1998 PLP 1555 (SCMR)

RAJA AFRASIAB KHAN, J.

On 8th of April, 1989, at 11-15 am., initially, a case under section 307/34, P.P.C. was registered with Police Station Tandlianwala, District Faisalabad on the statement of Muhammad Aslam Sajjan against Liaqat Ali and Abdul Ghaffar for causing injuries to Muhammad Ashraf, which, on his death, was converted into section 302/34, P.P.C., Muhammad Aslam Sajjan lives .in Jinnah Colony, Faisalabad, His younger brother, Muhammad Ashraf is a cloth dealer. On the -day of occurrence at about 11-15 a.m.. Muhammad Aslam Sajjan and Zarar Hussain went to meet Muhammad Ashraf. They were standing outside the shop situated at Gali Gurdawara where Abdul Ghaffar and Liaqat Ali also came on motorcycle and stopped it just near the complainant party. Liaqat Ali was armed with 4cnife while his companion. Abdul Ghaffar was holding a stick. They shouted that Muhammad Ashraf would not be allowed to go alive. Liaqat Ali gave a knife blow which injured the left side of his back. He fell down. Liaqat Ali gave another blow which hit him on his right buttock. Abdul Ghaffar injured his nose and upper lip with his stick. The injured was taken to hospital where he died on 9th of April, 1989. Motive was that Muhammad Ashraf was Vice-Chairman of Pakistan People's Partly, Tandlianwala. Prior to the occurrence in hand, he gave a complaint in writing levelling allegations against the assailants. They had, thus, nursed the grudge against Muhammad Ashraf (deceased). In order to take revenge, both the accused attacked and killed him in execution of their common intention. In order to prove its case, the prosecution produced Shah Din P.W.1, Aurangzeb P.W.2 Dr. Abdul Sattar P.W.3, Muhammad Siddique P.W.4, Basharat Javed P.W.5, Shahid Ayyub P.W.6, Dr. Abdul Khaliq P.W.7, Muhammad Aslam Sajjan, P.W.8, Zarar Hussain P.W.9, Khalid Hussain P.W.10, Hafeez Ullah P.W. 11 and Bahadar Ali Shah P.W.12, Muhammad Aslam Sajjan P.W.8 and Zarar Hussain P.W.9 witnessed the occurrence. They fully supported the prosecution case. Dr. Abdul Sattar, P.W.3 opined that Muhammad Ashraf died as a result of hemorrhage and shock due to injury No.1 which was sufficient to cause his death in the ordinary course of nature. Muhammad Aslam Sajjan and Zarar Hussain, P.Ws. also proved motive part of the prosecution story. The accused denied the allegations in their statements under section 342, Cr.P.C. In so many words, Liaqat Ali admitted that he had killed Muhammad Ashraf in the exercise of his right of self-defence. His statement is to the following effect:-- "I had political difference with the .deceased and on the day of occurrence he had exchanged hot words with me when I was present in the adjoining shop of tailoring as a worker and in the heat of passion and under provocation we both grappled each other and apprehending danger of my life and apprehension of grievous hurt acted in self defence of person, after I had lost my tamper and control on the filth of abuses of deceased." An Additional Sessions Judge, Faisalabad vide his judgment dated 17-10~ 1991 convicted Liaqat Ali and Abdul Ghaffar Khaliq under section 302/34, P.P.C. and sentenced them to imprisonment for life plus fine of Rs.10,000 each or in default to undergo R.I. for two years each. Benefit of section 382-B, Cr.P.C, was given to them. The trial Court did not award capital punishment to the convicts on the basis of the following reasons:-- "Cumulative effect of above discussion is that prosecution has succeeded in establishing guilt of Liaqat Ali and Abdul Ghaffar Khaliq, accused for intentional murder of Muhammad Ashraf, deceased and as such Liaqat Ali and Abdul Ghaffar Khaliq, are held guilty for offence under sections 302/34, P.P.C. As occurrence of intentional murder of Muhammad Ashraf, deceased by Liaqat Ali and Abdul Ghaffar Khaliq accused is because of their different political affiliation's likings and dislikings and nothing more or less, therefore, both the accused are awarded lesser sentence of life imprisonment and a fine of Rs.10,000 each, under section 302/34, P.P.C. In default of payment of fine, they shall further undergo R.I. for two years each. Benefit of section 382-B, Cr.P.C. be also given to the accused. Both the accused, present in Court on bail, shall be taken into custody and sent to jail." The convicts filed Criminal Appeal No. 1181 of 1991 against their conviction and sentence. Criminal Revision No.723 of 1991 was instituted by Muhammad Aslam Sajjan against the judgment of the trial Court for giving lesser punishment to the convicts. The Lahore High Court vide its judgment dated 18-4-1994 accepted the appeal of Abdul Ghaffar and set aside his conviction and sentence holding that the case against him was not free from doubt. Liaqat Ali's appeal was dismissed because he had caused knife injuries and as a result of which Muhammad Ashraf died. Revision Petition of Muhammad Aslam Sajjan for enhancement of sentences was also disposed of. On 28-11-1994, leave to appeal was granted only to the extent of quantum of sentence of Liaqat Ali. Similarly, leave was granted -in the connected matter on 21-3-1995.

2. Learned counsel for the convict Liaqat Ali states that there is no credible evidence to connect him with the commission of the crime inasmuch as tie has acted it^. exercise of his right of self-defence in causing injuries to Muhammad Ashraf: He has, therefore, committed no offence under the law.

3. Learned counsel appearing on behalf of the complainant submitted that the learned Courts below did not give-any valid reasons for not awarding the normal penalty of death. To support his plea, he has relied upon section 367, Cr.P.C.

4. We have heard the learned counsel for the parties at some length and have perused the record with their assistance. As a matter of fact, Liaqat Ali did not deny the allegations of causing injuries to Muhammad Ashraf. His plea was that lie did so in exercise of his right of self-defence. In other words, Liaqat Ali has confessed that he has committed the murder of Muhammad Ashraf. It was, therefore, his bounden duty in law to prove his plea which he failed to do so. No evidence was led by him in order to establish his case before the trial Court. There was, therefore, no alternative but to accept the prosecution version that Liaqat Ali came at the spot with a knife and inflicted injuries to Muhammad Ashral' on the vital part of his body. According to Dr. Abdul Sattar, P.W.3, as stated above, injury No.1 was sufficient to cause death of Muhammad Ashraf in the ordinary course of nature. He had the intention to kill Muhammad Ashraf. Prosecution has successfully proved its case against the appellant beyond any shadow of doubt on the basis of trustworthy and confidence inspiring evidence of Muhammad Aslam Sajjan and Zarar Hussain, P.Ws. His conviction is, therefore, based on the said solid evidence. It is accordingly, upheld.

5. The next question which arises for our consideration is the quantum of sentence which is to be given to the convict. The trial Court awarded imprisonment for life to the appellant on the ground that there existed political differences between the appellant, Liaqat Ali and Muhammad Ashraf, deceased. Such-like consideration or ground cannot be a mitigating circumstance for awarding lesser punishment. If a lesser punishment is awarded in a case of capital punishment merely on the ground that there exist political difference between the parties, then shall amount to giving an open licence to all to kill innocent people on that flimsy and easily available ground. Basic principles or the foundations of the democratic institutions are based on tolerance. The views, of the political opponents are to be heard and understood with patience and forbearance. These are not to be silenced by killing the holders of such views by applying violent means. This, therefore, cannot be a valid ground for not giving the normal penalty of death in murder cases. Faced with this situation, learned' counsel attempted to argue that Liaqat Ali was minor at the time of occurrence and as such, he was entitled to be given lesser sentence. There was no evidence having been produced by him to show that Liaqat Ali was minor when he committed the offence. The heavy burden was on him to prove his minority during trial on the basis of credible evidence. His simple statement, without proof, was not enough to give him the relief asked for. In the circumstances, Criminal Appeal No.403 of 1994 is accepted. In the result, sentence of death is hereby awarded to Liaqat Ali to meet the ends of law and justice. He shall be hanged by neck till he is proclaimed to be dead. In consequence, the connected Criminal Appeal No. 123 of 1995 is dismissed. N.H.Q./M-154/S Sentence enhanced.