MUHAMMAD RIAZ and another vs THE STATE and another

' RANA BHAGWANDAS, ACTG. C.J.--- This appeal is directed against the judgment of the Lahore High Court, dated 4-6-2001 relating to Qatl-i-Amd of deceased Muhammad Akram committed on or about 29-5-1990 at about 9-00 p.m., culminating in death sentence of both the appellants.

2. Apart from appellants Muhammad Riaz and Sajjad, co-accused Abdul Khaliq and Muhammad Rafique were nominated as accused persons responsible for causing unnatural death of the deceased. While the first three persons were stated to be armed with .12 bore double-barrel guns, Muhammad Rafique was allegedly carrying a Soti. As per the prompt F.I.R., appellants Muhammad Riaz and Sajjad as well as acquitted co-accused Abdul Khaliq fired from their respective weapons at Muhammad Akram hitting on his right thigh, left side of neck as well as left flank of the deceased but on medical examination of the deceased only two pellet wounds were found on the person of the deceased. Motive for the commission of offence was statedly financial relationship between the parties. At the conclusion of the trial, appellants Muhammad Riaz and Sajjad were sentenced to life imprisonment and fine of Rs,10,000 each, whereas co-accused Abdul Khaliq and Muhammad Rafique were acquitted of the charge.

3. Both the appellants appealed against their conviction whereas complainant filed a criminal revision challenging the acquittal of the two co-accused and seeking enhancement of sentence of the appellants. Interestingly, High Court by two separate judgments recorded on the same day dismissed the appeal against conviction as infructuous on the premise that the appellants had been released from jail custody after undergoing their sentence while through another judgment in the criminal revision petition, enhanced the life imprisonment, of the appellants to sentence of death. Prayer as against acquittal of the two co-accused was, however, declined. It is as against these two judgments that the appellants filed Criminal Appeal No,297 of 2001 and Criminal Petition No,176 of 2001 for leave to appeal respectively.

4. We have heard Mr. M.A. Zafar, learned Advocate Supreme Court for the appellants/petitioners, Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for the complainant and Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab on behalf of the State.

5. At the very outset it may be observed that appellants have served out their life imprisonment and actually released and surrendered only after the impugned judgment of the High Court while preferring appeal before this Court, Mr. M.A. Zafar, learned Advocate Supreme Court fairly states that appellants would be interested in the determination of the question of quantum of sentence rather than the conviction and sentence of life imprisonment which is now a past and closed chapter. It may be observed that the incident occurred at the dark of night at 9-00 p.m. When a bulb attached to a wooden rod was statedly available on a wall providing the source of light at the scene of occurrence. Complainants as well as the witnesses have pointedly ascribed the act of each of the two appellants as well as acquitted co-accused Abdul Khaliq in firing at different parts of the body of deceased from their respective weapons. Dr. Muhammad Arif Mehmood, P.W.9 who conducted postmortem examination on the person of the deceased described the external injuries on the person of deceased as under:-- "(1) one circular wound 3/4 c.m. Diameter. Margins were inverted x muscle deep on the left side of neck 4 c.m. Above left clavical and 4 c.m. Lateral mid line. Wound was directed to the backward and downward. Perfurating the juglar vessels on the left side.

(2) 2 circular wounds 3/4 c.m. Diameter on the back and outer side of the right chest upper part chest cavity deep, margins were inverted chest cavity was full of blood, perforating the right lungs and thorasic aorata. One metallic piece recovered from the chest cavity left lung was also perforated."

6. A glance at the particulars of injuries would clearly show that these injuries were caused from some distance. In the ordinary course of events, it would thus, be difficult to ascertain as to which of the injuries was caused by which of the appellants. Even one of the injuries could have been caused by the fire attributed to co-accused Abdul Khaliq who stands acquitted at the trial and is no longer available before this Court in the present appeal and petition for leave to appeal. The Medical Officer has pointed out that both injuries were sufficient to cause death in the ordinary course of nature. It would thus, mean that both the injuries were individually and collectively sufficient in the ordinary course of nature to cause the death of the deceased. During the course of cross-examination, Medico-Legal Expert did not deny the possibility that both the injuries on the person of the deceased could be the result of a single fire. Since it is very difficult and not easily ascertainable as to which of the accused out of three assailants was responsible for causing, these injuries, discretion in the matter of sentence exercised by the trial Court in our considered view does not suffer from perversity or any arbitrariness.

7. Perusal of the judgment of the High Court tends to show that no specific reasons have been assigned for discarding the opinion of the trial Court in matter of sentence and sending two persons to gallows for the act committed by three persons culminating in the death of one person.

It was imperative for the High Court to record valid, cogent and strong reasons for awarding capital punishment to the appellants in the exercise of its revisional jurisdiction while reappraising the evidence already dilated upon by the trial Court in the light of the motive, ocular evidence and complicity of the appellants in the commission of the crime. In the peculiar facts and circumstances of the case as also in absence of determination of specific liability of the appellants as well as their companion (since acquitted), we are firmly of the view that the view taken by.The trial Court must be given due consideration and ought to prevail over the view expressed by the High Court which indeed is more academic in nature than logical. No doubt normal penalty for an act of commission of Qatl-i-Amd provided under the law is death but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence because no hard and fast rule can be applied in each and every case.

8. For the aforesaid facts and circumstances, we are not persuaded to agree with the reasons recorded by the High Court. This appeal is, therefore, partly allowed. Consequently, judgment of the High Court to the extent of quantum of sentence is modified and the conviction and sentence recorded by the trial Court restored. The appellants shall be released forthwith unless required to be detained for any other cause.