2018 P Cr (PLP)

MALIK HAQ NAWAZ, J.

Through this single judgment we intend to dispose of Cr. Appeals Nos. 55/2016 and 56/2016 filed by the convict/appellant Nasir Iqbal against the judgment/order dated 26-11-2016 handed down by learned Sessions Judge Gilgit and Criminal Revision No. 19/2016 filed by State/complainant for enhancement of sentence of life imprisonment to death.

2. The precise facts of the case as per contents of FIR Exh. PW-7/A lodged at the instance of complainant Rahmat Azeem son of Khawaja Khan resident of Gulaper, District Gilgit, presently residing at Konodas Gilgit are that on 28-03-2014 after offering Juma Prayers at Tabligi Center (Markaz) Konodas Gilgit, the complainant came out from Tabligi Markaz and he received information that his son namely Anas after appearing in examination at Read Foundation School Jutial Gilgit was coming back along with his friend namely Asif son of Akhtar Jan resident of Konodas and at about 1:30 p.m. and when his son arrived at Dumial, he was murdered. The complainant stated that he and his son have no enmity with anyone. Immediately, after the occurrence, accused namely Nasir Iqbal son of Muhammad Zaman surrendered himself before the CID Police Gilgit along with weapon of offence i.e. .30 bore pistol and stated that since the deceased Anas had illicit relations with his cousin Mst. Munira, therefore, he has committed the murder of the deceased. From CID Gilgit, he was brought to Police Station Gilgit, where his formal arrest was caused and one .30 bore pistol was recovered from his possession in presence of marginal witnesses as evident from Exh. PW-6/A.

3. After lodging the FIR under section 302, P.P.C. at Police Station City Gilgit, Shams-ur-Reham SIP started investigation and as per record available and exhibited during trial, he prepared site plan of occurrence Exh. PW-7/A. He collected blood stained earth from the place of occurrence and prepared memo Exh. PW-6/B (wrongly mentioned as PW-7/B) and also took into his possession 2 empty shell from the place of occurrence and prepared Exh. PW-6/C in presence of marginal witnesses. He also got conducted identification parade of the accused in presence of PW-3 Inayatullah Magistrate 2nd class on 05-04-2014, which has also been Exhibited in the trial Court as PW-3/A. On the day of occurrence and as evident from the contents of Exh. PW-6/A and stated in para-2 (supra) the present convict/appellant after commission of murder voluntary surrendered in CID Branch Gilgit and stated that he has committed murder of one Anas, as he was suspecting illicit liaison of deceased with his maternal cousin namely Mst. Munira. As per contents of Exh. PW-6/A a .30 bore pistol was recovered from the dub of his shalwar, which was giving fresh smell of discharge. The pistol was taken into possession in presence of marginal witnesses and was sealed there and then, which was later on sent for expert opinion. After completion of codal formalities and investigation the accused was committed to judicial lock-up to stand trial before the Court of law.

4. The challan of the case was submitted in the Court of learned Sessions Judge Gilgit, which was registered as Sessions case No. 41/14 on 27-05-2014 and the accused was summoned to face trial. The case was fixed for framing of charge on 07-08/2014, which could not be framed as accused failed to produce his counsel. On 10-09-2014 the learned counsel submitted an application that the accused is a minor and on 28-10-2014 the accused was referred to MS DHQ Hospital Gilgit for assessment of this age. The opinion of Medical Board was received on 15-11-2014 wherein the age of accused was assessed round about "18" years and finally the charge was framed on 08-04-2015 treating him as a "juvenile" offender.

5. In order to prove the case prosecution examined 8 PWs and on 04-10-2016 the learned DPP got recorded his closing statement. The statement of the accused under section 342, Cr.P.C. was recorded on 07-10-2016 and case was fixed for arguments, which were finally concluded on 12-11-2016 and the case was fixed for pronouncement of judgment, which was announced on 26-11-2016. The accused was adjudged guilty under section 302(b) and was awarded life imprisonment with a fine of Rs. 300000/- (three lac). He was also convicted under section 13, A.O and was awarded five years RI with a fine of Rs.10,000. (Ten thousand). The benefits of section 382-B, Cr.P.C. were extended to the accused.

6. Being aggrieved from the Judgment of learned trial Court the accused filed an appeal before this Court under section 410, Cr.P.C. and the complainant also feeling aggrieved from quantum of sentence filed a revision petition for enhancement of sentence of appellant from life to death.

7. The learned counsel for the convict/appellant contended that there is no worth reliance evidence on record to prove the guilt of the accused except the statement of PW-2 Asif son of Akhtar Jan, who as per learned defence counsel has contradicted himself on each and every material point. The learned counsel submitted that a false and fabricated story has been tailored and the accused/appellant has been made a scapegoat. The learned counsel further submitted that the so-called sole eye-witness admitted during cross-examination that he was also detained in Police Station for 2/3 days, which fact per learned defence counsel is itself sufficient to discard the statement of this so-called eye-witness. The learned counsel while arguing the case drew our attention to the FIR No.33/2016 registered under section 13, A.O. and contended that the story of voluntarily surrendered before CID Police is falsified from the facts that Exh. PW-6/A was prepared on 28-03-2014 (recovery of .30 bore pistol) but FIR was lodged on 03-04-2014, for which no explanation is available on record. The learned counsel also drew our attention towards the statement of PW-6, which statement as per his contention is quite in contrast with the story unfolded by the prosecution. The learned counsel stated that PW-6 Ali Amber has stated that the accused was brought by CID Police at 11:30 a.m. whereas the occurrence has been shown to have taken place at 13:30 hours. The learned counsel stated that there is no corroboratory evidence and it was just a guess work on the part of complainant/local police who in collusion with each other involved the accused in the crime, and in support of his contention he referred FIR No. 26/2014, wherein the accused/appellant was charged for murder of his cousin Mst. Munira but later on he was exonerated from the charge of the murder of Mst. Munira and in the said FIR one Mehfooz-ur- Rehman was booked who was later on acquitted on the bases of compromise. The learned counsel finally stated that the prosecution case is full of doubts and the convict/appellant deserve clean acquittal from the charge of murder honorably. The learned counsel relied on 2010 GBLR 249, 2016 MLD 01, 2016 MLD 1107, PLD 1960 Pesh. 74, 2016 PCr.LJ Note 17, PLD 2004 Quetta 118.

8. On the other hand the learned counsel for the complainant vehemently controverted the arguments advanced by the learned counsel for the appellant and contended that prosecution has proved its case beyond reasonable doubts and guilt of the accused has been established through ocular evidence, coupled with the post mortem of deceased, recovery of weapon of offence and the positive report of forensic expert. All these pieces of prosecution evidence when taken together are mere than sufficient to link the accused with the commission of murder of deceased. The learned counsel for complainant submitted further that it is a case of single accused and in such like cases substitution is a rare phenomenon. The learned counsel further argued that the accused soon after the occurrence voluntarily surrendered in CID Police Gilgit and he was handed over to Gilgit police along with weapon of offence. The pistol so recovered was found wedded with the crime empties recovered from the place of occurrence. The learned counsel contended that no mitigating circumstances were existing in the case and the sentence of life imprisonment be enhance to death to meet the ends of justice as the learned trial Court fell in error while awarding lesser punishment of life imprisonment.

9. The learned Dy. Advocate General adopted the arguments advanced by the learned counsel for the complainant.

10. We have heard both the learned counsel and Dy. Advocate General at a great length and also scanned the record with their able assistance.

11. From the bare perusal of FIR, it transpires that the complainant has not nominated anyone for the murder of his son, therefore, no malice or ill will could be attributed to the complainant for false implication of accused. The complainant left the matter to the investigating agencies to trace out the real culprit. As per contents of Exh. PW-6/A the accused after commission of murder voluntarily surrendered himself in CID Gilgit, from where he was brought to Police Station City Gilgit, where he was formally arrested and a .30 bore pistol bearing No. 7 HA 776, Pak made giving fresh discharge smell was taken into possession in presence of marginal witnesses namely Ali Rehbar and Tahir Hussain. The surrender of accused immediately after the occurrence in CID Gilgit has not seriously been challenged by the defence. There is another very important factor that on the day of occurrence i.e. 28-03-2014, the statement of PW-2 Asif was recorded by the investigation officer in which he categorically charged the accused as sole perpetrator of the crime. The identification parade of the accused was conducted on 05-04-2014 under the supervision of PW-3 Inayatullah Magistrate 2nd class, which is defective in its nature as a Magistrate 2nd class is not competent to supervise an identification parade. We have observed this slackness on the part of executive authorities, who despite availability of Magistrate 1st class in Tehsil Head Quarters always detail Magistrate 2nd class, for supervision of an identification, which is illegal and a most valuable piece of evidence goes astray. However, in this particular case the identification parade even if excluded will not damage the case of prosecution. The postmortem of deceased was conducted at 3:30 p.m. on 28-03-2014 and the occurrence as per FIR took place at 13:30 p.m. hours. As per contents of Exh. PW-6/A and deposition of Doctor the Rigor mortis have not yet developed and the time of death was mentioned less than 8 hours. The death of the deceased has been result of fire arm injuries as reflected in the column of internal examination. Weapon of offence, which was recovered from the accused and the crime empties which were recovered from the place of occurrence were certified to have been fired from the pistol vide Exh. PW-8/D. The contention of the learned defence counsel that conviction cannot be based on the statement of a single witness is devoid of any legal substance. Conviction on a capital charge is always possible on the statement of a single witness provided the evidence of a solitary witness is confidence inspiring and his presence is established at the spot. In criminal cases it is always quality of evidence which matters and not the quantity. No ill will or malice is attributed to the PW-2 Asif and his presence at the spot at the time of occurrence has not seriously been challenged by the defence. The stress of the defence remained throughout arguments that PW-2 was kept in detention for 2/3 days, but as we observed that no remand of this PW was obtained nor he was formally arrested. His statement which is on record and not challenged rather confirmed by the defence was recorded on 28-03-2014, on the very day of occurrence and he categorically charged the accused for commission of murder. The I.O. of the case examined in trial Court as PW-7 has categorically stated that PW-2 Asif was not detained in Police Station. As per reply given in response to a question put by defence the I.O. stated that PW-2 Asif came to Police Station at about 1:30 p.m. and was kept there till evening. In addition to the statement of PW-2 Asif, there are some other evidence, which provide sufficient corroboration to the instant pieces of case. The death of deceased was certified due to bullet injuries by the doctor. The place of occurrence/time of occurrence has not been challenged by the defence. The weapon of offence has been found wedded with the crime empties recovered from the place of occurrence. Even otherwise in the absence of any enmity no corroboration is required which is a rule of prudence and not of the jurisprudence and the accused could be convicted if the mind of the Court is satisfied that it was the accused, who committed the murder.

12. In view of above detailed discussion, we are of the view that prosecution has been able to prove the guilt of accused beyond any shadow of doubt. However, after long deliberation regarding sentence, we come to the conclusion that while awarding sentence of life imprisonment, the learned trial Court fell in error as the learned trial Court took into consideration two factors as a mitigating circumstance, which led the trial Court to award lesser punishment of life imprisonment instead of death, firstly that the accused is a teenager, there is no criminal record against him, nor he is a previous convict. It is regretfully held that the learned trial Court mis-interpreted the "mitigation". Mitigating circumstance does not justify the commission of offence but reduces its gravity and degree of culpability in a criminal case. The apex Court of Gilgit-Baltistan has declared the accused as "adult" vide judgment dated 11-08-2016, which is available on page 65 of the file of trial Court. Had the trial Court had taken a little pain to go through the judgment passed by apex Court in C.P.L.A. No. 10/2015, the situation would have been different. The criteria being of non-convict is no ground for awarding lesser punishment in murder case. The learned trial Court failed to notice that the deceased was also at the prime of his age, when done to death by the accused, without any legal justification. Murder must be seen in context to their impact on society and the murderer must be awarded death sentence in absence of any mitigating circumstances. It has been held in PLD 1976 Supreme Court 452, that normal sentence for murder is death and Courts should not hesitate to award normal penalty of death. The relevant citation is at page No. 453, which is as under: "Panel Code (XLV of 1860)

S. 302

[Murder Case]

Courts, responsibility of

Inhibition or hesitancy on part of trial Courts in awarding normal penalty of death

Marked tendency to find laboured pretext to alter death sentence to life imprisonment

Sanctity of human life

Pros and cons of doctrine

Necessity of awarding deterrent punishment

Effect of marked prospensity to avoid death penalty or to allow commutation in appeal followed by frequent remissions of sentence

Factors indirectly contributing to incidence of heinous crime

Responsibility of Courts

[Sentence]- In an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. The impression is unavoidable that there is often a marked tendency in the High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The law of evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Courts' responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the executive has also been invested with the power to feet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally up held the deliberate extinction of life is visited with the normal penalty of death, which is not confined to the actually killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted FIRs, reluctance of eye-witnesses to come forward, the dishonest investigation, the trials or appeals all combine to help out the murderers of whom only a small fraction is brought to book. Viewed in this background the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus indirectly contributing to the incidence of heinous crime of which the Courts cannot full escape their share of responsibility.

13. In view of above discussion, the appeal filed by the appellant is dismissed. We accept the revision filed by the State/complainant and enhance the sentence of life imprisonment to death. The accused shall be hanged by his neck till he be dead. The fine of Rs. 300000/- (Three lac) awarded by trial Court under section 544-A, Cr.P.C. is also maintained. Criminal Appeal No. 56/2016 against the conviction under section 13, A.O. is also dismissed and the punishment of five years and fine of Rs.10,000 (ten thousand) is maintained. The crime weapon shall be confiscated in favour of State. Criminal Revision No. 19/2016 is allowed and the sentence of life imprisonment is enhanced to death.

14. The Criminal Appeal No. 55/2016, Criminal Appeal No.56/2016 and Criminal Revision No. 19/2016 are disposed off in the above terms. HBT/155/GB Sentence enhanced.