1999 PLP 556 (MLD)

The appellant was convicted and sentenced to imprisonment for life and to pay a fine of Rs.10,000 or in default to suffer a further R.I. for a period of three months as well as to pay a compensation amounting to Rs.50,000 to the legal heirs of the deceased or in default of such payment to suffer a further R.I. for six months, by the learned Sessions Judge Karachi West vide judgment dated 9-12-1993. In this appeal under section 410, Cr.P.C. the appellant had impugned the said judgment. Briefly stated the facts of the case as unfolded in F.I.R. No.94 of 1990 lodged at Police Station S.I.T.E. Karachi on 21-3-1990 by the complainant Abdul Razzak son of Tooti, resident of New Rehmania Masjid, Pathan Colony, Karachi are that he was employed in Jubilee Mill S.I.T.E. Karachi and his brother Nausherwan used to live near the Mill alongwith their families. On 24-3-1990 at about 5.00 p.m the younger son of Toursam Khan (Name not disclosed in the F.I.R.) picked up a quarrel with Bakht Zoran aged about 5/6 years, the son of deceased Nausherwan and allegedly Toursam Khan's song gave him a beating. At about 6.30 p.m. on the day of the incident when Nausherwan returned home, he called the appellant in order to protest about the quarrel which took place between the children. Toursam Khan alongwith his Son Fateh Khan came out armed with a churri and caused churri blows on Nausherwan. The complainant came out of his house on hearing commotion and saw many persons including Shah Gul Ahmed, Kamal Shah and others assembled at the place of incident. He also saw that both the accused were giving a beating to Nausherwan and after causing injuries the culprits escaped from the vardat. Nausherwan, who sustained multiple injuries died on the spot. The complainant went to the police station and his F.I.R. was recorded by A.S.I. Sadullah Khan, who was the duty officer at the police station, for the offence udder section 302, P.P.C. He also investigated the case, arrested the accused and ultimately the case was challaned before the learned trial Court. Initially the challan was submitted only against Fateh Khan but Toursam Khan (now acquitted) was also arrested later-on and his challan was also submitted before the learned trial Court. Charge for the offence under section 302/34, P.P.C. was framed by the learned Sessions Judge on 10-1-1991 to which both the accused pleaded not guilty. At the trial the prosecution examined six witnesses i.e. P.W.1 Kamal Shah the son-in-law of the complainant Abdul Razzak who was produced as any eye-witness, P.W.2 Abdul Razzak the complainant was also an eye-witnesses, and he produced the F.I.R. (Exh/8) as well as the mashiranama of injuries, receipt of the dead body and mashirmama of arrest (Exs. 9, 10 and 11), P.W.3 Shah Gul Amber the father-in-law of the complainant who was also an eye witness and he produced the inquest report (Exh.13). P.W.4 P.C. Abdul Jaleel, the process served returned the unexecuted summons on H.C Altaf Hussain. P.W.-5 Dr. Dave Qadir M.L.O., Abbasi Shaheed Hospital Karachi who had conducted the post-mortem examination and produced his post-mortem notes (Exh.17). P.W.6 S.I. Saadullah Khan the investigating officer who also produced the report of the chemical Examiner (Exh.20). The appelant in his statement recorded under section 342, Cr.P.C.denied all the allgations and stated as follows:-- "Deceased Nausherwan used to reside near my house and earlier also quarrel had taken place over the ladies on account of children. On the day of incident I returned from school at about 5.30 p.m. I was sitting in the house when deceased Nausherwan alongwith Abdul Khaliq and Abdul Malik came and knocked the door. I came out from my house to enquire what was the reason. When I came out deceased Nausherwan and his nephew started beating with dandas. Persons intervened and rescued me. I returned .to my house. After 10/15 minutes I heard noise that Nausherwan has died. I myself went to police station. At police station I was arrested. I have not committed murder of Nausherwan. When Nausherwan received injuries I was inside the house. I am innocent." The appellant also examined himself on oath under section 340(2), Cr.P.C. The record shows that an application for separation of the case of the appellant under section 10 of Sindh Children Act, 1955 was submitted at the commencement of the trial mainly on the plea that the appellant was age about 14 years and four months but that application was rejected by the learned trial Court. The learned Sessions Judge framed the following points for determination which were answered in the affirmative:- . "(1) Whether accused Fateh Khan committed murder of Nausherwan? (2) Whether co-accused Toursam Khan shared common intention in the commission of murder?" The unnatural death of deceased Nausherwan is undisputed and on this point statements of all the eye-witnesses are corroborated by the testimony of M.L.O. Dr. Jalil Qadir. The learned Sessions Judge has also recorded in the impugned judgment the nature and number of injuries which resulted in the death of the deceased. The sole question which requires consideration is whether in the light of evidence brought on record the prosecution has succeeded in establishing the guilt of the accused beyond any reasonable doubt? Learned counsel for the appellant submitted that no crime weapon was recovered from the appellant and there are contradictions in the statements of the witnesses which the learned Sessions Judge had failed to appreciate. He further submitted, that at the time of occurrence the appellant was aged about 14 years per school leaving certificate which is available at page 73 of the R & P. Therefore, the appellant was entitled to the benefit of section 5 of Sindh Children Act, 1955. Lastly he vehemently urged that in case if no merit is found in the above submissions at least a lenient view may be taken on the quantum of sentence as at the time of incident the appellant was a young boy of tender age and he may be given a chance of rehabilitation. The learned State counsel supported the impugned judgment but on the quantum of sentence he also conceded to a reasonable reduction. After having gone through the entire evidence I find no force on merits in the submissions of the learned counsel for the appellant. Undoubtedly, the eye-witnesses are related inter se but they were residents of the same locality and their testimonies have remained unshaken. It is also not a. case of false involvement of the appellant. The prosecution witnesses Kamal Shah did not see the acquitted accused Toursam Khan at the vardat while the other prosecution witnesses Abdul Razzak and Shah Gul have attributed the main role of causing Churri blows to deceased Nausherwan to the appellant. The witnesses 71ave completely -exonerated the appellant's father Toursam Khan as he was not seen present at the time of the incident. There is hardly any major contradiction or improvement or even exaggeration in the statements of these witnesses. Therefore on a careful appraisal of the entire evidence I see no reason to upset the findings of the learned trial Court. However, on the score of quantum of the sentence before resorting to the case law it would be relevant to observe that the avowed objective of all correctional systems is to transfarm the offender who has been convicted into a normal responsible citizen. The present day system of corrections now contains all the three elements namely. Retribution, Reformation and Deterrence set out in Scholastic Theory propounded by Thomos Acquinas who combined the Retribution and the Ultilitarian the theories of Plato and Socrates and. weaved a solid system by drumming out the best of both. According to this theory which has stood the test of time through several centuries, the method of application should be in such a way that the system provides for the reformation of the criminal and enhances deterrence so that the particular offender and others would be kept away from the commission of similar acts. The Indian Supreme Court in Ashok Kumar v. State AIR 1980 SC 636, has laid down that sentencing the cutting edge of the judicial process is the crucial strategy of the criminal law in achieving social defence and re-socialisation of the delinquent. It is true that in recent years criminology and penology have taken great strides and the emphasis has been on the rehabilitative/reformist approach in favour of the prisoner rather than an emphasis towards deterrence. The focus of attention has become the offender rather than the offence in view whereof the Indian Supreme Court in Muhammad Giasuddin v. The State of Andhra Pradesh AIR 1977 SC 1926 has found that the sentence must be in accordance with the offender rather than the offence so that the offender can return to the society as a law abiding citizen. Perhaps these were the reasons which persuaded many developed countries to abolish capital punishment. In England the area of sentencing has also undergone a great change. Earlier the sentencing process was seen as purely a judicial determination of the appropriate punishment for a specific crime. This meant that when a Judge passed its sentence for a specific duration it was almost certain that the offender would undergo such term. However, in present times, sentence shortening has been introduced by way of administrative reforms in view whereof good conduct, holiday benefits, pardon, parole and clemency are factors to reduce sentencing. Thus, where an English Court imposes a sentence the same is viewed as a maximum term of punishment which is usually reduced in practice. Both in England and in the U.S.A. the increasing use of discretionary powers of the prison management and correctional authorities tend to restrict the powers and discretion of the sentencing Courts (for more details see "The English Sentencing System; (1975) by Rupert Cross 145-50; 'Criminal Justice System in America

The System

The Process

The people; (1976) 229, by Votter, H.G. and Simenson, G.E. 'The creation of the Public Order, American Law and Politics; (1976) 185 by Roland, v. In another case Nadella Venkatakrishna Rao v. State of Andhra Pradesh AIR 1978 SC 480 the Supreme Court of India has observed that harsh and prolonged incarceration may sometimes be self- defeating, since the prisoner in jail may get hardened and callous with the result that the whole goal of punishment being curative is thereby defeated. Our own Supreme Court has taken a reformist and mitigating view while reducing sentence of a Young accused in Murid Abbas v. The State 1992 SCMR

338. In view of the recent resurgence of the rehabilitive approach the deterrent approach as propounded by Salmond to the effect that an example be made out of an evildoers to serve as a warning to others has become obsolete (see Salmond on Jurisprudence, 10th Edition, at page 111). However, the deterrent approach is still to be preferred as an exception to the general rule of the rehabilitative approach where:- (a) The Crime is of a heinous and callous nature as held by the Supreme Court in Muhammad Sharif v. The State 1991 SCMR 1622, while observing that mercy is the attribute of God but the Courts are warned not to allow that which is otherwise unlawful, since the Courts should not show mercy to those who themselves are proved to have acted mercilessly; (b) the Court has to consider a situation where the law and order problem is on the increase. (see Bakhsish Elahi v. The State 1977 SCMR 389); (c) punishment concerning public servants and Court officials (see Muhammad Amin v. The State PLD 1984 SC 343; Imtiaz Ahmed v. The State PLD 1977 SC 545). In my humble opinion a balanced view has to be taken. A sentence passed by one judge is not a binding precedent on another in a subsequent case (see Crown v. Muhammad Shafi PLD 1954 Lahore 395). Each and every case and its surrounding facts including the status and predicament of the accused offender have to be scrutinised before a sentence is awarded. In case the matter falls into any of the exceptions narrated above a deterrent view ought to be taken by the Courts. However, on the contrary, where the case does not fall under any of the exceptional categories underscored above and mitigating circumstances exist a rehabilitative approach ought to be preferred. The present case calls for adopting a rehabilitative approach since a number of mitigating circumstances squarely exist. The appellant is not a previous convict; at the time of the commission of the offence he was aged 14 years as per the school leaving certificate and 16/17 years as per the Radiologist's Report; while he has already undergone an imprisonment of five years. Following the judgment of the Supreme Court in Murid Abbas (cited above) I feel that a case is made out for reduction of the quantum of the sentence. Accordingly, and in order to meet the dictates of justice, the sentence is reduced from life imprisonment to ten years R.I. only. Subject to this reduction in the sentence the appeal is dismissed: H.B.T./F-37/K Order accordingly