1980 PLP 291 (SCMR)

The appellant, Sher Ali, aged 65 years (at the time when the case was heard by the High Court in 1974) was tried by the Sessions Judge, Bannu, on a charge under section 302, P. P. C. The learned Sessions Judge convicted him of the said charge by his order dated 4th December 1973 and sentenced him to suffer death. The convict filed an appeal from the Jail against the order of his conviction to the Peshawar High Court and the mater was also referred to it by the Sessions Judge for confirmation of the death sentence. The case was heard by a Division Bench of the High Court consisting of Qaiser Khan and Abdul Hakeem Khan, JJ., who both found that the appellant had been rightly convicted under section 302, P. P. C: but differed on the question of sentence. According to Qaiser Khan, J, the extreme penalty of death was not called for. He, therefore, reduced the sentence of death to that of life imprisonment. However, Abdul Hakeem Khan, J, found no ground for not imposing the normal penalty of death. He, therefore, dismissed the appeal and confirmed the death sentence. The matter was, therefore, laid before the third Judge (Shah Zaman Babar, J.) who agreed with Abdul Hakeem Khan, J, with the result that the sentence of death was confirmed. The appellant filed a petition through Jail before this Court (J. P. No. 12‑R/75) and leave to appeal was granted to the petitioner to consider the question of sentence. The facts of the case are that on 30th March 1973 at about 2 p.m. Abdul Sattar (Ghulam Sattar) of Village Gandi Khan Khel was shot dead in the courtyard of his house. His son Saifullah, who was present on the spot, went to the Police Station Naurang, distant 6/7 miles from the spot where he reported the matter at 15‑15 hours as follows :‑ "Today at early peshin time, 1, my father Abdul Sattar and uncle Sher Ahmed got up from our baithak and went to out house to prepare for the peshin prayer. As soon as we reached the courtyard of our house, Sher Ali, our cousin, who was standing in the tower of his house fired at my father who was ahead of us, the other two, with a ‑12 bore shot‑gun. My father was hit with the shot in the front, fell down on the ground in the courtyard and expired soon after, I have come for report. The occurrence was witnessed by me and my uncle Sher Ahmad. I charge Sher Ali son of Sarbiland, our cousin, for the murder . of my father. We had no previous enmity with Sher Ali. Today at morning meal time my father and Sher Ali had altercated over the boundary of their lands. Guldad present with me and Mosam Khan son of Qamar Din, resident of Nar Gul Bazar had effected separation and had requested them to settle the boundary dispute." The prosecution case as set out above was held to be established and the appellant held to be guilty under section 302, P. P. C. by both the members of the Division Bench. However. on the question of sentence, Qaiser Khan, J. observed as follows :‑‑ "I have already held prosecution to have proved this case and have upheld the conviction of the accused for murder. I am taking these circumstances into consideration only as to whether death penalty is called for in this case or not. Personally, I am of the opinion that in view .of the fact that the parties were close relatives, that they had no serious enmity and that there were marks of pellets and bullet on the Burj in which the accused was present which could only be caused from the side of the Burj of the deceased, some thing did happen between the parties before the accused shot the deceased. Under these circumstances, in my opinion, the death penalty is no called for in the case. I would, therefore, accept this appeal this extent that the sentence of death is commuted to the life imprisonment. The death sentence in not confirmed." Abdul Hakeem Khan, J. however, differed with this view and observed as follows :‑ "That the murder was an intentional and cold‑blooded murder would stand established by a reference to the statement of Mosam Khan and Guldad Khan, P. Ws. 6 and 7 respectively. It is borne out from their evidence that the appellant cut the banna and when the deceased undid the harm, guns were aimed at each other a little after sunrise time on the very day of the occurrence. Guldad (P. W. 7) who, as said before, is equally related to the deceased and the appellant interceded and separated them. The appellant was still not reconciled and he was found coming towards the scene after about an hour or two with his gun. This time he was turned away by Mosam Khan and Guldad with the promise that they will be doing the needful. That the appellant was still adamant stands amply demonstrated by the fact that he got into the Burj which dominates the courtyard of the deceased and fired the fatal shot at the deceased in the broad daylight, at about 2‑00 p. m., raising a lalkara that was it not known that his name was Sher Ali. It will be seen that from morning rotiwela upto 2.00 p. m. the appellant had a long time to deliberate and he chose a position of vantage quite away from the field where the banna was m dispute. The appellant has, therefore, committed a pre‑planned and cold‑blooded murder with a fire‑arm. He richly deserved the normal penalty of death which has been awarded to him by the learned trial Judge for sound and sufficient reasons‑moreso when he has not been able to behave, despite .the indulgence shown to him on an earlier occasion when he was sentenced to life imprisonment for murder. For the afore-going reasons, I am clearly of the view that the appellant was rightly awarded on conviction the penalty of death. I, therefore, dismiss the appeal and confirm the death sentence." The third Judge agreed with the view taken by Abdul Hakeen Khan, J., on the question of sentence and accordingly the death sentence was confirmed. We have heard Shah Abdur Rauf, Advocate on behalf of the appellant and Mr. Qasim Imam, A. O. R. for the State and after having fully considered all the relevant circumstances are inclined to agree with the view taken by Qaiser Khan, J, on the question of sentence. We would, therefore, allow this appeal to the extent that the sentence of death against the appellant shall be set aside and the appellant shall, instead suffer life imprisonment. Appeal allowed.