P L D 2005 Supreme Court 40 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.

Muhammad Nawaz son of Muhammad Ramzan of Kot Kambo, Tehsil Shahpur District Sargodha, having been convicted and sentenced by learned Additional Sessions Judge, Sargodha vide judgment dated 23-6-1996 as follows:

(i) Under section 302(a), P. P. C. Sentenced to death (ii) Under section 324, P.P.C. for effectively attempting at the lives of Muhammad Rafiq and Mst. Musarrat P.Ws. Rigorous imprisonment for ten years with Rs.50,000 as Arsh for Muhammad Rafique P.W. and Rs.5,000 as compensation for Mst. Musarrat P.W. and same having been upheld by a learned Division Bench of Lahore High Court on 11-2-2002, the convict Muhammad Nawaz, through Criminal Petition No.342 of 2002 seeks leave to appeal.

2. The co-accused namely Muhammad Ali, Muhammad Ramzan, Ijaz, Ghulam Fatima, Sakina and Abdul Rehman were, however, acquitted. The complainant Muhammad Siddique also seeks leave to appeal against their acquittal through connected Criminal Petition No.199-L of 2002. Arising out of the same occurrence and the same judgment, both are taken up together.

3. The occurrence refers to F.I.R. No.86 dated 3-9-1993 of Police Station Jhawrian, District Sargodha lodged by Muhammad Siddique, complainant. According to him, on 3-9-1993 at 8-00 a.m., Muhammad Ali, Ijaz, Muhammad Nawaz, Abdul and Ramzan had razed to the ground the western wall of the complainant's room. The complainant Muhammad Siddique along with Muhammad Yar and Muhammad Rafique, his brothers, and another Muhammad Yasin and Mst. Musarrat Bibi were busy reconstructing the said wall when suddenly at 12-30 p.m. the convict Muhammad Nawaz armed with .12 bore shotgun, Muhammad Ijaz armed with pistol, Ramzan and Abdul Rehman alias Abdul, both empty-handed, appeared on the scene. Muhammad Nawaz, Ramzan and Muhammad Ali raised a `Lalkara' that they would teach lesson to them (complainant party) for reconstructing the wall. Simultaneous with such `Lalkara', Muhammad Nawaz fired a shot from his .12 bore shotgun which hit Muhammad Rafique on his right hand. The second shot fired by Muhammad Nawaz hit Muhammad Rafique on the right side of his shoulder, the collar-bone and right thigh with which Muhammad Rafique fell down. Muhammad Yar, the brother of complainant rushed towards his room to save his life when Muhammad Nawaz fired at Muhammad Yar hitting at the front of left shoulder, left and lower portion of the neck and right side of chest. He fell to the ground. Ramzan, Muhammad Ali and Abdul having entered the `Haveli' of the complainant kept on backing up Muhammad Nawaz to kill every one. Muhammad Ijaz also fired untargeted from his pistol. Mst. Musarrat Bibi was overpowered by Mst. Sakina and Fatima and while the former lay in the courtyard, Mst. Sakina commanded Muhammad Nawaz to fire at Musarrat Bibi as well. He, while obeying the command, fired a short at Mussarat Bibi that landed near her left elbow. The complainant and his nephew Muhammad Yasin could not retaliate because of fright.

4. Numerous persons from village gathered on the spot whereupon the accused took to their heals. Inside the room Muhammad Yar was found dead. The construction of wall by the complainant side is alleged to be the motive.

5. Needless would it be to refer to the evidence of the prosecution touching all the aspects of the case because learned counsel for the convict-petitioner has very candidly conceded the factum of conviction. He confined himself to the quantum of sentence on two-fold grounds. Firstly, that the punishment as `Qisas' under section 302 (a) P.P.C was not proved at all, that witnesses for the prosecution were not subjected to `Tazkia-ul-Shahood'. Secondly, that the conviction could be based on section 302 (b) P.P.C where the punishment could also be for imprisonment for life. That in the circumstances of the present case, the proper punishment would have been imprisonment for life, and not death.

6. With regard to the mitigating stance, it is asserted by the learned counsel that the wall in dispute had been razed to the ground because of flood. That the matter of reconstruction was referred to the Arbitrators who decided that half of the wall should be constructed by each of the parties. That while the wall was being constructed by the accused party, the latter used the bricks already lying in the debris. The complainant forbade him from using those bricks in extremely offensive manner, saying that if such bricks were used, those would be at the cost of the marriage of accused's sister with the complainant. This abuse flared up the accused and thus whatever he did on the spot, was a result of grave provocation at the spur of the moment not warranting, in all fairness, the normal penalty of death.

7. Even if it is assumed, for the sake of arguments that the punishment as `Qisas' under section 302 (a) P.P.C was not warranted under the law and in the circumstances yet it may be reminded that section 302(b), P.P.C also contains the punishment of death as `Tazir'. Meaning thereby that, even if the requirements of `Qisas' in a particular case are not fulfilled, still the convict can be sentenced to death a `Tazir' under part (b) of section 302, P.P.C. The provision of imprisonment for life given in the said section can be resorted to only if any mitigating circumstance sanctioned by law or practice does exist. In that behalf we would revert to the stance taken by the learned counsel for the convict.

8. It is alleged, as pleaded by the accused and as mentioned earlier, that the use of bricks by the accused was equated with, his sister's marriage with the complainant. That the accused could not tolerate such abuse and having acted under grave and sudden provocation, his sentence deserved to be mitigated. In order to bring his self to the-point of such provocation, the accused furnished a factual background to the fact that after , the collapse of the wall arbitrators were appointed; that the arbitrators decided that half portion of the wall be constructed by each party and; that, at the time of occurrence it was the turn of the accused to construct.

9. It is a known principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. With this principle of mind, we have gone through the evidence of the prosecution and have observed that all the factual narrations regarding the plea taken by the accused have not appeared on record beyond a mere suggestion by the accused in the cross-examination of some witnesses which was absolutely denied at every step. A mere suggestion denied by a witness does not lead to any conclusion and hence we are of the view that the plea taken by the accused is not supported by the prosecution evidence. The second eventuality could have been the production of such evidence in defence but that too was avoided by the accused for reasons better known to him. We, therefore, hold that the plea taken regarding' mitigating stance is not proved. It is neither reflected from the prosecution evidence nor proved by the accused through defence evidence.

10. The hard fact proved on record, unfortunately was, that Muhammad Nawaz appeared at the scene already armed with a lethal weapon like .12 bore shotgun. He was the one who fired shot at Muhammad Rafique hitting at his right hand. Not feeling satisfied, he opened another fire at him which seriously injured Muhammad Rafique, at three places Muhammad Yar deceased who had been running away to save his life, was also fired at by the petitioner. This injury proved fatal. The petitioner did not cool down and kept on firing indiscriminately, his last victim being P.W. Musarrat Bibi. The, very conduct of the petitioner' has remained so grave, so desperate and so persistent that he cannot now turn around and claim mitigation in the sentence. It would appear that the whole job of firing on the spot, effective as well as fatal, has been performed singularly by the petitioner. It is held, therefore, that he is not entitled to be shown any leniency and deserves the normal penalty off death as `Tazir'.

11. Coming to the petition against acquittal filed by Muhammad Siddique, suffice it to say that role attributed to the respondents Muhammad Ali etc. was minor at the first instance and also was not satisfactorily proved in all its required details. Some have done nothing effective and some are merely present on the spot. The respondents aforesaid were rightly acquitted. Both the petitions in hand are, therefore; dismissed and leave to appeal refused. M.H./M-174/S Order accordingly