2008 SCMR 796 (PLP)

MUHAMMAD AKHTAR SHABBIR, J.

This criminal appeal, by leave of the Court, is directed against the judgment, dated 12-12-2006 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby criminal appeal filed by the appellant against his conviction and sentence of death awarded to him by the learned Additional Sessions Judge, Faisalabad, vide judgment, dated 31-10-2001, for committing "Qatl-i-Amd" of Mst. Safia Bibi and her unborn child, was dismissed. Hence the appellant preferred Jail Petition No.146 of 2007 before this Court out of which the instant appeal has arisen.

2. Briefly stated the facts of the case, as narrated by complainant Muhammad Nawaz (P.W.6) in the F.I.R. (Exh. P. E.), are to the effect that on the night between 30-9-1999 and 1-10-1999 at about 11 p.m., the complainant along with his Humzulf Muhammad Ashraf (P.W.7) and Muhammad Hussain (given up P.W.) were present in his house. After some time, when the complainant went to his residential room to change his clothes, he found Zulfiqar accused-appellant there. He abruptly picked up a Danda and gave three or four blows to the accused-appellant who in retaliation brought out a revolver and waived it in a threatening mode. The complainant and the other witnesses moved away and tried to avoid him for the sake of their lives. However, the bad luck struck when Mst. Safia (wife of complainant) tried to block the way of accused-appellant who was trying to escape. The accused-appellant fired a shot from his revolver which hit Mst. Safia on her chest and she died at the spot. The accused-appellant was successful in fleeing away from the spot. The complainant rushed to the police station and lodged F.I.R. in which he attributed ill intentions to the accused-appellant for his presence in his house which resulted in the cold-blooded murder of his wife.

3. The prosecution to establish its case against the appellant produced as many as 9 witnesses including the doctor and the Investigating Officer. The ocular account of the occurrence was furnished by complainant Muhammad Nawaz (P.W.6) and Muhammad Ashraf (P.W.7). The medical evidence was furnished by Dr. Kausar Perveen (P.W.10) who conducted the post-mortem examination on the dead body of the deceased. P. W.9 Zafar Ali, S.-I. was the Investigating Officer. The appellant when examined under section 342, Cr.P.C. denied the prosecution story, pleaded not guilty and deposed as under:-- "This is a false case against me. The P.Ws. are closely related inter se and had not eye-witnessed the occurrence. Because of close relationship with the complainant they have made false statements against me. I was on visiting terms with Mst. Shaista and both of us had planned to marry. It was well within the knowledge of Mst. Safia. I was gossiping around with Mst. Shaista in the presence of Mst. Safia. In the meantime, Muhammad Nawaz returned to home. Mst. Safia and Mst. Shaista provided me a hide out in the room. After long time Nawaz caught me in the house because I could not escape due to his continued presence in the house. He thrashed me severely and I fell unconscious. Nawaz had suspicion of my illicit connections with Mst. Shaista. When I gained sense I was in the police station. I learnt it from the other neighbouring people that Nawaz wanted to kill Shaista, but Mst. Safia intervened to shield her and was hit thereby. I had been administered treatment by the police. I sustained head injuries and my clothes became smeared with blood. My arrest was shown by the police only, when my injuries had withered away."

4. The learned trial Court having found the case against the appellant proved beyond reasonable doubt, convicted him under section 302(b), P.P.C. and sentenced him to death on two counts. He was also directed to pay a sum of Rs.50,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in default whereof to undergo S.I. for six months.

5. This Court, after hearing the learned counsel for the appellant, granted leave to appeal to consider the question whether in the peculiar facts and circumstances of the case, the appellant deserved to be awarded lesser penalty of life imprisonment instead of death sentence.

6. The learned counsel for the appellant argued that there are mitigating and extenuating circumstances entitling the appellant to lesser penalty. He invited the attention of this Court to the stance taken by the appellant in his statement under section 342, Cr.P.C. The appellant stated that on the night of occurrence, he was gossiping with Mst. Shaista in the presence of Mst. Safia deceased when Muhammad Nawaz returned home. Mst. Safia and Mst. Shaista provided him a hide out in the room. After quite some time, Muhammad Nawaz caught him in the house as the appellant could not make his escape. The former thrashed the appellant severely which made him unconscious. Muhammad Nawaz had doubted illicit liaison between the appellant and Mst. Shaista. The appellant stated that he learnt from other neighbours that Muhammad Nawaz wanted to kill Mst. Shaista but Mst. Safia intervened to shield her and was hit there by Muhammad Nawaz complainant. Learned counsel for the appellant further contended that there was only one fire-arm injury on the person of deceased Mst. Safia and the appellant had not repeated the fire as he had no intention to kill the lady. Moreover, the prosecution has not been able to establish the motive for the commission of murder of the deceased lady.

7. While on the other hand, the learned Deputy Prosecutor-General vehemently opposed the arguments advanced by the learned counsel for the appellant submitted that the case of the appellant is not covered within the mitigating or extenuating circumstances.

8. We have heard the learned counsel for the parties and have also perused the relevant record to the question in issue.

9. The appellant has admitted his presence in the, house of the complainant in his statement under section 342, Cr.P.C. and in a way he has strengthened the case of the prosecution. This Court has already laid down the principle for awarding the capital punishment of death in a case titled as Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427, wherein only one injury was caused by the accused and the motive was also shrouded in mystery. The relevant paragraph of the judgment for further ready reference is reproduced as under:-- "Needless to add that in a case where a fire-arm is aimed at the chest of the victim and causes fatal injuries on the said vital area then non-repetition of the said act is hardly of any consequence in the matter of determining the quantum of punishment deserved by the assailant." Inadequacy of weakness of the alleged motive or where motive had not been proved, an assailant if found guilty of causing the murder of another, did not deserve any leniency and the only punishment awardable in such-like circumstances would be the sentence of death. (Reference the case of Syed Hamid Mukhtar Shah (ibid)).

10. The absence of motive or failure to prove the motive would not adversely affect the prosecution case. If it has been proved by reliable evidence as laid down in the case of Hameed Khan alias Hameedai v. Ashraf Shah 2002 SCMR 1155.

11. The plea of non-repeating of second fire shot is also not a ground for lesser punishment. The appellant was armed with a pistol at the spot meaning thereby that he was fully prepared that if he is halted at the spot, he will use the fire-arm. When Muhammad Nawaz complainant entered the room and found the appellant, the latter brought out his pistol and made effort to decamp from the spot. It was Mst. Safia who tried to stop the appellant and he fired at her taking her life. There is sufficient evidence on record to establish the guilt of the appellant. It is quite "sufficient" to hold that he intended to cause the death of Mst. Safia deceased who was having a child in her womb. Reference in this behalf can be placed on the case of Arshad Ali alias Achhu v. The State 2002 SCMR 1806. Since there is no cavil to the fact that appellant had fired a fatal shot upon Mst. Safia which caused her death, therefore, there is no question of any benefit being extended to the appellant.

12. The learned counsel for the appellant lastly submitted that at the time of occurrence the appellant was about 17/18 years of age. It is on the record that the question with regard to age of the appellant was particularly put to P.W.6 Muhammad Nawaz but he categorically stated that his age was 20/21, which shows that the minority of the appellant is also not established, In these circumstances, the learned counsel for the appellant has not been able to establish extenuating and mitigating circumstances which could persuade this Court to extend the concession of lesser punishment to the appellant.

13. For the foregoing reasons, we do not find any substance in this appeal which is accordingly dismissed. N.H.Q./Z-2/SC??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.