2000 PLP 467 (SCMR)

WAJIHUDDIN AHMED, J.

Criminal Petition for Leave to Appeal No. 125 of 1999 has been preferred by the complainant on the ground that the High Court while maintaining the conviction of the accused under sections 302(b), 449 and 324, P.P.C. had erroneously reduced the death sentence, returned by the Special Court, to life imprisonment. On the other hand, Criminal Petitions for Leave to Appeal Nos. 127 of 1999 and 128 of 1999 have been preferred by accused Badar Abbas, questioning the above sentence and his separate conviction under section 13 of the Arms Ordinance, 1965. The facts of the case, as narrated by the High Court in its impugned judgment are, for the sake of convenience, reproduced as under:-- "The occurrence in this case took place at 5-30 p.m. on 10-6-1994 in the area of Dhak Dakhli Dandi located 3 k.m. away from Police Station Pindi Gheb, District Attock. where case F.I.R. No. 128 of 1994 Exh.PL/1 was registered at 6-45 p.m. on 10-6-1994 on the statement of Muhammad Hayat Exh.PL. The case of the prosecution as narrated by Muhammad Hayat complainant P.W.12 is in the following terms that he was resident of Dhoke Arazi and was a Zamindar by profession. His son Muhammad Asghar had taken 10 Kanals of land from Sardar Ghulam Haider for the purpose of running a small brick kiln on the land. His brother-in-law Muhammad Nawaz son of Muhammad Ramzan resident of Tibba had cultivated the land of Sardar Ghulam Haider as tenant and he used to live at the 'Dera' of Sardar Ghulam Haider alongwith his children. Badar Abbas alias Badri, accused alongwith certain vagabondes used to come to the Dera of Muhammad Nawaz. Muhammad Nawaz had asked the accused not to come to his Dera, but Badar Abbas alias Badri accused was adamant and did not pay any heed to the request of Muhammad Nawaz. The accused had made, a programme to contract marriage with Mst. Naheed Akhtar, daughter of Muhammad Nawaz, but nobody was willing to do so. " On account of this reason, Muhammad Nawaz had left cultivated land and came back to his village. He had agreed to give the hand of his daughter Mst. Naheed Akhtar to his (complainant) son Muhammad Hakmeen and marriage was solemnized on 26-5-1994, Badar Abbas accused took it ill as to why Muhammad Nawaz, being a tenant (of his father) had dared not to give his daughter in marriage to him. On account of the fact, Badar Abbas alias Badri. accused had fired indiscriminately at their Dhoke on 31-5-1994 but he was not satisfied. On 10-6-1994 at about 5-30 p.m. he was present in the compound of his house after saying 'Asr' prayers. His son Muhammad Ansar and Muhammad Shafqat were also present in the courtyard. He heard gun reports from behind his house and he saw that Badar Abbas accused armed with kalashnikov was firing. Noor Zaman son of Miran Baksh had received injuries at the hand of Badar Abbas, accused, on the rear side of the house. Thereafter, the accused came to their courtyard by Badar Abbas accused had abused Muhammad Ansar on seeing him and shouted that nobody would escape today. Muhammad Ansar ran into his house and tried to close the door of the room. Badar Abbas, accused, fired a burst of kalashnikov on him who fell down near the door of the house inside after receiving injuries. The firing of the accused had also hit door and walls of his house. The accused continued firing and had injured his son Muhammad Shafqat; his maternal nephew, Muhammad Arsal and Sultan Begum; wife of Gulab Khan, who were present in the courtyard of the house. The accused continued firing with kalashnikov while standing in the courtyard. His son Muhammad Ansar received injuries on his chest and succumbed to the injuries at the spot due to firing of kalashnikov by the accused. Badar Abbas, accused went towards Sihl Nullah while firing with kalashnikov. The accused had been challenging loudly that whoever would come before him he would be finished because of not giving the hand of Mst. Naheed Akhtar to him. He had left Muhammad Ansar, deceased, at the spot and went to the police station for the report. The empties of kalashnikov were lying scattered in the courtyard of his house and the accused had gone towards Sihl Nullah with his kalashnikov and that he could be arrested, if would go after him. " In the way of proving the prosecution case several witnesses were examined. Dr. Dost Muhammad, (P.W.1) had conducted the medical examination of Noor Zaman as also of Muhammad Arsal and Muhammad Shafqat on 10-6-1994. The same medical officer had conducted the post mortem examination on the dead body of Muhammad Ansar. The injuries found by the witness on the body of the deceased, as also the other victims, were consistent with the prosecution. case and were caused by use of fire arm(s). Ahmed Khan (P.W.2), proved the site plan prepared by him. Lady Doctor Shaheena Akhtar (P.W.3), had medically examined Sultan Begum and again found a fire-arm wound on her left upper arm. Ghulam Asghar, (P.W.7), deposed as to the motive of the offence, Muhammad Aslam, (P.W.8), and Muhammad Riaz, (P.W.9) were witnesses of recovery, including a kalashnikov (Exh.P.7) with live cartridges from Badar Abbas accused. Muhammad Hayat, complainant, was examined as P.W.12. Noor Zaman (P.W.13), Muhammad Shafqat (P.W.14), and Muhammad Arsal (P.W.15), were injured witnesses of the incident and had also furnished the eye-witness account. Sher Muhammad, A.S. 1. (P.W,16) and Ch. Muhammad Zaman, D.S.P. (P.W,17), had, in whole and in part, conducted the investigation. The accused, who was examined under section 342, Cr.P.C. alone, professed his innocence and pleaded false implication as a result of an alleged property dispute involving his father. The trial Court, believing the prosecution case, convicted the accused under section 449, P.P.C. with a sentence of 10 years' R.1. and a fine of Rs.20,000, default carrying further R.I. for one year. The accused was also convicted under section 302, P.P.C. and was sentenced to death together with a fine of Rs.50,

000. His conviction under section 324, P.P.C. carried a sentence of 7 years' R.I. on four counts and a fine of Rs.10,000 each, default in payment of fine postulated to carry further R.I. for one year. Fine, if recovered, was ordered to be paid to the injured P. Ws. The accused, as regards the offence under section 13 of the Arms Ordinance, 1965, was sentenced to 7 years' R,1. with a fine of Rs.10,000, default occasioning one year R.I. in addition, Such judgment of the Special Court, dated 1-8-1996 was subjected to a criminal revision by the complainant for enhancement of compensation whereas the accused preferred the abovementioned appeals. The High Court, upon a close examination of the controversy and being of the view that at the time of the incident the accused was about 18/19 years of age, converted the death sentence to imprisonment for life under section 302(b), P.P.C. It was further directed that the accused shall pay a sum of Rs.2,00,000 to the legal heirs of the deceased by way of compensation but in the event he failed to do so he shall not be accorded the benefit of section 382-B, Cr.P.C. The remaining sentences under sections 449, P,P.C. and 324, P.P.C. were maintained. The conviction and sentence under section 13 of the Arms Ordinance, 1965, was also endorsed. The various terms of imprisonment awarded, however, were ordered to run concurrently. Criminal Revision preferred by the complainant was dismissed. These findings have given rise to the present leave petitions. We have heard the learned counsel at some length. The prosecution established its case adequately. This included the motive of the offence as well. The defence, on the contrary, advanced contradictory versions which were rightly rejected, As to the weapon of offence, the High Court has given elaborate reasons to conclude that such was kalashnikov and not a .30 pistol, as claimed by the accused. The pertinent recoveries together with the testimony of the three injured, who appeared as prosecution witnesses, have lent due credence to the prosecution version, All that has been urged from the side of the defence involves questions of fact out of which particular emphasis was laid to the averment that the accused was a minor at the time of the incident. No documentary material in -support was produced nor the elaborate discretion. in which the' accused indulged; while being questioned under section 342, Cr.P.C., would suggest an immature or a raw mind/age, On the contrary, according to the argument of the learned counsel for the complainant, the High Court was in error even to hold that the accused was 18/19 years of age at the time of the occurrence. According to such learned counsel, the accused was much older. No useful purpose would be served by going into the relevant details, as on these facts the High Court and the trial Court have almost concurred and we would prefer to leave the matter, at that. Coming to the leave petition filed by the complainant the High Court has correctly opted for leniency in the sentence which, in the overall circumstance we are disinclined to interfere with. However, there is one aspect, which needs to be tackled and that pertains to a contingent grant of the benefit under section 382-B, Cr.P,C. as above indicated. Upon the language employed by the section, which we reproduce, this cannot be done:-- Criminal Procedure Code "382-B. Period of detention to be considered while awarding: sentence of imprisonment.--Where a Court decides to pass sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which, such accused was detained in custody for such offence." Grant of benefit under section 382-B. Cr.P.C. has no nexus whatever with paying up any fine or even compensation in terms of section 544-A of the same Code. We, therefore, exercise sup , condition and direct that pursuant to subsection (2) of the last mentioned section, in the event the accused fails to pay the awarded compensation, such would be recovered as arrears of land revenue, beside the accused suffering imprisonment for an additional period of six months. The benefit of section 382-B, Cr.P.C., having already granted by the High Court, would continue to subsist. Leave petitions stand disposed of but subject as above. M.B.A./M-2/S Order accordingly.