked up from the katcha road leading to Kalpani Wooden Bridge. As the deceased had been removed to the Civil Hospital, Mardan, the Sub‑Inspector sent Mir Rehman Khan, A. S. I., there to send the dead body for post‑mortem examination after making the inquest report. The doctor who held the' post mortem examination found the following injuries on the deceased:‑ (1) One entrance wound of firearm about 1," x 1"", on the right back, near the lower end of the scapula. Charring mark was present. (2) Six exit wounds. of firearm each about .1 x 34, on the lower part of the right side of the neck and upper part of the chest right side. (3) One entrance wound of firearm about 1J" x 1 " on the left side of the back. at the level of 8th rib. Charring was present. (4) Six exit wounds of firearm .each about" X 3 ", on the upper part of front of the left side of the chest at its outer part at the level of the 2nd and 3rd ribs. One of the above said exit wounds mentioned at Serial No. 4 was near the left armpit. (5) One entrance wound of firearm about ` x 3" on the front surface of the left forearm at its lower third. In the opinion of the doctor death was due to shock and bleeding as a result of injuries caused by a firearm from a close range. The motive alleged was that the accused killed Fazal Raziq to avenge the murder of his brother and father. The accused's defence consisted of pleas of innocence and of false implication by the P. Ws. He further sated that the Police had arrested him from the house of his uncle, Yaqoob Khan, at Gad Bano Koruna. He also examined Malik Muhammad Afzal, Lambardar of the village, in his defence. The prosecution relied on the evidence of three eye witnesses, namely, Foot Constable, Lajbar (P. W. 8), Mehrdil (P. W. 9), a fellow passenger. of the deceased in the tonga and Said Ahmad Shah (P. W. 10), a relation of the deceased. Supporting evidence was of two kinds. Firstly, the medical evidence which proved 'that two shots had been fired at the deceased and secondly, the evidence of those witnesses who apprehended the accused after a chase. They were Muhammad Ayub, Foot Constable (P. W. 15), Sultan, S. H. O., (P. W. 17) and Abdul qudus (P. W. 11). Circumstantial evidence consisted of the recovery of a shot gun with two live cartridges, a bandolier containing 14 live cartridges and the empty shell. The Sessions Judge found that the evidence of the eye witnesses was satisfactory and held that there was sufficient corroboration of their statements in the evidence of capture of the accused from near the spot with a shot gun. Further, he was unable to accept the plea of the accused that he had been arrested from the house of his uncle. The High Court agreed with the above findings and confirmed the conviction and sentence of the appellant. Two lines of arguments were advanced on behalf of the appellant as tending to cast doubt on the prosecution story. First, it was contended that appraisement of the evidence of the eye‑witnesses was not based upon full comprehension of all the circumstances appearing in the case. The learned counsel invited our attention to the statements of Constable Lajbar and Fazal Karim, the tonga driver, to show that Mehrdil, P. W. 9, was not the person who was on the rear seat of the tonga in question and that the person who traveled in the tonga also ran away after the occurrence and though pursued, managed to escape in a car. In other words, the learned counsel attempted to argue that the man travelling behind the deceased might ‑have fired the shot, because, according to the tonga driver, he had a gun in his hand. The Foot Constable, Lajbar, was, however, definite that the man sitting on the rear seat was not armed with any gun. Further, according to the medical evidence, there was no burning either on the cloth or in the entrance on the wounds. On the other hand, charring of the wounds showed that the muzzle of the gun was at some distance when the shot had been fired. Thus, 9 the nature of the injuries on the deceased excluded totally the possibility of the shots being fired by the man sitting on the rear seat. The learned counsel realizing his difficulty, did not press this point. Secondly, . it was contended that the entrance wounds indicated that three shots had been fired at the deceased and not two as alleged by the eye‑witnesses. The doctor's evidence on this point is otherwise., He stated in his cross‑examination: "The two injuries on the back of the deceased are the result of two separate shots. Injury No. 5 on the forearm of the deceased (the third entrance wound) could not be caused by these two shots provided if the deceased was holding' his forearm in front of his chest, one of the pellets after its exit from the chest could cause this injury." It will therefore suffer to say that very likely the deceased raised his hands to protect his chest and in so doing he was hit in his L forearm by the pellet , after its exit from the chest. This assumption is also borne out by the nature of injury No.

5. We are therefore unable to accept any of the contentions of the learned counsel. The occurrence took place in broad daylight in a Chowk. The assailant was apprehended at a short distance from the spot with the offending weapon. The Constable on traffic duty has proved beyond any doubt that the appellant shot dead the deceased from close quarters. The clear evidence in this case leaves no room for doubt that the appellant was rightly convicted of murder. The learned counsel has submitted that this is not a fit case for imposition of extreme penalty. In a case of murder the death sentence should ordinarily be imposed unless the trying Judge for reasons to be recorded by him, considers it proper to award lesser penalty. No doubt, discretion is his and if he C exercises that discretion after taking into account all the circumstances, the appellate Court should not interfere. It is, therefore, necessary to consider whether the Sessions Judge or the High Court in adjudicating that the appellant has forfeited his life by his act, has taken into consideration all the circum stances surrounding his act. According to .the prosecution, the appellant's motive for' the crime was to avenge the murder of his father and brother It appears from the record that in June 1945, Hikmat Shah, brother of the appellant, was murdered and the deceased Fazal Raziq and others, were charged for the offence, but they were acquitted. In October 1945, appellant's father, Syed Qadir Shah, was murdered and Fazal Raziq was charged with the offence but he was acquitted. At the time of the instant murder, i.e., in 1965, the appellant's age was 28 years. It is, therefore, clear that when his father and brother were murdered he was only 8 years old. He belongs to the Frontier Province where it is a matter of tradition and even family duty to avenge the murder of a father. Such murders are committed in that area out of a sense of honour and self‑respect. Since he was a boy his mind g had become obsessed with one thought to do away with the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw the deceased in a tonga he lost his balance of mind. The time, place and nature of the attack appear to confirm this. A man is after all a creature of his environment. His action, therefore must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not imposing the extreme penalty, We would, however, like to make it clear that we are not suggesting for a moment that private ; revenge can be regarded as a mitigating circumstance. What we are really pointing out a, that the question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty. If the circumstances which we have mentioned above harp been brought to the notice of the learned Judges of the High Court, perhaps, they would not have confirmed the sentence of death. We are, therefore, of the opinion that in this case the sentence of transportation for life should be more appropriate than the sentence of death. We accordingly reduce the sentence of death to one of transportation for life and subject to this modification, we dismiss this appeal. A. H. Sentence reduced.