FAISAL MEHMOOD and another vs THE STATE and another

' KHALIL-UR-REHMAN RAMDAY, J.---The occurrence in question had taken place at about 8-30 p.m., according to the learned Advocate Supreme Court for the convict-appellant, in a cold winter night.

The place of occurrence was the Baithak of the house of Sajjad deceased. Faisal appellant was the lone assailant who was alleged to have come armed to the place of occurrence with a .12 bore gun and who had then fired the fatal shot at the said deceased who died instantaneously at the very place of occurrence. The F.I.R. Had been recorded in less than two hours of the occurrence in which, as has been mentioned above, Faisal convict was the solitary accused nominated as the culprit. As a result of the trial which ensued, he was found guilty of the charge under section 302(b), P.P.C. And was punished with a sentence of imprisonment for life with a further direction to him to pay Rs,2,00,000 as compensation under section 544-A of the Cr.P.C.

2. On an appeal filed by him, the said conviction and sentence recorded against the said convict were maintained which brought him to this Court through Criminal petition No,984-L of 2002. Lal Khan complainant also approached this Court with Criminal Petition No,27-L of 2003 seeking imposition of the normal penalty of death on the said Faisal convict. Both these petitions were allowed through an order of this Court dated 11-2-2004 and leave was granted in both these petitions which also meant a notice to Faisal convict to show cause why, in case of maintenance of his conviction, a sentence of death be not awarded to him.

3. Canvassing acquittal for Faisal appellant, Sardar Khurram Latif Khan Khosa, Advocate Supreme Court vehemently argued that both the eye-witnesses i,e, Lal Khan complainant (P.W.5) and Tariq (P.W.6) were closely related to the deceased being his Chacha and his Mamoo Zad respectively; that they were both chance witnesses of the occurrence and that in the circumstances, no reliance could be placed on their testimony. He further submitted that the positive report of the Forensic Science Laboratory was of no assistance to the prosecution as the crime empties had been received in the said laboratory after the arrest of the accused i,e, on 8-2-1999.

4. The defence had offered no serious objection to the Baithak of the deceased being the place of occurrence. It had come on record that the house of Sajjad deceased comprised of four rooms which included this Baithak. Needless to say that the occupant of the house would come to the Baithak only if he had some guests or visitors calling on him. The presence of the deceased in his Baithak clearly indicated that he had some people visiting him/with him at the time of occurrence.

Even otherwise 8-30 p.m. During the last days of the month of January could not be said to be an odd hour of the night nor could a claim of someone visiting another at that time, could be said to be unbelievable. If the deceased was available in his Baithak and if he had someone with him at the time in question then no serious exception could be taken to the claim of the two close relatives of the deceased that it was they who were with him at the said time. There was no background of any enmity between A the two parties and the said two witnesses out of whom Tariq lived at a distance of 25/30 yards from the house of the deceased while Lal Khan complainant had his house at a distance of about 500/600 yards, were independent witnesses of the occurrence who had no reason or motive to maliciously implicate Faisal appellant in the crime in question after sparing the actual killer of their near and dear one. It is a principle too well established by now that mere relationship of the witnesses with the deceased was of no consequence unless it could be established that they were witnesses inimical to the accused which was not the situation in the present case.

5. Consequently, we find that the reliance placed by the learned trial Judge on the said ocular testimony which was maintained and approved by the High Court in appeal, was un- exceptionable and did not admit of any interference. Since the eye-witness account was reliable, therefore, one did not have to look for any corroboration to base a conviction on such an evidence.

No reasons thus exist which could warrant any interference with the finding of guilt recorded against Faisal convict. Consequently, Criminal Appeal No,20 of 2004 filed by him impugning his conviction, is dismissed.

6. This brings us to Criminal Appeal No,21 of 2004 filed by Lal Khan complainant pleading for imposition of the normal penalty of death on the said Faisal convict.

7. The provisions of subsection (5) of section 367 of the Cr.P.C. Declare that for an offence punishable with death, a sentence of death was the normal punishment. The said provisions further command that if in such a case the sentence of death was not awarded to the one found guilty then reasons have to be given for not doing so. The learned Advocate Supreme Court for the complainant-appellant took us through the trial Court judgment especially para 26 thereof wherein not even a word had been said by the learned trial Judge for non-imposition of the said normal penalty of death on the said convict. Similar was the position of the appellate judgment passed by the High Court.

8. We have given a serious thought to the quantum of punishment deserved by the convict in the present case and also attempted to find out whether any circumstances existed on record which could justify a departure from the normal rule of awarding a death sentence to a person who was found guilty of an offence punishable with death. Faisal convict had displayed a desperate character and had shown a callous and a reckless disregard for a human life having taken the same on account of a trivial altercation with the deceased without any background of any enmity between them. He had come to the place of occurrence after arming himself with a firearm weapon and had fired a short at a vital organ of the body of the deceased i,e, at his neck and that also from a close range. It was thus not an occurrence which could have erupted at the spur of the moment but was a planned crime committed by the convict. The learned Advocate Supreme Court for Faisal convict could also not indicate any piece of evidence available on record which could be treated as a mitigating circumstance in the matter of imposition of the lesser of the two penalties prescribed by section 302, P.P.C.. The learned Deputy Prosecutor General, however, attempted to come to the aid of the convict. He pleaded that the sentence of imprisonment for life awarded to the said convict was the only punishment which could be awarded to him because the said convict was a minor at the time of occurrence. For the said purpose, he referred us to the statement of he said convict recorded by the trial Court under section 342, Cr.P.C. Wherein the said convict had identified himself as being 17 years of age. The said age was thus not a part of the statement recorded under section 342, Cr.P.C. But was only a part of the identification of the accused wherein he also mentioned his age. Needless to add that at no stage of the trial did the said accused plead minority nor did he lead or produce any evidence to indicate that he was less than 17 years of age at the time of occurrence. It is true that the trial in question had taken place before the promulgation of the Juvenile Justice System Ordinance of 2000 but the provisions of sections 306 and 308 of the P.P.C. Existed in statute books since the year, 1990 and despite this no plea of minority had ever been taken by the said convict which he would have done if he was a minor. In this view of the matter, the submission made by the learned Deputy Prosecutor General is without any basis and is thus rejected.

9. Having thus looked at all possible aspects of the matter, we hold that no reasons exist which could justify a sympathetic, a lenient or a concessional treatment for Faisal convict.

10. Consequently, Criminal Appeal No,21 of 2004 filed by Lal Khan complainant, is allowed. The sentence of imprisonment for life awarded to Faisal convict under section 302(b) for the murder in question, is set aside and he is instead awarded a punishment of death on the said charge. He shall be hanged by the neck till he is dead.