2001 PLP 244 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑Appellant Sakhawat son of Fazal Hussain (30) faced trial under section 302/34, P.P.C. alongwith his father in the Court of Additional Sessions Judge, Lahore on stated allegation that both of them committed murder of Muhammad Ashraf with their common intention on 1‑1‑1990 in Sabzi Mandi, Lahore. The charge was denied by both of them and they claimed to be tied. Accordingly trial of both of them culminated in judgment, dated 30th June, 1992 delivered by trial Court whereby Fazal Hussain father of appellant was not found guilty for commission of offence, as such he was acquitted of the charge; whereas appellant was held responsible for commission of offence under section 302, P.P.C., as a consequence whereof death penalty was awarded to him with fine of Rs.20.000 which was ordered to be paid to the legal heirs of deceased if recovered. A Murder Reference being No.247 of 1992 was sent to Lahore High Court for confirmation or otherwise of the death sentence of appellant. In the meanwhile Criminal Appeal No.669 of 1992 was also filed by the appellant. Learned High Court vide impugned judgment, dated 5th March, 1997 accepted the reference and confirmed death sentence of appellant and appeal filed by him was dismissed.

2. Leave to appeal was granted vide order, dated 6th November, 1998 to re‑examine the quantum of sentence in view of the following contentions:‑‑ (1) Assuming that the petitioner (appellant) was guilty of the commission of, the offence, even then he did not deserve the sentence of death inasmuch as he had committed the crime under the influence of his father Fazal Hussain. (2) It was a sudden affair and not premeditated one and in the sudden heat of passion on a sudden quarrel, the crime was committed and therefore, in the circumstances of this case, the award of death sentence was not justified. (3) That the motive is also shrouded in mystery inasmuch as Salim, who was allegedly being helped by the deceased, had already been awarded death sentence and thus the motive in this case was l unbelievable.

3. In view of above contentions of appellant's counsel it is necessary to precisely note the facts of the case as well. According to the prosecution on the day of incident P.W. Sultan Mahmood (complainant) alongwith his brother deceased Muhammad Ashraf was sitting in Shop No.30. Sabzi Mandi. At that time P.W. Mazhar Iqbal and Fazal Mir were also present in the shop when appellant Sakhawat entered in the shop accompanied by his father Fazal Hussain acquitted accused. They also sat with them and after some time got up to leave the shop. On this the complainant alongwith other persons came out of the shop to say them good‑bye. When they proceeded alongwith appellant and his father for some distance and reached near shop No.36, the appellant and his father Fazal Hussain asked Muhammad Ashraf deceased that if he wanted their friendship to continue he should stop helping Lai Din and his son Salim. On this deceased Muhammad Ashraf replied that he will continue helping them. Appellant then told deceased Muhammad Ashraf that result of this help would not be good for him. At this juncture they exchanged hot words and abuses each other. However, with the intervention of others the matter was settled. Acquitted accused Fazal Hussain then told appellant that deceased Muhammad Ashraf is not abstaining from helping Lal Din and Salim and further said that Muhammad Ashraf got Khadim Hussain murdered through Salim son of Lal Din and now he might get him murdered and also said that Muhammad Ashraf should be shot through and through. After uttering these words by acquitted accused Fazal Hussain the appellant in presence of the complainant and eye‑witnesses took out a revolver from his Shalwar whereupon deceased turned and tried to in away but appellant fired with his pistol which hit on the back of deceased Muhammad Ashraf as a consequence whereof he succumbed to injuries at the spot. Motive for the commission of offence as disclosed by the prosecution is that Fazal Hussain acquitted accused had a grudge for helping Salim son of Lal Din who was awarded the punishment of death for committing murder of Khadim Hussain.

4. It may be noted that the trial Court after assessing the evidence available on record concluded that the prosecution has established the guilt against appellant with the help of ocular, medical account, motive and recovery. The finding so recorded by the trial Court was upheld in the impugned order passed by Lahore High Court, Lahore. Leave to appeal was granted on 6‑11‑1998 for re‑examination of quantum of sentence, in view of contentions noted hereinabove.

5. Now turning to the contentions of appellant's counsel noted at Serial Nos. l and 3, it is necessary to note that appellant came to shop No.30 alongwith his father Fazal Hussain to meet P.W. Sultan Mahmood and his brother Muhammad Ashraf with ulterior motive because he was armed with a revolver which he had concealed in his Shalwar. The prosecution has also established that the appellant as well as acquitted accused i.e. his father Fazal Hussain asked deceased Muhammad Ashraf that he should refrain from helping Lal Din but when he refused to accede to their request Fazal Hussain told appellant to murder the deceased because he is helping Salim who has killed Khadim Hussain. On this he took out revolver from his Shalwar and fired upon Muhammad Ashraf. It is noteworthy that as per available record the age of appellant was 30 years when he got recorded his statement under section 342, Cr.P.C. on 18‑5‑1992 which means that on the day of incident i.e. 1st January, 1990 his age was about 28 years. Thus, being not minor convict was not bound to obey unlawful command of his father.

6. As far as motive is concerned it has also been established on record by prosecution through trustworthy evidence as has been pointed out herienabove. Therefore, no benefit for awarding lesser punishment to appellant for the reasons noted at Serial Nos. l and 3 of the leave granting order can be extended to him. Even otherwise appellant has committed cold blood murder of young man against whom it was alleged that he was helping Salim. As far as the case of his father Fazal Hussain is concerned that was quite distinguishable 'on facts that is why he was acquitted of the charge. This somewhat similar proposition in case of Waris Ali alias Dulli and others v. The State (1999 SCMR 1469) maintained the death sentence of the appellant despite of the fact that for same count his co -accused was awarded imprisonment for life. Relevant paras. therefrom are reproduced hereinabelow:‑‑ "There is no denying the fact that prosecution has not ascribed any motive to appellants Waris Ali and Muhammad Khan for causing murders of Muhammad Mushtaq and Ghulam Abbas. Obviously involvement of above appellants and co‑convict Khurshid Ahmed is on independent footings as manifestly reflected form ocular evidence which has been firmly believed. The guilt of the appellants has been duly proved on the acceptance of evidence as observed in the impugned judgment as well as leave granting order, dated 12‑9‑1995. Therefore, on the dictum laid in 1971 SCMR 368 (Ghuncha Gul v. State), the requirement of motive and its discovery as regards above two appellants is totally irrelevant and unwarranted. This Court in case of Fazal Ghafoor v. State (1993 SCMR 1136) whereby ocular evidence has been deemed to be sufficient to establish the guilt of offenders whereby enactment of punishment by the High Court converting into 'death penalty was confirmed and validated without resorting to effect about uncertainty of motive. It is well settled that on proof of accusations for causing murder that Court in the absence of extenuating circumstances should normally award death penalty. This aspect is well‑enunciated in cases i.e. (i) PLD 1976 SC 452 (Muhammad Sharif v. Muhammad Javed alias Jeda), (ii) 1998 SCMR 862 (Mst. Bismillah v. Muhammad Jabbar) and (iii) 1998 SCMR 1976 (Pervaiz v. State). On the scrutiny of entire record we are fully satisfied that accusations made against appellant Waris alias Dulli and Muhammad Khan are quite independent and distinguishable from co‑convict Khurshid Ahmed. Ocular testimony mentions about infliction of fatal injuries by the above two appellants to deceased Ghulam Abbas and Mushtaq. Therefore, keeping in view all the factors both the Courts below have awarded legal sentence to the appellants which in the absence of any extenuating factors or infirmity, does not warrant interference. Criminal Appeal No.428 of 1995, therefore, has no merits.

11. Now adverting to Criminal Appeal No.492 of 1995 filed by Khrushid Ahmed it may be seen that leave was granted by this Court on 14‑11‑1995 on the same grounds which appeared in above referred leave granting order, dated 12‑9‑1995 passed in Criminal Petition for Leave to Appeal No.308‑L of 1995 (converted into Criminal Appeal No.428 of 1995). It is quite apparent that conviction under section 302, P.P.C. was explicitly maintained and was held to be based on valid grounds which did not warrant interference. The Court was mainly to examine question relating to quantum of sentence which factually does not arise in the appeal filed by Khrushid Ahmed. Accordingly we are inclined to recall leave granting order, dated 14‑11‑1995." Likewise in another judgment of this Court in the case of Noor Muhammad v. The State (1999 SCMR 2722) it has been held that if an offence has been committed under the influence of any elder member of the family even then the Court is not bound to award lesser punishment to the accused because it is not accepted as a universal rule that whenever the motive alleged by the prosecution is found to be weak or is not proved, the Court is bound to award lesser sentence than death for a murder nor can it be said that a convict is entitled as a matter of right to claim lesser sentence than death when he allegedly acts under the influence of his father or any other elder member of the family.

7. As far as contention of learned counsel namely that it was sudden affair and not premeditated one and in the sudden heat of passion on a sudden quarrel, the crime was committed and, therefore, in the circumstances of the case, the appellant was not liable to sentence of death cannot be considered to be an extenuating circumstance in favour of appellant for awarding lesser punishment because as discussed hereinabove it was the appellant who alongwith his father came to Sabzi Mandi having concealed revolver in his Shalwar. Moreover, under Islamic dispensation of criminal justice once an offence of Qatl‑i‑Amad falling within the mischief of section 302(b), P.P.C. has been successfully established the convict is liable for normal penalty of death as it has been held by this Court in the case of Waris Ali alias Dulli (supra) unless there are facts and circumstances on record like plea of grave and sudden provocation, loss of power of self‑control etc. no indulgence can be shown for awarding lesser sentence as prescribed under the law. In forming this view we are also forfeited by the judgment in the case of Abdul Haq v. The State (PLD 1996 SC 1). In view of the above discussion no case for lesser sentence is made out therefore, appeal is dismissed. Q.M.H./M.A.K./S‑45/S Appeal dismissed.