1995 PLP 1304 (SCMR)

6. P.W.2 Sye Hashim, P.W.3 Abid Hussain, P.W.4 Fida HusAin and P.W.13 Munawar Hussain had appeared as eye‑witnesses. On the night of occurrence, the de eased was present in his trust. P.W. Muhammad Hashim was sitting on the pavement of the building. The appellant/petitioner came there and started quarrelling with Muhammad Hashim. On hearing the commotion, the deceased came out of the trust and asked the appellant not to do illegal things. O this, the appellant stated that the would not spare the deceased for the re son that it was he who instigated the police to raid his hotel for the recover of the drugs. He fired two shots at Muhammad Ismail who fell down while he fired 3‑4 shots at P.W. Hashim who was also injured and fell down. The a0ellant again fired at Muhammad Ismail who was lying on the ground in the injured condition. The appellant stated that he would not spare him and will finish him once for all. He then fired at his neck. On commotion, many persons collected at the site. They tried to catch hold of the appellant/petitioner but he started indiscriminate firing. P.W. Syed Hashim and Muhammad Essa also received bullet injuries. A Rambi was lying there and Munawar Hussain inflicted injuries with the Rambi on the buttock of Jawad Ali. The four witnesses who had appeared at the trial 'are consistent about the actual incident. The all implicated the appellant/petitioner with the commission of the offence. In their presence, the appellant had caused injuries by means of fire‑arm t the deceased. P.W. Hashim and Munawar Hussain also received injuries the hands of the appellant. The witnesses are natural. There is no reason to falsely implicate the appellant for the commission of the offence. The case of the appellant was of total denial. He stated that he used to provide tea to the members of the trust. He went there to get the payment. Hashim told him. Then Muhammad Ismail and Munawar Hussain came out of the trust and directed that the appellant be taken inside the trust. There was a scuffle between Hashim and the appellant. Hashim took out a pistol which hit the deceased. The plea of the appellant was rightly discarded by the two Courts. It was not borne out form the record. The direct evidence is supported by the medical evidence. The recovery of weapon of offence on the pointation of the appellant was a supporting fact. The facts narrated above fully bring home the charge against the appellant.

7. Learned counsel for the appellant/petitioner submitted that the First Information Report was not produced at the trial. This fact is immaterial as the statement of Muzaffar Ali, complainant, was exhibited at the trial and in this statement, the complainant has stated that the deceased was done to death by the appellant and Syed Hashim, Muhammad Essa and Munawar Hussain were injured by the appellant by means of fire‑arm. The police after recording the statement of the complainant started investigation. Non‑production of the First Information Report in the circumstances of the present case, is not fatal on any legal ground. The case under sections 302 and 307, P.P.C. was fully established against the appellant/petitioner on the basis of evidence produced by the prosecution. The right of private defence was rightly discarded by the Coups.

8. On the question of sentence, the learned counsel for the appellant/petitioner submitted that Criminal Law (2nd Amendment) Ordinance, 1990 (Ordinance VII Of 1990) was promulgated on 5th of September, 1990, and by virtue of this Ordinance, the appellant could not be punished for Qisas. He can be imprisoned for a term which may extend to 25 years and shall not be less than 10 years. This contention is without any substance. The occurrence had taken place on 11‑5‑1990 and at that time this Ordinance was not promulgated. The appellant was tried under section 302, P.P.C. Even under section 302 (b) of this Ordinance, punishment of death as ta'zir can be imposed. There is no illegality either in the mode of trial or I passing the sentence of death.

9. The learned counsel has given the following grounds for not awarding capital punishment:‑‑ (i) Fard Bayan does not mention the motive as given by the complainant at the trial. (ii) The motive has not been established. (iii) The appellant was acquitted under section 307, P.P.C. by the trial Court. (iv) The appellant received injuries. (v) There is no element of absconcion. The appellant was arrested after he was discharged from the hospital. He himself surrendered to the police. (vi) The complainant was not aware as to what happened at the spur of the moment. (vii) The appellant was not confronted with his statement recorded by the Magistrate in the trial under section 326.

10. According to the learned counsel, these facts are sufficient to show that the appellant/petitioner is entitled to reduction of sentence.

11. We have considered the contentions of the learned counsel but we do not consider that any of the grounds taken by the learned counsel has any force: (1) The First Information Report ;was lodged by a person ,who had not seen the occurrence. He after receiving the information of the occurrence reported the matter to the police on the basis of the information gathered by him at that moment. The complainant was in grief as his brother had been killed, therefore, it could not be expected that each and every detail of the prosecution case should have been mentioned in his Fard Bayan. At the trial he was given the motive. The motive has been accepted by the High Court. The High Court has accepted the statements of the eye‑witnesses about the motive. The appellant was running a narcotic den, which was objected to by the members of trust. The appellant was aggrieved by the conduct of the deceased. At his instance, a raid was made by the police at the hotel of the appellant. It, therefore, cannot be said that the Courts have discarded the motive. The acquittal of the appellant under section 307, P.P.C. by the trial Court was set aside by the High Court for sound reasons. The learned trial Judge clearly committed an error when he stated that no evidence has come on record that the accused went to the trust with the intention to commit the murder of Fida Hussain, Syed Hasham and Munawar Hussain. The accused went there fully armed and fired at Syed Hashim. The finding of the trial Judge that it was an accident is contrary; to record. The trial Court totally ignored the evidence of eye‑witnesses. (2) The appellant/petitioner cannot take the benefit of his arrest on 22‑5‑1990. The police had failed to arrest the appellant/petitioner in spite of the fact that a cognizable offence was reported against him. It cannot be said that as the appellant/petitioner did not abscond, therefore, he is entitled to lesser penalty. The law has to adopt its own course. (3) It may be pointed out that on the report of the appellant a case under section 326, P.P.C. was registered against. P.W. Munawar Hussain. Munawar Hussain was acquitted at that trial. The appellant has given different statements at different times. He was duly confronted with his previous statement, therefore, it is wrong to say that he was not confronted with his statement recorded by the Magistrate.

12. The eye‑witnesses have clearly stated as to how the occurrence had taken place. The accused came there fully armed with a weapon. Had it been the position that the appellant came there to recover his amount, he would not have gone fully armed with a loaded pistol. The learned High Court has not found any mitigating circumstance in favour of the appellant/petitioner. In considering the question of sentence, the High Court has observed as hereunder:‑‑ "Applying the aforesaid principles on the facts of the present case it may be observed that the accused‑appellant proceeded to Welfare Trust with a loaded pistol. On seeing Syed Hashim he said in an angry mood that Milo did no good by asking the police to raid his hotel. On commotion deceased Milo came out of the Trust. On seeing Milo the deceased fired at him and receiving bullet injuries he fell down. He then fired at P.W. Syed Hashim who also received 3 bullet injuries and fell down. From there henceforth he proceeded towards Milo saying that he would not spare him today. Milo was falling on the ground in a helpless condition after receiving two bullet injuries. Despite that accused aming at his neck fired the 3rd bullet which pierced in his neck and caused his death. This part of the action to our calculated view was the most gruesome, brutal and inhuman. The appellant was not satisfied with the two bullet injuries inflicted to the deceased. He still proceeds further and from a very close range fires at the deceased aiming at his neck so that there should be no chance of his remaining alive. He floes this in a cruel manner. These facts have been fully established on record through the testimony of eye‑witnesses. Learned trial Judge totally ignored the manner in which accused acted. The appellant in fact committed cold blood murder in a cruel and .wanton manner. There is absolutely no extenuating circumstance on record to justify a lesser punishment in ‑the circumstances. Thus, following the dictum laid down by the Honourable Supreme Court in the aforementioned judgment and the law we are inclined to accept the revision petition for enhancement of sentence from life imprisonment to death which in fact is the normal sentence which ought to have been awarded by the trial Judge:"

13. Normal sentence has been awarded by the High Court.

14. The fine if recovered under section 302, P.P.C. be paid to the heirs of the deceased as compensation and the fine if recovered under section 307, P.P.C. be paid to the injured.

15. As a result of above discussion, the appeals and petition are dismissed. N.H.Q./J‑130/S Appeals dismissed.