2000 PLP 1898 (SCMR)

ABDUL HAMEED DOGAR, J.

This criminal petition for leave to appeal is directed against the judgment dated 16-11-1999 of learned Division Bench of High Court of Sindh whereby Criminal Appeal No.40 of 1998 filed by the petitioner was dismissed and reference for Confirmation No.2 of 1998 was accepted.

2. The facts, in brief, are that on 14-4-1993 at about 11-30 p.m. S.-I. Muhammad Sarwar Khan of Police Station Defence, Karachi (South) recorded 154, Cr.P.C. statement of complainant Muhammad Pervez under sections 302 and 324, P.P.C, which was later on incorporated in F.I.R. Book of the said police station.

3. It is stated that on 14-4-1993 at about 9-30 p.m. complainant, Naeem, Fazal and the petitioner were playing Carom Board in a shop adjacent to his house and Imran was sitting by their side and watching the game and at that time a quarrel took place between the petitioner and Imran. The complainant and his brother Anwar Zeb, who was standing outside, separated them. Thereafter, the petitioner went to his house saying that since they are companions of Imran, as such he will not spare them and returned within 5 minutes with a pistol. After raising Lalkara to Anwar Zeb, aged about 17/18 years, that he will not spare him, who tried to run away to save his life, he fired two successive shots upon him, which hit him at his neck and back and blood started oozing. He also fired upon the complainant, which did not hit him. Thereafter, he decamped alongwith the pistol. The incident was witnessed by P.Ws. Naeem, Fazal, Imran, Azizuddin, father of the complainant, and other Mohallah people. Injured Anwar Zeb was rushed to Jinnah Hospital, where he succumbed to injuries.

4. Police started investigation in the matter and secured blood-stained earth and empty bullets from Wardat. The petitioner was arrested and crime weapon, viz. pistol together with live bullets was recovered from him. On completion of investigation the petitioner was sent up to face trial.

5. At the trial prosecution examined P. W. 1 complainant Muhammad Pervez, P.W. 2 Hafeezullah, P.W. 3 Azizuddin, P.W. 4 Muhammad Imran, P.W. 5 Chan Pervez, P.W. 6 S.I.P. Muhammad Sarwar, P.W. 7 Dr. Muhammad Jamil, P.W. 8 Dilip Khati, P.W. 9 A.S.-I. Raja Muhammad Ashraf and P. W.10 Inspector Attaur Rehman.

6. The petitioner, on the other hand, denied the case of prosecution in his statement recorded under section 342, Cr.P.C and examined himself on oath as required under .section 340 (2), Cr.P.C. and produced D.W. 1 Banaras and D.W. 2 Aurangzeb in his defence. On the assessment of evidence the learned trial Court found him guilty and convicted under section 302, P.P.C. and sentenced to death.

7. We have heard Mr. M.A. Kazi, learned Advocate Supreme Court on behalf of the petitioner and Mr. Muhammad Sarwar Khan, A.S.C./Addl. A.-G. Sindh on behalf of the State at length and have gone through the impugned judgment as well as record and proceedings of case in minute particulars. 8.???????? Mr. M.A. Kazi learned counsel for the petitioner mainly based his arguments. on the quantum of sentence. According to him the petitioner does not deserve maximum sentence as the incident flared up all of a sudden over quarrel in-between petitioner and Muhammad Imran on playing Carom I Board. As to what actually happened immediately before the occurrence is shrouded in mystery and has not been proved by the prosecution, which in the circumstances of the case, is a sufficient extenuating circumstance to award lesser sentence to the petitioner. To substantiate he further contended that the petitioner had also sustained three injuries on his person which were not explained anywhere in the case of prosecution in spite of the fact that police had noted such injuries on his body and the medical certificate to that effect is its proof.

9. In support of his contentions, he relied upon the following case?law:-- (1)??????? Hasnain Shah v. The State (1999 SCMR 1937), (2)??????? Muhammad Bashir Ahmad alias Bashir v. The State (1999 SCMR 2414) and (3)??????? Muhammad Akram v. The State (1999 SCMR 52).

10. On the other hand, Mr. Muhammad Sarwar Khan, learned Advocate Supreme Court for the State, vehemently controverted the contentions of petitioner's counsel and argued that the incident was neither a sudden quarrel nor a case of sudden provocation, but was premeditated. The petitioner got infuriated in the quarrel, went to his house leaving threats to the complainant and his deceased brother, brought his service pistol and fired two shots at the deceased arid one at the complainant. According to him this action of the petitioner clearly indicates his intention to kill the deceased and attempt to commit Qatl-e-Amd of the complainant, as such the petitioner does not deserve any leniency in the sentence. About injuries on the person of petitioner, he submitted that there was nothing on the record to show that he received injuries in the incident. Not only this but neither any such question was suggested to the prosecution witnesses nor the petitioner had disclosed the same in his statements under sections 342 and 340(2), Cr.P.C. He lastly argued that according to the ballistic expert report the empties recovered from scene of offence had matched the pistol recovered from the petitioner.

11. The prosecution, in order to establish its case, has relied upon the following pieces of evidence:-- (i)???????? Ocular account furnished by P.Ws. Muhammad Pervez complainant, Azizuddin father of deceased and Muhammad Imran; (ii)??????? recoveries of two empties from the place of occurrence, crime weapon viz. pistol and live bullets from possession of the petitioner; (iii)?????? motive; and (iv)?????? medical evidence.

12. The factum of incident in this case has not been disputed, but is admitted. Though cross-examined at length yet not even a single question has been suggested to the eye-witnesses on the factum of incident. The ocular evidence furnished by complainant Pervez, P.W. Azizuddin, father of deceased and P.W. Muhammad Imran could not be brushed aside only for the reason that they were either related to the deceased or had friendly terms with him which otherwise is confidence inspiring and stands corroborated by the medical evidence as well as matching of the crime empties with the pistol recovered from the petitioner and the motive. All the above witnesses have categorically deposed that the petitioner picked up quarrel with P.W. Muhammad Imran over the playing of Carom Board, who were separated by complainant and deceased Anwar Zeb and at that time petitioner threatened complainant and deceased that they would not be spared and left place and then brought pistol within five minutes and fired two, shots at deceased Anwer Zeb after raising Lalkara and also fired one upon complainant. From the above it transpires that the incident did not flare up all of a sudden, but B occurred after the first quarrel and in the meanwhile he made up the mind `to take the lives of a young boy of 20 years of age and that of complainant and prepared him for the same. Intention into be gathered from the state of mind of a person. Cold-blooded murder of a young boy and an attempt to commit Qatl-e-Amd of complainant by the petitioner, who was a Head Constable of Police a custodian of law, clearly indicates his state of mind that he had pre- E. meditated to commit the offence. He has failed to prove that he .received the injuries during the occurrence. Dr. Muhammad Jamil and Dr. Dilip Khatri in their statements have clearly stated at trial that the cause of death of deceased was due to cardio respiratory distressed due to fire-arm injuries, which, corroborate the eye-witness account.

13. The case-law referred by the petitioner's counsel is on different facts and circumstances and has no bearing with the case of the petitioner. This Court in the case of Hasnain Shah (supra) altered the sentence from death of imprisonment for life mainly for the reason that both sides had not come forward with the true story and had tried to suppress their own part in the occurrence and genesis of the fight was not clear. In the case of Muhammad Bashir Ahmad alias Bashir the sentence was reduced because prosecution had failed to prove as to what had actually happened immediately before the occurrence in hand and motive, thus, was shrouded in mystery. The case of Muhammad Akram is . also distinguishable as the incident took place all of a sudden on the share of water which was found a mitigating circumstance.

14. In our opinion, the eye-witnesses of the occurrence are worthy of reliance and the prosecution story appears to have been proved beyond the C reasonable doubt. The petitioner has failed to bring on record any mitigating circumstance to reduce his sentence. Accordingly, we find no reason to interfere with the impi4gned J judgment of the High Court. Consequently leave to appeal is refused and the I petition is dismissed. N.H.Q./N-24/S ?????????? Leave refused.