1987 PLP 1136 (SCMR)

Date of hearing: 14th April, 1987. NASIM HASAN SHAH, J.‑‑This appeal is directed against the judgment and order of the Peshawar High Court, Peshawar dated 13‑11‑1979 whereby Criminal Appeal No.205 of 1978 filed by the appellant against his sentence for life imprisonment under section 302, P.P. C. passed by the learned Additional Sessions Judge, Mardan, on 26‑6‑1978 was dismissed and Criminal Revision No.101 of 1978 filed by Nauroz Ali P.W. (brother of the deceased and complainant in the case) was accepted and the sentence of imprisonment of life enhanced to that of death. The prosecution story as enfolded at the trial was that on 3‑11‑1971 at about 'Degar Wela' the deceased Niamat Ali Shah was shot dead by Fazal Ghafoor appellant by firing his five shot rifle when he was present outside his shop. Nauroz Ali, P.W.5, and an adjoining shopkeeper Nizar Ali, P.W.6, who also have shops in the same Bazar (Daulatzai) witnessed the occurrence while standing in front of Nauroz Ali's shop. After firing at the deceased the appellant absconded and remained scarce for a period of over seven months. The motive for the offence stated in the F.I.R. (which was lodged by Nauroz Ali, P.W.5) is that the accused‑appellant was a man of bad character and used to extort money from the shopkeepers of the village. In all probability, according to Nauroz Ali P.W., the deceased had refused to comply with his demand, which resulted in the present occurrence. Dr. Roidar Ali Khan (P.W.1), Medical Officer D.H.Q. Hospital, Mardan, conducted the post‑mortem examination on the dead body of Niamat Ali deceased on 4‑11‑1975 and found the following injuries on his person:‑

(1) A fire arm entrance wound on the left side chest 3 " above and lateral left nipple, in the interior axillery line, size 1/3" x 1/3". (2) A fire arm exit wound on the right shoulder joint (deltoid muscles) 2 " below the tip of humerous with fracture of humerous, size 1/3" x 1/3". According to his opinion death occurred due to shock and haemorrhage caused by fire‑arm and that the time of injuries and death was instantaneous. At the trial Nauroz Ali, P.W. 5, and Nizar Ali, P.W.6, furnished the ocular account of the incident. Nauroz Ali, P.W.5, deposed that the deceased was his brother and was a gold‑smith by profession having a shop in the bazar of Garhi Daulatzai and he himself was also a gold‑smith and his shop was also situated in the said bazar; that on the day of occurrence when he was standing in front of his shop and talking to Nizar Ali, P.W. (who too has a shop in the same bazar) the accused‑appellant came to the spot armed with a rifle from the direction of his house and after going past them went towards the shop of the deceased, who was standing in front of his shop and fired at him with his rifle whereupon the deceased fell down and died on the spot. Nizar Ali, P.W.6, in his statement fully supported P.W.5. As Nizar Ali P.W. is a completely independent witness and Nauroz Ali P.W. too had no animus against the accused‑appellant, who also absconded after the occurrence neither the learned Additional Sessions Judge nor the High Court had any doubt in concluding that he was guilty under section 302, P.P.C. and we also fully agree. The only question on which some controversy has existed is about the appropriate sentence to be passed in this case. The learned Additional Sessions Judge awarded the lesser punishment observing as follows: ‑-- "Now I come to the question of sentence. As already observed the accused and the deceased has some altercation before the occurrence. The rashness of the deceased is also borne out by his own brother Nauroz Ali P.W., who has admitted that the former had stabbed the latter. So in these circumstances, the award of capital punishment will be unjustified." The High Court differed from this view of the Additional Sessions Judge observing as under:‑

"Taking up the revision for enhancement in which notice was issued to the accused‑appellant on 29‑10‑1978 we find that there is no proper reasoning in the judgment for awarding lesser penalty provided by the law. The act of the accused was deliberate and calculated. It is in the prosecution evidence that he used to demand and extort money from the shop keepers in the bazar being a desparate character and on the refusal of the deceased to oblige him he resorted to this gruesome and wanton murder. The learned trial Court has misinformed itself regarding any altercation between the deceased and the accused before he fired the fatal shot and even if this be believed the deceased was within his right to refuse payment of money to the accused -appellant. Therefore, by dismissing the appeal we accept the revision petition and enhance the sentence of imprisonment for life to that of death." Mr. Zahoorul Haq, learned counsel for the appellant in his submission mainly concentrated upon the question of the sentence. He submitted that the deceased was a short tempered man of angry disposition and had even stabbed his own brother Nauroz Ali P.W. in a fit of anger. As there was no positive evidence that the accused‑appellant had demanded any money from the deceased on the day of the occurrence and he had shot him on the latter's refusal to do so and considering his general angry disposition it should be presumed that he must have said something nasty which might have provoked the appellant‑accused. Insofar as the motive was shrouded in mystery the appellant was entitled to the lesser punishment. We cannot agree. It is true that there is no clear evidence as to what the immediate cause for the appellant firing upon the deceased was? But the law is that if ocular evidence of such a quality existed which was sufficient by itself to establish the guilt of the offender, the liability to punishment for the deed committed by him is not affected by the uncertainty with regard to the motive. See Arif and others v. The State 1984 S C M R

124. Thus, in this case, even if it is not possible to say with certainty as to what the appellant's motive for committing the crime was the fact remains that an innocent shop‑keeper, who was standing at his shop in connection with his business, was fired upon without any provocation and brutally done to death. It is a wanton murder without any extenuating circumstances. We would, therefore, dismiss this appeal and uphold the sentence of death imposed upon him by the High Court. M.B.A./F‑12/S Appeal dismissed.