P L D 1980 Supreme Court 185 (PLP)

G. SAPDAR SHAH, J.-The appellant has filed this appeal as of tight, as the High Court has, in the exercise of its suo motu jurisdiction, enhanced the sentence of imprisonment for life awarded to him by the trial Judge to that of death. The occurrence in this case had taken place in the morning hours of April 3, 1974, inside the abadi of village Chughalpura, District Peshawar. On that day deceased Janat Gul, who was employed in the Armed Forces had come to village Chughalpura to spend few days of his leave with his brother Khaista Gul. After having taken the morning tea in the house of Khaista Gul, the deceased and Khaista Gul both came out in the street where they were joined by P. W. Gula Jan, when the three of them sat near the wall of a 'Kandar' belonging to one Sabz Ali and started chatting and enjoying puffing at the chilm After a little while the appellant appeared on the scene from the side of a nearby fruit garden, armed with a shot-gun, and no sooner he reached the nearby 'Kandar' than he placed his shot-gun on the wall, took an aiw at the deceased and fired at him. The deceased was accordingly hit on the right side of his body. But even so he managed to rise and started running towards the house of his brother Khaista Gul. However, when he reached near the said house, Mukhtar (the absconding accused as well as the son-in-law of the appellant herein) confronted him and fired at him in consequence of which he was bit on his right thigh. As a result of this second shot, the deceased fell down on the ground in injured condition whereas the appellant and his 4o-accused Mukhtar both succeeded to make themselves scarce. The deceased who was then in injured condition, was taken to Police Station, Peshawar Sadar, where be got his statement recorded at 8-30 a .m. on the same day. However, after his death, at I-45 a.m. on April 4, 1974, in C. M. H., Peshawar, his said statement was taken to be his dying declaration, and the same has accordingly been used by the trial Judge, as well as the High Court. In the dying declaration, the deceased had charged the appellant, as well as Mukhtar (the absconding accused) for the gunshot injury suffered by him in the presence of P. W. Gula Jan, but he candidly conceded that he had no previous enmity with the appellant or the absconding accused. In the trial Court, the prosecution relied against the appellant on the ocular evidence furnished by Gula Jan (P. W. 7), Mst. Taj Bibi (P. W. 8), on the medical evidence of Doctor Salim Khan of the Lady Reading Hospital, as well as Doctor Major Muhammad Amin of C. M. H., Peshawar; on the dying declaration of the deceased and cn the abscondence of the appellant, as after the occurrence he had absconded and in spite of all the relevant steps taken against him under sections 204, 87 and 88 of the Code of Criminal Procedure, he could not be arrested for about six months. As against this the appellant in his own statement under section 342, Cr. P. C. denied the case of the prosecution saying that he was innocent, was involved on account of enmity, but in answer to a question as to why P. W. Mst. Taj Bibi, the wife of the brother of the deceased, named, Khaista Gul had deposed against him, he offered no explanation whatever. The learned Judge, in view of the elaborate analysis of the evidence trade by him believed the case of the prosecution, consequently convicted the appellant for the murder of Janat Gul. But sentenced him to imprisonment for life holding "as the motive for the offence remains hidden and shrouded in the mystery I decline to award him the extreme penalty provided by law". The learned Judge further sentenced the appellant to Rs. 5,000 as fine and in default thereof two years' R. I. with direction that in the event of the recovery of the fine, the same should be paid to the heirs of the deceased as compensation. Being aggrieved, the appellant went to the High Court in appeal, and by order, dated 14-4-1977, a Division Bench issued notice to him to show cause as to why the sentence of imprisonment for life awarded to him by the trial Court should not be enhanced to death. When in due course the appeal came up for hearing, the learned Judges of the Division Bench upheld the judgment of the trial Judge, but in pursuance of the showcause notice issued to him enhanced the sentence of imprisonment for life awarded to the appellant to one of death holding "In this connection, the first thing that strikes our mind is that the deceased was taken by surprise when fired upon by the accused. There is no material on the record to show that at the time of occurrence of some time earlier, the deceased and the accused had fallen out with each other as a result of which the latter took the life of the former. In these circumstances, it would be obvious that the accused had a motive to kill the deceased. A reference to the statement of P. W. Gula Jan would show that the accused was the tenant of Inayat Khan whose father had been murdered by Taza Gul, the brother of deceased. In view of this, there would be no escape from the conclusion the Inayat Khan had .motivated the accused to kill the deceased and thus the learned trial Judge, while awarding the imprisonment for life to the accused, has fallen into error to hold that the motive for the offence remains hidden and is shrouded in the mystery, although 'he was mindful that the accusedlappellant is a hired assassin'. We have heard Mr. Muhammad Ishaq Khan Kundi, the learned counsel for the appellant and Sabibzada Munir Akhtar, the learned Assistant Advocate-General for the State. The only contention urged by the learned counsel for the appellant was that the prosecution story, as initially unfolded in the dying declaration of the deceased, was subsequently materially changed, therefore, the trial Judge, as well as the High Court both were in error in condemning the appellant. In support of his contention he repeatedly referred to the site plan, but we had to remind hi that in the first place the site plan is not evidence, and in the second place, the same has been prepared by A. S.

1. P. Mudassar Shah (P. W. 10) but in his evidence, however, he has not said a word as to on the pointation of which P. W. he had prepared the same. In this view, reliance upon the site plan is, therefore, misconceived. As to the merits of the case, the learned counsel for the appellant rightly did not question the quality of the evidence of the prosecution P. W. Gula Jan was a disinterested witness, and so reliance on his evidence by the trial Court, as well as the High Court was wholly proper. It i true that in the dying declaration, the deceased had not mentioned the name of Mst. Taj Bibi. But considering that the house of Mst. Taj Bibi i situate just close to the place of occurrence, it would follow that on B hearing the shots, she must have come to the outer door of the house and seen Mukhtar (the absconding accused) firing at the deceased, as result of which he was felled to the ground. The fact that Mst. Taj Bibi ha only deposed against Mukhtar would go a long way to show that she w a truthful witness and consequently reliance upon her evidence by the tria Court, as well as the High Court was unexceptionable. In so far as the death sentence awarded to the appellant is concerned, we have not been able to agree with the view taken by the High Court. The two main reasons for which the High Court enhance the sentence of the appellant to death were : (1) that the appellant was th tenant of Inayat Khan whose father had been murdered by Taza Gul, the brother of the deceased, therefore, there would be no escape from the conclusion that Inayat had motivated the accused to kill the deceased]; and (2) that the learned trial Judge himself was mindful of the fact that the appellant was a hired assassin. Now with respect, both these assumptions on the part of the High Court are based on conjectures. There is no evidence on record to show that Inayat Khan had in any way instigated the appellant to take the lif of the deceased nor indeed is there any evidence that the appellant was a hired assassin. It is true that in the last part of his judgment, when he was considering the adequacy of the sentence which was to be awarded to the appellant, the learned trial Judge observed "The investigating agency has tried to locate the motive and they referred in the case diaries that the accused were probably the hired assassins set up by Inayat Khan, whose father had been killed by the brother of the deceased. However th judicial record is silent about any motive, which still remains clouded in mystery". But clearly the said language employed by him instead o supporting the assumption that the appellant was a hired assassin, would rather militate against any such assumption. Agreeing with the view taken by the learned trial Judge, therefore, that the motive for the murder in this case was shrouded in mystery, we have no doubt that while this appeal must be dismissed, but the same is partially allowed to this extent that the sentence of death awarded to the appellant b the High Court is reduced to one of imprisonment for life. s. A. H. Appeal dismissed but sentence reduced.