2020 P Cr (PLP)

MALIK HAQ NAWAZ, J.

As the story narrated in the FIR, on 6.11.2015 at about 1030 a.m., the accused namely Mir Ghulam son of Ghulam Rasool opened fire on one Ghulam Rasool, who was standing opposite Sharafat Medical Store near National Bank of Pakistan Astore, which resulted into instaneous death of deceased. The accused was caught red handed while he was trying to decamp from the place of occurrence. First Information Report No. 26/15 was lodged on the same day which was exhibited in the trial court as Exh.PW-13A under section 302, P.P.C.

2. During trial prosecution examined 14 witnesses to prove the case while examined under section 342, Cr.P.C., the accused denied the allegations of murder attributed to him, however he did not opt to be examined on oath under section 340(2), Cr.P.C., nor produced any D.W. in his defence. On conclusion of the trial the learned trial court convicted and sentenced the appellant for life under section 302(b), P.P.C. with a fine of Rs. 5,00,000/- to be paid to the legal heirs of the deceased and in default thereof to undergo 1 year's R.I. The benefit of section 382-B, Cr.P.C. was extended to the accused.

3. The learned counsel for the appellant contended that the impugned judgment is result of misreading and non-reading of evidence. The case of prosecution is lacking independent evidence and the statements of so called eye-witness who allegedly charged the accused have contradicted each other on all material points. The recovery of pistol from the appellant seems to be a concocted story as the same has not been witnessed by any reliable and independent witness despite availability. The prosecution miserably failed to substantiate the charge against the appellant and he deserves acquittal from the charges.

4. The learned Dy. A.G. appearing on behalf of the State has strongly opposed the arguments advanced by the learned defence counsel and stated that, it was a day light occurrence and the appellant was chased by two police constables, who were able to arrest him along with weapon of offence. More than sufficient incriminating material was available with the prosecution to establish the charge of murder against the accused beyond any shadow of doubt. The impugned judgment of the learned trial court is based on correct appraisal of evidence available on record however the learned Dy. A.G. showed his strong reservation regarding sentence and submitted that the sentence of the appellant be enhanced from life to death.

5. Heard the learned counsels and record of the case perused. In order to prove the charge against the accused prosecution examined 14 witnesses. The FIR was registered on the application of PW-6 H.C. Abdul Rashid who was on duty at traffic chowk Astore and witnessed the occurrence and on the murasila of the said PW FIR No. 26/15 was lodged in Police Station Astore. This witness was subjected to lengthy and grueling cross-examination but defence badly failed to shatter his statement. PW-1 Ghulam Hussain is an eye-witness of the occurrence, who deposed in the court in support of prosecution evidence. Relevant portion of his statement is as under:- "Further stated that on 6.11.2015 at about 10:00 a.m. I along with SGC Barkat Ali were on patrolling duty at Astore Bazar. In the mean while 1 saw deceased Ghulam Rasool was talking with someone on his mobile phone standing in front of Sharafat Medical Store situated near PS City Astore. In the mean while accused present in court wearing black glassed and hood of his coat opened fire on the deceased simultaneously with the pistol produced before the court. The deceased fell down on the ground. When we rushed towards the accused to apprehend him, he took 4/5 paces towards us holding pistol in his hand and turned there from, after noticing me and SGC Barkat Ali in police uniform, towards the site of Thana/upward. I and SGC Barkat Ali followed the accused. When the accused reached near the gate of PS Astore HC Zafar Iqbal and FC Sher Ahmad came out from inside the police station and apprehended the accused and snatched the pistol from the accused and took the accused inside the police station." This statement of PW is further corroborated by the statement of PW-3 Sharafat Ali, the owner of Sharafat Medical Store where the deceased was standing when fired upon by the appellant. After commission of offence the appellant took to his heels but was chased by PW Sher Ahmad and finally apprehended by PW-5 HC Zafar Iqbal. P.W. Sher Ahmad was examined as a recovery witness in a case rgistered against the appellant under section 13, A.O. The examination in chief of PW-5 HC Zafar Iqbal is reproduced as under:- Stated that on 6.11.2015 at about 10:00 a.m. I was sitting inside the PS Astore along with ASI Mutti-ur-Rahman. Suddenly I heard a report of fire shot. And thereafter, heard simultaneous report of fire shots. I along with ASI Mutti-ur-Rahman came outside the police station. I saw three persons running towards us and another person holding a pistol in his hand was also running towards us. FC Sher Ahmed was chasing the accused present in court, in the meanwhile the accused pointed the pistol towards him. FC Sher Ahmad stopped there while the accused continued to flee. I approached the accused and got hold him from his neck from the back side and tried to snatch the pistol but could not succeed. In the meanwhile FC Sher Ahmad reached there and snatched the pistol from the accused present in court. Thereafter we took the accused into the lockup of Police Station City Astore.

6. Postmortem of deceased was conducted by PW-11 Dr. Jawed Ahmad Khan, which has been exhibited in trial court as EXh.PW-11/A. Postmortem shows that death of deceased was caused by fire arm injuries. Postmortem of deceased Exh.PW-11/A is reproduced as under:- POSTMORTEM REPORT. The deceased named Ghulam Rasool son of Muhammad Yaqoob resident of Chayee, Astore was brought to Hospital by local Police officials on 6.11.2015 at 10:45 a.m. GENERAL PHYSICAL EXAMINATION. A middle aged man with good body physique wearing dark shade clothing and jacket, stained with fresh blood. The body was fresh with normal joint movements. No sign of rigor mortis. EXTERNAL EXAMINATION. There were five entrance wounds (two in Temple, one below the pina of right ear, one on maxilla and one crossed superficially over the upper lip) on right side of head. Three exit wounds on the same location on left side were located. One bullet was found under the skin on left temple. There were light tattooing marks around the entrance wounds. Rest of body was normal and there were no signs of resistance or torture. OPINION. The death was due to brain damage and internal bleeding in brain. The bullet was fired from a very close distance. Pistol/revolver was used for this purpose. The time between death and postmortem was around about one hour. Sd/xxx MEDICAL OFFICER DHO HOSPITAL ASTORE

7. The reproduction of postmortem shows that the same is in line with the other prosecution evidence. It was a day light occurrence, where the appellant was apprehended by the eye-witnesses, when after commission of offence he was trying to decamp from the place of occurrence and weapon of offence was also snatched from him by the police officials, who were independent and impartial witnesses having no motive to falsely implicate him in such a heinous offence, neither the plea of substitution has been raised at trial or even before this Court during course of arguments nor remotely suggested to any prosecution witness. Complainant Abdul Rasheed (P.W.6), who lodged the FIR stated in cross-examination "It is correct that the deceased is my relative. Self stated that accused is my close relative than the deceased." P.W. 7 Sher Alam also stated that at about 10.00 a.m. his call on cell phone was in progress, when he heard the reports of fire shots and the call dropped, which shows that the time of occurrence as stated by the complainant was further verified by PW-7 Sher Alam. The contentions of the learned counsel that the complainant is consistent that he lodged the FIR in the evening, whereas the time of lodging of FIR has been shown 10.20 a.m., which falsifies the whole story of prosecution and lend support to the version of defence that the whole story of the occurrence is tailored and fabricated is repelled, for the reasons that the complainant is an illiterate person and may not be able to understand the implication of a question put to him during cross-examination. The fact remains that it was a case of single accused. It will not make any difference if the FIR was stated to be lodged by the complainant in the evening because the name of the accused and the police officials, who apprehended the accused soon after commission of the offence finds mentioned in the FIR and there seems to be neither any exaggeration nor an unnatural story has been painted.

8. A .9 mm pistol (Exh. PW-1/13) and crime empties (Exh.PW-1/13) were sent to Forensic Expert for expert opinion and on examination the crime weapon was found wedded with the crime empties recovered from the place of occurrence, which also lends support to the ocular and medical evidence.

9. The motive of the case is also established and not challenged by the defence during cross-examination of the witnesses nor has the accused/appellant denied the same during cross-examination of the P.Ws. The reports of experts were tendered in evidence as Exh.P/9 and Exh.P/10 which are positive and provide sufficient corroboration to the case of prosecution.

10. We scanned whole prosecution record but could not find a single circumstance, which may create a doubt in our mind about untruthfulness story of the case. Each and every piece of evidence produced by the prosecution when read with other pieces of evidence have strengthened the case of prosecution, from start to end and the defence despite lengthy and searching cross-examination failed to reap any benefit out of it. The motive, the manner of occurrence, the time of occurrence, the presence of prosecution witnesses at the time of occurrence, the red handed arrest of the accused near the place of occurrence, the medical evidence and last but not least the recovery of crime empties, crime weapons and experts reports, leaves no doubt in our mind that the prosecution has proved the case against the accused up to the hilt. The sentence/fine awarded to the convict/appellant are maintained in toto and Criminal Appeal No. 33/2017 filed by the convict/appellant is dismissed being meritless.

11. One Muhammad Razaq son of Muhammad Yaqoob, real brother of deceased has filed Criminal Revision No. 22/2017 for enhancement of sentence of the respondent/accused from life imprisonment to death. The motive of the occurrence as stated by P.W.6 Abdul Rashid (FIR lodger) and P.W.12 Abdul Razaq was that sister of the accused was maintaining extra marital relations with deceased and as a result of these relations an illegitimate child was born. The learned trial Court while awarding lesser sentence of imprisonment for life has taken into account the motive as mitigating circumstance and we also endorse the finding of trial Court. Wisdom is drawn from the following law cases:- a. PLD 2002 Lah. 425. (b) Penal Code (XLV of 1860)

S. 302

Indeterminate sentence

Judge to decide as to what may be appropriate between sentencing to life imprisonment or to death

Mitigating factors

Courts cannot blindfold and without taking note of the theories of punishment and the background of the offender resolve the issue of sentencing

Such a duty falls on the superior Courts to fill in the vacuum and to do justice keeping in view all circumstances and background of the offender

Poor performance of the investigators is also a circumstance which has to be kept in view while the superior Courts are balancing crime and punishment and should not hesitate to follow a safe course while administering justice. Section 302, P.P.C. prescribes indeterminate sentence leaving it for a Judge to decide what may be appropriate between sentencing to life imprisonment or to death. The reason is that no legislative definition or classification can take account of all contingencies. However right it may be to take the gravest view of an offence in general, there will still be cases where the circumstances will be found to be unusual or the aspect of mitigation possible. In the civilized world, the draconian notions and passion for retribution have been yielding to mankind's concern for charity. There penology is moving away from punitive practices and progressing towards humanitarian theory of re-socialization. This is with the belief that a sentence must be in accordance with the offender, rather than the offence and that the sentencing requires consideration beyond nature of the crime and the circumstance surrounding it. Jurisprudence because of our turbulent society in Pakistan and the acts of terrorism being on the rampant is developing towards a more determinate view for death sentences in murder cases. Punishing the offenders anyhow is a primary function of all civil States. The crucial problem, however, is whether a criminal is to be regarded by society as nuisance to be abated or an enemy to be crushed or a patient to be treated or a re-factory child to be disciplined? Or should he be regarded as none of these things but simply be punished to show to others that antisocial conduct involves heavy punishment. It is in this perspective that the problem of crime, criminal and punishment is engaging the attention of criminologist and penologists all around the civilized world. Unfortunately, in our midsts, there is dearth of such individuals and such institutions who may give views in criminology and penology based on our social conditions and provide guidance in respect of punishment. The Courts, therefore, cannot be blindfolded and without taking note of the theories of punishment and the background of the offender resolve the issue of sentencing. Needless to say that this duty falls on the superior Courts to fill in the vacuum and to do justice keeping in view all circumstances and background of the offender. The punishment imposed should neither exceed a ceiling equal to that level justly deserved by the offender for the instant offence nor fall below a floor level necessary either to protect the public from further serious criminal acts by the defendant or to assure that the gravity of the offence is not deprecated. b. 2005 PCr.LJ 464. (g) Penal Code (XLV of 1860)

Ss. 302(b), 338 & 447

Appreciation of evidence

Reason for mitigation should be genuine and be of such a nature which could be said to have provoked accused to commit crime or there must exist some mitigating circumstances

Right of defence of property could not be used as pretence for justifying murder. c. 2004 PCr.LJ 743. (b) Crime and punishment

Sentence

Quantum

Principles

Sentence was structured by the case-law, by the circumstances and also by the perception while the social and economic conditions and ground realities help in appreciating criminology

Judge is considered to be an expert in this area and not an arbiter who acts capriciously and beyond proportions

Balances were to be kept even in the matter of crime and punishment

High Court disapproved hasty and impulsive decisions and expected the subordinate judiciary to take a breath after an order of conviction was made and then to ponder over the quantum of sentence with cool head while keeping in view the rationale of a crime and principles of sentencing.

12. The criminal appeal filed by convict/appellant and the criminal revision petition filed by the complainant are dismissed accordingly. JK/134/GB Appeal dismissed.