MUQARRAB KHAN vs THE STATE

' KHAWAJA MUHAMMAD SHARIF, .J.---This judgment shall dispose of Criminal Appeal No,72 of 2001 (Muqarab Khan v. The State), Criminal Appeal No,109 of 2001 (Nawab Khan v. Hasti Khan and others) and Murder Reference No,176 of 2001 (sent by the learned trial Court for confirmation of death sentence or otherwise), as they arise out of the same judgment, dated 20-2-2001 passed by the learned Additional Sessions 'Judge, Attock, whereby, following sentences and convictions were passed:--

(i) Appellant was convicted under section 302, P.P.C. And sentenced to death with a compensation of Rs,1,00,000 to be paid to the legal heirs of the deceased as provided under section 544-A, Cr.P.C.

In default whereof to further undergo six months' S . I . ;

(ii) However, benefit, of doubt was extended to the acquitted accused, namely, Hasti Khan who earned acquittal from the case.

2. Brief facts of the case, as explained by Nawab Khan (P.W.11) complainant (in the complaint Exh.P.B.) are that the complainant along with deceased Zaman and Hayat Khan went to Suzuki Stand Jasian when Hasti Khan acquitted accused and appellant Muqarrab Khan, while armed with .30 bore pistols came there, they raised Lalkara, Hasti Khan fired a shot which hit on the right knee of deceased Zaman, then second shot was fired by Muqarab Khan appellant on the back of right shoulder of Zaman, who fell down on the ground and succumbed to the injuries at the spot. The motive set by .The prosecution was that deceased. Zaman Khan had killed a brother of Hasti Khan acquitted accused.

3. After having completed legal formalities, challan was submitted by the police against the accused before the learned Court of competent jurisdiction, where, accused denied the charge and claimed trial. The prosecution, in order to prove its case against the accused, produced thirteen prosecution witnesses during the trial.

4. Learned counsel for the appellant submits that he would not press this appeal but adds that there are mitigating circumstances for the A lesser sentence of the appellant; that on the same set of evidence his father Hasti Khan has been acquitted by the learned trial Court; that the appellant is attributed a single shot which was not repeated by him; that he has acted under the influence of his father; that he was of impressionable age at the time of occurrence, so, his death sentence is not called for and that it is a case of mitigation. Canvassing mitigation, learned counsel for the appellant has relied on Liaqat Shah and others v. The State 1985 SCM R 1415, Muhammad Riaz and another v. The State 1999 SCM R 976, Nazeer Ahmad v. The State 1999 SCM R 396; Muhammad Afzal v. The State 1999 SCM R 2851, Khuda Yar and 2 others v. The State 1992 SCM R 357, Muhammad Altaf and others v. Muzaffar Hussain and others 1993 SCM R 944 and an unreported judgment of a learned Division Bench of this Court(Authored by one of us Kh. Muhammad Sharif, J.).

5. On the other hand, the learned Assistant Advocate-General assisted by learned counsel for the complainant submits that the appellant had come along with his father while armed with a fire- arm and he knew the consequences of causing injury on the person of the deceased; that the recovery has been effected; that the report of the Fire-Arm Expert is corroborated against him; that the ocular account in this case is corroborated by the medical evidence; that it is a broad-daylight occurrence; that single shot and young age are not grounds for mitigation; that the appellant was not of impressionable age at the time of occurrence as he was 20/21 years old at the said time and that since the prosecution has proved its case against the appellant to the hilt, so no case of lesser sentence is made out.

6. We have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bare by the learned counsel for the respective parties.

7. We note that there are four grounds leading towards mitigation, firstly, according to the F.I.R. The appellant was accompanying his father and being young age he must have acted under the influence of his father, secondly, he only fired a single shot and did not repeat the same coupled with the fact that the injury is on the back of the shoulder of the deceased and, fourthly, according to the post-mortem report the deceased had died due to excessive bleeding.

8. Apart from above we must also see the conduct of the complainant party. According to the F.I.R.

The first shot was attributed to the father of the appellant, namely, Hasti Khan (acquitted accused) on the knee of the deceased. We may state here that no recovery was effected from him and he was found innocent during the course of investigation coupled with the fact that when charge was framed his age was given as 22 years on 22-10-1999 while the occurrence had taken place on 3-7- 1997, meaning thereby, that he was of impressionable age at the time of occurrence and must have ,acted under the influence of his elder i.e. Father.

9. In view of the above, resume of facts coupled with fortifying ourselves by the judgments of the apex Court of the country relied upon by the learned counsel for the appellant and reported in the cases of Liaqat Shah and others v. The State 1985 SCM R 1415, Muhammad Riaz and another v. The State 1999 SCM R 976, Nazeer Ahmad The State 1999 SCM R 396; Muhammad Afzal v. The State 1999 SCM R 2851, Khuda Yar and 2 others v. The State 1992 SCM R 357, Muhammad Altaf and others v.

Muzaffar Hussain and others 1993 SCM R 944 and getting benefit from further two judgments of the august Supreme Court of Pakistan reported in Muhammad Arshad and 2 others v. State PLD 1996 SC 122, in which case the Honourable Supreme Court was pleased to convert the sentence of death of the accused to imprisonment for life on the grounds of enmity and single shot, and, in Mirza Zaheer Ahmad and another v. State and others 2003 SCM R 1164 the accused had fired only one shot which factor was treated to be a mitigating circumstance, we maintain the conviction of the appellant Muqarab Khan under section 302(b), P.P.C. With compensation as ordered by the learned trial Court but convert the sentence of death into imprisonment for life coupled with extending him benefit of section 382-B, Cr.P.C. Murder reference is answered in the negative while death sentence awarded to the appellant is not confirmed. For the reasons given above, connected Criminal Appeal No,109 of 2001 filed against acquittal of Hasti Khan is dismissed having no merit.