2011 P Cr (PLP)

RAJA JALAL-UD-DIN, C.J.

This Criminal Appeal under section 410, Cr.P.C. has been preferred by the convict/appellant against the judgment of the Administrative Judge Anti Terrorism Court Gilgit dated 14-1-2009 whereby the appellant has been convicted under section 302(B) read with section 7(A) of ATA by awarding punishment for death sentence and fine of Rs. 3,00,000 as compensation under section 544(a) to be recovered as arrear of land revenue, 10 years' R.I. and sentence of fine Rs. 1,00,000 under section 324, P.P.C. read with 7(b) of Anti-Terrorism Act. In default of fine the appellant shall further undergo one year R.I. The appellant also convicted under section 13(d) Arms Ordinance 1965 and sentenced to R.I. for 7 years. It is pleaded on behalf of the counsel for the convict/appellant that the occurrence is unseen and eye-witnessed have been procured to establish a case. The P. Ws. nominated as witnesses do not belong to the locality and are close related to the deceased. That not a single witness cited from the vicinity of the place of occurrence inspite of the fact that the alleged offence has taken place at the busiest intersection of the town. That the presumption of false implication can be gathered from the said fact. That there are grave and serious improvements in the statements of the P.Ws. recorded in Court which are fatal to the prosecution case. The recoveries of the weapons of offence have not timely been sent to the forensic laboratory for expert opinion and as such inference can be drawn on the legality of the forensic report. That the public prosecutor filed an application under section 494, Cr.P.C. on 2-8-2010 for the withdrawal of the case against the co-accused Bahadur Khan resulting in his acquittal. The case of Bahadur Khan was consistent to the case of present convict/appellant and as such the convict/appellant is entitled to the benefit of acquittal on the basis of rule of consistency. The convict/appellant also claims re-trial on the basis of not being provided proper defense inspite of request to be provided with proper legal aid. It is also agitated that the statement of the eye witnesses have alleged the opening of the fire-shot on the deceased from the left side but the medico legal report has shown the entry wound from the right side as such the fatal piece of. evidence goes against the prosecution and entitles the convict/appellant for clean acquittal. Counsel for the convict/appellant also pleads that he is an old and infirm person who is suffering from various ailments. That the age of convict/appellant as gathered from his NIC is more than 92 years and hence pleads conversion of his sentence from death. He referred 1979 PCr.LJ 275 (Lahore). The prosecution pleads that the deceased doctor Aga Jan held a very decent reputation in Gilgit-Baltistan who was always ready to help needy people. He was a well qualified citizen who held a high reputation for his professionalism. That the act of the convict/appellant had disturbed the then prevailing situation and as such a situation of law and order had been created. That the pre-meditated action of the convict/appellant by coming fully prepared to do away an important person for a very flimsy motive has rightly been awarded the capital punishment. That all the statements of the witnesses are true and confidence inspiring. That the prosecution has proved its case to the hilt and there remains no mitigating circumstance of ambiguity which may entitle an acquittal or lesser punishment. D.A. for the State referred 2009 PCr.LJ 547 (Lahore) in favour of his contentions. We have gone through the record of the case and we find that the statements of the eyewitness recorded are all within time and the question of fabricated and planted evidence is not possible. The F.I.R. recorded well within time is very specific wherein .the role played by the convict/appellant is very much evident. The time of the occurrence as well as the locality where the murder has taken place does not leave any room for mistaken identity. The motive put forward has also not been challenged or rebutted. The recoveries of the weapons of offence from the convict/appellant after the occurrence are also not been thoroughly contested by the defense. The medical report also proves that a .12 bore shotgun has been used for the commission of the offence as lead pallets have been recovered from the body of the deceased proving that the death was a result of fire-shots from a .12 bore shot gun as pointed out by the eye-witnesses and proved from the expert opinion. We feel that it a fit case for conviction and a capital punishment. All the ingredients necessary for a good conviction are present on record. The F.I.R. has been promptly lodged, well within time which discloses the names of the eye-witnesses, the weapon of offence used and the manner in which the incident took place along with the motive. The F.I.R. is an information regarding an occurrence to the police authorities and it can also be taken as a very good piece of initial evidence which has to be backed up by the narration of the eye witnesses. In the present case the version taken in the F.I.R. has been followed to the last in the sequence and manner as disclosed in the F.I.R. There are no additions and subtractions in the facts of the case whereby it can be presumed that the investigation has properly been conducted without any malafidy intentions. There is no chance of mistaken identity and neither has any suggestion been put forward by the defense whereby it can be presumed that the convict/appellant has falsely been implicated in the instant case. The identification of the weapon of offence at the time of commission of the offence has been proved from the recovery of the same from the convict/appellant with in good time. No doubt the eye-witnesses are closely related to the deceased but their presence at the spot at the time of occurrence is very well justified from the evidence which discloses that the said witnesses had come to take the deceased doctor after he had examined his patients and was ready to leave for home for whom the witnesses had naturally appeared at the scene to accompany the deceased from his clinic. The timing of the presence of the witnesses at the time of occurrence is very natural. It is also gathered from the record that the convict/appellant had also committed a murder in 1955 vide F.I.R. Nos. 58/55 and had been convicted. It seems that the convict/appellant is a habitual offender and his previous conduct is also not very helpful to him. Regarding the conviction under section 324, P.P.C. read with section 7(B) of the Anti Terrorism Act 1997 to suffer 10 years' R.I. and fine of Rs. 1,00,000 seems to be very much out of place and off the record from the material gathered by the prosecution. It is very much evident from the statements of the P.Ws. that the convict/appellant had made no efforts or moves for an attempted murder on his pursuers after the initial fire shots on the deceased. The convict/appellant is stated to have opened aerial fire shots with his pistol while fleeing the place of occurrence. The conclusion reached by the trial Court regarding an offence under section 324, P.P.C. is completely out of context and we feel that the conviction of the convict/appellant under the said section was unnecessary and uncalled for hence we acquit the convict/appellant from the said charge. Regarding the cold-blooded murder of the deceased doctor Aga Jan is fully proved from the gathered material on record. He deserves no leniency in the matter. Regarding the plea for a lesser punishment based on the ground of extremely old age is also unjustified. The convict/appellant had made full preparations by arming himself to the teeth by a loaded shot gun as well as a loaded pistol planting himself at the spot from where the doctor had to pass after attending his clinic having a motive shows that it was a deliberate well planed execution. As such the convict/appellant does not deserve any leniency for his act done at old age. Secondly that the Courts should not exercise the option and privilege of giving lesser punishments for offences for which the law has laid out sentences. The privilege of reduction as well as the forgiving and pardoning the offender should lie with the complainant or the relevant legal heirs of the deceased. We are of the opinion that the relaxation of sentence claimed by the convict/appellant is unfounded and the privilege of the same can not be extended to the convict simply that he is of very old age or infirm. For the foregoing reasons we maintain the death sentence awarded to the convict/appellant under section 302(B) read with section 7(A) of ATA by the Administrative Judge Anti-Terrorism Court No. 1 Gilgit vide his judgment dated 14-1-2009 whereas set aside the conviction of 10 years R.I. and a fine of Rs. 1,00,000 awarded under section 324, P.P.C. The murder reference made' by the Administrative Judge Anti-Terrorism Court Gilgit-Baltistan under the provisions of section 374, Cr.P.C. read with section 25 of ATA is confirmed under section 374, Cr.P.C. Appeal is disposed of accordingly. H.B.T./105/Glt Order accordingly.